R. v. Xiu Jin Teng, 2017 ONSC 568

CITATION: R. v. Xiu Jin Teng, 2017 ONSC 568

DATE: 20170126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

XIU JIN TENG Applicant

Joshua Levy and Robert Fried, for the Respondent

The Applicant is self-represented

HEARD: October 31, November 1 and 2, 2016

Ruling re Application to Stay Proceedings for Delay

MacDonnell, J.

[1] On February 29, 2012, the body of the defendant’s husband, Dong Huang, was found hidden in a storage closet in the apartment that he shared with the defendant and their young daughter. On the same day, the defendant was arrested, charged with offering an indignity to a dead human body and held for a bail hearing. On March 5, 2012, after further police investigation, the defendant was charged with first degree murder.

[2] The defendant’s trial commenced on October 31, 2016, with an anticipated completion date of mid-December, 2016. Thus, the time that would have elapsed between the date on which the defendant was charged and the end of the trial was expected to be approximately 57½ months.

[3] At the outset of the trial, the defendant applied under s. 24(1) of the Canadian Charter of Rights and Freedoms for an order staying the charge of first degree murder on the basis that her right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter had been infringed. On November 3, 2016 I ruled that the defendant had not established an infringement of s. 11(b) and the application was dismissed. I provided brief oral reasons at the time and stated that more complete reasons in writing would follow. These are those more complete reasons.

A. Overview of the Decision

[4] For almost a quarter of a century, the framework for the analysis of whether the right of a person charged with an offence to be tried within a reasonable time had been breached was the framework established by the Supreme Court of Canada in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. Pursuant to Morin, courts were required to balance four factors: (i) the length of the delay from the charge to the completion of the trial; (ii) whether the defendant had waived any part of the delay; (iii) the reasons for the delay, including the inherent needs of the case, actions of the parties and limitations on institutional resources; and (iv) whether the delay had caused prejudice to the defendant’s interests in liberty, security of the person and a fair trial.

[5] On July 8, 2016 the Supreme Court released its decision in R. v. Jordan, 2016 SCC 27. Jordan jettisoned the Morin approach and set forth a new analytical framework for the determination of s. 11(b) claims. The central feature of the Jordan framework is a ceiling beyond which delay is presumptively unreasonable. For cases tried in the Superior Court, the presumptive ceiling is 30 months.

[6] Pursuant to Jordan, the determination of whether the presumptive ceiling has been breached, and thus whether the presumption of unreasonableness applies, requires the court to calculate the total delay from the date the charge was laid to the anticipated conclusion of the trial, and then to subtract any delay attributable solely to the defence. Where the remaining period exceeds 30 months, the onus shifts to the Crown to show that the delay was nonetheless reasonable because of the presence of exceptional circumstances. If the Crown cannot meet that onus, Jordan holds, a stay of proceedings must be entered.

[7] The new framework, including the presumptive ceiling of 30 months, applies to cases that were already in the system at the time the Jordan decision was released, subject to an important qualification. The Supreme Court recognized that it would not be fair to judge the response of the Crown and the courts to delay strictly against a standard of which they had no notice. Thus, where the proceedings were begun prior to July 8, 2016, the overall delay minus defence delay exceeds the presumptive ceiling, and the excessive delay cannot be justified on the basis of the kind of exceptional circumstances described in Jordan, a transitional exceptional circumstance may arise. To invoke a transitional exceptional circumstance, the Crown must establish that the time that the case has taken is justified on the basis of reasonable reliance by the Crown and the justice system on the previous state of the law.

[8] As I stated in my brief oral reasons on November 3, 2016, I was prepared to assume, without deciding, that the presumptive ceiling of 30 months had been breached in this case and that there were no exceptional circumstances of the kind described in Jordan. It was unnecessary, however, to come to a final decision in that respect because I was also satisfied that the overall time that would be required to reach the end of the defendant’s trial was justified by the reasonable reliance of the Crown and the justice system on the legal framework that existed throughout almost the entire course of the proceedings.

[9] Accordingly, the application to stay proceedings was dismissed.

B. The History of the Prosecution

(i) The Proceedings in the Ontario Court of Justice

[10] The defendant made her first appearance in the Ontario Court of Justice on the charge of first degree murder on March 5, 2012. She was finally ordered to stand trial in the Superior Court 29½ months later, on August 22, 2014. The history of the case between those two dates is as follows.

March 5, 2012

[11] An information charging the defendant with first degree murder was sworn and the defendant appeared in court. She was represented by Colin Adams from the law firm of Hicks, Adams. Mr. Adams was appearing on behalf of his partner, Christopher Hicks, who was to be the defendant’s counsel of record. At the request of Mr. Adams, the matter was adjourned to March 20 for initial disclosure.

March 20, 2012

[12] Mr. Adams stated that he had not yet spoken to the Crown about disclosure, and he requested that the matter be adjourned to April 16.

April 16, 2012

[13] Mr. Hicks’ articling student appeared on Mr. Hicks’ behalf. After a discussion about when the disclosure would be available, the matter was adjourned, on consent, to May 16.

May 16, 2012

[14] Mr. Hicks’ articling student again appeared. The defence had received disclosure on April 30, and the student requested that the matter be adjourned for three weeks, to June 6, so that the disclosure could be reviewed. In the course of the colloquy, the defendant said to the Justice “I must inform you that the lawyer were fired weeks ago because…they are too late to deal with my case in person”. She stated that “the new lawyer is Mr. Devin Bains”. The Crown indicated that as the bulk of the disclosure had now been provided to the defence, it was time for a Crown pretrial.

June 6, 2012

[15] Mr. Hicks’ articling student appeared and advised that the defendant had decided to keep Mr. Hicks as her counsel. The student requested a three-week adjournment to await further disclosure. Crown counsel did not oppose the request for an adjournment, but stated that disclosure was substantially complete, the preliminary inquiry was likely to be straightforward, and that it was time to move forward to a judicial pretrial.

June 27, 2012

[16] Mr. Hicks’ articling student once again appeared. However, so too did Emily Lam, an associate of John Rosen. The court was advised that the defendant wanted to discharge Mr. Hicks and to retain Mr. Rosen, that she had filed a change of solicitor application with Legal Aid, that the application had been denied, and thus that Mr. Hicks was still the defendant’s counsel of record. With respect to Mr. Hicks’ current status, his student advised that “we have tried to get instructions from Ms Teng on numerous occasions. She either refuses to see us or will not give us suitable instructions.” It was agreed to put the matter over to July 4 to give Mr. Rosen an opportunity to speak to Legal Aid about the proposed change of solicitor.

July 4, 2012

[17] Ms. Lam advised that Legal Aid had approved the defendant’s application for a change of solicitor. That approval had not yet been communicated to Mr. Hicks, however, and his student requested that the matter be adjourned one day to clarify the situation.

July 5, 2012

[18] Mr. Hicks was formally removed as counsel of record and was replaced by Mr. Rosen. The 29 DVDs of disclosure that had been provided to Mr. Hicks were handed over to Ms Lam, who requested an adjournment to August 3 “to give us time to get up to speed on the disclosure.”

August 3, 2012

[19] Mr. Rosen’s student appeared, indicated that a judicial pretrial had been booked for September 5, and asked for an adjournment to that date.

September 5, 2012

[20] A judicial pretrial was conducted. At the conclusion of the pretrial, counsel attended at the trial coordinator’s office and obtained dates for what was estimated to be a 15-day preliminary inquiry. The dates were in three bunches, beginning on March 19, 2013 and ending on May 17, 2013. The first dates on which counsel would have been available to commence the preliminary inquiry were not stated. It was indicated, however, that the investigation was ongoing and that there was still some disclosure to be provided. A focus hearing was scheduled for January 22, 2013.

January 22, 2013

[21] The defendant advised the judge presiding at the focus hearing (Justice Feldman) that she wanted to discharge Mr. Rosen. Emily Lam, Mr. Rosen’s associate, informed the court that she and Mr. Rosen had only heard that morning that the defendant wanted to change counsel. Ms Lam said that a considerable amount of work had been done in preparation for the preliminary inquiry. She said that she and Mr. Rosen had met with the defendant a month earlier and that all had seemed fine. She further stated that when the change of solicitor from Mr. Hicks to Mr. Rosen was approved, Legal Aid had made it clear to the defendant that no further change of solicitor would be allowed. Accordingly, Ms Lam said, if the defendant wished to obtain other counsel “she will either have to do it privately, or a [Rowbotham] application to the court will have to be made…” The defendant responded that “I already have new counsel”, namely Devin Bains. She stated that she did not need Legal Aid and that she had funding “from another source”.

[22] Crown counsel expressed concern about whether the change of counsel was a tactic to stall the process. Justice Feldman encouraged the defendant to speak to Mr. Rosen to try to resolve any difficulties she had with his representation. The matter was adjourned to January 31 to sort things out.

January 31, 2013

[23] Ms Lam informed the court that Mr. Rosen had attempted to speak to the defendant on the preceding weekend but that she had refused to see him, “and that when he eventually did get to see her, she was very hostile towards him and refused to discuss the grounds for termination with him…. and she also refused to sign the termination letter.”

[24] Devin Bains was present on this appearance. He stated that the defendant had initially wanted to retain him but could not do so because he was busy with other matters. He said that he had maintained contact with the defendant while she was represented by Mr. Hicks, and that in due course he had recommended Mr. Rosen to her. The defendant advised the court that she respected Mr. Rosen, but that he had never shown up personally in court but had sent Ms Lam instead. She said that Mr. Bains was the lawyer she had wanted all along.

[25] Mr. Bains told the court that he had informed the defendant that because of prior commitments he would not be able to proceed on the dates scheduled for the preliminary inquiry. He also told the court that there was no chance that the defendant would be able to retain him privately and that he was not prepared to go on record before public funding was obtained. In the course of the discussion, it was repeatedly pointed out that Legal Aid had made it clear the previous summer that a further change of solicitor would not be approved. Mr. Bains advised, however, that he had been in touch with the Attorney General’s office to discuss funding.

[26] In light of what had transpired, Justice Feldman removed Mr. Rosen as counsel of record. Ms Lam returned a banker’s box of disclosure to the Crown, which included 37 DVDs and a hard drive containing over 10,000 pages of material. Justice Feldman also vacated the preliminary inquiry dates. Crown counsel suggested that he and Mr. Bains should attend at the trial coordinator’s office to obtain new target dates for the preliminary inquiry. Justice Feldman supported this suggestion but Mr. Bains rejected it. He said “I would rather not…address the target dates today”. He gave no reason for his position. The matter was adjourned to February 22.

February 22, 2013

[27] Mr. Bains advised the court that funding discussions with the Attorney General’s officer were ongoing. The Crown indicated that he had made inquiries of the trial coordinators as to court availability for a rescheduled preliminary inquiry and that he had been told that there were dates available in October. Justice Feldman suggested to Mr. Bains that target dates should be set now. Mr. Bains made it clear that he did not want to do that until funding was sorted out. He asked the court, instead, to adjourn the case for a month, to March 22. He said that he would discuss the matter of a target date with Crown counsel.

March 22, 2013

[28] Counsel appearing as agent for Mr. Bains advised the court that the Attorney General’s office had not yet made a decision with respect to funding. Justice Feldman suggested, again, that target dates for the preliminary should be set, that waiting “doesn’t seem to be in [the defendant’s] interests”. The Crown reminded the court that from the time the initial dates were lost the Crown’s position had been that target dates should be set but that Mr. Bains had been unwilling to do so. The agent for Mr. Bains confirmed that this was the defence position and asked that the matter be adjourned for another month, to April 24.

April 24, 2013

[29] The Attorney General was said to be close to a decision on funding and the joint request of the parties was to put the matter over to May 6. Crown counsel advised Justice Feldman that in the interval since the previous appearance he had offered Mr. Bains tentative dates for the preliminary inquiry but “we didn’t make any headway in that regard”.

May 6, 2013

[30] The court was advised that while the final details had not been agreed, Mr. Bains was confident that funding would be forthcoming and that he was now prepared to accept the disclosure from the Crown. The Crown stated: “I know I’ve been pushing to [set tentative dates], as has your Honour. [Mr. Bains] indicates to me that once in possession of the disclosure he will work vigorously to come up with an estimate from his perspective and then we can set those tentative dates…” The matter was adjourned to May 27.

May 27, 2013

[31] Counsel from the Attorney General’s office confirmed that the Ministry had agreed to fund counsel for the defence. He advised that the delay at this point was in finalizing the terms under which Mr. Bains would accept the funding. The parties decided to have another judicial pretrial before setting a new preliminary inquiry date. The pretrial was fixed for June 11.

June 11, 2013

[32] As a result of a conversation with the defendant prior to court, Mr. Bains was not prepared to proceed with the judicial pretrial and it was rescheduled for August 12. Earlier dates were offered by the Crown but Mr. Bains was unavailable. In that respect, Mr. Bains stated: “I don’t think that the time that has passed here will ever be asserted, that is the time between now and the next attendance, as a delay pursuant to s. 11(b) of the Charter.”

July 12, 2013

[33] The matter came back before the court for the parties to confirm that the funding issues had been resolved. Crown counsel noted that the Crown had been anxious to set a new date for the preliminary inquiry and that the trial coordinators had advised that the available dates were now in March or April 2014.

August 12, 2013

[34] Dates were set in several blocks between July 21, 2014 and August 22, 2014. Earlier dates were offered in March, April, May and June but Mr. Bains was not available. The case was put over to January 20, 2014 for a new focus hearing.

January 20, 2014

[35] At the end of the focus hearing the defendant was adjourned directly to July 21 for the preliminary inquiry.

July 21 to August 22, 2014

[36] Preliminary proceeds

August 22, 2014

[37] The defendant was ordered to stand trial in the Superior Court on the charge of first degree murder.

(ii) The Proceedings in the Superior Court of Justice

September 17, 2014

[38] The defendant made her first appearance in the Superior Court. On consent, a judicial pretrial was scheduled for November 4.

November 4, 2014

[39] After the judicial pretrial, it was determined that the trial, including a week of pretrial motions, should take six weeks. A trial date of September 16, 2015 was fixed, with a readiness date of August 28, 2015.

August 28, 2015

[40] The parties appeared in Practice Court and advised that they had scheduled a further judicial pretrial before Justice Nordheimer on September 1.

September 1, 2015

[41] Mr. Bains applied to be removed as counsel of record on the basis of an irreconcilable breakdown of the solicitor client relationship. He stated that he was making the application pursuant to advice that he had received from the Law Society and from a senior member of the Bar, both of whom had advised him that he could not continue to act for the defendant. The defendant told the court that she “very much wish to have Mr. Bains as my counsel”. Justice Nordheimer explained that in light of what Mr. Bains had said he really had no choice but to grant the application. He offered the defendant an opportunity for independent legal advice before a final decision was made. He also warned her that the Attorney General might not be prepared to fund a new lawyer. A Legal Aid representative was present in court, and he volunteered to arrange for counsel to provide the defendant with advice about her situation. Given what had transpired, Justice Nordheimer vacated the September 16 trial date and adjourned the matter to be spoken to on September 4.

September 4, 2015

[42] Legal Aid had arranged for a senior defence counsel, Paul Calarco, to provide independent legal advice to the defendant. Mr. Calarco appeared before Justice Nordheimer and advised that the Attorney General was prepared to continue to fund a lawyer for the defendant. Counsel for the Attorney General confirmed this but added: “I’ve been asked to put on the record that should that arrangement in the future break down again and we revisit this situation, the Crown may take a different position.” Having heard that, Justice Nordheimer ordered that Mr. Bains be removed as counsel of record.

[43] Mr. Calarco stated that he had provided the names and telephone numbers of five senior criminal defence counsel to the defendant. Justice Nordheimer told the defendant: “[It] will be up to you to contact these people and to decide which, if any of them, you wish to have as your counsel because the Ministry of the Attorney General is prepared to fund new counsel. But you should understand quite clearly that, should anything happen with new counsel that causes another lawyer to seek to be removed as your counsel, there is absolutely no guarantee that the Ministry would continue to fund any further changes of counsel”. The defendant responded: “Yes, I understand…”

[44] Justice Nordheimer adjourned the matter for four weeks, to October 2, to permit the defendant to consider the list of lawyers that Mr. Calarco had provided.

October 2, 2015

[45] The matter came before Justice McMahon. It appears from his recapitulation of what had happened since the matter was before Justice Nordheimer that the defendant had met with Rob Nuttall, a senior defence counsel, and that she had provided Mr. Nuttall with authorization to receive the disclosure materials from Mr. Bains. It appears further that a judicial pretrial had been conducted with Mr. Nuttall, and that the court had offered November 2, 2015 for trial. Mr. Nuttall had begun the process of reviewing the disclosure when it became apparent that the defendant did not want him to be her lawyer. Justice McMahon asked the defendant if she wanted to have Mr. Nuttall to represent her and she responded “No, never”.

[46] Bob Richardson, another senior counsel, was present in the courtroom at the time. The defendant stated that she had already met with Mr. Richardson for about two hours. She also stated, however, that another lawyer, Anthony Robbins, had come to see her the previous evening. She said that Mr. Robbins needed more time to review some material. Justice McMahon agreed to give the defendant more time to decide on counsel, and he put the matter over for two weeks. He noted that because the defendant had still not retained counsel, the November 2 trial date that had been offered to her was no longer feasible.

October 14, 2015

[47] Justice McMahon asked the defendant whether she had a lawyer yet, and she responded “I believe so… it’s possible that… Robert Richardson and Daniel F. Moore.” Justice McMahon put the matter over to October 28 to enable the retainer of Richardson and Moore to be completed.

October 28, 2015

[48] Both Mr. Richardson and Mr. Moore appeared on this occasion. They asked for a two-week adjournment before setting a new trial date. Mr. Richardson stated “Ms Teng’s position would be that she’d want the earliest date that she can get”. Justice McMahon indicated that the earliest available dates at that point were in mid-September 2016. However, as Crown counsel had another trial scheduled in September the date that was agreed upon was October 31, 2016.

[49] Justice McMahon then addressed the defendant as follows:

So, Ms Teng, I understand that your lawyers have asked that we put the matter over to November 17^th so they can have further discussions with you and at that time we will confirm a trial date. I have been advised that you would like, understandably, because you are in custody, to have the earliest date available… Initially, your trial was going to proceed on September 16^th of this year, and, unfortunately, your lawyer, Mr. Bains, after getting advice from the Law Society and senior counsel, advised the court that for ethical reasons he would be unable to represent you. As such, the judge removed him as your lawyer, and we were to set a new date for trial. Because you were in a trial and I had a case collapse I was able to give you November 2^nd 2015 for trial. There was a thought that Mr. Nuttall would be your lawyer and you would proceed to trial at that time. I understand that you elected that you did not want Mr. Nuttall to be your…lawyer, but you wanted Mr. Richardson and Mr. Moore to be your lawyer. Because of that, they would be just getting the paperwork, would be unable to proceed to trial so quickly and fairly defend you to the best of their ability. As such, the second trial date had to be adjourned because you needing counsel of your choice.

As of today’s date, with the number of murder trials scheduled in this building that I have to assign, the first date available for the court where I’ll have a judge to do your trial would be beginning of September. The Crown Attorney has a two-week trial already scheduled in September, and I have to not only be fair to you, I must also be fair to the Crown Attorney. He was ready to proceed to trial with his witnesses on both September 16^th and November 2^nd. As such, the first date that works for Mr. Moore and Mr. Richardson and the Crown Attorney is October 31. So we are going to come back on November 17^th at 9:30 to speak to the matter and we will then confirm the trial date of October 31 for a trial with a jury that will last a total of six weeks. Do you have any questions or concerns?

[50] The defendant replied: “I don’t have any questions. No concerns either, just that October next year, it’s such a long time away from now.” She suggested that in the interval before the next court date her lawyers and the Crown might have further discussions to see if anything could be done in that respect.

November 17, 2015

[51] Mr. Richardson confirmed that the funding agreements had been executed and “I’m counsel”. Justice McMahon stated that because of the change of counsel, a fresh judicial pretrial would be required. Mr. Richardson indicated that before that could occur he and Mr. Moore needed to review the disclosure and he suggested that the judicial pretrial occur “maybe sometime in the new year”. The matter was adjourned to January 11, 2016 for that purpose.

January 11, 2016

[52] On consent, the judicial pretrial was adjourned to January 18.

January 18, 2016

[53] The judicial pretrial began, and on consent was adjourned to March 21 to continue.

March 21, 2016

[54] The judicial pretrial did not continue because defence counsel (Mr. Moore) needed more time to review the disclosure. The matter was adjourned to April 27.

April 27, 2016

[55] The judicial pretrial could not proceed because of a very serious family issue that Mr. Moore had to deal with. Anthony Moustacalis appeared and indicated that he was taking over from Mr. Richardson and that he would be co-counsel with Mr. Moore on the trial. The defendant stated that she was agreeable to the change. The matter was adjourned to June 3 to continue with the judicial pretrial.

June 3, 2016

[56] An agent for Mr. Moore appeared and asked to reschedule the judicial pretrial. The agent advised that Mr. Moore “has made substantial progress in reviewing the material [but] he require a bit more time”. The defendant advised the court that she wished to have Mr. Moustacalis removed as one of her counsel. She stated that in her view he had not had time to devote to her case, but “if in the future, if the opportunity arises, and if he has the time, he’s welcome to come to assistance.” Justice McMahon told the defendant that Mr. Moore was still going to be her lawyer for the trial and that it was up to her if she wanted both him and Mr. Moustacalis to represent her. The matter was adjourned to June 30.

June 30 to October 31, 2016

[57] What happened on June 30, and on the 10 court appearances between that date and the commencement of the trial on October 31, was reviewed in my reasons for dismissing the defendant’s mid-trial Rowbotham application: R. v. Teng, 2017 ONSC 277. I do not propose to repeat that review in these reasons. Suffice it to say that I held that on June 30, four months before the trial was to begin, the defendant engineered the discharge of Mr. Moore, the lawyer who was ready, willing and able to act for her, and that she failed to make any meaningful effort to retain other counsel to replace him. I held that the discharge of Mr. Moore was a strategic choice made by the defendant to orphan herself from counsel so that she could come before the court on the trial date and assert that to require her to proceed as a self-represented defendant would be unfair. In other words, I held, the discharge of Mr. Moore and the failure to make a serious effort to retain other counsel was a stratagem to avoid having this trial proceed on schedule and on the merits.

[58] The defendant’s efforts in that respect did not cause any delay. The trial date had been fixed as of October 28, 2015, and although the defendant’s conduct in discharging Mr. Moore and failing to retain other counsel was intended to prevent the trial from proceeding on schedule, those efforts failed. For the purpose of determining whether the presumptive ceiling of 30 months has been breached, the discharge of Mr. Moore and the defendant’s subsequent conduct is irrelevant. It may, however, be relevant to an assessment of whether the overall delay in this case would have been considered to be unreasonable under the pre-Jordan law, and thus to whether reasonable reliance on the prior law gives rise to a transitional exceptional circumstance. I will return to that question later in these reasons.

C. Analysis

(i) The Jordan framework

[59] As I stated earlier, the decision of the Supreme Court of Canada in R. v. Jordan established a new analytical framework for the determination of s. 11(b) claims, the central feature of which is a ceiling beyond which delay is presumptively unreasonable. For cases tried in the Superior Court, the presumptive ceiling is 30 months.

[60] Pursuant to Jordan, the determination of whether the presumptive ceiling has been breached and thus whether the presumption of unreasonableness applies requires the court to calculate the total delay from the date the charge was laid to the anticipated conclusion of the trial and then to subtract any delay solely attributable to the defence. Where the remaining period exceeds 30 months, the onus shifts to the Crown to show that the delay was nonetheless reasonable because of the presence of exceptional circumstances. If the Crown is unable to meet that onus, a stay of proceedings must be entered.

[61] For the purpose of the Jordan analysis, exceptional circumstances are things that lie outside the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable and cannot reasonably be remedied by the Crown.[^1] In general, exceptional circumstances will fall into two categories: discrete events and particularly complex cases. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted from the total delay.[^2] If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required. An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.[^3]

[62] The Jordan framework, including the presumptive ceiling, applies to cases that were already in the system when Jordan was decided, subject to an important qualification. In that respect, the Court stated:

[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. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.[^4] [emphasis added]

(ii) Was the presumptive ceiling breached in this case?

(a) the delay in the Ontario Court of Justice

[63] The information charging the defendant with murder was laid on March 5, 2012, and she was finally committed for trial on August 22, 2014. The time that elapsed between those two dates was 29.5 months. In my opinion, two portions of this initial period of delay were caused solely by the defence.

[64] The first of those portions was the 1.5 months between June 27 and August 3, 2012. The delay in this time period was caused solely by the defendant’s decision to discharge Mr. Hicks and to retain Mr. Rosen. As of June 27, 2012, disclosure to Mr. Hicks was substantially complete and the Crown was pressing for a judicial pretrial. The defendant’s decision to change counsel brought the progress of the case to a halt. Before it could resume moving forward, Mr. Rosen had to persuade Legal Aid to approve a change of solicitor, and only after he accomplished that was he in a position to accept a transfer of the disclosure from Mr. Hicks and to begin reviewing it. Until he was able “to get up to speed on the disclosure”, as his associate put it, nothing could be done to move the case along. To accommodate Mr. Rosen, the matter was put over to August 3.

[65] The second portion of the delay in the Ontario Court of Justice that was caused solely by the defence was the 15.25 months between May 17, 2013 and August 22, 2014. This was the time between the date on which the preliminary inquiry would have concluded had the defendant not discharged Mr. Rosen and the date on which it did conclude.[^5]

[66] At the time when the defendant discharged Mr. Rosen, funding for his representation of her had been approved by Legal Aid, disclosure had been provided and reviewed, a judicial pretrial had been conducted, three weeks of valuable court time had been secured, the preliminary inquiry was less than two months away, and both Mr. Rosen and Ms Lam had been diligently preparing to proceed. In the face of that, the defendant decided to discharge Mr. Rosen in favour of a lawyer whom she could not afford to retain privately, in circumstances where she had been told that Legal Aid would not approve a second change of solicitor, who was unavailable for the dates scheduled for the preliminary inquiry, who did not have disclosure, who refused to accept disclosure until the funding issue was resolved, and who refused to even set new target dates for a preliminary inquiry. By discharging Mr. Rosen, the defendant not only prevented the case from moving forward, she caused it to slide backwards, virtually to square one. The defendant bears sole responsibility for producing that state of affairs.

[67] As I understood it, the submission of the defendant and of amicus was that not all of the delay that followed the discharge of Mr. Rosen should be characterized as having being caused solely by the defendant. In accordance with Jordan, it was submitted, any portions of the subsequent delay for which responsibility was shared ought not to be deducted from the overall period for the purpose of determining if the presumptive ceiling was breached. For example, it was submitted that the Ministry of the Attorney General should have moved more quickly to approve funding for Mr. Bains and thus that the delay while waiting for the approval, between February and June 2013, was not solely caused by the defendant. It was also suggested that a portion of the period between the date on which Mr. Bains was finally willing to set a new date for the preliminary inquiry and the first date that the court was able to offer should not be characterized as defence delay because the court could not have accommodated the preliminary in that time period.

[68] Whatever superficial attractiveness that those submissions might have is dependent on a willingness to overlook the fact that it would not have been necessary to repeat the process of seeking funding or the process of finding dates for the preliminary inquiry had the defendant not unilaterally decided to fire Mr. Rosen. She was solely responsible for making it necessary to duplicate those processes. So long as the time required to repeat them was not unreasonable, she cannot claim that she was not solely responsible to the delay that was inherent in them.

[69] While it took several months for the negotiations with respect to funding to bear fruit, there is no evidence that the process was unreasonably delayed by the Attorney General. More importantly, the time that it took for funding to be approved was not a cause of delay. As soon as the initial dates for the preliminary inquiry were vacated, on January 31, 2013, Crown counsel suggested to Mr. Bains that they go to the trial coordinator to obtain new target dates. Justice Feldman encouraged Mr. Bains to accept the Crown’s suggestion but Mr. Bains rejected it. The suggestion was repeated by either Justice Feldman or the Crown on the next four court appearances – February 22, March 22, April 24 and May 6 – to no avail. Mr. Bains’ only explanation for his unwillingness to set target dates – which would not have bound him had funding not been forthcoming – was that he wanted to obtain funding first. There was no reason why the setting of target dates had to await the outcome of the funding application. What caused the delay between January 31 and August 12, 2013, when new dates were set, was not the pace of the funding application but rather the insistence of the defence that the progress of the case be put on hold until the funding question was resolved.

[70] Accordingly, I conclude that of the 29.5 months of delay that occurred in the Ontario Court of Justice, 16.5 months was caused by the defence. Thus, as of the date of the defendant’s committal for trial, 13 months of the overall delay counted toward the presumptive ceiling.

(b) the delay in the Superior Court of Justice

[71] A further 28 months of delay – from August 22, 2014 to December 16, 2016 – occurred in the Superior Court.

[72] The first 14.25 months of that period – from the date of committal to the anticipated end of the trial that was scheduled to begin on September 16, 2015 – clearly counts toward the presumptive ceiling. Thus, if Mr. Bains had not been removed as the defendant’s counsel and the trial had proceeded on schedule the total amount of delay that would have counted toward the presumptive ceiling would have been 27.25 months. Pursuant to Jordan, that delay would not have been presumptively unreasonable.

[73] As it turned out, the trial did not begin on September 16, 2015. It began on October 31, 2016 and was anticipated to end in mid-December 2016. The question that arises is how to characterize the additional 13.5 months of delay that followed Mr. Bains’ withdrawal.

[74] The last 1.5 months of that period was caused by the Crown’s unavailability to commence the trial in September 2016. Because this period was not defence delay and not due to an exceptional circumstance, it counts toward the presumptive ceiling.[^6] This brings the operative delay to 28.75 months.

[75] With respect to the remaining 12 months, does it make a difference whether the delay that followed the withdrawal of Mr. Bains and the loss of the initial trial date is characterized as defence delay or instead as delay flowing from a discrete exceptional circumstance? The Crown submits that the distinction is important because if it is defence delay – and the Crown submits that it is – none of the time required to find a second trial date should count toward the presumptive ceiling.

[76] It is true that in Jordan the existence of a duty on the Crown and the justice system to take reasonable steps to mitigate delays that occur in the course of a proceeding was only discussed in the context of discrete exceptional circumstances. In that respect, the Court stated:

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).[^7] [underlining and italics added]

The Court made no mention of a similar duty in relation to delay caused by the defence.

[77] In my view, the delay that flowed from the breakdown of the relationship between the defendant and her counsel can only be characterized as defence delay. However, to limit the duty on the Crown and the courts to mitigate delay to those delays that flow from discrete exceptional circumstances would be difficult to square with the Supreme Court’s strong reminder that it is not only persons charged with offences who are prejudiced by delay, and that “prolonged delays cause prejudice … also [to] victims, witnesses and the system of justice as a whole”.[^8] The Court observed that “extended delays undermine public confidence the system”[^9] and that “the interests protected by s. s. 11(b) extend beyond those of accused persons.”[^10]

[78] However, to say that the justice system must take steps to mitigate unforeseen delays regardless of whether they were caused by the defence or by a discrete exceptional circumstance is not to say that what will be required by way of mitigation will be the same in both situations. The touchstone of the requirement to mitigate is reasonableness, and what will be reasonable will depend on a myriad of circumstances. As the Court recognized in Jordan, mitigating delay will often involve giving a case that has faltered priority over other cases already waiting in the queue.[^11] As a matter of common sense, one of the factors influencing how much priority a case is given will be the extent to which the defence is responsible for the state of affairs that makes it necessary to require that other cases be shunted aside.

[79] Once Mr. Bains withdrew and the initial trial date was lost the justice system did make efforts to minimize the resulting delay. Justice McMahon offered a new trial date of November 2, 2015. It appears that this date would have been feasible but for the defendant’s refusal to retain Mr. Nuttall. The 1.5 months of delay from the first trial date to November 2, 2015, therefore, was caused solely by the defence and must be subtracted for the purpose of determining whether the presumptive ceiling was breached.

[80] I am inclined to the view that the obligation to make reasonable efforts to mitigate the delay flowing from Mr. Bains’ removal was not extinguished once the offer of a November 2 trial date was not accepted and that some further effort to prioritize the case ought to have been made. If the court had had the benefit of knowing how the Supreme Court was going to revamp the framework for assessing the reasonableness of delay, I have no doubt that such an effort would have been made.

[81] How much priority the case should have received at that point is difficult to quantify. It must be borne in mind that “[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”: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331, at paragraph 27 (Ont. C.A.).

[82] In this case, in my view, where the need to reschedule flowed from the conduct of the defence, and where the court had offered an earlier new date for trial, a further six months within which to reschedule would have been reasonable. That is, a delay of six months from the end of October, 2015 would have been justified. That six-month period should not count toward the presumptive ceiling. This would mean that the remaining 4.5 months leading up to the next date that was offered, in mid-September 2016, would count toward the presumptive ceiling, which would bring the total operative delay to 33.25 months.

[83] It is unnecessary, however, to come to a final conclusion in that regard. As I have noted, the Court in Jordan held that although the new framework, including the presumptive ceiling, applies to cases that were in the system on July 8, 2016, “a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision [and] 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.”[^12] At all times when scheduling decisions were made in this case, the governing authority with respect to the assessment of delay was the judgment of the Supreme Court in Morin. I am satisfied, based on the manner in which the overall delay would have been assessed pursuant to Morin, that it was reasonable for the parties and in particular for the courts to conclude that the scheduling decisions that were made would not result in an infringement of s. 11(b) of the Charter.

(iii) Was the delay justified based on reasonable reliance on the previous law?

[84] In Morin, Justice Sopinka stated that the decision as to whether s. 11(b) has been infringed is to be made “by a judicial determination, balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."[^13] He noted that "it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" That question, he concluded, was to be answered after a consideration of four factors: (i) the length of the delay from the charge to the completion of the trial; (ii) whether the defendant waived any part of the delay; (iii) the reasons for the delay, including the inherent needs of the case, actions of the parties and limitations on institutional resources; and (iv) whether the delay had caused prejudice to the defendant’s interests in liberty, security of the person and a fair trial.[^14] I will address those four factors in turn.

(a) The length of the delay

[85] The overall delay of about 57.5 months is clearly of sufficient length to call for an inquiry into its causes.

(b) Waiver

[86] While certain positions taken by the defence at various times in the history of the proceedings might be said to have constituted an implicit waiver, I propose to address those positions when considering the reasons for the delay.

(c) Reasons for the delay

[87] Under Morin, every circumstance that contributed to the delay in bringing a matter to trial had to be taken into account in the determination of whether an accused's right to be tried within a reasonable time has been infringed. However, the inquiry into the reasons for delay was usually focused on four considerations: inherent time requirements, limitations on institutional resources, actions of the accused, and actions of the Crown. For convenience, I would summarize my assessment of those considerations as follows:

Delay Caused by the Defence[^15]

Ontario Court of Justice

• 1.25 months: June 27 to August 3, 2012
• 4.50 months: September 5, 2012 to January 22, 2013
• 6.75 months: January 22, 2013 to August 12, 2013
• 4.00 months: March 22 to July 22, 2014
• 16.50 months

Superior Court of Justice

• 1.5 months: September 16, 2015 to October 28, 2015
• 18 months Total of Defence Delay

Delay Caused by the Crown

Ontario Court of Justice

• None

Superior Court of Justice

• 1.5 months: September 16, 2016 to October 31, 2016
• 1.5 months Total of Crown Delay

Inherent Delay

Ontario Court of Justice

• 3.75 months: March 5 to June 27, 2012
• 1.00 month: August 3 to September 5, 2012
• 3.00 months: August 12 to November 12, 2013
• 1.00 month: July 21 to August 22, 2014
• 8.75 months

Superior Court of Justice

• 2.50 months: August 22 to November 4, 2014
• 3.00 months: November 4, 2014 to February 4, 2015
• 6.00 months: October 28, 2015 to April 28, 2016
• 1.50 months: October 31, 2016 to December 16, 2016
• 13 months
• 21.75 months Total of Inherent Delay

Institutional Delay

Ontario Court of Justice

• 4.5 months: November 12, 2013 to March 22, 2014

Superior Court of Justice

• 7.5 months: February 4 to September 16, 2015
• 4.5 months: April 28 to September 16, 2016
• 12.00 months
• 16.5 months Total of Institutional Delay

[88] My reasons for attributing the causes of the delay in that manner are as follows.

Defence Delay

(i) June 27, 2012 to August 3, 2012: 1.25 months

[89] As explained earlier, the delay in this period was caused solely by the defendant’s decision to discharge Mr. Hicks and to retain Mr. Rosen.

(ii) September 5, 2012 to January 22, 2013: 4.5 months

[90] This was the period between the day on which the initial dates for the preliminary inquiry were set and the day on which the defendant announced that she was discharging Mr. Rosen. By discharging Mr. Rosen, the defendant put the case back to where it was before the preliminary inquiry dates were set. That is, she made it necessary to repeat the process of obtaining preliminary inquiry dates, meaning that this 4½ month period of delay was wasted.

(iii) January 22, 2013 to August 12, 2013: 6.75 months

[91] This was the period between the day on which the defendant discharged Mr. Rosen and the day on which Mr. Bains was finally willing to set dates for the rescheduled preliminary inquiry. As I have said, the Crown was prepared to set target dates immediately after Mr. Rosen was discharged but Mr. Bains insisted on delaying that step until funding was arranged.

(iv) March 22, 2014 to July 22, 2014: 4 months

[92] This was the period between the first dates on which the court and the Crown were available for the rescheduled preliminary inquiry and the first dates on which Mr. Bains was available.

(v) September 16, 2015 to October 28, 2015: 1.5 months

[93] This was the period between the first date scheduled for trial in the Superior Court, which was lost because the defendant was without counsel, and the date on which the second trial date was set.

Crown Delay

(i) September 16, 2016 to October 31, 2016: 1.5 months

[94] This was the period between the second date that the court offered for the rescheduled trial and the date on which the Crown was available. There was no other conduct on the part of the Crown that caused delay in this case. For the reasons set forth earlier, I reject the submission that the time that it took for the Attorney General to approve funding for Mr. Bains was a cause of delay. There was no reason why target dates for the rescheduled preliminary inquiry could not have been set immediately after Mr. Rosen was discharged, as the Crown and the court repeatedly urged Mr. Bains to agree to do.

Inherent Delay

(i) March 5, 2012 to June 27, 2012: 3.75 months

[95] This is the period between the date on which the charge of first degree murder was laid and the date on which the defendant discharged her first lawyer, Mr. Hicks. This period should be attributed to the intake requirements of the case. An intake period of almost 4 months is justified in that there was a substantial amount of disclosure to be provided and the investigation was ongoing. Although disclosure was substantially complete as of June 6, the defence wanted to wait for more disclosure before moving forward to a judicial pretrial. Further, while the defendant had retained Mr. Hicks immediately after being arrested, the question of whether she wished to discharge him arose in the midst of the disclosure process and it was not resolved before June 27.

(ii) August 3, 2012 to September 5, 2012: 1 month

[96] This is the period between the day on which Mr. Rosen was prepared to schedule a judicial pretrial and the day on which the pretrial was held. “A reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent requirements of the case”: R. v. Tran, 2012 ONCA 28, at paragraph 34; R. v. Khan, 2011 ONCA 173, at paragraph 53.

(iii) August 12, 2013 to November 12, 2013: 3 months

[97] This is the period between the day on which the dates for the rescheduled preliminary inquiry were set and the date on which it is reasonable to expect that the parties would have been ready to proceed. At the time when the dates were set, Mr. Bains did not indicate when he would have first been available to proceed, nor when he would have been prepared to proceed. It is reasonable to infer that some time would be required. In R. v. Tran, supra, the Court of Appeal stated that “parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case.” See also R. v. Khan, supra, at paragraph 34.

[98] Because Mr. Bains did not indicate when he would have first been available, it is difficult to determine how much time should be allocated to the need to prepare. Bearing in mind the amount of disclosure that needed to be reviewed and that three full weeks were anticipated to be required for the hearing, it is reasonable to infer that three months would have been required.

(iv) July 21, 2014 to August 22, 2014: 1 month

[99] This is the time that was required to conduct the preliminary inquiry.

(v) August 22 to November 4, 2014: 2.5 months

[100] This is the time between the committal for trial and the judicial pretrial in the Superior Court.

(vi) November 4, 2014 to February 4, 2015: 3 months

[101] This is the time between the day on which the initial trial date was set and the date on which it is reasonable to expect that the parties would have been ready to proceed. Once again, Mr. Bains did not indicate when he would have first been available to proceed nor how much time he would need to prepare. Bearing in mind, among other things, the pre-trial applications that Mr. Bains needed to prepare and file in advance of the trial, it is reasonable to infer that three months would have been required for preparation purposes. In the absence of anything to indicate that Mr. Bains was even available between February 4, 2015 and the September 16, 2015 trial date, allocating only three months to the inherent time requirements of the case and the balance to institutional delay may be overly favourable to the defence.

(vii) October 28, 2015 to April 28, 2016: 6 months

[102] Where “for reasonable and unforeseeable reasons for which no one can be faulted” it becomes necessary to reschedule a trial, a reasonable period within which to do that will be considered neutral for the purposes of the s. 11(b) assessment: R. v. Meisner, [1994] O.J. No. 3812 (C.A.). A fortiori, where the defence is responsible for the problem, a reasonable period to reschedule will, at worst for the justice system, be considered neutral.

[103] As I noted when conducting the Jordan analysis, “[no] case is an island to be treated as if it were the only case with a legitimate demand on court resources”, and “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”: R. v. Allen, supra. In this case, where the need to reschedule flowed from the conduct of the defence, and where the court did offer an earlier new date for trial, a further six months within which to reschedule would have been reasonable. That is, a delay of six months from the end of October, 2015 would have been justified and should be characterized as neutral.

(viii) October 31, 2016 to December 16, 2016: 1.5 months

[104] This is the time that it was anticipated would be required to conduct the trial.

Institutional Delay

(i) November 12, 2013 to March 22, 2014: 4.5 months

[105] This is the period between the date on which it is reasonable to expect that Mr. Bains would have first been prepared to proceed with the rescheduled preliminary inquiry and the first date that the court could offer. As I have said, in view of the fact that there is no evidence that Mr. Bains, who repeatedly made reference to his busy schedule, was available at all in this time period, attributing the entirety of it to institutional delay may be overly favourable to the defendant.

(ii) February 4, 2015 to September 16, 2015: 7.5 months

[106] This is the time period between the date on which it is reasonable to expect that Mr. Bains would have first been prepared to begin the trial and the trial date. Once again, there is no evidence that Mr. Bains was available at all in this time period and therefore attributing the entirety of it to institutional delay may be overly favourable to the defendant.

(iii) April 28, 2016 to September 16, 2016: 4.5 months

[107] This is the period between the date by which a second trial date should have been scheduled to proceed and the date that the court was able to offer.

(d) Prejudice

[108] The primary purpose of s. 11(b) is to protect the right of a defendant to liberty, security of the person and a fair trial.

the impact of the delay on the defendant’s liberty interest

[109] The defendant has been in custody at the Vanier Centre for Women, a provincial detention facility, from the time the charge of first degree murder was laid, March 5, 2012. She applied for judicial interim release in the summer of 2015 but the application was dismissed.

[110] In the affidavit that she filed in support of this application, the defendant referred to a number of the conditions at Vanier that have made her detention difficult, including lack of access to a gym, a law library or educational programs and an inability to wear her own clothing. She noted that even if she had already been convicted of the charge against her, she would have been detained in the penitentiary system where she would have had access to those things as well as to other amenities, such as her own television.

[111] There can be no question that being detained in custody pending trial for almost five years has had a significant impact on the defendant’s liberty interest. The fact that pretrial detention is a condition that is shared by most persons facing a charge of first degree murder would undoubtedly be cold comfort to her. However, the impact that a deprivation of liberty while awaiting trial has on the ultimate assessment of the reasonableness of delay can only be accurately assessed in the context of the reasons for the delay. That is a question to be considered at the balancing stage.

the impact of the delay on the defendant’s security of the person

[112] In her affidavit, the defendant stated that she has suffered “considerable strain and anguish” as a result of her separation from her daughter, who was 2½ years of age at the time the defendant was arrested and who is now 7 years old. The Children’s Aid Society initially took custody of the defendant’s daughter, but eventually custody was granted to the brother of the deceased, and the child is being raised in China.

the impact of the delay on the defendant’s fair trial interest and her ability to make full answer and defence

[113] There was no suggestion of specific prejudice to the defendant’s fair trial interest in her affidavit. It is reasonable to infer that the passage of time may cause the memories of any witness to suffer some deterioration, but in the absence of an assertion of a concern in this respect I am not prepared to find that the delay had any significant impact on the fairness of the trial or the defendant’s ability to make full answer and defence.

inferred prejudice

[114] Under the framework for analysis laid down in Morin, a court considering whether s. 11(b) had been infringed was not restricted to evidence of actual prejudice. As Justice Sopinka stated in Morin, when faced with a lengthy pre-trial delay, it is reasonable to infer that prejudice has been suffered: “The longer the delay the more likely that such an inference will be drawn."[^16]

[115] In R. v. Ralph, 2014 ONCA 3, Justice Rosenberg stated that "when an accused has had to wait almost three years for trial...it is proper to infer significant prejudice..." See also R. v. Williamson, 2014 ONCA 598, at paragraphs 54-57. In R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, Justice Cory observed that with respect to very long delays, a presumption of prejudice will be "virtually irrebuttable."[^17] He stated that "all accused persons ... should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time."[^18] However, Justice Cory was also very clear that it is open to the Crown, however difficult it may be, to demonstrate that even a lengthy delay has not prejudiced the accused.

Balancing

[116] In Morin, the Supreme Court directed judges to assess whether a delay in bringing an accused to trial was reasonable "by... balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."[^19]

[117] With respect to the causes of delay in this case, three observations are particularly pertinent: the institutional delay of 16.5 months was within the guidelines set forth by the Supreme Court of Canada in Morin, the Crown was only responsible for causing 1.5 months of delay, and the defence was responsible for causing 18 months of delay. Further, almost 23 months of delay was inherent in the circumstances of the case.

[118] Obviously, a finding of prejudice to one or more of the interests protected by s. 11(b) will be an important consideration in the balancing process. However, a finding of prejudice does not in itself dictate the further finding that the constitutional guarantee has been infringed. Proof of prejudice flowing from delay is not necessarily proof that the delay was unreasonable.[^20] The greater the prejudice, the more likely a finding that the delay was unreasonable, but the latter finding can only be made after the prejudice is assessed together with the other factors that Morin requires judges to consider. If the delay was entirely justified, for example, or if the amount of unjustified delay was not substantial, or if the defendant was responsible for significant portions of the delay, the balance may be tipped against a finding that the time between the laying of the charge and the completion of the trial was unreasonable, notwithstanding the existence of prejudice.

[119] This was not a case where the Crown and the justice system were complacent in the face of delay. On many occasions Crown counsel attempted to move the case forward only to be met by either indifference or outright resistance from the defence.[^21]

[120] The defendant used her right to counsel of choice as a tool to engineer delays. Less than two months before her preliminary inquiry was to begin, she discharged Mr. Rosen, a very experienced and able defence counsel who had been diligently preparing to proceed, in favour of Mr. Bains, a lawyer whose retainer would require postponing the preliminary inquiry to some unknown future date, who was unfunded, and who was unwilling to even consider setting new target dates until the funding process was completed.

[121] After Mr. Bains was removed as the defendant’s lawyer, she was given the opportunity of retaining another senior defence counsel, Mr. Nuttall. Retaining Mr. Nuttall would have enabled the defendant to proceed to trial on November 2, 2015, six weeks later than the initial trial date. She declined to retain Mr. Nuttall and as a consequence the November 2 date was lost.

[122] Then, on June 30, 2016, four months before this trial was scheduled to begin, the defendant constructively discharged Daniel Moore, who was ready, willing and able to defend her. Following June 30, she failed to make any meaningful effort to retain other counsel to replace Mr. Moore. The discharge of Mr. Moore was a strategic choice made by the defendant to orphan herself from counsel so that she could come before the court on the trial date and assert that to require her to proceed as a self-represented defendant would be unfair. In other words, both the discharge of Mr. Moore and the failure to make a serious effort to retain other counsel were part of an effort to avoid having this trial proceed on schedule.

[123] In Jordan, the Supreme Court of Canada stated:

[We] recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11 (b) was not intended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2).[^22]

[124] Whether the defendant was ‘in fact guilty’ was not a matter to be determined on this application, but otherwise those comments find resonance in the defendant’s conduct throughout the history of this case. The assessment of the impact that the delay had on her interests must take into account the multiple occasions on which she embraced delay. It is reasonable to infer that she did so in the hope that either the case against her would fall apart or that the delay that was accumulating would become sufficient for her to obtain a stay of proceedings.

[125] Bearing in mind that the institutional delay in this case was within the parameters laid down by the Supreme Court in Morin, that the Crown was only responsible for six weeks of the overall delay and that a substantial part of the delay was attributable to the actions of the defence, this is not a case in which the delay would have been found to be unreasonable had the Morin framework for analysis remained in place. When making scheduling decisions, it was reasonable for the court to proceed on that basis. No doubt, if the court had known that a presumptive ceiling was going to be applied, different decisions would have been made in relation to scheduling, particularly after the first trial date was aborted. However, as Jordan holds, “it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice.”[^23]

[126] Assuming without deciding that the presumptive ceiling of 30 months has been breached and that there are no exceptional circumstances of the kind described in Jordan, I am satisfied that a transitional exceptional circumstance applies based on the reasonable reliance of the parties and the justice system itself on the law that existed throughout the entire time during which decisions with respect to the progress of the case were being made.

D. Disposition

[127] For these reasons, the application to stay proceedings for delay was dismissed.

MacDonnell, J.

Released: January 26, 2017

[^1]: Paragraph 69 [^2]: Paragraph 75 [^3]: Paragraph 81 [^4]: Paragraph 96 [^5]: Calculating the difference between when the preliminary inquiry would have ended and when it did end is one way of determining the amount of delay caused by the defendant’s discharge of Mr. Rosen. It is not the only way, although it is the most straightforward one. An alternative way of calculating the delay attributable to the defence in the Ontario Court of Justice is set forth in my consideration of the Morin factors, infra. Under either approach, the result is the same. [^6]: Jordan, at paragraph 123 [^7]: Paragraph 75 [^8]: Paragraph 110 [^9]: Paragraph 26 [^10]: Paragraph 22 [^11]: At paragraph 75 [^12]: At paragraph 96 [^13]: At paragraph 31 [^14]: ibid [^15]: As I have said, there are different ways to approach the calculation of the defence delay in the Ontario Court of Justice. See fn. 5, supra. The more straightforward method was utilized in my Jordan analysis; an alternative method is used in my Morin analysis. The amount of delay attributed to the defence is the same under either method. [^16]: At paragraph 61 [^17]: At paragraph 100 [^18]: At paragraph 75 [^19]: At paragraph 31 [^20]: R. v. Lo, 2014 ONCA 23, at paragraph 3 [^21]: See, for example, the proceedings on May 16 and June 6, 2012, and on January 31, February 22, March 22, April 24, May 6, June 11 and July 12, 2013. [^22]: At paragraph 21 [^23]: At paragraph 94