CITATION: R. v. Codina, 2017 ONSC 4886

COURT FILE NO.: CR-16-90000761-0000

DATE: 20170905

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANGELINA CODINA

L. Trefler, for the Crown

A. Codina, self-represented

HEARD: July 20, 2017

s.a.Q. akhtar j.

I. FACTUAL BACKGROUND AND OVERVIEW

Introduction

1Angelina Codina, stands charged with offences under ss. 91 and 126 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Crown alleges that she provided immigration advice to a number of individuals, for monetary gain, when not authorised to do so. The Crown further contends that the applicant counselled a client to misrepresent facts with respect to an immigration application (contrary to s. 91(1) of the IRPA) and, in addition, violated release conditions of her bail.

2The accused brings this application claiming a breach of her right to a trial within a reasonable period of time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms, and asks that the proceedings be stayed.

3The following reasons explain why the application has no merit and is dismissed.

The Allegations

4The accused is a former lawyer who is no longer licensed to practice in Ontario. The indictment before the court combines two separate sets of charges originally laid before the Ontario Court of Justice.

Counts One to Five

5Counts one to five, originally laid on 8 May 2014 (“the first set of charges”), allege that the accused gave immigration advice to a number of individuals and was paid for doing so. At the time, she was neither a lawyer nor a member of the Immigration Consultants of Canada Regulatory Council (ICCRC) as required by s. 91 of the IRPA which reads as follows:

91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

(2) A person does not contravene subsection (1) if they are

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

(c) a member in good standing of a body designated under subsection (5).

(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

6IRPA regulations exempts members of the ICCRC from the s. 91 prohibition. In addition, s. 126 of the statute makes it an offence to counsel anyone to directly or indirectly misrepresent or withhold material facts in relation to matters under the jurisdiction of the IRPA.

Count Six

7On 18 September 2015, the accused was charged under s. 145 of the Criminal Code and s. 91 of the IRPA (“the second set of charges”). She was alleged to have violated a residential condition of her bail and committed a further offence: she was found in an office in Toronto providing paid immigration advice. This allegation forms the basis of count six of the indictment.

8With the two sets of charges proceeding in different timelines, two separate preliminary inquiries were required.

II. THE CHRONOLOGY OF EVENTS

The Ontario Court of Justice

First Appearances (8 May to 21 July 2014)

9The accused first appeared in court, in custody, on 8 May 2014 and was remanded to 12 May 2014 when she declared her intention to apply for Legal Aid and retain counsel. The next day, the Crown formally consented to her release with conditions. Unfortunately, the amount set by the court could not be met by her proposed surety and the accused remained in detention. The matter went to 23 June 2014 and then to the 7 July 2014, by which time “voluminous” disclosure had been provided to the accused’s counsel, David O’Connor. He requested that the matter return on 21 July 2014.

Which Counsel? (21 July to 11 August 2014)

10On 21 July 2014, the first of many wrinkles in the history of the case emerged. Even though the Crown was ready to set a judicial pre-trial date and expected Mr. O’Connor to attend court to do so, another counsel, Mr. Peck, appeared and told the court that the accused had contacted the firm of Caramanna and Friedberg to represent her. Mr. Peck requested a four week adjournment to finalise the retainer. The Crown objected to the length of the proposed adjournment. The accused, in turn, explained that Mr. O’Connor could not act on her behalf due to conflict issues and had transferred the file to his associate. The accused, however, preferred a more senior counsel leading her to look elsewhere. The matter was remanded to 28 July 2014 to clarify the situation but, on that date, the accused had still not retained counsel. She asked for the matter to return two weeks later. Despite the Crown’s objection, the matter was remanded to 11 August 2014.

11When the matter came back on that date, counsel James Silver appeared and explained that a new counsel, Susan Pennypacker, was in the process of being retained. Ms. Pennypacker had corresponded with the Crown requesting an “unrepresented” judicial pre-trial on 15 September 2014. Mr. Silver made clear that if Ms. Pennypacker received proper instructions prior to that date, she would act on the accused’s behalf at the pre-trial. If not, the accused would represent herself. The Crown informed the court that Mr. O’Connor had been previously served with “complete” disclosure.

The Judicial Pre-Trial (15 September to 25 November 2014)

12On 15 September 2014, an in-court “self-represented” judicial pre-trial was held. Ms. Pennypacker indicated that it was not possible, on that day, to complete a “productive” pre-trial and that she had additional disclosure to review. The matter was remanded to 27 October 2014 for a formal pre-trial now that Ms. Pennypacker had been retained. A preliminary inquiry date would be set immediately thereafter.

13The judicial pre-trial finally took place on 27 October 2014. A transcript of the court proceedings has not been provided and it is unclear why the matter was put over to 20 November 2014. A partial transcript of that date was ordered by the accused and shows that all parties agreed that four weeks would be required for the preliminary inquiry. The matter was remanded to 25 November 2014 when a four week hearing date of 23 November 2015 was set. The Crown indicates, in its materials, that a focus hearing took place before Caldwell J. where it advised upon the witnesses to be called and the documentary evidence agreed to be admissible under s. 540(7) of the Criminal Code. Again, although the set date portion of the transcript was ordered, the focus hearing was not.

The Change of Counsel (26 February 2015 to 9 September 2015)

14On 26 February 2015, Ms. Pennypacker brought an application to be removed as counsel of record. This transcript has not been provided by the accused. The next date of hearing appears to be 26 March 2015, when Greene J., of the Ontario Court of Justice, granted Ms. Pennypacker’s application over the Crown’s objection. Again, this transcript appears to be only a partial record of the proceedings with no indication of the reasons for the application or the judge’s reasons for acceding to it. Greene J. made it clear that that the accused had to seek new counsel and that the existing preliminary inquiry date was to be maintained. The matter was put over to 16 April 2015.

15Once again, the accused filed only with a partial transcript of this date which begins part way through a discussion of potential new counsel. The matter was remanded to 8 May to have Mr. Freeman become new counsel. On 8 May 2015, he appeared and was placed on record, having previously written to the court confirming both his retainer and wish to maintain the preliminary inquiry dates. However, Mr. Freeman indicated that the scheduled focus hearing date would have to be moved because it fell upon the first day of Rosh Hashanah. The matter was put over to 9 September to confirm new focus hearing date and the preliminary inquiry.

16The provided 9 September 2015 transcript is, once again, incomplete. The transcript begins with a discussion of new dates and a reference to Mr. Freeman being “reinstated”. Caldwell J., the presiding judge, informed the accused that the court needed to know whether Mr. Freeman was being reinstated or, alternatively, if the accused was to proceed unrepresented.

The Additional Charges

17The next appearance was on 28 September 2015. Once more, only a partial transcript was filed by the accused. By this time, she had been arrested on the second set of charges and was back in custody. A focus hearing on the first set of charges was set for 15 October 2015. However, on that date, Mr. Freeman failed to attend whilst the matter was addressed in court. The Crown explained its efforts in seeking to have Mr. Freeman present whilst the accused was in court. The matter was adjourned to the preliminary inquiry date of 23 November 2015 marked to proceed “with or without counsel.” Mr. Freeman appeared after the matter had been adjourned and updated the court on his professional status: he had been suspended from practice and was awaiting news of a potential re-instatement by the Law Society of Upper Canada. He expected to be restored to active status the following week and re-affirmed his intention to act on behalf of the accused as long as she had had obtained Legal Aid or other “means become available.”

18Mr. Freeman’s optimism proved unfounded. The accused made two further appearances before the preliminary inquiry commenced: on 30 October 2015 and on 16 November 2015 by which time it had become clear that she was to represent herself. As a result, she requested amicus curae be appointed.

The Preliminary Inquiry (23 November to 17 December 2015)

19On 23 November 2015, the accused was arraigned in front of Caldwell J. to begin the preliminary inquiry. Although Crown witnesses were in attendance, no evidence was heard and they were told to return to court the next day.

20The accused initially requested an adjournment “for a week or ten days” to prepare for the preliminary inquiry. In addition, she requested time to seek bail on the second set of charges and asked the court to postpone the start the preliminary inquiry to a date subsequent to her future release. These requests were denied by Caldwell J.

21The balance of the day was consumed by the accused’s motion seeking dismissal of the charges on the basis of jurisdictional error committed by the prosecuting authorities. That motion, raised without notice to the Crown, was also dismissed.

22The evidence began on 24 November 2015 and continued, unfinished, to 17 December 2015 with two interruptions on the afternoons of 24 November 2015 and 30 November 2015 for the accused to complete her bail hearing on the second set of charges.

The Continuation and Defence Case (18 January to 21 April 2016)

23New dates were accordingly required to complete the preliminary inquiry. The accused produced a letter suggesting the possibility of new counsel, Ms. Tucci, coming on board.

24Caldwell J.’s judicial workload for the first half of 2016 had already been fully assigned leaving her no time to continue the preliminary inquiry until later in the year. The accused was remanded to 18 January 2016 to allow a re-scheduling of Caldwell J.’s calendar to give the accused’s preliminary inquiry priority. New dates from February 2016 to April 2016 were set aside for the continuation of the accused’s case. On 18 April 2016, with the Crown’s evidence coming to an end, the accused indicated, for the first time, that she wished to call six witnesses including three Canadian Border Services Agency (CBSA) officers, three experts and an immigration officer.

25The Crown’s case concluded on 21 April 2016.

The Defence Case and Written Submissions (26 April to 24 June 2016)

26The defence evidence began on 26 April 2016. Four witnesses testified on 26-28 April 2016 and 17, 22, 23, 24 June 2016. They included an immigration officer whose only role had been to interview one of the Crown witnesses. Since he was based in Vancouver, his court attendance had to be arranged through the use of video services.

27On 24 June 2016, having exhausted her first set of requested witnesses, the accused made a request for additional witnesses. This was denied by Caldwell J. who observed that the relevance of the witnesses already called by the accused - and questioned over five days - was “minimal at best.” She found that the calling of the further witnesses identified by the accused simply amounted to “a fishing expedition.”

28With the evidentiary portion of the hearing at an end, Caldwell J. ordered both parties to file written submissions. The Crown was ordered to serve and produce her materials by 15 August 2016. The accused requested a similar amount of time to produce a response after receipt of the Crown’s submissions. The matter was remanded to 22 August 2016 to determine a date by which the accused could file her response. Further appearances were made in September, October and November 2016, to confirm the filing of the accused’s response. Finally, on 8 December 2016, the accused’s submissions were received.

The Direct Indictment

29On 13 December 2016, however, the Crown filed a direct indictment combining the first and second set of charges. This terminated the preliminary inquiry and sent the matter directly to the Superior Court of Justice for trial.

The Superior Court of Justice

30The accused first appeared in the Superior Court on 19 December 2016 and was remanded to a judicial pre-trial date of 11 January 2017.

31During the course of the preliminary inquiry, the accused had brought a series of interlocutory applications before the Superior Court of Justice seeking, amongst other things: a finding of abuse of process against the Crown in her handling of the accused’s matters; prerogative relief in relation to the preliminary inquiry covering the second set of charges; and a Charter declaration that the statutory sections with which she was charged were unconstitutional. These applications were dealt with and dismissed by my colleagues, Campbell J. and Code J. Another application for habeas corpus had been brought before Goodman J. on 6 July 2016 and 21 July 2016, and dismissed with reasons to follow.

32The accused appealed all of the Superior Court judgments to the Court of Appeal for Ontario. It was apparent, during the in-court judicial pre-trial before McMahon J. on 11 January 2017, that the outstanding appeals, if successful, would significantly, if not fatally, impact the Crown’s case. The matter was therefore put over initially to 1 February 2017 and then to 1 March 2017 to receive an update.

33On 2 February 2017, the Court of Appeal released its decision with respect to Goodman J.’s ruling. The court ordered a new bail review hearing but dismissed the accused’s appeal that the direct indictment was invalid. On 7 February 2017, the Court of Appeal summarily dismissed the accused’s appeal from Campbell J.’s decision on the basis that it was an interlocutory appeal of an ongoing matter.

34On 1 March 2017, the Crown requested a one week adjournment so that it could prioritise the trial by adjourning other matters scheduled for September. On 8 March 2017, an eight week jury trial date was set to begin on 11 September 2017.

35The total length of time, from the date of charge to the estimated end of trial, is 42 months.

III. LEGAL PRINCIPLES

36The decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1. S.C.R. 631, transformed the manner in which s. 11(b) claims were assessed, overruling the principles previously set out in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771. A hard cap of 30 months - for offences tried by indictment - was imposed by the court as a presumptive ceiling of unreasonableness.

37In determining whether the presumptive ceiling has been breached, the court must take the total length of delay and subtract any delay caused by the defence or discrete exceptional circumstances. This leaves a “net delay” figure: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d). A “net delay” greater than 30 months shifts the onus to the Crown to justify the excessive delay because of the presence of exceptional circumstances: Jordan, at paras. 47, 68-75.

38The Court also recognised the reality of the multitude of cases commenced prior to the release of its judgment and operating in reliance on the Morin principles. These cases could be saved under the “transitional exception circumstance.” At para. 96 of Jordan, the majority explained how the exception worked:

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice.

39The court added, at para. 97:

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay -- even if it is significant -- will not automatically result in a stay of proceedings.

40The transitional exception is based on reasonable reliance on Morin and to rely upon it, the Crown must show that the pre-Jordan delay would have survived the Morin test for reasonableness: R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426, at para. 20.

The Interaction of Pre and Post Jordan Cases

41Post-Jordan, the Court of Appeal for Ontario has set out a framework for the application of the principles to cases in the system before the new regime was announced: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 451; and R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426.

42In R. v. Mallozzi, 2017 ONCA 644, at paras. 28-30, Benotto J.A. writing for the court summarised a three step process:

1. The court must subtract any defence caused delay from the total to determine if the net delay falls below the presumptive ceiling;

2. If the net delay remains above the presumptive ceiling, the court must subtract delay arising out of discrete events and complexity;

3. If the net delay still rises above the Jordan ceiling, the court must consider the applicability of the transitional exceptional circumstance, based on the Morin criteria.

43It is agreed in this case that the total delay with respect to counts one to five from the date of arrest to the projected finish date of the trial is 42 months.

44For the following reasons, I find that after making the appropriate deductions, the net delay, with respect to counts one to five, falls below the ceiling under the Jordan analysis. In the alternative, even if the delay had been above the 30 month limit, I find that the Crown is entitled to rely upon the transitional exceptional circumstance to justify the delay.

IV. DELAY WITH RESPECT TO COUNTS ONE TO FIVE

The Transcripts

45Before embarking on the Jordan and Morin analyses, I pause to comment on the record filed by the accused as part of her Charter application. On 5 July 2017, I dismissed, without prejudice, the accused’s original s. 11(b) claim on the basis of an incomplete record and made clear that in order to proceed she would have to provide a complete set of transcripts detailing the history of proceedings: R. v. Codina, 2017 ONSC 4105.

46Although the accused complied with the filing deadlines set by the court, many transcripts contain only part of her court appearance. Despite the accused’s vague explanations, it is clear from the notes on each of the abridged transcripts that the accused asked only for the segments that were reproduced. I find this conduct to be unacceptable and something that makes the task of determining correct periods of delay to be much harder. For the sake of ensuring that the Charter claim was dealt with prior to trial, I allowed the application to proceed.

The Analysis Under Jordan

(a) Defence Delay

47Following the steps outlined in Mallozzi, I subtract three months of delay caused by the defence, for the following reasons.

48In Jordan, at para. 60, the court explained the rationale for this deduction: “[t]he defence should not be allowed to benefit from its own delay causing conduct.” In R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 30, the Supreme Court of Canada defined deductible defence delay as being “that which: (1) is solely or directly caused by the accused and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.” One example given was the making of frivolous applications and requests. The court emphasized that scrutiny of defence conduct had to be flexible, taking account all the circumstances of the case. At paras. 32-33, the Court proffered the following way in which to approach the examination of defence conduct:

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. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. 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.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11 (b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable 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).

49In terms of defence delay, I would subtract the period of time that the accused took to obtain initial legal representation and set a judicial pre-trial. As stated, I take this to be three months and calculate it from the date of 21 July 2014 (when the Crown was ready to set a judicial pre-trial date) to 27 October 2014 when a formal in chambers judicial pre-trial was held.

(b) Exceptional Circumstances and Discrete Events

50Turning to the second step in Malozzi, I subtract a further 12 months from the total delay after finding that the Crown has demonstrated that exceptional circumstances exist in ths case.

51The concept of exceptional circumstances was defined, in para. 69 of Jordan, in the following way:

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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

52The Court, at para. 73, gave an example which is particularly apposite in this case:

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

53Until the eve of trial, there was an expectation that the accused would be represented and the time agreed upon by all parties would be sufficient to complete the preliminary inquiry. The Crown took all steps to keep the matter on track and communicated with both Ms. Pennypacker and Mr. Freeman to ensure that the preliminary inquiry date would be maintained. The absence of counsel only became apparent very late in the day. As already noted, the accused’s self-representation meant that the preliminary inquiry took on a life of its own. What happened was unforeseeable and beyond the Crown’s control. The accused, now self-represented, and relying upon the statutory provisions in the Criminal Code to call evidence, turned what should have been a fairly uncontroversial hearing into a vigorous contest of issues.

54The reasons for the preliminary inquiry spiralling out of control are apparent even from the less than ideal record furnished by the accused: many of the defence motions were inappropriate given the nature and purpose of a preliminary inquiry; the witnesses called by the accused were found to be of marginal relevance; the need to facilitate a video link to accommodate an out of town witness whose testimony she insisted upon further complicated matters and extended the time required; and finally, the lengthy and protracted cross-examination of witnesses and r. mfailure to provide written submissions in a timely manner all resulted in an excessive, inflated preliminary inquiry, which, needlessly and grossly overshot the scheduled time allocated to it.

55At para. 74 of Jordan, the Court emphasised the importance of the Crown response to the unpredicted circumstances. The decision in Jordan was released after the evidentiary portion of the preliminary inquiry had finished. All that remained was the filing of written submissions.

56The Crown had been sufficiently vigilant prior to the release of Jordan, objecting to what it felt was unnecessary delay and attempting to keep the matter on track.

57After Jordan, the Crown complied with the court ordered deadline for its written argument. The accused, however, took over four months to respond. During that period of time, the Crown continued to express its concern and urged the preliminary inquiry judge to force the accused to produce a response. Finally, after a lengthy period of awaiting the accused’s submissions and, five days after the accused had provided them, the Crown took the step of terminating the preliminary inquiry by preferring a direct indictment to expedite the transfer to the Superior Court.

58Of course, the Crown is not required to show that the steps that it took did reduce the delay. It must simply demonstrate that it took action to try and avoid it: Jordan, at para. 70.

59I find the Crown did what it could to hasten matters to trial. It was faced with a difficult balancing act in trying to respect the accused’s rights within the preliminary inquiry and ensuring an expeditious process in bringing the matter to trial. The preferment of the direct indictment demonstrates its desire to reduce the delay already occasioned.

60The Crown continued with its efforts when the matter was transferred to the Superior Court of Justice. For example, when faced with the possibility of a January 2018 trial date, the Crown re-arranged federal trial matters in the Superior Court of Justice to find a space for the accused’s trial the preceding September.

61In my view, the Crown has shown that exceptional circumstances in relation to an unforeseen event occurred here. I would subtract the period from December 2015 (the date on which the preliminary inquiry had been expected to finish) to the filing of the direct indictment, on December 13, 2016, to be subtracted from the total delay.

62I would add that although I have made this deduction under the heading of “exceptional circumstances,” it could just as easily have been subtracted as defence-caused delay. As explained in Mallozzi, at para. 31:

A theme that grounds Jordan and Cody is that an accused is entitled to have a trial within a reasonable time but has the responsibility to avoid delay. Accused persons must bear in mind that a corollary of the s. 11(b) right to be tried within a reasonable time is the responsibility to avoid causing unreasonable delay: Cody, at para. 33. Defence counsel are therefore expected to actively advance their clients’ right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and use court time efficiently: Jordan, at para. 138; Cody, at para. 33.

63What happened here was the exact opposite. Rather than seeking to actively advance her rights by avoiding unnecessary and unreasonable delay, the accused appeared to demonstrate complete indifference to it. Her own actions cannot be used as solace under the s. 11(b) right: Cody, at para. 28.

(c) The Outcome of the Appeals

64I would also subtract the period from 11 January 2017 to 1 March 2017 when the court was awaiting the results of the accused’s interlocutory appeals as an exceptional circumstance. In my view, the court and the Crown had no alternative but to know of the outcome of these appeals before setting a trial date: R. v. Christhurajah, 2017 BCSC 820, [2017] B.C.W.L.D. 4220.

(d) Conclusion

65I conclude that the following amounts be deducted from the total delay of 42 months:

(i) Defence delay of 3 months

(ii) Exceptional Circumstances of 12 months

(iii) Delay awaiting the outcome of the appeal: 2 months

66This amounts to a total of 17 months which when subtracted from the total delay leaves the net delay as 25 months, well inside the Jordan ceiling.

67For the above reasons, the application with respect to Counts 1 to 5 on the indictment is dismissed.

The Transitional Exception: The Morin Analysis

68Although it is not necessary, for the sake of completeness I turn to the question of whether the Crown could rely upon the transitional exception under Jordan.

69The accused’s trial is of a hybrid nature commenced and proceeded, for the most part, in the Ontario Court of Justice before Jordan was released on 8 July 2016. At that point, the evidentiary portion of the preliminary inquiry had ended and only the filing of written submissions remained.

70Using the Morin criteria, I calculate the period of delay in the following way.

The Intake Period (8 May 2014 to 25 November 2014)

71First, I agree with the accused’s concession that the period leading up to the setting of the trial date is to be considered as neutral in the delay analysis. Under the Morin jurisprudence, a brief intake period permitting the creation of the Crown brief, retainer of counsel and provision of disclosure was part of the inherent requirements of the trial process: R. v. Lahiry, 2011 ONSC 6780, 108 O.R. (3d) 187, at para. 19; R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, at paras. 34-37; R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243, at para. 72; R. v. Richards, 2012 ONSC 3479, [2012] O.J. No. 2783, at paras. 9-10; R. v. Emanuel, 2012 ONSC 1132, [2012] O.J. No. 709, at paras. 13-15; R. v. Rutherford, 2012 ONSC 2969, [2012] O.J. No. 2306, at paras. 41-42. Intake periods were also held to differ with the complexity of the case: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.), at paras. 30-32; R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425, at paras. 77-80.

72This cannot be described as a simple case. Proof of the allegations depended upon multiple witnesses along with confirmation of monetary compensation to the accused. The disclosure of over 7000 pages of material speaks to the unusual and complex nature of the case. In my view, an intake period of three months would have been reasonable in these circumstances. The Crown, however, appeared to have provided voluminous disclosure to the accused’s counsel within two months - by 7 July 2014 - after which the Crown that it was ready to set a judicial pre-trial.

73However, these intentions were thwarted by the accused’s change of counsel from Mr. O’Connor to Ms. Pennypacker. This resulted in the judicial pre-trial being delayed until late October. (The lack of complete transcripts make it unclear as to why the matter was adjourned to November).

74Under the Morin guidelines, the judicial pre-trial process was considered a necessary part of the inherent trial time in the s. 11(b) context. In R. v. Khan, 2011 ONCA 173, [2011] O.J. No. 937, at para. 53, Karakatsanis J. (as she then was), made the following comments about the value and necessity of the pre-trial process:

A judicial pre-trial is designed to streamline the issues if possible, to identify an accurate estimate of the required trial time, and to help ensure a fair and efficient trial. While a pre-trial may add several weeks to a neutral intake period in a particular case, it may well result in an earlier trial date or a shorter trial.

75Accordingly, I find no Crown or institutional delay up to the 25 November 2014 date when the date for the preliminary inquiry was set.

The Preliminary Inquiry Date (25 November 2014 to 23 November 2015)

76The scheduled preliminary inquiry date was set almost 12 months after the pre-trial date. Again, because the accused failed to provide a full transcript of that date, it is unclear whether the delay occurred due to the unavailability of counsel or court space. However, I am prepared to assume that part of the time was institutional delay.

77In Morin, Sopinka J. explained that systemic or institutional delay begins “to run when the parties are ready for trial but the system cannot accommodate them.” Preparation of the case, scheduling requirements, and the reality that both the Crown and defence counsel have a slew of other cases in their work load, means that some period of the time between the setting of the trial date and the commencement of the hearing is part of the inherent time requirements and should not be counted as institutional delay. As an example, in R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814, Sopinka J. subtracted three months from the time between the set date the trial because counsel could not be presumed to be ready for trial immediately. See also: R. v. M.N.N (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436; and R. v. Neal, 2011 ONSC 5546, [2011] O.J. No. 4393, at paras. 21-30.

78It follows therefore, that counsel’s obligation to put their earliest availability date on record is important in the Morin analysis: Lahiry, at paras. 31-34; Tran, at para. 30. I would add that it is equally important to do so when calculating delay under Jordan where delay is assessed on the basis that both the Crown and the court were available but the defence was not: Jordan, at para. 64.

79It may well have been the case that counsel did signal their availability when the date was set on 25 November 2014. However, due to the accused’s selective ordering of the transcript, it is impossible to know. In other circumstances, I might find that the accused had failed to establish any of the delay as being institutional. However, in this instance, I am prepared to assume some of the delay as being institutional. For the purposes of the period between the set date and the preliminary inquiry, I calculate three months as the inherent time required for preparation.

80The remaining nine months is considered to be institutional delay.

The Preliminary Inquiry Hearing

81The central dispute in this case arises over the eventual length of the preliminary inquiry. Ordinarily, under Morin, the time taken to complete a hearing would be considered inherent trial time and neutral in the s. 11(b) analysis. The fact that a trial overspills its allotted time and requires a continuation date may also be considered inherent trial time. In R. v. Allen (1996), 1996 4011 (ON CA), 92 O.A.C. 345, at para. 27, Doherty J.A. explained the reasoning behind this principle:

When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins (1991), 1991 7148 (ON CA), 6 O.R. (3d) 724 at 728 (C.A.), aff'd, (1992), 1992 42 (SCC), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), 1993 14721 (ON CA), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

82In Allen, even though the parties agreed a four week trial, that time proved insufficient. A further five weeks was deemed necessary resulting in an adjournment and a delay of six months to the continuation date. The Court of Appeal, at para. 28, found that the adjournment period was “inherent in the time requirements of the case given the added time needed to complete the trial.”

83The reason for the inadequate estimate of the preliminary inquiry is of equal importance. Contrary to the accused’s submissions, the original four week calculation of the preliminary inquiry was not the sole suggestion of the Crown but was the product of agreement by all parties when set. At that time, the accused was represented by Ms. Pennypacker, who had made a number of evidentiary concessions to narrow the focus of the hearing. However, by the time the preliminary inquiry commenced, the accused was representing herself.

84As has been noted, this changed everything. The accused resiled from admissions made at the judicial pre-trial forcing the Crown to call evidence on mundane matters such as continuity of exhibits, and identification by Canadian Border Services Agency officers. The preliminary hearing was punctuated with futile motions, never mentioned at the pre-trial and brought at late notice. Crown witnesses were cross-examined at length by the accused, some testifying for multiple days. When the Crown’s case ended, the accused insisted on calling witnesses, all of whom were found to have little relevance to the proceedings. A request for additional witnesses was denied by the presiding judge who described the accused’s actions as nothing more than “fishing” for evidence.

85It is clear that the accused viewed the preliminary inquiry as a mechanism to make unfounded and meritless motions and cast a speculative net for any evidence that she hoped she might unearth to end the prosecution before the matter ever got to trial.

86The manner in which the accused behaved during the preliminary inquiry made the original four week estimate untenable and inevitably extended the time it took to complete matters.

87In this respect, the case at bar is similar to that of Allen where a change of counsel also meant that previously agreed admissions of fact were withdrawn by the defence. There, Doherty J.A., at para. 26, remarked that the delay was not caused by lack of institutional resources, the Crown or the judge but by the actions of the defence in withdrawing concessions. I take the same view here.

88I also note that the Crown took great pains at each court attendance to attempt to keep the matter on track. Once Ms. Pennypacker was removed from the record, the Crown communicated with Mr. Freeman to ensure his attendance at court and, like the court, was given assurances that he would be available to represent the accused. The lack of counsel became apparent only at a very late stage in the proceedings.

89Moreover, when the court realised a continuation was necessary, it took rapid steps to find dates in an already filled court schedule, cognisant of the delay implications. In these circumstances, the adjournment period should be considered neutral: R. v. Wong, 2012 ONCA 286, [2012] O.J. No. 1903, at para. 2.

90As for the post-evidentiary stage of the preliminary inquiry, I note the Crown met Caldwell J.’s deadline for written submissions. The remainder of time from 15 August 2016 to 8 December 2016 was the result of the accused’s failure to file a written response despite the matter returning on a monthly basis to ensure this was done. I also note, and not without a sense of irony, that the accused seemed to be unable to provide submissions on an ongoing preliminary inquiry that she now complains took too long, but had no difficulty filing, preparing, and arguing prerogative motions in the Superior Court of Justice in the same period of time. These motions, heard by Code J. on 21 November 2016 and 23 November 2016 are discussed later on in these reasons.

91For these reasons, I find the time to complete the preliminary inquiry should be treated as inherent trial time and neutral.

Proceedings at the Superior Court of Justice

92Once the direct indictment was filed at the Superior Court of Justice, things moved more rapidly. The intake time to judicial pre-trial was one month. No trial date was set because of the accused’s pending appeals to the Court of Appeal. It would make very little sense to schedule a trial if the result of the appeals made it redundant. The resulting two month adjournment should therefore be considered neutral time. Finally, I would apportion two months of the six months that elapsed between 8 March 2017, when the date was set, and the trial date of 11 September 2017, as the time required to prepare for trial. The remaining four months is to be considered institutional delay.

93I conclude therefore that under the Morin analysis the entire delay period amounts to 13 months, a period of time well within the Morin guidelines and, in my view, not an unreasonable period of delay.

94Even though my analysis under Morin indicates that the delay in this case was permissible, there is a further question to be answered.

95As explained by Doherty J.A. in Gordon, at para 23:

In most cases, especially when all of the delay occurred prior to the release of Jordan, if the court concludes that the delay was not unreasonable under Morin, the transitional exceptional circumstance described in Jordan will justify delays beyond the 30-month cap. There will, however, be situations in which the delay, while tolerable under Morin, becomes unconstitutional under Jordan. As explained in Jordan, at para. 98:

[I]f 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.]

96I make two observations on this point. First, as I have already remarked, this could not be described as a “simple” case. Secondly, I find no evidence of any “repeated mistakes or missteps by the Crown.” Indeed, the Crown, from the outset sought to move the case forward and complied with all of the directions of the court.

97For the reasons set out above, I conclude that even if the delay in this case exceeded the Jordan limit, the Crown would be entitled to rely on the transitional exception.

Prejudice

98Whilst prejudice is no longer part of the s. 11(b) analysis under Jordan, it is something to be taken into consideration when assessing delay under Morin. The analysis focuses on the whether “an accused’s liberty, security of the person and fair trial interests were prejudiced by the delay”: R. v. Pyrek, 2017 ONCA 476, [2017] O.J. No. 3024, at para. 29. Prejudice may be inferred from an excessive period of delay: Morin, at p. 801; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 31.

99It is important to recognise that the prejudice relied upon must have been caused by the delay and not by the fact of the charges: R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, at p. 624; R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 73 O.R. (3d) 161 (Ont. C.A.) at paras. 32-33; R. v. Silveira, [1998] O.J. No. 1622 (Ont. Gen Div.), at para. 53; R. v. Boghossian, 2015 ONSC 5364, [2015] O.J. No. 4710, at paras. 30-31.

100Here, the accused relies on the fact that she was in custody as the basis for sufficient prejudice to stay the case. I have already found that the length of the delay was not unreasonable in this case. However, I would also add that the accused’s custodial status stemmed from the charges and not the delay. The accused’s position is weakened further by the fact, that with respect to the first set of charges, the Crown consented to bail but a release was not forthcoming due to the impecuniosity of her sureties.

101Further, as I have already described, the delay in this case was largely due to the accused’s own actions. Indeed, even though in custody, the accused showed very little interest in moving the case at any speed and appeared to be content with lengthening the proceedings.

V. DELAY WITH RESPECT TO COUNT SIX

102Count six of the indictment is subject to a separate analysis, the charge having been laid approximately 16 months after the original set of charges. Accordingly, the total length of time between arrest and the estimated end of trial is approximately 26 months. The accused submits that this is the period of delay that should be used when deciding any s. 11(b) violation. I disagree. The length of time, even though initially below the presumptive ceiling, is still subject to deductions attributable to defence caused delay.

103With respect to these charges, a judicial pre-trial could not be held or a preliminary inquiry date set until 14 June 2016 because of the accused’s inability to secure Legal Aid funding or retain counsel. Given that the Crown was seeking a pre-trial as early as 5 February 2016, I would deduct three to four months from the total delay and find that the net delay to equal 22 to 23 months, at its highest.

104In Jordan, the court allowed for the possibility of delay being unreasonable even if it fell below the presumptive 30 month ceiling. The onus of demonstrating the breach rested upon the defence in cases that were “clear”: Jordan, para. 76. The Court, at para. 82, explained that in order to succeed, the defence had to establish two things:

(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

(2) the case took markedly longer than it reasonably should have.

105I find that the accused does not come close to satisfying this test: a review of the record would leave no one in any doubt that far from trying to expedite matters, the accused sought to delay and frustrate the passage of these charges through the system. Before going into the details, I repeat my concern over the transcripts provided by the accused in her application, many of which appear to be missing critical pieces of the court history.

106The focus hearing on the second set of charges took place on 17 August 2016, before Ray J., the preliminary inquiry judge. On that date, the accused applied to have the informations before the court declared invalid. When Ray J., denied the application, the accused filed a certiorari motion with the Superior Court of Justice to quash that decision.

107On 2 September 2016, the first day of the preliminary inquiry, the accused argued that the filing of the certiorari motion had, by law, suspended the preliminary inquiry. Ray J. rejected this submission and ordered the preliminary inquiry to continue. The accused, in response, filed a second certiorari motion arguing a further jurisdictional error. Due to the time taken up by the accused’s argument, the preliminary inquiry was adjourned to 7 September 2016 where the accused’s Rowbotham application was refused.

108On 7 September 2016, the preliminary inquiry commenced with three separate informations before the court. The original information sworn on 18 September 2016 had been amended and two new informations had been filed. The Crown asked that the accused be arraigned on an information sworn on 18 January 2016. The accused objected but was overruled by Ray J. As a result, the accused filed a third certiorari application at the Superior Court to overturn this decision.

109All three applications were dismissed as having no merit, first by Code J., (R. v. Codina, 2016 ONSC 7335); and then by the Court of Appeal for Ontario (R. v. Codina, 2017 ONCA 527)

110The accused brought an additional Charter challenge, also heard by Code J., seeking to strike down various provisions of IRPA and Criminal Code. This was also dismissed.

111Further, when the Crown filed the direct indictment to transfer the matter to the Superior Court, the accused challenged its ability to do so at the Court of Appeal for Ontario. That challenge, like the others referred to in this judgment, was dismissed.

112The history of these charges demonstrate a complete lack of any effort by the accused to expedite proceedings. Instead, the accused’s conduct was the cause of additional court time being unnecessarily expended on the case.

113Accordingly, the application with respect to count six is dismissed.

VI. CONCLUSION

114For the above reasons, I conclude that the accused’s s. 11(b) right was not breached in respect of any of the counts on the indictment and the application is dismissed.

S.A.Q. Akhtar J.