A. OVERVIEW

[1] The Applicants Dellen Millard and Mark Smich (hereinafter, Millard and Smich) are jointly charged in an Indictment alleging that they committed first degree murder on the person of Laura Babcock. Their trial with a jury is scheduled to proceed this fall, once the pre-trial Motions are completed. I have been assigned as the trial judge and I have been hearing pre-trial Motions, at various intervals, since March 27, 2017.

[2] The two Applicants jointly applied for severance, pursuant to s. 591(3)(b) of the Criminal Code. The Applicant Smich raised issues related to s. 11(b) of the Charter of Rights as one basis in support of his severance Motion. Accordingly, I asked counsel to perfect the s. 11(b) Charter Motion and I heard it together with the severance Motion. The Applicant Millard does not raise any s. 11(b) delay issues, in support of severance, and he does not join in Smich’s s. 11(b) Charter Motion.

[3] I reserved judgment at the end of oral argument on June 16, 2017. These are my Reasons in relation to the joint severance Motion and in relation to Smich’s s. 11(b) Motion.

B. FACTS RELATING TO THE JOINT SEVERANCE MOTION

(i) Millard’s grounds for severance

[4] The Applicant Millard’s grounds for seeking severance can be broadly summarized as relating to two main issues. First, he submitted that the Crown will tender evidence at trial of certain statements made by Smich that relate to the murder of Laura Babcock. By operation of the hearsay rule, and its exceptions, these utterances are only admissible against Smich. Millard submitted that he will potentially be prejudiced by their introduction at a joint trial. Second, he anticipates that Smich will conduct a hostile “cut throat” defence at trial that will rely heavily on certain bad character evidence which the Crown could not introduce during its case in chief. This anticipated defence evidence introduced by Smich has limited permissible uses, and cannot be used to advance the Crown’s case, and so Millard submitted that he will potentially be prejudiced by its introduction.

[5] The facts relating to Millard’s above grounds for severance can be briefly summarized at this stage. I will also refer to them later in these Reasons, in the context of discussing the applicable legal principles. There appear to be two Crown witnesses who could testify about out of court statements allegedly made by Smich that could relate to the Babcock murder. These witnesses are Desi Liberatore and David Cronin.

[6] As I understand Mr. Cronin’s anticipated evidence, it is to the effect that Smich told a group of friends in late August 2012 that “he had killed a girl, burned her body and threw her in a lake.” Smich then performed a rap song that he had composed about the incident. The rap song was on his iPad and it referred, in part, to the girl’s cell phone being in the water. There is no mention of Millard in Mr. Cronin’s evidence. Mr. Liberatore’s anticipated evidence concerning what appears to be the same conversation is to the effect that Smich performed a rap song for the group of friends one evening after the summer of 2012. The rap song referred to burning a girl and throwing her cell phone in a lake. The group of friends asked Smich if the lyrics were true and he replied that “we” or “they” had burned a girl and then dumped her charred body and cell phone in the water somewhere. Mr. Liberatore was unsure whether Smich made any mention of Millard. In his police statement, Mr. Liberatore speculated that he “would just naturally assume that Del was with him [Smich] for that.” The Crown does not seek to adduce this latter speculation by Liberatore and concedes that it is inadmissible.

[7] The evidence of Mr. Cronin and Mr. Liberatore is arguably corroborated by a body of circumstantial evidence that connects Smich to a particular rap song and to the disappearance of Ms. Babcock. The police searched Smich’s home and found Ms. Babcock’s iPad and suitcase. Forensic analysis of the iPad disclosed that Smich had been using it since early July 2012, that is, since the time when Ms. Babcock disappeared. Equally importantly, the iPad contained a file with lyrics to a rap song as follows:

The bitch started out all skin and bones,

Now the bitch lay on some ashy stone,

Last time I saw her was outside the home

And if u go swimming u can find her phone

Forensic analysis of the file indicated that these lyrics were first composed and stored on the iPad in the early morning hours of July 24, 2012. This is shortly after the time when the Crown alleges that Millard and Smich disposed of Ms. Babcock’s remains in a veterinary incinerator that was later found on Millard’s rural property. The interior of the incinerator arguably resembles “ashy stone.”

[8] The statements made by Smich to Cronin and Liberatore are not admissible against Millard. Similarly, Smich’s lyrics to the rap song stored on Ms. Babcock’s iPad would not normally be admissible against Millard. However, when the police searched Millard’s home they found a computer that contained a “backup,” or complete digital copy of “Mark’s iPad,” including the rap lyrics. This computer also contained a video of Smich with an iPad on his lap rapping some of the lyrics to the song while apparently seated in the basement of Millard’s home in September 2012. Accordingly, there is some evidence of Millard’s possession of the rap song. The extent to which Smich’s rap song is admissible against Millard will be discussed later in these Reasons.

[9] Millard’s second basis for seeking severance is an anticipated “cut throat” defence. Counsel for Smich has not yet committed to such a defence, or sought leave to adduce any bad character evidence relating to Millard. This defence strategy is simply anticipated by Millard on the basis that Smich conducted this kind of defence at an earlier related trial. Millard and Smich were jointly tried for the murder of Tim Bosma at a trial in Hamilton that took place in late 2015 and early 2016. Justice A. Goodman presided, with a jury, and Smich was allowed to attack Millard’s character in various ways. Both accused were convicted of first degree murder. It is not Smich’s present intention to pursue this same defence strategy at the present murder trial relating to Laura Babcock, according to counsel for Smich. That strategy failed at the Bosma murder trial in Hamilton, and “cut throat” defences are known to be risky and to often fail. Furthermore, the two cases are different on their facts and different defences may be available at the present trial.

(ii) Smich’s grounds for severance

[10] The Applicant Smich raises a number of grounds for seeking severance. First, he submitted that Millard has caused unreasonable delay and that severance would allow him to obtain an earlier trial. I will review the facts relating to s. 11(b) delay in the next section of these Reasons. Second, Smich makes a somewhat related argument that he wishes to elect trial by judge alone, in order to obtain a speedier trial and a fair trial untainted by the publicity surrounding the earlier Bosma trial and by some of the potentially prejudicial uses of certain evidence that the Crown seeks to tender at the present trial. There is no doubt that the Bosma trial, and the resulting convictions of both accused, attracted a great deal of publicity. There is also no doubt that the Crown seeks to tender some evidence at the present trial that is potentially prejudicial and on which I have not yet ruled. For example, the Crown submits that evidence concerning use of the veterinary incinerator by Millard and Smich in the Bosma murder is admissible as similar fact evidence in the Babcock case. It is presently Millard’s position that he wishes a jury trial and he does not join Smich in requesting a judge alone trial. It is also unclear whether the Crown would consent, pursuant to s. 473(1), to a judge alone trial. Third, Smich makes a number of arguments that are similar to Millard’s grounds for seeking severances. In particular, Smich submits that certain out of court statements made by Millard will be tendered by the Crown and will prejudice Smich, and that Millard is expected to advance an antagonistic defence.

[11] The latter two arguments are factually related because the main out of court statements by Millard, that will be tendered by the Crown at the present trial, are found in letters that Millard wrote from the Hamilton jail to his girlfriend, Christina Noudga, after his arrest for the Bosma murder. These letters arguably acknowledge Ms. Babcock’s death and attempt to implicate Smich, and exculpate Millard, in relation to some kind of homicide relating to Ms. Babcock. The Crown will take the position at trial that the letters infer knowledge by Millard of Ms. Babcock’s death and set up a false story as to how that death occurred and who was implicated, and that Millard was trying to get Ms. Noudga to adopt this false story. Indeed, Millard himself appears to have conceded that the story was false, referring to it in a subsequent letter as, “brainstorming, forget it.” In her statement to the police, Ms. Noudga agreed that the story set out in the most significant letter (which implicated Smich) was untrue. Ms. Noudga subsequently pleaded guilty to attempting to obstruct justice.

(iii) The alleged prejudice caused by a joint trial

[12] Neither Millard nor Smich takes the position that the out of court statements of their co-accused (whether Smich’s statements to Cronin and Liberatore or Millard’s letters to Noudga) are prejudicial and require severance because they impermissibly implicate the other accused in the murder of Ms. Babcock. As noted above, Millard is not mentioned in Smich’s statements to Cronin and Liberatore. Furthermore, Millard’s letters to Noudga do not realistically implicate Smich in Ms. Babcock’s murder because they appear to set out an admittedly false account that was arguably an attempt to obstruct justice. Rather, the prejudice alleged by both Millard and Smich is that the out of court statements of their co-accused implicitly or explicitly admit that Ms. Babcock is dead and that the declarant of the statement was somehow involved in causing that death. Both accused wish to advance defences at trial to the effect that the Crown has not proved that Ms. Babcock is dead and has not proved any cause of death. They will rely on the fact that her body has never been found, that there is no crime scene evidence and no witnesses to her death or disappearance, and that there is evidence that she was a transient and troubled young woman who was leading a high risk lifestyle. The prejudice to Millard’s defence is that Smich’s statements admit that Smich “killed” her. The prejudice to Smich’s defence is that Millard’s critically important letter to Noudga appears to admit that Ms. Babcock died at Millard’s house on “the night [she] disappeared.” Both Applicants for severance allege that the jury may impermissibly use the out of court statements of one accused in order to corroborate the other accused’s statements and thereby prove the fact of Ms. Babcock’s death, instead of keeping the evidence separate as against each accused in relation to proof of a homicide. Both Applicants for severance characterize the admission made by the other accused as a particularly compelling piece of evidence that makes the case stronger against one than against the other.

[13] In response to this argument, the Crown submitted that there is a large body of circumstantial evidence proving that Ms. Babcock disappeared in early July 2012 and that she has never been seen again. Her cell phone activity, banking activity, credit card activity, Facebook activity, and medical activity all ended at this point. No one has seen her since. Furthermore, there is circumstantial evidence placing her in the vicinity of and in association with Millard and Smich at the time of her disappearance, and shortly after when the veterinary incinerator was apparently used by both accused and when Smich somehow obtained Ms. Babcock’s iPad and suitcase. In this regard, there is evidence associating Millard and Smich with the veterinary incinerator that was installed on Millard’s property at the time of Ms. Babcock’s disappearance and that may have been used in relation to that disappearance. This large body of circumstantial evidence is admissible against both Millard and Smich.

C. FACTS RELATING TO SMICH’S SECTION 11(B) CHARTER MOTION

[14] The history of delay in this case is complex because Millard and Smich were jointly charged with two different murders in two different jurisdictions at two different times. The history of the proceedings in Toronto, in relation to the murder of Laura Babcock, has inevitably become intertwined with the history of the proceedings in Hamilton, in relation to the murder of Tim Bosma. There is also a third murder charge, against Millard alone, relating to the death of his father. It is scheduled to proceed to trial in Toronto after the completion of the Babcock case.

[15] The arrest of Millard and Smich in Hamilton for the murder of Tim Bosma occurred on the basis of an Information sworn on May 22, 2013. The trial concluded on June 17, 2016 when the jury convicted both accused. In other words, the Bosma murder proceedings took just over three years to complete (or 36 and a half months). No s. 11(b) Motion was brought in that case. It will be seen that there was a seven month waiver of s. 11(b) delay by the Applicant Smich during the Bosma proceedings. Accordingly, the relevant net delay in that case was under thirty months.

[16] The arrest of Millard and Smich in Toronto for the murder of Laura Babcock occurred on the basis of an Information sworn on April 10, 2014. It is anticipated that the trial will conclude towards the end of this year, in December 2017. In other words, the Babcock murder proceedings will likely take about 44 months, or three years and eight months, to complete. This would be fourteen months over the thirty month presumptive ceiling for s. 11(b) delay set out in R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.).

[17] The two main factual issues in relation to the s. 11(b) Motion, in my view, are whether any of the overall delay was caused by the defence (as the Crown alleges) and whether the case falls within any of the “exceptional circumstances” recognized in Jordan (for particularly complex cases, for discrete events, and for transitional cases). These issues require an understanding of the history of the proceedings and the explanations for various periods of delay.

[18] I will summarize the history of both the Bosma and the Babcock murder cases because they are inter-related and they often overlap. That history involves nineteen distinct time periods or court appearances that are summarized below.

(i) The initial intake period on the Bosma case in Hamilton (just under six months)

[19] From May 22, 2013 until November 12, 2013, the parties made a number of appearances on the Bosma case in the Ontario Court of Justice in Hamilton. The Crown provided disclosure to the defence and Takach J. held a judicial pre-trial (JPT). At the JPT, he scheduled an eight week long preliminary inquiry to commence on September 8, 2014. There is one reference on the court record to ongoing discussions concerning counsel’s “availability for a lengthy preliminary hearing.” However, it was never stated as to exactly when counsel were available. Counsel for Smich’s availability was contingent on having “sufficient time to review the disclosure” and counsel for Millard had other commitments in the spring and summer of 2014. Some disclosure relating to forensic analysis of various seized devices was still outstanding when the preliminary inquiry date was set. It was anticipated that this disclosure would be available in February 2014. The Crown intended to call 33 of its 82 witnesses at the preliminary inquiry. The defence had not yet committed as to how many of the remaining 49 witnesses it would call, although counsel for the Applicant Smich anticipated calling “a significant number of those witnesses.” The date set by the Court for the eight week long preliminary inquiry was just under ten months away, at the time of the JPT. In other words, it was within the Morin guidelines that governed systemic delay at the time, if systemic delay played any role in the setting of this date. See: R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).

(ii) The preferring of the direct Indictment on the Bosma case in Hamilton (two months)

[20] From May 16, 2014 until July 14, 2014, the Deputy Attorney General requested submissions and then deliberated on whether to prefer a direct Indictment in the Bosma case. The defence submissions were received on June 2, 2014 and the decision to prefer was made just over a month later on July 14, 2014. The scheduled preliminary inquiry in early September 2014, which was now pre-empted, was just under two months away when the direct Indictment was preferred.

(iii) The initial intake period on the Babcock case in Toronto (just over eight months)

[21] While awaiting the preliminary inquiry (and then the direct Indictment) on the Bosma case in Hamilton, Millard and Smich were charged with the Babcock murder in Toronto. They were now facing two separate murder charges in two different jurisdictions. They were represented by the same counsel of choice in both proceedings. From April 10, 2014 until July 7, 2014, the Crown vetted and then provided initial disclosure to the defence (a period of three months). This initial disclosure was described on the record as approximately 800 pages. The remaining outstanding disclosure was described as “substantial and some of it is technical.” The Babcock case was said to be a “complex matter.” Senior Crown counsel was assigned to the prosecution some time prior to August 11, 2014 and she vetted this further disclosure and then provided it to the defence on September 26, 2014 (that is, a further two and a half months after the initial disclosure). It was described on the record as about 10,000 pages of hard-copy disclosure and “over 100 discs” of electronic disclosure. After counsel sought time to review this obviously substantial amount of disclosure, a JPT was scheduled for December 19, 2014 (that is, after another two and a half months). The JPT did not proceed in any significant way because of certain developments in the Bosma murder case in Hamilton, which will be described below.

(iv) The Superior Court intake period on the Bosma case in Hamilton (seven months)

[22] The first appearance in the Superior Court in Hamilton was on July 18, 2014, that is, four days after the direct Indictment had been preferred. The parties scheduled a JPT for September 9, 2014. Turnbull R.S.J. presided over the JPT and it proved to be complex and ongoing. The record discloses four separate JPT appearances before Turnbull R.S.J., between September 9, 2014 and January 16, 2015. There were two main reasons that caused this ongoing JPT to extend over four months: first, Millard’s counsel of record (Mr. Paradkar and Mr. Pillay) were not yet fully retained for a lengthy trial, although completion of their private retainer was anticipated and they participated in the JPT and in scheduling dates for the Motions and the trial; and second, counsel for Smich (Mr. Dungey and Ms. Trehearne) advised that they wished to adduce evidence at trial that could have the effect of placing Millard’s counsel in a conflict and, therefore, could require the removal of Millard’s counsel. The Crown and Millard took the position that this proposed defence evidence was inadmissible (in which case, the potential conflict would not arise). The proposed evidence concerned certain letters that Millard had written to his girlfriend, Christina Noudga, from the Hamilton jail (already discussed above in relation to severance). These communications were in breach of a s. 516 Court Order, their contents arguably constituted attempts to obstruct justice, and there was evidence suggesting that Millard’s counsel may have transported the letters out of the jail. It is this latter evidence concerning who transported the letters, if admissible, that would arguably have put Millard’s counsel in a conflict and required their removal. Turnbull R.S.J. initially allowed all counsel time to consider their position in relation to this potentially significant issue. However, once it became clear that the Applicant Smich was committed to adducing evidence concerning who had transported the letters out of the jail, Turnbull R.S.J. immediately assigned a trial judge and set a schedule as follows: the trial was to commence on September 28, 2015 and was anticipated to last four months; the pre-trial Motions were to commence on April 27, 2015 and were anticipated to last six weeks; and the “conflicts” Motion (concerning transportation of the Millard/Noudga letters) was to be heard by the assigned trial judge in advance of the approximately fourteen other pre-trial Motions, identified at the JPT, given its potential to impact on Millard’s counsel of choice. Turnbull R.S.J. ordered all Motions to be filed by February 10, 2015 and all responses to the Motions to be filed by March 27, 2015. There was little or no delay between conclusion of the JPT on January 16, 2015 and the scheduled commencement of the “conflicts” Motion. The Crown filed the Motion three days later, on January 19, 2015. It was styled by the Crown as an “Application for Directions” although, in substance, it was a Motion that should have been brought by the Applicant Smich, who was the party seeking to adduce potentially inadmissible evidence. The Crown submitted that the proposed defence evidence was, “if not irrelevant, lacking in probative value and loaded with prejudicial effect.” The Applicant Smich, who had resisted initiating the Motion in a timely way, filed his responding materials on February 2, 2015 and took the position that the proposed evidence could infer “that Millard was able to manipulate counsel to transport the letters,” which “would be strong evidence of Millard’s ability and power to manipulate those around him to his own ends.” It was conceded by the Applicant Smich that this proposed evidence, if admissible, could “place [Millard’s] counsel in a conflict of interest” and “might cause prejudice to Millard,” but that “the proper remedy is for Millard’s counsel to be removed from the record.” Millard filed his response to the Motion on February 17, 2015, taking the position that the proposed evidence was speculative and highly prejudicial. If admissible, it would mean that “his [Millard’s] current lawyers would be unable to represent him.” In the result, this significant pre-trial Motion was perfected by all parties within a month of the final JPT and more than two months before the main pre-trial Motions were scheduled to commence on April 27, 2015. This complied with the schedule that Turnbull R.S.J. had ordered.

(v) The first day of proceedings before Glithero J. on the Bosma case in Hamilton and the seven month waiver of s. 11(b) of the Charter

[23] On February 23, 2015, the parties appeared for the first time before the assigned trial judge, Glithero J. He addressed the same two issues that had complicated and delayed the JPT before Turnbull R.S.J., namely, the state of Millard’s retainer of counsel and the scheduling of the “conflicts” Motion. Millard and his counsel appeared confident that the full retainer would be completed by early June 2015, as Millard had arranged to liquidate an asset that would fully fund the private retainer. That asset sale was expected to close in the first week of June and counsel stated, “I expect we will be in funds.” Glithero J. appeared to accept that Millard was making good faith efforts to raise the necessary money to privately retain counsel for what would be lengthy proceedings. I have subsequently learned, on the Rowbotham Application brought by Millard last month, that he and his mother (who was assisting him in various capacities) arranged the sale of a significant corporate asset in April 2015. See: R. v. Millard, 2017 ONSC 2836 at para. 16. Millard had retained independent counsel to argue the “conflicts” Motion and Glithero J. scheduled it to be heard on April 30, 2015. The Applicant Smich did not press to have the Motion heard at this early stage. He took the position that it could be heard “a month before the trial.” It was the Crown who forcefully submitted that the Motion had to be heard “as early as possible” because it “has the capacity to prohibit counsel from acting.” Glithero J. agreed with the Crown. The final development on this first appearance before the trial judge was that the parties jointly proposed adjourning the pre-trial Motions and the trial in the Bosma case. This adjournment came about for a number of reasons. As noted above, counsel for Millard was not yet fully retained to argue the numerous pre-trial Motions, as well as the trial, and so he sought the adjournment. In addition, as Glithero J. stated, the “conflicts” Motion (on which Millard had retained independent counsel) could have “a potential outcome that Mr. Paradkar and Mr. Pillay may not be allowed to act for Mr. Millard,” and so that Motion had to be resolved before the other Motions could proceed. In addition, counsel for the Applicant Smich stated that he was reluctant to file his pre-trial Motions unless Millard also filed at the same time. Mr. Dungey went on to advise that his co-counsel, Ms. Trehearne, “won’t be available in April” because she was to give birth to a child in mid-April and would be taking some parental leave from her law practice. Mr. Dungey also wanted certainty as to whether Millard would succeed in retaining counsel and whether the trial would actually proceed on schedule. Finally, he stated that he could “potentially … be asking … that we try to get the Toronto [Babcock] matter on,” if the Bosma case was to be adjourned. For all these reasons, counsel for the Applicant Smich joined in the application to adjourn. Indeed, it was the Applicant Smich (and not Millard) who agreed to waive s. 11(b) of the Charter for the period of the proposed adjournment. Upon obtaining the Applicant Smich’s waiver of s. 11(b), the Crown consented to the proposed adjournment. Glithero J. then agreed to the joint proposal of all parties. He adjourned the pre-trial Motions to September 28, 2015, which was the previously scheduled trial date, and he ordered all Applicants to file their Motions by the end of June and all Respondents to file by the end of July. The trial was adjourned to January 11, 2016, as everyone agreed that there should be a “break” between the Motions and the trial. Glithero J. noted on the record that the Applicant Smich waived s. 11(b) for the seven month period from February 23 to September 28, 2015.

(vi) The “conflicts” Motion before Glithero J. on the Bosma case in Hamilton and finalizing Millard’s retainer of counsel (one and a half months)

[24] The parties had agreed, on the first appearance before Glithero J., that the “conflicts” Motion could be heard in a maximum of two days. None of the parties intended to call viva voce evidence. Mr. Dungey stated that he would not be “very long” in argument as he had filed a “fairly thorough” Factum. It was agreed by all that scheduling two days for the Motion was “safe.” Accordingly, Glithero J. set the “conflicts” Motion to be heard on April 30^th and May 1^st, 2015. Unfortunately, these estimates proved inaccurate. At the end of the first day, Mr. Dungey had completed only nine pages of his submissions and he had a further sixty pages before he would be finished. At the end of the second day, Glithero J. scheduled three further days to complete the Motion, beginning on May 26, 2015. On that date, Mr. Dungey advised that he now wished to call seven or eight witnesses to testify on the Motion, and this would take three days. At this point in the proceedings, the parties negotiated a resolution of the Motion which Glithero J. then endorsed, as follows: Mr. Paradkar agreed to withdraw, as he appeared to be the only counsel who could be implicated in the transporting of the Millard/Noudga letters out of the jail; it was agreed that Mr. Pillay could act for Millard on both the Motions and the trial without any conflict; editing of the letters would be the subject of a separate Motion; and an Agreed Statement of Fact would be negotiated concerning the evidence about the letters. Counsel remained confident that Mr. Pillay’s retainer would be finalized within two weeks, as previously anticipated. Finally, Mr. Dungey requested an extension of the filing dates for the pre-trial Motions because the “conflicts” Motion had taken “way longer than one had anticipated” and because Ms. Trehearne was still “on maternity leave,” while also assisting Mr. Dungey with preparation of the Motions. Glithero J. granted the extension and ordered all Applicants to file by July 31, 2015 and all Respondents to file by August 21, 2015. On June 11, 2015, the parties appeared before Glithero J. and Mr. Pillay confirmed that he was now fully retained by Millard, for both the pre-trial Motions and the trial.

(vii) The ongoing Ontario Court of Justice JPT on the Babcock case in Toronto and scheduling of the preliminary inquiry (seven months)

[25] As previously noted, the JPT in the Ontario Court of Justice in Toronto on the Babcock case had been scheduled for December 19, 2014. By this point, Turnbull R.S.J. was in the midst of the ongoing Superior Court JPT in Hamilton on the Bosma case and counsel for the Applicant Smich had now committed to raising the issue of who had transported the Millard/Noudga letters out of the Hamilton jail. Turnbull R.S.J. was trying to schedule the “conflicts” Motion in January/February 2015. In addition, Millard was still making efforts to complete counsel’s retainer. As a result of these developments, the Crown advised the Court in Toronto on December 19, 2014 that the JPT had commenced before Di Zio J. that morning but it was to be adjourned for almost two months, to February 10, 2015. He stated, “There’s an issue with regards to counsel being potentially in a conflict that will have to be resolved in early January. We anticipate that matter, once resolved, will allow us to move forward on our matters here before this Court.” Mr. Dungey and Mr. Pillay both appeared in the Ontario Court proceedings in Toronto and the Crown spoke on behalf of all counsel. It should be noted that the Millard/Noudga letters play an equally important, if not more important role in the Babcock case as in the Bosma case. On February 10, 2015, the Toronto JPT resumed before Di Zio J. As summarized above, the “conflicts” Motion had still not been heard or resolved in Hamilton, nor had Millard’s retainer been finalized. Once again, the Crown advised the Ontario Court in Toronto that, “There’s a number of difficult issues ongoing as far as scheduling is concerned … we’re expecting there to be some litigation on the matters in Hamilton that may affect scheduling here.” All parties agreed to a further lengthy adjournment of the Toronto JPT until April 20, 2015. As summarized above, two weeks later on February 23, 2015, Glithero J. scheduled the “conflicts” Motion for April 30, 2015 and adjourned the Bosma case at the first appearance before him in Hamilton. Two days later, on February 25, 2015, Mr. Dungey wrote to the Crown on the Toronto case advising of the new dates now set in Hamilton for the Bosma case. He asked that “an early preliminary inquiry date … anytime from April 4 until September 18, 2015” be set on the Babcock case. He also noted that almost a year had passed since the Applicant Smich was charged in Toronto and asserted that, “The delay rests with the Crown in this matter.” Two weeks later, on March 12, 2015, the parties appeared before Di Zio J. and set “target” dates for a four week preliminary inquiry on the Babcock case, commencing September 21, 2015. This was described as the “earliest date available” in the Toronto court for a four week preliminary inquiry. It was just over six months away and, therefore, was below the Morin guidelines for systemic delay which applied at the time. The obvious difficulty with these scheduled dates in Toronto in September 2015 was that they squarely conflicted with the scheduled pre-trial Motion dates in Hamilton in September 2015. The parties acknowledged the conflict but stated, “There are a number of variables … both a retainer and a Motion that’s before the Superior Court in Hamilton … and perhaps even conflict as it relates to Mr. Paradkar.” As the Crown put it, “We hope to have a determination on the Hamilton prosecution in early, very early June and at that time we will be able to either confirm or let our dates [in Toronto] go because obviously they [the accused and counsel] can’t be doing pre-trial Motions on Mr. Bosma’s murder at the same time that they’re doing a preliminary hearing related to the Babcock prosecution.” In other words, the Toronto preliminary inquiry dates were set out of an abundance of caution, in the event that the Hamilton case did not proceed as scheduled. On June 12, 2015, two weeks after the “conflicts” Motion was resolved and the day after Mr. Pillay appeared before Glithero J. in the Superior Court in Hamilton and confirmed that he was now fully retained for the Bosma trial, all parties communicated in writing and agreed to release the September 2015 preliminary inquiry dates in Toronto. Mr. Dungey, on behalf of the Applicant Smich, asked that new dates be set on the Babcock case to “commence in August 2016, which will allow for the Bosma matter to be finished and a time for counsel to prepare for the preliminary hearing in the Laura Babcock matter.” On June 17, 2015, counsel appeared in the Ontario Court of Justice in Toronto and the preliminary inquiry dates scheduled in September and October 2015 were vacated. On July 15, 2015, new dates were scheduled for a four week preliminary inquiry to commence on September 7, 2016. These dates were fourteen months away and were well over the Morin guidelines for systemic delay. However, it is apparent that the cause of this period of delay was not a lack of institutional resources.

(viii) The preferring of the direct Indictment on the Babcock case in Toronto (ten months)

[26] On October 20, 2014, the senior Crown with carriage of the Babcock prosecution in Toronto had written to counsel and advised that she was asking the Attorney General to prefer a direct Indictment. This was just over six months after the Babcock murder charge had been laid and just under one month after substantial further disclosure had been provided, as summarized above. Crown counsel stated that if a direct Indictment was preferred, she would apply to “have the Babcock pre-trial Motions dealt with at the same time as the Bosma Motions,” presumably pursuant to s. 551.7 of the Criminal Code. On November 25, 2014, counsel in the Ministry of the Attorney General acknowledged receipt of the Crown’s request for a direct Indictment and asked defence counsel for submissions. Counsel for the Attorney General advised that there was “no intention to join the Motions” in the two cases “at the current time.” On December 15, 2014, counsel for the Applicant Smich made lengthy written submissions opposing a direct Indictment in the Babcock case. He submitted that the Crown’s case was weak, that disclosure was incomplete, and that any joinder of the Motions in the two cases would be unfair and would cause delay. In relation to this latter point, Mr. Dungey referred to “the sheer volume of evidence in the two cases” and to the risk that “any judge would be overwhelmed by the volume of evidence.” He stated that it would be “an absolute impossibility for counsel to be prepared … to address the Babcock motions” in April 2015 (the date presently set for the Bosma pre-trial Motions) and that any attempt to schedule joint Motions in the two cases would require an adjournment, “at a minimum, to October of 2015.” He submitted that the Babcock preliminary hearing should be scheduled now, to proceed after the Bosma trial was completed: “Given the length of time anticipated for the Bosma matter, the Court would no doubt have available dates for a preliminary inquiry in the Babcock matter at the conclusion of the Bosma matter. There will therefore be no delay waiting for a preliminary inquiry date in the Babcock matter.” A month after receiving these submissions, on January 22, 2015, counsel for the Attorney General advised that the request for a direct Indictment “is still under consideration.” At the ongoing JPT before Turnbull R.S.J. in Hamilton, the Crown advised that it would not pursue its earlier plan to seek joinder of the Motions in the two cases, unless the Bosma matter was delayed. On August 25, 2015, the Deputy Attorney General preferred a direct Indictment in the Babcock case. This step was taken about a month after the parties had scheduled new preliminary inquiry dates commencing in September 2016.

(ix) The pre-trial Motions on the Bosma case in Hamilton (three and a half months)

[27] The pre-trial Motions on the Bosma case commenced before Glithero J. on September 3 and 28, 2015. On the third day of the Motions, Turnbull R.S.J. appeared and advised that Glithero J. had been hospitalized and was undergoing tests. He assured the parties that he would find a replacement judge, if necessary, and that the trial would proceed. He adjourned the Motions to October 5, 2015. As a result, the first week scheduled for the Motions was substantially lost. Counsel exchanged emails at this point and the Applicant Smich agreed to waive s. 11(b) “for one or two months if this would be of assistance” to Glithero J.’s recovery. On October 5, 2015, Glithero J. appeared and ruled on the one Motion that he had already heard on the September dates. He then recused himself due to an unresolved “medical episode” that required ongoing treatment. Goodman J. appeared that same day and became the new trial judge, pursuant to s. 669.2. The parties jointly applied for a brief adjournment and offered to waive s. 11(b), in order to allow Goodman J. time to prepare for the Motions. Counsel described the Motions as “numerous and complex.” Goodman J. adjourned, but only for two days. On October 8, 2015 he began hearing the Motions. There were sixteen pre-trial Motions argued during October, November and December, 2015. In my view, counsel’s characterization of the Motions as “numerous and complex” was accurate. It should be noted that the Applicant Smich successfully opposed a severance Motion brought by Millard. Goodman J. noted Mr. Dungey’s submission to the effect that:

Severance would cause significant further delay and would prevent Smich from having his trial within a reasonable period of time. Delay in this case would inevitably also cause significant delay in the hearing of the Laura Babcock prosecution. At this point, additional delay would bring both trials within the realm of s. 11(b) of the Charter.

…Joint trials are likely to be completed more quickly than successive trials, and tend to curtail some of the angst of victims and their families who would otherwise need to wait for a verdict. Mr. Dungey argues the very point that his client (and indeed both accused) would enjoy the right to reasonably swift justice in a joint trial to commence in January.

See: R. v. Millard and Smich, 2015 ONSC 7761.

(x) The Bosma trial in Hamilton (five months)

[28] The trial by judge and jury on the Bosma case began on January 18, 2016 and concluded on June 17, 2016. Both accused were convicted of first degree murder.

(xi) The Superior Court intake or case management period on the Babcock case in Toronto: the first appearance

[29] As noted previously, the direct Indictment was preferred in the Babcock case on August 25, 2015. Two weeks later, on September 10, 2015, the parties made their first appearance before McMahon J. in the Superior Court in Toronto. Although no JPT had been held, McMahon J. agreed to set “target” dates for the Babcock case, at the Applicant Smich’s request. The timetable proposed by Mr. Dungey was as follows: “The Bosma case is scheduled to last about five months … so we’d be finished by June or July [2016]. We’re going to have to have a couple of months off … I would anticipate there are going to be a great deal of motions on this matter … So if we sort of targeted September [2016] for the starting of the motions, project that they would last about a month and a half to two months to be cautious and then time for a judge to rule and for counsel to be able to prepare a trial and then a target date [for trial] after that.” McMahon J. agreed with this proposal and stated that he would reserve “September 2016 potential date to start the motions … The Court could have accommodated it earlier, but I understand because of other involvements you have with the justice system you aren’t available before then.” Millard had not yet retained counsel for trial on the Babcock case but he agreed to the target dates and Mr. Pillay agreed to attend the JPT and represent Millard’s interests. McMahon J. scheduled the JPT for December 11, 2015. The target dates for the Babcock case were twelve months away, and outside the Morin guidelines for systemic delay, but it was apparent that lack of institutional resources was not the cause of this delay.

(xii) The Superior Court intake or case management period on the Babcock case in Toronto: the second appearance

[30] On December 11, 2015, an initial JPT was held in McMahon J.’s chambers with counsel present. When the parties appeared in Court, Mr. Dungey had left the Court House but the Crown stated: “Mr. Dungey I think indicated the fall of 2016 would have been too soon, in relation to the other trial in Hamilton, and Mr. Millard doesn’t have a lawyer on these charges … I’m in another homicide trial for January, so that was my unavailability, so we’re looking at February of 2017.” McMahon J. confirmed this account and advised Smich, “This is what your lawyer wanted to do on your behalf.” As a result, the previous target date of September 2016 was vacated and McMahon J. stated, “We’ll set the trial date today for February of 2017 and, obviously, the reason is the other matters that are outstanding that have to be dealt with.” Millard advised that he would “likely be self-represented” in the Babcock case and he agreed that setting the date now for February 2017 “makes a lot of sense to me,” so as not to “wait and lose nine or ten months of time while we wait for another case to be completed,” as McMahon J. had put it. Given that Mr. Dungey was not present in Court when this revised trial date was set, it was never clarified whether the agreed February 13, 2017 date was only for the pre-trial motions or whether both the motions and the trial would proceed continuously. This was eventually clarified on subsequent appearances.

(xiii) The Superior Court intake or case management period on the Babcock case in Toronto: the third appearance

[31] On January 29, 2016, the parties made their third appearance before McMahon J. Millard confirmed that his present intention was to be “self-represented” in the Babcock case. The Crown stated, in the presence of counsel for the Applicant Smich, that the reason why February 2017 dates were set “so far out,” was as follows: “It was a combination of factors, mostly to do with the trial going on in Hamilton … that was anticipated to last potentially until the end of June [2016] … That would afford counsel the summer … and then the fall to prepare. There was a proposal to start in January [2017]. I’m in a homicide trial in the month of January, so they went to the month of February [2017].” Once again, it was not clarified whether the February 2017 date was only for pre-trial Motions or for both the Motions and the trial. The parties agreed to return on June 3, 2016, in the hope that the Bosma trial would be completed by then and “a meaningful JPT” could be held on the Babcock matter. McMahon J. “strongly” urged Millard “to get a lawyer.”

(xiv) The Superior Court intake or case management period on the Babcock case in Toronto: the fourth and fifth appearances

[32] The JPT did not take place on June 3, 2016 because the Bosma trial in Hamilton was still proceeding. The Toronto JPT was adjourned to September 14, 2016. There were a number of important developments on this latter date, by which time the Bosma trial had concluded. First, Millard stated that he had taken McMahon J.’s advice and that he was now in the process of retaining counsel. He needed one more week to finalize his choice of counsel and so McMahon J. adjourned the JPT to September 20, 2016, in order to await this decision. Second, McMahon J. began the process of identifying the pre-trial Motions on the Babcock case with counsel for the Applicant Smich. Mr. Dungey stated, “There will be numerous motions … I anticipate there will be a great number of motions.” He identified at least eight specific pre-trial Motions and stated, “We’re probably going to be in the motion stage for … three months.” One of the identified Motions was to quash the direct Indictment. When McMahon J. pressed counsel as to why such a fundamental Motion had not yet been filed, Mr. Dungey stated, “We just finished a long trial in Hamilton … an exhausting trial … we also have other things to attend to … It’s not like we don’t have a lot of stuff on the plate to attend to.” Mr. Dungey stated that the Motion to quash the Indictment would not be ready to proceed until February 2017. The Crown urged that this Motion be heard in advance of that date. The third significant development was that Mr. Dungey clarified his understanding as to the schedule for the Motions and the trial. He stated that he and Ms. Trehearne were operating on the understanding “that the motions were starting in February [2017] and the trial was in September [2017], and we’ve been working under that assumption all the way along in that we were having the pre-trial Motions and then the trial later.” McMahon J. and the Crown stated that their understanding was that the Motions and the trial would proceed continuously, starting in February 2017. Mr. Dungey advised that Ms. Trehearne had scheduled other matters into her calendar “between what we anticipate would be the motions and the trial.” He stated, “On a long trial I’ve never seen that done [sitting continuously between the Motions and the trial].” McMahon J. agreed to sort out this misunderstanding between counsel and the Court at the JPT, concerning the precise schedule for the pre-trial Motions and the trial.

(xv) The Superior Court intake or case management period on the Babcock case in Toronto: the sixth appearance

[33] On September 20, 2016, Millard advised the Court that Mr. Bernstein was the lawyer who “will represent me on the Babcock matter.” The case was held down in order to allow the Crown to call Mr. Bernstein, as he was not in court, and to obtain his available dates for the JPT. When court resumed, the Crown advised that he had spoken to Mr. Bernstein and had learned that Mr. Bernstein was not yet retained, although he was interested in acting for Millard. Mr. Bernstein also advised the Crown that he had not yet received or reviewed the disclosure. Finally, Mr. Bernstein advised that he had other commitments between February and June 2017, including a lengthy murder trial in Hamilton. Both the Crown and Mr. Dungey expressed concern that retaining Mr. Bernstein could lead to an adjournment of the Babcock case and to delays. Millard advised McMahon J. that he was trying to retain Mr. Bernstein privately, as he had spoken to Legal Aid and was advised that he would be ineligible. McMahon J. appeared somewhat sympathetic, as he noted that any private retainer for the Babcock case would have to be “substantial,” and he gave Millard until October 14, 2016, in order to determine whether he could retain Mr. Bernstein or some other counsel who was available in February 2017.

(xvi) The Superior Court intake or case management period on the Babcock case in Toronto: the seventh appearance

[34] On October 14, 2016, there were significant developments. All counsel appeared before McMahon J., including both Mr. Bernstein and Mr. Pillay who were acting for Millard in certain limited capacities. The Court was advised that Millard had partially retained Mr. Pillay in relation to the Wayne Millard murder (the third murder charge against Millard, relating to the death of his father), that the retainer would be completed by March 2017, and that Mr. Pillay was available to conduct that trial in September 2017. Millard was also trying to retain Mr. Bernstein in relation to the Babcock murder but it was anticipated to be a much longer trial and it would require a more substantial retainer. Millard needed considerably more time to retain Mr. Bernstein on the Babcock matter. In any event, Mr. Bernstein advised that he would not be available or prepared for the Babcock case until January 2018, given the existing commitments in his calendar, the “multiple pre-trial motions” in the Babcock case, and the “terabyte of disclosure” that he would have to review. In all these circumstances, Millard applied to adjourn the Babcock case until January 2018 and to schedule the Wayne Millard case in September 2017. The Crown and counsel for the Applicant Smich strenuously opposed the adjournment, insisting that the Babcock case should proceed first, ahead of the Wayne Millard case (where there was no co-accused). McMahon J. confirmed with Mr. Pillay that his retainer would be perfected by March 2017 and that he would be available for trial in September 2017. McMahon J. then confirmed with Mr. Dungey that his understanding was that only the pre-trial Motions in the Babcock case, and not the trial, had been scheduled for February 2017: “It was your belief you were going to do the motions then [in February 2017] and then the trial later?” Mr. Dungey agreed: “That’s what I thought we had agreed to in the judicial pre-trial in the back room.” Mr. Dungey confirmed that he and Ms. Trehearne were available for the Babcock trial in September 2017. McMahon J. then gave oral reasons dismissing Millard’s application to adjourn the Babcock case until January 2018 and ordering that it would proceed on September 11, 2017. He stated:

In essence, if I accede to Mr. Millard's request he will de facto dictate the order of prosecution of the indictments contrary to the wishes of the Crown Attorney. Further, he will add a year's delay to Mr. Smich's indictment, and the only other option proffered by Mr. Bernstein is simply we could sever Mr. Smich and have his trial proceed. In essence, again, acceding to this would have Mr. Millard dictate to this court what order and when the trials should proceed.

I must, of course, balance the rights of counsel and right of choice of counsel for Mr. Millard to be represented. It is not the only right I must balance. I must balance the rights of Mr. Smich to have a trial in a timely fashion. I must also balance the rights of the Crown Attorney to have the trial within a reasonable time in the interest of the community as directed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, to have the case done in a timely fashion for the confidence of the public.

At the same time though I find that Mr. Millard has not been diligent in retaining counsel, nevertheless, his right to a fair trial is best met if he has counsel to represent him on the Babcock indictment. Sending Mr. Millard to trial unrepresented in February on a charge of first degree murder, despite the wishes of the Crown Attorney and despite the wishes of Mr. Smich through counsel Mr. Dungey, would neither be in Mr. Millard's interest or the interest of justice. I must, of course, in balancing these rights come up with a fair resolution of the competing interests. For these reasons, I am prepared to adjourn the Babcock matter that is presently scheduled for February. I would be prepared, subject to comments of counsel, to set that down peremptory on Mr. Millard for September 11, 2017 to proceed with or without counsel. Also, that we would case-manage that in a fashion to ensure he can retain any other counsel he wishes including Mr. Pillay. As I note, Mr. Pillay, who he has confidence in in relation to dealing with the Wayne Millard indictment, is in fact available in September. He also has the right to have anyone else retained he wishes as long as they are available for trial in September of 2017.

[35] After making this ruling, McMahon J. engaged Millard in a discussion as to anything that the Court could do to assist Millard in perfecting the retainer of counsel. Millard had advised the Court that he had been denied Legal Aid and that his access to private assets involved “a complicated procedure with other courts, civil courts, to get funding from third parties. So it’s outside of my control.” McMahon J. inquired about a Rowbotham Application and also asked to have the civil lawyers appear before him on October 21, 2016 and “we’ll figure out something … we’ll get an update on the civil matters, we’ll see if we can expedite that.” Mr. Pillay agreed to assist in this regard.

(xvii) The Superior Court intake or case management period on the Babcock case in Toronto: the eighth and ninth appearances

[36] On October 21 and 28, 2016, there were two further developments. First, Millard asked to have two pre-trial Motions in the Babcock case heard “well in advance of the trial” (a Motion for severance and a Motion to quash the direct Indictment). He understood that “the Court had time booked in the spring.” Mr. Pillay advised that his retainer could be applied to these two Motions, so that he could argue them on Millard’s behalf, although he was not available or retained for the trial in September 2017. The Crown agreed to this proposal concerning early scheduling of the two Motions, stating “the dates that were originally set for this matter [in February 2017] … the Crown will hold our availability.” Mr. Dungey was initially unsure whether Ms. Trehearne, “who will be arguing these motions has filled in her calendar” but, after checking with her, he agreed to file the two Motions in February 2017. McMahon J. then set the week of March 27, 2017 for hearing these two pre-trial Motions and advised that he would assign a trial judge. The second development concerned Millard’s efforts to have funds released for a private retainer through proceedings in the civil courts. Counsel for the Receiver (who had control of Millard’s assets) appeared before McMahon J. and advised that there were no assets available to fund a private retainer of counsel. McMahon J. then assisted Millard in expediting his application for Legal Aid.

(xviii) The Superior Court intake or case management period on the Babcock case in Toronto: the tenth, eleventh and twelfth appearances

[37] On December 14, 2016, Mr. Sachak appeared before McMahon J. for the first time. He had been co-counsel with Mr. Pillay on the Bosma trial in Hamilton. He advised McMahon J. that he was willing and available to act for Millard in the Babcock case, at a three or four month trial commencing in September 2017. He was not yet retained but he was assisting Millard with the Legal Aid process and with a Rowbotham Application. Millard had been denied Legal Aid and he was now appealing to the Area Committee. McMahon J. helped expedite these matters at the final two case management appearances in January 2017.

(xix) The pre-trial Motions on the Babcock case in Toronto

[38] On March 27, 2017, the pre-trial Motions commenced before me as the assigned trial judge, pursuant to s. 645(5) of the Criminal Code. The two accused had perfected both a severance Motion and a Motion to quash the direct Indictment. The latter Motion was abandoned at the start of oral argument and I dismissed it. The severance Motion depended, in part, on arguments concerning s. 11(b) delay. Accordingly, I directed that the Applicant Smich perfect his s. 11(b) Motion. I also scheduled Millard’s Rowbotham Application. This latter Motion was heard on May 2, 2017. Reasons were released on May 9, 2017, giving certain directions to counsel for the Receiver. I understand that the Receiver has now followed those directions and that a judge of the Commercial List, Hainey J., has released funds for Millard’s private retainer of counsel. Finally, the s. 11(b) Motion, the severance Motion, and a Third Party Records Motion brought by Smich and joined by Millard were all scheduled and heard in the week of June 12, 2017. A s. 8 Charter Motion relating to the search of Smich’s residence and the search of an iPad found in the residence was abandoned. In other words, six pre-trial Motions have now been heard or resolved. Two further pre-trial Motions brought by the Crown are scheduled to be heard in late August 2017. The remaining Motions and the trial are still scheduled to proceed in September 2017.

D. ANALYSIS: THE JOINT SEVERANCE MOTION

(i) The law relating to severance

[39] The broad discretionary test for severance in s. 591(3)(b) of the Criminal Code provides that severance of accused may be granted where “the interests of justice so require.” In applying this discretion to cases where the Crown alleges a joint enterprise, it is settled law that the alleged joint participants should presumptively be tried together. As Fish J. put it in R. v. Chow (2005), 2005 SCC 24, 195 C.C.C. (3d) 246 at para. 47 (S.C.C.), speaking for a unanimous Court:

It is well established that separate trials for alleged co-conspirators are the exception, not the rule.

[40] Sopinka J., speaking for eight members of the Court in R. v. Crawford and Creighton (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 at paras. 19 and 30-31 (S.C.C.), referred to a “uniform stream of authority in this country in favour of joint trials.” He went on to explain the policy reasons that support this view:

There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a "cut-throat defence". Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:

There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.

Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient.

[41] Doherty J.A. (Morden and Abella JJ.A. concurring), giving the judgment of the Court in R. v. Suzack and Pennett (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 at paras. 87-91 (Ont. C.A.), elaborated on the principle in Crawford and Creighton. He stated that there is “a strong presumption in favour of a joint trial,” in cases where the co-accused “are blaming each other for the crime,” for the following reasons:

…I begin with the proposition that persons accused of the joint commission of a crime should be tried together. That presumption applies with particular force where the co-accused are each alleging that the other is the guilty party: R. v. Crawford (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 (S.C.C.) at 497.

Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story.

[42] One basis for severance that has often been raised, as in the present case, is the existence of a statement or statements made by a co-accused and the risk that the jury will improperly use this hearsay evidence to incriminate an accused who was not the declarant. The courts have consistently held that this is “a factor to be considered in the exercise of that discretion,” to either grant or deny severance, but that “repeated and strong instructions to the jury that they were not to use [one accused’s] statements as evidence for or against [another accused],” as well as editing of the statement, may be sufficient remedies that can prevent any injustice. See: R. v. McLeod, Pinnock and Farquharson (1983), 1983 CanLII 3605 (ON CA), 6 C.C.C. (3d) 29 at para. 6 (Ont. C.A.), aff’d (1986), 1986 CanLII 70 (SCC), 27 C.C.C. (3d) 383 (S.C.C.); R. v. Court and Monaghan (1995), 1995 CanLII 1741 (ON CA), 99 C.C.C. (3d) 237 at paras. 80-85 (Ont. C.A.); R. v. Olah and Ruston (1997), 1997 CanLII 3023 (ON CA), 115 C.C.C. (3d) 389 at 401-405 (Ont. C.A.); R. v. Suzack and Pennett, supra at paras. 117 and 128. In cases where limiting instructions to the jury have been held to be an insufficient remedy, and where severance has been granted, the courts have described the prejudicial references to a co-accused in the out of court statement as “the most damning evidence against him,” and have also described the admissible evidence as “substantially stronger against one than the other” against whom an inadmissible but “damaging statement” is being tendered. See: R. v. Guimond (1979), 1979 CanLII 204 (SCC), 44 C.C.C. (2d) 481 at 497 (S.C.C.); R. v. Figliola and DiTrapani (2011), 2011 ONCA 457, 272 C.C.C. (3d) 518 at paras. 97-101 (Ont. C.A.).

(ii) Application of the law of severance to this case: prejudice from out of court statements

[43] Applying the above principles to the joint application for severance in the present case, I am satisfied that it would not be in the interests of justice to grant severance. The Crown alleges that Laura Babcock was murdered and her body was then incinerated by the two accused acting in concert. Accordingly, the presumption in favour of joint trials applies. Furthermore, there is a likelihood that each accused may seek to blame the other at trial. Millard’s letter to his girlfriend Noudga was a fairly obvious attempt to cast suspicion on Smich, as a means of exculpating Millard. In Mr. Dungey’s written submissions to the Attorney General in relation to the direct Indictment, he argued that the evidence against Smich was weak and that, at most, it indicated that “he was involved as an accessory after the fact” and that “Millard used Smich.” I appreciate that counsel for both accused have indicated to me, on the severance Motion, that their primary defence will simply be that the Crown has not proved either that Ms. Babcock is dead or any particular cause of death. However, given the particular facts of this case, a secondary or alternative defence seems likely. If the jury was to find that Ms. Babcock is dead and that the cause of death was an unlawful act, an eventuality that counsel may have to acknowledge, it seems almost inevitable that each accused will then seek to place the blame on the other accused as an alternative defence. In these circumstances, where one accused blames the other, there is a “strong presumption in favour of a joint trial,” as explained in Suzack.

[44] In addition, the alleged prejudice from the out of court statements does not resemble the prejudice in cases like Guimond and Figliola, where severance was granted. Smich’s out of court statements do not mention Millard. Furthermore, Smich’s rap song arguably has some limited admissibility as against Millard, somewhat like the statement of the co-accused in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 at pp. 541-543 (Ont. C.A.). In that case, Martin J.A. held that severance was properly denied because Baron’s statement had some limited admissibility against Wertman. Martin J.A. reasoned as follows, on behalf of the Court:

Notwithstanding, as has been pointed out, that there is no evidence upon which a jury could find that Mrs. Wertman accepted Baron’s statement by her words or conduct, I am of the view that the statement, in strict law, was admissible, albeit for a limited purpose, if she had been granted a separate trial. Evidence may be admissible for one purpose although inadmissible for another: see Wigmore on Evidence, 3^rd ed., vol. 1 (1940), pp. 299-303.

In the present case Mrs. Wertman’s reaction on reading Baron’s statement was relevant and admissible, but such reaction would not be fully intelligible without reference to the statement to which she was responding and the jury was therefore entitled to consider them together. … Mrs. Wertman’s reaction might afford evidence from which the jury could infer that she was a party to the alleged conspiracy.

Where a statement made in the accused’s presence has been admitted to show his conduct and demeanour only, it is incumbent upon the trial Judge to instruct the jury that such statement is not evidence of the truth of the facts in it …

Because of the view which I have taken with respect to the admissibility, in the circumstances, of Baron’s statement of June 6^th, to show Mrs. Wertman’s conduct and demeanour in response to it, it is unnecessary to examine the authorities with respect to the granting of separate trials where one accused has made a statement incriminating a co-accused in circumstances in which such statement is inadmissible for any purpose in relation to the latter.

[45] I have not yet been asked to rule on the extent to which Smich’s rap song is admissible against Millard. However, there appears to be evidence that the rap song was in Millard’s possession and so its admissibility against him will likely turn on the “documents in possession” rule. The authoritative description of that common law doctrine is found in Phipson on Evidence, 18^th ed. (Sweet and Maxwell, 2013), at pp. 1326-7:

Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognized, adopted or acted upon them. [Emphasis in original.]

See: R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 at pp. 190-1 (Ont. C.A.); R. v. Caccamo (1975), 1975 CanLII 11 (SCC), 21 C.C.C. (2d) 257 (S.C.C.); R. v. Morris (1983), 1983 CanLII 28 (SCC), 7 C.C.C. (3d) 97 at pp. 99-100 and 108 (S.C.C.); B.C. Securities Commission v. Branch (1995), 1995 CanLII 142 (SCC), 97 C.C.C. (3d) 505 at para. 47 (S.C.C.); R. v. Black (2014), 2014 BCCA 192, 309 C.C.C. (3d) 484 (B.C.C.A.); R. v. Cunsolo (2011), 2011 ONSC 1349, 277 C.C.C. (3d) 435 at paras. 257-270 (Ont. S.C.J.); J.D. Ewart, Documentary Evidence in Canada (Carswell, 1984), at Ch. 8; and Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4^th Ed. (LexisNexis, 2014), at pp. 1247-1253.

[46] Turning to Millard’s out of court statements in the Noudga letters, they do not realistically implicate Smich because they appear to be admittedly false, as summarized above. Furthermore, it cannot be said that the Noudga letters are “the most damning evidence against” Smich, as in Figliola. Indeed, it could be argued that the Noudga letters are helpful to Smich. Finally, it cannot be said that the properly admissible evidence against Smich is much weaker than against Millard, unlike Guimond where the admissible evidence against the co-accused Muzard was weak.

[47] As noted earlier in these Reasons, the real prejudice alleged by both Smich and Millard is not that the out of court statements of one accused implicate the other accused. Rather, the statements implicitly admit that Ms. Babcock is dead and that she died by an unlawful act, which are issues that both accused intend to contest at trial. The two accused’s statements have limited admissibility in relation to these issues, given the hearsay rule and its exception for admissions by an accused. In my view, the risk of prejudice relating to this evidence is manageable at a joint trial. There is a large body of circumstantial evidence, summarized above at para. 13, that is admissible against both accused and that infers that Ms. Babcock is deceased. Furthermore, that admissible circumstantial evidence implicates the two accused in her disappearance and death. Their respective out of court admissions, in Smich’s rap song and in the Millard/Noudga letters, are only one part of the Crown’s proof that Ms. Babcock is deceased. This part of the evidence is amenable to a limiting instruction and it can be quite easily separated out, when instructing the jury. Proof of Ms. Babcock’s death is a preliminary issue that will have to be addressed early in the Charge to the Jury, before turning to issues relating to the complicity and culpability of the two accused. The two discrete bodies of evidence relevant to this preliminary issue can easily be identified with appropriate limiting instructions.

[48] Furthermore, it cannot be said, as in Guimond and in Figliola, that the case against one accused in relation to this preliminary issue is significantly stronger than the case against the other accused. There is substantial circumstantial evidence admissible against both accused and they both made somewhat incriminating out of court statements. There is little risk that the jury will find the case to be strong or overwhelming against one co-accused, and then let that strong case improperly spill over against the other accused because of their mere association. I am satisfied that this case is amenable to traditional instructions, to keep the evidence separate except where it is admissible against both accused, and to keep the verdicts separate as between the two accused.

[49] For all these reasons, I would not grant severance on the basis of any risk of prejudice arising from Smich’s and Millard’s out of court statements.

[50] Neither Applicant pressed the grounds relating to antagonistic defences. They conceded that merely seeking to blame a co-accused is not a ground for severance. Indeed, it tends to argue against severance. Their concern was with the risk of otherwise inadmissible bad character evidence being called by a co-accused, as in R. v. Kendall and McKay (1987), 1987 CanLII 180 (ON CA), 35 C.C.C. (3d) 105 (Ont. C.A.) and R. v. Suzack and Pennett, supra. However, they fairly conceded that neither accused has committed to such a defence. Furthermore, should such a defence be attempted, notice would have to be given at the appropriate time and a ruling sought. See: R. v. Pollock and Morrison (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 at paras. 105-130 and 175-178 (Ont. C.A.). Any severance application can be renewed on this basis, should this particular defence strategy arise. It is simply premature, and groundless at this stage, to anticipate such a risky defence when both counsel presently deny reliance on it.

(iii) Application of the law of severance to this case: delay and trial by judge alone

[51] The remaining grounds for severance are advanced by Smich, relating to s. 11(b) Charter delay and his stated desire for a judge alone trial. I will address s. 11(b) delay in greater detail below but, in brief summary, I am not persuaded that severance at this late stage of the proceedings would produce a significantly speedier trial. The remaining Motions might be fewer, and the trial might be somewhat shorter, if the Applicant Smich was granted severance and his trial proceeded first, but the difference would realistically be no more than a month or two. This would not make any difference in relation to the alleged s. 11(b) Charter violation, as will be seen in my Reasons below, and it would certainly not justify severance in this particular case.

[52] In terms of Smich’s wish to be tried by judge alone, this aspect of the severance Motion is premature. I agree that jury selection is likely to be difficult in this case. A challenge for cause, based on pre-trial publicity arising from the convictions in the Bosma trial in Hamilton, may simply highlight and revive memories that a prospective juror has of those earlier proceedings. It may be that an acceptable juror in this case will be one who recalls the Bosma trial but, like any judge trying the case without a jury, undertakes to be disciplined and to set aside that knowledge. In R. v. Vermette (1988) 1988 CanLII 87 (SCC), 41 C.C.C. (3d) 523 at pp. 530-1 (S.C.C.), LaForest J. gave the majority judgment in a case where there had been significant adverse pre-trial publicity and where the trial judge had stayed proceedings on a pre-trial Motion. On appeal, the Court held that it was “premature” to speculate, at the stage of a pre-trial Motion, about the partiality of prospective jurors who may have been tainted by pre-trial publicity. LaForest J. stated:

…It is only at the stage when the jury is to be selected that it will be possible to determine whether the respondent can be tried by an impartial jury. This does not therefore involve substituting our opinion for that of the judge. As Beauregard J. notes, there is no evidence indicating that it will be impossible to select an impartial jury in a reasonable time. This is rather a matter of speculation.

In deciding the question, one must not, in my view, rely on speculation. As the Court of Appeal of Ontario observed in R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, at p. 289 (affirmed by this Court: 1976 CanLII 1457 (SCC), 33 C.C.C. (2d) 207n, 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267), "There is an initial presumption that a juror ... will perform his duties in accordance with his oath", and the fact that he may have read about the case through the media is by and large unimportant; see R. v. Makow (1974), 1974 CanLII 1423 (BC CA), 20 C.C.C. (2d) 513, at pp. 518-19 (B.C.C.A.); R. v. Kray (1969), 53 Cr. App. R. 412 at p. 414, both cited with approval in Hubbert. In an extreme case (and the present certainly qualifies), such publicity should lead to challenge for cause at trial, but I am far from thinking that it must necessarily be assumed that a person subjected to such publicity will necessarily be biased. The law on the matter was thus expressed in the following passage from Hubbert, at p. 292:

In an extreme case, publication of the facts of a case can give rise to the degree of partiality that should lead to the right to challenge for cause. Such a case was R. v. Kray et al., supra, where there had been a previous trial, widely covered by the London press. At least two newspapers published discreditable facts, not in evidence at the trial, concerning some of the accused. At a subsequent trial for other serious offences, including murder, counsel for one of those accused sought to challenge prospective jurors for cause. After observing that the mere fact of accurate publication of the facts of a previous trial did not, in itself, produce a case of probable bias against jurors empanelled in a later case, Lawton, J., said at p. 415:

The situation, however, is, in my judgment, entirely different when newspapers, knowing that there is going to be a later trial, dig up from the past of the convicted who have to meet further charges discreditable allegations which may be either fact or fiction and those allegations are then publicised over a wide area. This does, in my judgment, lead to a prima facie presumption that anybody who may have read that kind of information might find it difficult to reach a verdict in a fair‑minded way. It is, however, a matter of human experience, and certainly a matter of the experience of those who practice in the criminal courts, first, that the public's recollection is short, and, secondly, that the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before. A person summoned for this case would not, in my judgment, disqualify himself merely because he had read any of the newspapers containing allegations of the kind I have referred to; but the position would be different if, as a result of reading what he had, his mind had become so clogged with prejudice that he was unable to try the case impartially.

This Court has recently had occasion to underline the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider; see R. v. Corbett, a judgment pronounced today [ante, p. 385].

The issue in this case should then have been left to be disposed of at trial as was done in the very similar case of R. v. Goguen, [unreported] Que. S.C. No. 500-01-006139-817, November 16, 1982, per Biron J., arising out of the same incidents; see also R. v. Parent (1986), 23 C.R.R. 291.

[53] Another consideration in relation to this ground for severance is that Smich’s wish to be tried by judge alone may not necessitate severance in the end, if Millard changes his mind on this issue and if the Attorney-General consents. None of these decisions have been made at this stage of the proceedings. It is also not yet known whether the evidence of the Bosma murder will be admitted at trial, given that the Crown’s similar fact evidence Motion is not scheduled to be heard until late August, 2017. This ruling, whether admitting or excluding the similar fact evidence, will have an impact on the wisdom or the need for a judge alone trial.

[54] For all these reasons, Smich’s ground for severance based on his desire to be tried by judge alone is simply premature.

[55] In conclusion, the joint severance Motion is dismissed. Some of the grounds raised are not persuasive and some of the grounds are premature, as explained above.

E. ANALYSIS: THE SECTION (11)B CHARTER MOTION

(i) The applicable presumptive ceiling in preferred indictment cases

[56] The threshold issue on the s. 11(b) Motion is whether the eighteen month or thirty month Jordan presumptive ceiling applies in cases where the Attorney General has preferred a direct Indictment. The Applicant Smich submitted that eighteen months is the applicable ceiling. The Crown submitted that thirty months is the applicable ceiling.

[57] In my view, the Crown’s position is the correct one for a number of reasons. First, a textual analysis of the majority judgment in R. v. Jordan, supra at paras. 5, 46, 49, 57, 82, 105, and 124, shows that the Court used the phrase “cases going to trial in the Superior Court” five times and used the phrase “cases in the Superior Court” twice, when describing those cases where the thirty month ceiling applies. This language is clear and unambiguous and it certainly applies to the present case. Its repeated usage by the Court suggests that the precise language was deliberately chosen. In its more recent decision, R. v. Cody, 2017 SCC 31 at para. 20, the unanimous Court continued to describe the thirty month ceiling as applying to “cases tried in superior courts.” This continued usage of the same terminology as in Jordan is significant, given that the intervenor Criminal Lawyers’ Association of Ontario had asked the Court to “clarify” Jordan in a number of areas and had specifically submitted that, “The rationale for the thirty month ceiling … does not apply,” and that “the eighteen month ceiling applies,” in cases where the Crown prefers a direct Indictment (at para. 26(b) of the CLA Factum).

[58] Second, the main premise of the Applicant Smich’s argument in favour of the eighteen month ceiling is that the time spent in the Ontario Court of Justice is “wasted,” when a direct Indictment is preferred, because the accused has been denied the benefit of a preliminary inquiry. In particular, it was submitted that the time has been “wasted” when the Indictment is preferred “on the eve of the preliminary inquiry.” I do not accept this premise. The time that a case spent in the Ontario Court of Justice, prior to a preliminary inquiry, is extremely valuable. Bail hearings are held, the accused has time to retain counsel, initial Crown disclosure is made and then reviewed by the defence, ongoing Crown disclosure is substantially completed and defence requests for further disclosure are made, counsel interview witnesses and preserve evidence that may be needed at trial, counsel take instructions from the client and negotiate resolutions, judicial pre-trials are held where the case against certain accused can be finally resolved and where admissions that shorten and simplify the case can be negotiated. See: R. v. Maone et al., 2017 ONSC 3537 at para. 21. In short, the time spent in the Ontario Court of Justice prior to preferring a direct Indictment is not “wasted” and it cannot simply be discounted or ignored, when determining a reasonable presumptive ceiling for overall delay. It is valuable time that the parties use and need.

[59] Third, there are sound policy reasons for rejecting the Applicant Smich’s approach to the applicable ceiling. If an eighteen month ceiling were imposed, whenever the Attorney General prefers a direct indictment, there would be a strong incentive to prefer at a very early stage of the proceedings, and there would be a significant penalty or disincentive to preferring at a later stage. This would be both unfair to the accused and it would defeat one of the main purposes for the preferred indictment power. In terms of fairness to the accused, responsible counsel should be given the opportunity to review disclosure and then reach agreement with the Crown and the Court on how and when to conduct a timely, efficient, and focused preliminary inquiry, for example, by utilizing the powers in s. 540(7), s. 536.3, and s. 536.4 or by limiting the witnesses and issues. Assuming counsel can reach such an agreement, and the preliminary inquiry can be completed in a reasonable time, there would often be no need to resort to a direct indictment. On the other hand, if the accused’s counsel of choice turns out to be unavailable for a timely preliminary inquiry, or is unwilling to negotiate a responsible agreement as to the scope of a preliminary inquiry, or if any number of difficulties arise at a preliminary inquiry, the direct indictment power has always been available as an important safety valve to put an end to protracted delays at the preliminary inquiry stage. See: R. v. Ertel (1987), 1987 CanLII 183 (ON CA), 35 C.C.C. (3d) 398 at pp. 422-3 (Ont. C.A.); Re Regina and Arviv (1985), 1985 CanLII 161 (ON CA), 19 C.C.C. (3d) 395 at pp. 397-400 and 405-6 (Ont. C.A.); R. v. Charlie (1998), 1998 CanLII 4145 (BC CA), 126 C.C.C. (3d) 513 at para. 32 (B.C.C.A.); R v. Bulhosen et al., 2016 ONSC 7284 at paras. 19-24 and 92-4. In short, there are sound policy reasons for allowing counsel for the Crown and the defence time to try to arrange a preliminary inquiry that can be completed in a reasonable time, rather than forcing the Crown to precipitously seek direct indictments in all serious cases at a very early stage. A direct indictment should rarely be the first or earliest decision made by the Crown. Similarly, there are sound policy reasons not to curtail or penalize use of the direct indictment power at the later stages of a proceeding, when delays have arisen.

[60] Fourth and last, this issue has already been decided by three other judges of this Court. They have all held that the thirty month presumptive ceiling in Jordan applies in cases where the Attorney General prefers a direct Indictment and pre-empts a preliminary inquiry. See: R. v. Nyznik et al., 2017 ONSC 69, per Nordheimer J.; R. v. Maone et al., supra, per A. O’Marra J.; R. v. Bulhosen et al., supra, per J. Henderson J. Principles of comity between judges of cognate jurisdiction are to the effect that these decisions should generally be followed at the level of this Court. The longstanding law in Ontario on this point was summarized by Strathy J., as he then was, in R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 at para. 43 (S.C.J.):

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong.

I agree with the above decisions of my three colleagues and, in any event, they should be followed for the reasons set out in Scarlett.

[61] For all of these reasons, I am satisfied that the applicable Jordan ceiling for presumptively unreasonable delay in this case is thirty months. The total delay of forty-four months is well over that ceiling.

(ii) Deducting “defence delay”

[62] The Crown submits that there were two periods of “defence delay,” as that term is used in Jordan, which should be deducted. The first period is the seven months of delay (from February 23 to September 28, 2015) when the Bosma trial dates and Motion dates were adjourned and when s. 11(b) of the Charter was waived by the Applicant Smich (as summarized above at para. 23). The second period is the six and a half months of delay (from June 17, 2016 to January 3, 2017), after completion of the Bosma trial, when the Applicant Smich asked for a break over the summer and asked for the fall to prepare the Babcock pre-trial Motions and trial (as summarized above at paras. 30 and 31). These two periods of delay total thirteen and a half months. If they are deducted from the 44 months total delay, as the Crown submits they should be, the relevant net delay in this case would be just over thirty months.

[63] The Applicant Smich disputes the characterization of these two periods as “defence delay.” Ms. Trehearne conceded, on behalf of the Applicant Smich, that the Babcock case had to wait until the Bosma case was completed. Accordingly, the Applicant Smich agrees that delays in the Bosma proceedings must be considered because they were often relevant causes of ensuing delays in the Babcock proceedings. In particular, Ms. Trehearne conceded that the nine months of court time, when the Bosma case was actually proceeding before a court in Hamilton, constitutes a “discrete event” in the Jordan sense of that term. On these court days in Hamilton, the parties were not available to attend to the Babcock case in Toronto. It is acknowledged that this delay was unavoidable and there was nothing that the Court or the Crown in Toronto could do about it. However, Ms. Trehearne submitted that the seven month waiver of s. 11(b) in Hamilton was not a waiver in relation to the Babcock proceedings in Toronto. Indeed, Mr. Dungey immediately sought to use this period of now available time in order to schedule the Babcock preliminary inquiry. Furthermore, Ms. Trehearne submitted that the time needed for a break after completion of the Bosma trial, and the time needed to prepare the Babcock trial, were entirely legitimate and necessary.

[64] I agree with the Applicant Smich’s position on this issue. In my view, neither of the two periods relied on by the Crown as “defence delay” can properly be characterized as such. While the seven month waiver of s. 11(b) during 2015 should unquestionably be deducted from the total delay in the Bosma case, when conducting a Jordan analysis of delays in that case, it is difficult to also attribute that waiver to the Babcock case. As summarized above at para. 25, the parties used the time freed up as a result of adjourning the Bosma case, in order to schedule a relatively speedy preliminary inquiry in the Babcock case. Accordingly, there was no similar waiver of s. 11(b) in the context of the Babcock case. In my view, the better way to analyze this seven month waiver period and its impact on the Babcock case is when considering how much time should be attributed to the Bosma case as a “discrete event,” in the Jordan sense of that term. I will address that issue in the next section of these Reasons.

[65] The second period that the Crown seeks to characterize as “defence delay,” that is, the six and a half months after the Bosma trial was completed, runs afoul of the definition of “defence delay” in Jordan. That definition has been fleshed out in R. v. Cody, supra at paras. 28-35, where the Court stated:

However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). …

The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. … Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

… Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).

This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct.

We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter. [Italics in the original; underlining added.]

[66] The exact meaning and application of these new and subtle concepts will undoubtedly take time to develop in the post-Jordan and post-Cody case law. It is not easy to apply the above test for “defence delay” to the six and a half month period after the Bosma trial concluded. On the one hand, the Applicant Smich’s counsel of choice were undoubtedly “not available” to proceed to trial in September 2016 (the original trial date), whereas the Court and the Crown were ready and available. However, counsel’s unavailability was not due to having other commitments in their calendars, in which case any delays caused by counsel’s unavailability would be deducted as “defence delay.” See: R. v. Gandhi, 2016 ONSC 5612, [2016] O.J. No. 4638 at para. 23, citing R. v. Jordan, supra at para. 123 and R. v. Williamson (2016), 2016 SCC 28, 336 C.C.C. (3d) 1 at paras. 21-2 (S.C.C.). Counsel’s unavailability for an immediate September 2016 trial in the present case was due to their need to recover from the long and exhausting Bosma proceedings and then prepare for the upcoming Babcock proceedings. In other words, their unavailability was due to the internal necessities of the Babcock defence, and was not due to some extraneous cause. It cannot be said that these needs are “illegitimate” or “not taken to respond to the charges.” In my view, this somewhat lengthy six and a half month period of recovery and preparation will have to be taken into account, when considering the Jordan “exceptional circumstance” for case complexity. However, the Cody approach to “defence delay” stresses “defence action that is illegitimate” or “not taken to respond to the charges.” In my view, it cannot be said that the six and a half month period of delay after the Bosma trial meets these definitions.

[67] For all these reasons, I am satisfied that there were no periods of “defence delay” to be deducted from the 44 months total delay.

(iii) Deducting “discrete events”

[68] The next issue is whether there are any “exceptional circumstances.” There are three kinds of “exceptional circumstances” recognized in Jordan and the Crown relies on all of them in the present case. They were described as follows in R. v. Cody, supra at paras. 45-6:

Exceptional circumstances were described in Jordan as follows:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. [Emphasis deleted; para. 69.]

Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases (Jordan, at para. 71). In addition, transitional considerations may be taken into account as a third form of exceptional circumstances where, as here, the case was already in the system when Jordan was decided (Jordan, at paras. 94-98).

[69] Beginning with “discrete events,” the Applicant Smich concedes that the Bosma case was a “discrete event,” for the reasons summarized above at para. 63. However, Ms. Trehearne seeks to limit it to the time when the case was actually proceeding in court in Hamilton. She submitted that the necessary out of court preparation time in the Bosma case never caused any delay. In my view, this attempt to limit the “discrete event” is neither realistic nor factually correct. The Bosma case occupied the parties at times other than when they were physically in court in Hamilton, such that they were unavailable, and there was realistically nothing that the Crown or the Court in Toronto could do about it. When scheduling the two cases, counsel for the Applicant were always careful to build in sufficient preparation time, prior to any court proceedings. As a result, the need for preparation time on the Bosma case inevitably caused delay of the Babcock case (e.g., see paras. 19, 23, 24, and 26 above, where counsel for the Applicant Smich scheduled dates on the Bosma case, or referred to these scheduled dates, as allowing for sufficient preparation time).

[70] The definition of a “discrete event,” as justification for a period of delay such that it should be deducted from the total delay, stresses two attributes: it must be “reasonably unforeseen or reasonably unavoidable”; and it must be incapable of mitigation by way of reasonable remedies. It need not be “rare or entirely uncommon.” See: R. v. Jordan, supra at paras. 69-75; R. v. Cody, supra at para. 48.

[71] The fact that both Millard and Smich were already facing a separate murder prosecution in a different jurisdiction was not unforeseen, when the Babcock proceedings commenced in Toronto. However, it was certainly unavoidable. Furthermore, there was nothing the Crown or the Court in Toronto could realistically do about the amount of time taken by the pre-trial Motions and the trial in Hamilton. On this basis, the Applicant Smich concedes that this nine month period of time in court constitutes a “discrete event.” By a parity of reasoning, I would add the time that counsel needed to prepare the Bosma pre-trial Motions and trial. They were equally unavailable during this time, it was unavoidable, and it was equally impossible for the Court or the Crown in Toronto to do anything about it. See: R. v. Singh (2016), 2016 BCCA 427, 344 C.C.C. (3d) 516 at paras. 59-65 and 83 (B.C.C.A.), where a scheduling conflict between cases set for trial in two different jurisdictions was held to be a “discrete event” that caused over seven months of delay (and it was not limited to the trial time spent in court in the other jurisdiction).

[72] The more difficult question is determining how much time to allocate to this necessary preparation of the Bosma case. In other words, how much or how little should be deducted from the total delay as a result of this “discrete event”? One approach would be to carefully analyze each period of court time in the Bosma proceedings and extrapolate a reasonable amount of preparation time relating to each stage of the proceedings. For example, it is apparent that considerable time was spent preparing the “conflicts” Motion in early 2015, considerable time was spent preparing the sixteen other pre-trial Motions with their filing dates in mid-2015, and considerable time must have been spent reviewing the voluminous disclosure and preparing for trial at various stages of the proceedings.

[73] Another approach would be to make a more global assessment of the preparation time, based on counsel’s own global estimates of the time that they needed. For example, counsel for Smich took the position that they needed six and a half months between the end of the Bosma trial and the start of the Babcock pre-trial Motions (it appears that this period included an initial summer break and then about four months of preparation time prior to the Motions). Counsel for Smich advised that they also needed another break of a few months, between the end of the pre-trial Motions and the start of the trial (once again, it appears that some of this time was in order to attend to other cases and some of it was to prepare for the Babcock trial). Another global estimate of preparation time is found in Mr. Dungey’s written submissions, opposing a direct Indictment and opposing any joinder of the pre-trial Motions in the two cases (summarized above at para. 26). He submitted that he would require a five month adjournment of the scheduled Bosma pre-trial Motions, if the Babcock Motions also had to be prepared.

[74] Ms. Trehearne submitted that the Bosma case was more complex than the Babcock case and, therefore, it would require more preparation. At a minimum, I am satisfied that the two cases are roughly comparable, in terms of their size and complexity. On this basis, I am satisfied that counsel for the Applicant Smich required at least six months to prepare both the pre-trial Motions and the trial in the Bosma case (that is, counsel would have required at least the same amount of time as they required for the apparently less complex Babcock case). This was time when counsel was unavailable to attend to the Babcock case, it was unavoidable, and there was nothing that the Court or the Crown in Toronto could do about it.

[75] Combining the nine months of court time and the six months of preparation time, fifteen months should be attributed to the “discrete event” of the Bosma case. In my view, this is a very conservative allocation of time. The phenomenon of two jointly charged accused, facing two separate murder prosecutions in two different jurisdictions at the same time, has rarely happened in my experience. A “discrete event” for s. 11(b) purposes need not be “rare or entirely uncommon,” but this particular event fits that description. It was a constant preoccupation of the Courts and the parties in this case and it is conceded that it caused delay, given that all parties took the position that the Babcock case had to await completion of the Bosma case.

[76] In the result, fifteen months must be deducted from the total delay of 44 months, leaving a 29 month period of relevant net delay. This is below the thirty month presumptive ceiling.

(iv) The “case complexity” exceptional circumstance

[77] In the alternative, if the above analysis is in error, and the Babcock case remains above the thirty month presumptive ceiling, the Crown relies on the “particularly complex case” exceptional circumstance. This exception justifies delay above the ceiling, rather than providing a deduction from the total delay. In other words, the Applicant Smich has conceded that the net delay in this case is 35 months (44 months less nine months for the Bosma case “discrete event”). The issue at this stage of the analysis is whether that 35 months delay is justified by the complexity of the case, assuming that the Applicant Smich is correct in his calculation of 35 months as the relevant net delay.

[78] The majority in R. v. Jordan, supra at para. 77 described the complex case exception as follows:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [Italics in the original.]

[79] In R. v. Cody, supra at paras. 63-65, the Court elaborated as follows:

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).

[80] In my view, the Babcock case bears all the hallmarks of a particularly complex case, as explained in Jordan and Cody. In particular, I note the following seven features

• The evidence in the case is both voluminous and complex. There are 217 civilian witnesses and 260 police officers involved in the case. Mr. Dungey described the amount of disclosure as the most he had ever seen in his lengthy career. There are forty search warrant Informations, twenty Production Orders, twenty experts’ reports from the Centre for Forensic Sciences, and nine reports from experts outside the CFS;

• One particular feature of the investigation and the evidence that struck me as unusually complex was the extent to which the case depends on forensic analysis of cell phones, tablets, and computers. The police seized 59 of these devices. Forensic experts extracted over a terabyte of digital information from the devices, which then had to be reproduced and disclosed. The police investigators and their experts analyzed that terabyte of digital information and produced a 5000 page report. It identifies what the Crown regards as the relevant digital information, including text messages, emails, photographs, videos, and telephone records, as well as GPS and cell tower information relating to the location of a particular device at any given time. This forensic report, and its links, contain eighteen gigabytes of information;

• In terms of the issues in the case, I have already heard or disposed of six pre-trial Motions. The list of Motions identified by counsel to date indicates that there are eleven remaining Motions. In my experience, seventeen is an unusually large number of pre-trial Motions. Mr. Dungey accurately characterized it as such in his appearances before McMahon J. Some of the Motions are undoubtedly difficult. In particular, the evidence law Motions struck me as difficult, for example, the Crown’s Motion seeking to adduce similar fact evidence relating to the facts of the Bosma case where the veterinary incinerator was used to dispose of human remains. I also note that there are issues relating to the admissibility of certain text messages, to the co-conspirators exception to the hearsay rule, and to the documents in possession rule that were identified during argument of the present Motions but that have not yet been listed by the parties as pre-trial Motions. In other words, the number of pre-trial Motions will likely expand to twenty or more. As a result, the legal issues in the case are complex and the pre-trial Motions are numerous;

• There are two issues that bear particular mention as unusual ones that involved some considerable complexity: first, the “conflicts” Motion; and second, the fact that Ms. Babcock and her remains have never been found and there is no crime scene. The “conflicts” Motion delayed both the Bosma case and the Babcock case because Millard’s choice of counsel was the same on both cases and because the evidence relating to the alleged conflict could potentially arise in both cases. A Motion to remove counsel for conflict of interest, on the basis of potentially inadmissible evidence, is a difficult and unusual Motion that took some time to resolve. In addition, a murder prosecution where there is no body, no human remains, and no crime scene, raises obvious challenges. It has required the police and the Crown to develop and call a large body of evidence that does not normally figure in routine murder cases;

• The trial is scheduled for three to four months. Even in the modern era of more frequent long complex trials, this is a lengthy trial. Simple or more routine murder trials, in the modern era in the Toronto Court House, are generally between two weeks and six weeks in length. Four to five week murder trials are still relatively common. A murder trial of more than six weeks is generally regarded as a lengthy trial;

• The preparation time required by counsel in this case is unusually long. As analyzed above, it appears that the Applicant’s counsel needed a minimum of six months to prepare the Babcock case. This is a conservative estimate and, once again, it distinguishes this case as unusually long and complex. A simple or routine murder case could be properly prepared in much less time;

• One final complicating feature of this case is the fact that there are two co-accused, one of them is ineligible for Legal Aid, his private assets are under the control of a court-appointed Receiver, and he has had to raise very substantial amounts of money in order to fund two very large private retainers (sometimes by way of an Application by the Receiver to a judge of the Commercial List). I am not aware of any other case that shares this feature and it was a contributing cause of delay and complexity. In addition, each of the two accused was often represented by two separate counsel and the Crown was always represented by two or more counsel. Finding available dates in the calendars of six separate lawyers was another factor that added to the complexity of the case.

[81] The above seven features that I have particularly relied on, in order to find that this is an unusually long and complex case, do not include the fact that it was proceeding at the same time as a different but related murder case in another jurisdiction. That is because I have already relied on the Bosma case as a “discrete event” in the preceding section of these Reasons. As the Court stated in R. v. Cody, supra at para. 64, footnote 2, “once a period of delay has been deducted as defence delay or a discrete event, it should not be double-counted by taking it into account when assessing case complexity.” As explained above, the Applicant Smich only conceded that the nine months of court time required by the Bosma case is a “discrete event,” and not the six months of preparation time that I have also allocated as part of that same “discrete event.” The analysis of “case complexity” in this part of my Reasons is premised on the Applicant’s position being correct, namely, that the six months preparation time should not be deducted, such that the total net delay is 35 months, which remains above the thirty month presumptive ceiling. Accordingly, it would arguably not amount to “double counting,” if some reference was made to the fact that counsel were actually preparing two separate murder cases, when assessing “case complexity.” This was undoubtedly an unusual and complicating feature of the Babcock proceedings, that they were being prepared and conducted in tandem with the Bosma proceedings. However, out of an abundance of caution, I have not included this consideration at all in my assessment of “case complexity.”

[82] On the basis of the seven features of the Babcock case outlined above, I am satisfied that it meets the definition of a “particularly complex case,” as set out in Jordan and in Cody.

(v) The duty of the Crown, and the Court, to mitigate delays

[83] Counsel for the Applicant Smich did not advance any persuasive arguments to rebut Ms. Cameron’s position, on behalf of the Crown, that this is a “particularly complex case.” Rather Ms. Trehearne relied heavily on the following passage in R. v. Jordan, supra at para. 79, where the majority stated:

… the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control.

[84] Ms. Trehearne submitted that there were six specific ways in which the Crown failed to mitigate or minimize the delays in this case, including delays related to “case complexity.” These six instances of alleged “missteps” by the Crown were as follows: delays in preferring the Bosma direct Indictment; delays in completing disclosure in the Babcock case; delays in bringing on the “conflicts” Motion in the Superior Court in Hamilton; failure to prevent or limit delays caused by the co-accused Millard in both cases; delays in preferring the Babcock direct Indictment; and delays caused by tendering a large amount of prejudicial evidence, of dubious admissibility, that will unduly complicate and lengthen the case.

[85] In my view, these six critiques of the Crown’s conduct of the case are not well-founded. Two of Ms. Trehearne’s criticisms of the Crown relate to the two direct Indictments. They reflect the same premise that she relied on when arguing in favour of an eighteen month presumptive ceiling, namely, that direct Indictments should be preferred at an early stage of the proceedings because the time spent in the Ontario Court of Justice is otherwise “wasted.” I have already rejected this premise in an earlier section of these Reasons. In both the Bosma case and the Babcock case, the Crown and the Courts made efforts to schedule timely, efficient, and focused preliminary inquiries. This was a fair and reasonable approach to take, rather than immediately and precipitously preferring a direct Indictment at the very early stages of the Ontario Court of Justice proceedings.

[86] In the Bosma case, it appears that disclosure was substantially complete by about February 2014, although the precise date when disclosure was complete is not stated in the record. It also appears that the scheduled preliminary inquiry would neither be focused nor efficient as an undetermined and substantial number of witnesses were to be called (see para. 19 above). At this point, the Crown properly requested and was granted a direct Indictment (see para. 20 above). In the Babcock case, the initial rationale for a direct Indictment was to facilitate joint pre-trial Motions on the two separate trials. The Applicant Smich forcefully and successfully opposed this plan by arguing that it would actually cause delay. It was only when the scheduled dates for the Babcock preliminary inquiry (in September 2015) were adjourned for a full year (to September 2016), in order to accommodate the Bosma trial, that the Attorney General then quickly and properly preferred a direct Indictment (see paras. 25 and 26 above).

[87] In short, the Crown’s conduct in relation to the two direct Indictments cannot be criticized. It is a generally sound policy, in my view, to await substantially complete disclosure and to await counsel’s and the court’s efforts to schedule a timely, focused, and efficient preliminary inquiry, before preferring a direct Indictment. That is what happened in both the Bosma and Babcock cases. It should also be remembered that the generally accepted approach to the direct indictment power, at the time these two cases arose in 2013 and 2014, was to regard it as an “exceptional” and “extraordinary” power that was to be used sparingly, especially in Ontario. See, e.g., R. v. Jones and Francis (1997), 1996 CanLII 12421 (ON CA), 113 C.C.C. (3d) 225 at pp. 232-3 (Ont. C.A.); R. v. Pakjou, 2013 ONSC 1419, [2013] O.J. No. 1050 at para. 87 (S.C.J.). It is only more recently, as a result of dicta from the Supreme Court and the Court of Appeal in s. 11(b) cases, that the direct indictment power has come to be used more liberally. See: R. v. Jordan, supra at para. 140; R. v. Manasseri and Kenny (2016), 2016 ONCA 703, 344 C.C.C. (3d) 281 at para. 376 (Ont. C.A.).

[88] The Applicant Smich’s complaint about the timeliness of disclosure in the Babcock case is also not compelling, given the unusual size and complexity of disclosure in this case. Initial disclosure was an 800 page brief and it was provided within three months of laying the charge. A further very substantial amount of disclosure was provided within another two and a half months, such that the parties were able to schedule a JPT (see para. 21 above). It is apparent that the time required to complete this disclosure process was due, in large part, to the need to vet the voluminous and complex digital information extracted from the numerous computerized devices seized by the police (which undoubtedly raised third party privacy issues and relevance issues). A period of five and a half months, to assemble, vet, and disclose what Ms. Trehearne described as “a vast amount of disclosure,” is faster than the periods of over seven months and over ten months that were found to be acceptable in less complex cases in the pre-Jordan case law. See: R. v. G. (C.R.) (2005), 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 at paras. 7 and 18-19 (Ont. C.A.); R. v. Schertzer et al. (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 77-80 (Ont. C.A.). In other words, the Crown’s performance in relation to timeliness of disclosure, in this more demanding Babcock case, represents an improvement over the pre-Jordan culture.

[89] The Applicant Smich’s complaint about Crown delays in bringing on the “conflicts” Motion is simply misconceived, and I summarily dismissed it during oral argument. The factual record is clear that the “conflicts” Motion should have been initiated by the Applicant Smich, that his counsel were reluctant to initiate it or schedule it in a timely way, and that the Crown responsibly took steps to force it on by drafting the Motion, and serving and filing it, styled as a Motion for Directions, and by insisting that it be heard at an early stage, in advance of the other pre-trial Motions (see paras. 22 and 23 above). Ms. Trehearne conceded that the burden was on the Applicant Smich in relation to this Motion, for the reasons explained in R. v. Pollock and Morrison, supra, and yet it was the Applicant Smich who delayed the Motion. In terms of the “culture of delay” that Jordan seeks to change, the handling of this “conflicts” Motion indicates to me that the Crown was acting in an exemplary manner in the face of delays caused by the defence.

[90] The Applicant Smich’s criticism of the Crown’s conduct in relation to Millard’s delays in retaining counsel is to the effect that the Crown was too passive and should have taken more aggressive steps to prevent these delays. In my view, it is ultimately the Court’s responsibility to decide how much time should be allowed for an accused to perfect a substantial private retainer that is needed for a long complex case, although the Crown’s position will likely have some influence on these decisions. In any event, the simple answer to this point is that Millard’s delays in perfecting counsel’s retainer appear to have had little impact on the progress of the Bosma case or the Babcock case. Ms. Trehearne conceded that Millard’s counsel always agreed to schedule dates for the pre-trial Motions and for the trial, in spite of their retainers being incomplete. When the initial Motion and trial dates scheduled for the Bosma case were adjourned, in part because of delays in completing Millard’s retainer of counsel, there were a number of other equally significant causes of this period of delay (see paras. 23 and 24 above). When the initial dates scheduled for the Babcock case were adjourned due to Millard’s somewhat dilatory change of heart about his need to retain counsel for trial, it actually had little or no impact on the pace of the Babcock proceedings. It is conceded, and the record is clear, that counsel for the Applicant Smich wanted the pre-trial Motions to proceed in February 2017 and wanted the trial to proceed in September 2017, in order to allow sufficient preparation time. In my view, this is substantially what happened in the end (see paras. 29-38 above). As I read the record, Ms. Cameron vigourously opposed any delays relating to Millard’s retainer of counsel and, in any event, this issue had no significant impact on the timing of the trial. At most, some of the pre-trial Motions have been delayed by a few months in order to obtain the significant benefit of having Millard represented by counsel.

[91] The final criticism of the Crown’s conduct relates to certain bad character evidence that the Crown may seek to adduce at trial, and its impact on the length and complexity of the proceedings. The Crown has not yet filed any pre-trial Motion or Motions, seeking to adduce this kind of evidence. Accordingly, I cannot evaluate the merits of this particular criticism. I can assure the Applicant Smich that if the Crown does seek to tender far-fetched evidence of doubtful admissibility, which will unnecessarily complicate the trial and prejudice the accused, I will be vigilant in summarily preventing these efforts.

[92] For all these reasons, the Crown did not contravene its duty to mitigate and minimize the delay in this case. Indeed, as I will discuss below in the last section of these Reasons, the Crown has consistently taken responsible steps to expedite the proceedings. Accordingly, the 35 months of relevant net delay (assuming the correctness of the Applicant Smich’s calculation of net delay) was justified by the “case complexity” exceptional circumstance discussed in Jordan. The Crown and the Courts could not have done anything more to prevent these delays. I am satisfied that 35 months is a reasonable amount of time to try a case of this considerable complexity. See: R. v. Singh, supra at paras. 84-95, where the B.C.C.A. held that 35 and a half months was justified for a trial of arguably comparable complexity.

(vi) The exceptional circumstance for transitional cases

[93] The Jordan decision was released by the Court on July 8, 2016. This was about a month after the Bosma trial had concluded and about 27 months after the Babcock proceedings had commenced. As a result, the present case is a transitional case where most of the delay had already occurred by the time Jordan was decided.

[94] Regardless of the analysis of “defence delay,” “discrete events,” and “case complexity,” as set out above, the Crown submits that the Jordan “exceptional circumstance” for transitional cases applies. The Crown submits that there were very few periods of delay that would have been regarded as unreasonable under the Morin framework, and they were very short. In addition, the Applicant Smich was in custody throughout in relation to the Bosma matter and so there was no prejudice to his s. 11(b) liberty interests. Finally, the Babcock murder charge is extremely serious, which was treated as an important factor under the pre-Jordan framework. The defence rejects this analysis and submits that the delay would have been unreasonable under the prior Morin framework. In particular, the defence submits that there was significant Crown delay, relying on the six instances of alleged dilatoriness by the Crown analyzed above. In addition, Ms. Trehearne relied on R. v. Jordan, supra at para. 98, where the majority explained that the transitional case exception does not apply in certain circumstances:

On the other hand, the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. [Emphasis added.]

[95] In its recent decision in R. v. Cody, supra at paras. 67-71, the Court elaborated on “the transitional exceptional circumstance” as follows:

Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96).

When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96). [Emphasis added.]

[96] The Court of Appeal also provided guidance in relation to the proper approach to transitional cases in a recent decision, R. v. Gordon, 2017 ONCA 436 at para. 20. Doherty J.A. gave the judgment of the Court and stated:

The transitional exception is based on reasonable reliance on Morin. The exception cannot assist the Crown if the delay was unreasonable as measured against the Morin criteria: see Jordan, at para. 128. To rely on the transitional exception, the Crown must show that the pre-Jordan delay was not unreasonable under the Morin analysis. [Emphasis added.]

[97] Applying the above principles, I am satisfied that “the transitional exceptional circumstance” applies to this case. In terms of the reasons for delay, there appear to have been no periods of systemic delay. Furthermore, the only period of Crown delay was the one and a half months, in early 2017, when Crown counsel was unavailable because of her commitment to another murder prosecution. In this regard, I have already rejected the six instances of alleged Crown delay relied on by the Applicant Smich. In addition, the final six and a half month period of delay from June 17, 2016 to January 3, 2017, which includes post-Jordan delay after July 8, 2016, would have been analyzed as inherent delay because it was requested by the defence and it was scheduled prior to the release of Jordan in order to allow counsel sufficient time to properly prepare for trial. It would have carried neutral weight under the Morin framework. See: R. v. Morin, supra at pp. 16-21; R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 at para. 32 (Ont. C.A.); R. v. Lahiry et al. (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at paras. 25-37 (Ont. S.C.J.). Of course, the time when the parties were unavailable due to their commitment to the Bosma case, as well as the time spent addressing the pre-trial Motions on both the Bosma and the Babcock cases, would all have been analyzed as inherent delay carrying neutral weight. See: R. v. Schertzer et al., supra at paras. 113-118; R. v. MacDougall (1998), 1998 CanLII 763 (SCC), 128 C.C.C. (3d) 483 at paras. 44-7 (S.C.C.).

[98] In terms of prejudice, Ms. Trehearne conceded that there was no prejudice to the Applicant’s liberty interest, given that Smich was in custody throughout the Bosma proceedings and after his conviction at trial. In terms of prejudice to security of the person and fair trial interests, there is no extrinsic evidence of actual prejudice to these interests, unlike in R. v. Cody, supra at paras. 16 and 73. Furthermore, there would be little or no inferred prejudice, given that the only period of unjustified delay was the one and a half months in early 2017 when Crown counsel was unavailable due to another commitment. See: R. v. Boateng (2015), 2015 ONCA 857, 329 C.C.C. (3d) 1 at para. 41 (Ont. C.A.); R. v. Gandhi, supra at para. 52; R. v. Lahiry et al., supra at para. 8.

[99] At the final balancing stage of the Morin framework, the gravity of the offence and society’s interest in a trial on the merits became important considerations, as acknowledged in both Jordan and Cody. In the present case, this factor would have weighed against finding any s. 11(b) violation. See: R. v. Morin, supra at pp. 12-13; R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 at paras. 21-5 (Ont. C.A.); R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 41 (Ont. C.A.); R. v. Lahiry et al., supra at paras. 86-9.

[100] For all these reasons, I am satisfied that the present case was in compliance with s. 11(b) under the pre-existing Morin framework and that the parties were entitled to proceed in “reasonable reliance on the law as it previously existed.”

[101] In terms of the exemption from reliance on the previous state of the law, where the delay “vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown” (R. v. Jordan, supra at para. 98), neither of these criteria apply to the present case. The net delay, as calculated by the Applicant Smich, is 35 months. This does not “vastly exceed” the thirty month ceiling. Furthermore, there were no “repeated mistakes or missteps” by the Crown that contributed to the delays. I have already rejected the six specific criticisms of the Crown’s conduct in this case. Furthermore, the record shows consistent efforts by the Crown to expedite both the Bosma case and the Babcock case, unlike R. v. Williamson, supra, which was referred to by the Court in R. v. Cody, supra at para. 70, as a case of Crown “indifference” in response to “repeated efforts to expedite” by the defence. In particular, I note the following eight features of the Crown’s conduct in this case (and in the Bosma case):

• the Crown was always available and ready to proceed on the earliest dates, with the one brief exception in January 2017. It was the defence that generally needed additional time, especially after the Bosma case concluded;

• when both the Bosma and the Babcock cases were being delayed by the “conflicts” issue, it was the Crown who proactively took charge of the issue by filing a Motion for Directions and by insisting that it be heard on the earliest available date. It was the defence that had delayed this Motion and that opposed early scheduling of the Motion;

• the Crown vigourously and successfully opposed Millard’s attempt to adjourn the Babcock case until January 2018, supporting the Applicant Smich’s position;

• it was the Crown who pressed for an early date on the Motion to quash the preferred Indictment and it was the defence who sought more time to prepare this Motion;

• it was the Crown who joined Millard in seeking and scheduling an early date for the severance Motion;

• the Crown proactively became engaged in the Applicant Smich’s Third Party Records Motion, instead of leaving the matter in the hands of the Third Party’s own counsel. As a result of Ms. Cameron’s involvement, this Motion was essentially resolved and required little court time;

• the Crown agreed to expedite its two most difficult Motions, relating to similar fact evidence and extrinsic misconduct evidence, agreeing to file them by June 30, 2017. This will allow the defence time over the summer to respond to the two Motions and will allow the Court to schedule these Motions in late August, prior to the scheduled trial date in September 2017;

• finally, by preferring direct Indictments in both the Bosma and the Babcock cases, the Crown undoubtedly prevented significant delays. The Bosma preliminary inquiry was scheduled for eight weeks in the fall of 2014 and the number of witnesses to be called appeared to be undetermined and extraordinary. It would inevitably have caused delays. The Babcock preliminary inquiry was scheduled for four weeks in the fall of 2016 and would have added significant delay, if it had proceeded.

[102] In conclusion, I am satisfied that the exceptional circumstance for transitional cases applies to the present case. If the Applicant Smich is correct in submitting that the relevant net delay exceeds the thirty month ceiling, and is correct in submitting that the “case complexity” exceptional circumstance does not apply (both of which positions are contrary to my previous conclusions), then the 35 month relevant net delay is nevertheless reasonable due to “the transitional exceptional circumstance.”

(vii) Conclusion

[103] In summary, my conclusions concerning the s. 11(b) Motion are as follows:

(i) the total delay is 44 months but the relevant period of net delay is 29 months, after deducting 15 months due to the “discrete event” of the Bosma case. This is below the thirty month presumptive ceiling for s. 11(b) delay in a murder trial in the Superior Court. The Applicant Smich has not demonstrated that this delay below the ceiling is, nevertheless, “markedly longer” than this particular case should have taken. See: R. v. Jordan, supra at paras. 82-3 and 87-91;

(ii) in the alternative, if the net delay was 35 months and, therefore, exceeds the presumptive ceiling (as the Applicant Smich submits), then the exceptional circumstance for “particularly complex cases” applies;

(iii) in the further alternative, if the net delay was 35 months and this was not a “particularly complex case” (as the Applicant Smich submits), then the exceptional circumstance for transitional cases applies.

[104] On all three of the above bases, I am satisfied that there was no violation of the Applicant Smich’s s. 11(b) Charter rights. As a result, the s. 11(b) Motion is dismissed.

[105] I would like to thank all counsel for their effective advocacy and their thorough and helpful materials on these two Motions.

M.A. Code J.

Released: June 29, 2017

CITATION: R. v. Millard, 2017 ONSC 4030

COURT FILE NO.: CR-15-50000474-0000

DATE: 20170629

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DELLEN MILLARD and MARK SMICH

REASONS FOR JUDGMENT

on s. 11(b) charter motion

and severance motion

M.A. Code J.