CITATION: R. v. Frail, 2017 ONSC 5886 COURT FILE NO.: CR-17-70000094-0000 DATE: 2017-10-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

PATRICK FRAIL Applicant

COUNSEL: E. Akriotis, for the Respondent I. Revutsky, for the Applicant

HEARD: August 28, 2017

RULING ON SECTION 11(b) CHARTER APPLICATION

SCHRECK J.:

[1] Over 18 years ago, Patrick Frail was arrested on drinking and driving charges. He gave the police a false name and failed to attend court. Fifteen years later, in March 2014, Mr. Frail’s past caught up with him when he was re-arrested for the drinking and driving charges as well as for obstructing justice and acknowledging bail in a false name. The new Information was sworn on March 14, 2014. The obstruct justice and acknowledge bail in false name charges have since been disposed of.

[2] Although there is no allegation that Mr. Frail’s driving caused death or bodily harm and he offered to waive any limitation period, the Crown insisted on proceeding by indictment. Mr. Frail’s trial on charges of impaired driving and driving with excess blood alcohol is scheduled to begin before a judge and jury on November 27, 2014 and end seven days later, over 44 months after he was charged. He has applied to stay the proceedings on the grounds that his s. 11(b) Charter right to a trial within a reasonable time has been infringed.

[3] For the reasons that follow, the application is granted.

I. CHRONOLOGY OF THE PROCEEDINGS

A. March 14, 2014 – May 6, 2015: Laying of the Charges to the Judicial Pre-Trial

[4] On March 14, 2014, an Information was sworn charging the applicant with operating a motor vehicle while his blood alcohol concentration exceeded the legal limit, obstructing justice, and acknowledging bail in a false name. The applicant was arrested on March 29, 2014. He was released on bail on March 31 and told to attend court on April 23, 2014.

[5] At the first court appearance, the applicant was provided with initial disclosure, but told that some disclosure remained outstanding. The matter was adjourned to May 14, 2014. On that date, disclosure was still outstanding and the matter was adjourned to June 11, 2014. It is unclear whether further disclosure was provided then, but the matter was further adjourned to June 25, 2014 so that the applicant could obtain legal advice from duty counsel.

[6] On June 25, 2014, the applicant’s counsel, Iryna Revutsky, appeared and advised the court that she had been recently retained. She requested that the matter go over for two weeks so that she could review disclosure and schedule a pre-trial conference. On the next appearance on July 9, 2014, Ms. Revutsky asked for an adjournment to August 13, 2014 so that a pre-trial conference could be completed.

[7] On August 13, 2014, the Crown advised the court that some disclosure, the nature of which is unclear on the record, remained outstanding. The disclosure was still not available on the next two dates, August 27 and September 17, 2014. Some of it was provided on the next two dates, October 15 and November 26, 2014. The matter was then adjourned to December 10, 2014 so that further pre-trial discussions could take place. Still more disclosure was provided on that date. On the following date, December 18, 2014, the court was advised that pre-trial discussions were ongoing and the matter was adjourned to January 15, 2015. Counsel for the applicant waived s. 11(b) for that period of time, about one month.

[8] At the next appearance on January 15, 2015, the court was advised that the parties had agreed on a trial time estimate of one and a half days. However, further disclosure had recently been provided and the matter was adjourned to February 4, 2015.

[9] On February 4, 2015, the applicant advised the court that he had been having difficulty in reaching his counsel, who neither appeared nor sent a message. As a result, the matter was adjourned to February 25, 2015.

[10] On February 25, 2015, the defence requested that the matter go over for another week. The record is unclear as to the reason for the request. On the same date, the Crown indicated that a further count of impaired driving was being added.

[11] On March 4, 2015, a judicial pre-trial was scheduled for March 30, 2015 with a court appearance later that day. The judicial pre-trial was conducted with Moore J. Afterwards, the court was advised that the parties wished to have a further judicial pre-trial but that Moore J. was unavailable until the end of April. The matter was accordingly adjourned to May 6, 2015. The Crown indicated that it intended to replace the Information with two new Informations, one for the drinking and driving charges and the other for the obstruction of justice and acknowledging bail in a false name charges.

B. May 6, 2015 – February 19, 2016: The Judicial Pre-Trial to the First Preliminary Inquiry Date

[12] On May 6, 2015, a further adjournment to May 20, 2015 was requested so that the parties could continue having discussions. On May 20, 2014, a preliminary inquiry was scheduled for February 19, 2016, the first available date. An interim date of December 9, 2015 was set. On that date, the Crown advised the court that no statement of issues had been received from the defence and that the applicant had not formally elected his mode of trial. The matter was adjourned to December 23, 2015, at which time a statement of issues was filed and the applicant elected to be tried by a court composed of a judge and jury.

[13] The preliminary inquiry commenced on February 19, 2016 before Wong J. After it began, the parties conducted an impromptu judicial pre-trial with Moore J., after which they advised Wong J. that the applicant was prepared to plead guilty to the obstruct justice charge and the Crown would withdraw the charge of acknowledging bail in a false name. The parties would then have a trial on the drinking and driving charges at a later date. The Crown was of the view that that trial should continue before Wong J. while counsel for the applicant was of the view that it should start anew before a different judge. During the course of that discussion, Ms. Revutsky, the applicant’s counsel, said the following:

My preference would be simply for Your Honour to strike these proceedings and for – for me to set a new trial date. Now my friend says, given that Your Honour has heard part of the case and Judge Moore has done now two judicial pre-trials, effectively what has occurred is that neither Your Honour nor Judge Moore would be in a position to hear this trial. I don’t have any concerns with respect to that. And if it assists the Court, I would be prepared obviously to waive delay. I was the one that set this down for preliminary inquiry and that did not arise at the judicial pre-trial. [Emphasis added].

[14] It was ultimately agreed that the drinking and driving trial would proceed before a different judge. The following exchange then took place:

THE COURT: Then with respect to Ms. Revutsky’s position, A, she’ll waive 11(b). I presume – well I don’t know for sure whether the Crown will re-lay an Information or just work on the same Information, Crown will go by Indictment, it’ll be an election to have it heard here. Is that fair?

MS. REVUTSKY: Yes. Or I could waive the limitation period.

THE COURT: So whether the Crown wanted to go summarily and the limitation period waived or the Crown is going to be proceeding by Indictment, the trial would be in the Provincial Court.

[Emphasis added].

Ms. Revutsky later told the court that although she was willing to waive the limitation period, Crown counsel had indicated an intention to proceed by indictment. Crown counsel advised the court that she was proceeding by indictment because “. . . in 1999 the maximum – it was not a super summary offence, so the maximum penalty is six months and I just wanted to ensure that I’m not barred by that disposition in the circumstance”.

[15] The applicant was arraigned on the obstruction of justice count. He elected to be tried in the Ontario Court of Justice and pleaded guilty. There was a joint submission for a $1000 fine which Wong J. acceded to. The charge of acknowledging bail in a false name was withdrawn. Because the matter was a second trial, it apparently could not be scheduled on that date so the matter was adjourned to March 7, 2016 to set a new trial date for the drinking and driving charges.

C. February 19, 2016 – January 20, 2017: The First Preliminary Inquiry Date to the First Trial Date

[16] On March 7, 2016, a new Information containing only the drinking and driving offences was placed before the court and the Crown elected to proceed on it by indictment. A one-day trial was scheduled for January 20, 2017. January 13, 2017 had been offered, but defence counsel was unavailable. No election as to the mode of trial was made.

[17] On January 5, 2017, counsel for the applicant served and filed a Notice of Application seeking the exclusion of evidence at the applicant’s trial on the basis of a Charter violation. The Crown filed a Response to the application on January 18, 2017.

[18] On the scheduled trial date of January 20, 2017, defence counsel advised the assigned trial judge, Wolski J., that the applicant now wished to elect to have a trial by judge and jury. He was, however, prepared to waive the preliminary inquiry. The applicant was then ordered to appear in the Superior Court of Justice practice court on February 10, 2017, a date agreed upon by counsel.

D. January 20, 2017 – December 7, 2017: The Proceedings in the Superior Court

[19] On February 10, 2017, a judicial pre-trial was scheduled for February 21, 2017. On that date, after a judicial pre-trial before Kelly J., the parties asked to return on March 10, 2017 so that the discussions before Kelly J. could continue. Defence counsel was unavailable on that date, so the judicial pre-trial was rescheduled to March 30, 2017. Counsel appearing on behalf of the applicant waived his s. 11(b) Charter rights for that period, that is, between March 10 and March 30, 2017.

[20] At the next appearance, the court was advised that a continuing judicial pre-trial with Kelly J. was scheduled for April 11, 2010, so the matter was adjourned until then. On that date, the parties scheduled the trial, which was to begin on November 27, 2017 before a judge and jury and last for five to seven days. The hearing of this application was scheduled for August 28, 2017.

II. ANALYSIS

A. The Analytic Framework

[21] The manner in which claims of unreasonable delay violating s. 11(b) of the Charter are to be determined was set out in R. v. Jordan, 2016 SCC 27 and recently affirmed in R. v. Cody, 2017 SCC 31 at paras. 20-25:

The new framework established in Jordan for analyzing whether an accused person’s right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts (Jordan, at para. 46).

The first step under this framework entails “calculating the total delay from the charge to the actual or anticipated end of trial” (Jordan, at para. 60). . . .

After the total delay is calculated, “delay attributable to the defence must be subtracted” (Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then “depends upon whether the remaining delay -- that is, the delay which was not caused by the defence -- is above or below the presumptive ceiling” (Jordan, at para. 67 (emphasis in original)).

If the net delay falls below the ceiling:

... then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. [Emphasis in original.]

(Jordan, at para. 48)

If the net delay exceeds the ceiling:

... then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

(Jordan, at para. 47)

Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay (Jordan, at paras. 95-96).

B. The Total Delay

[22] The information was sworn on March 14, 2014. The trial is scheduled to begin on November 27, 2017 and end seven days later on December 7, 2017. Crown counsel calculated the total delay as being 45 months and 12 days. Counsel for the applicant initially had a smaller number, but later adopted the Crown’s calculation, which was arrived at by taking the total number of days (which according to Crown counsel is 1362) and then dividing by 30, with the remainder being expressed in days.

[23] There is, however, another way to calculate the total delay, as was explained by Band J. in R. v. Ashraf, 2016 ONCJ 584 at paras. 55-59:

Given the pivotal nature of the 18 month mark, the question of exactly how to compute delay is important. If one counts the total days and divides by 30, one result obtains. If one starts at one date, and counts each month that has elapsed, one arrives at a different answer. For example: 542 days elapsed between the date of the swearing of the Information and the close of the case on September 21, 2016 in this case. If one divides that number by 30, the result is 18 months and two days. If one begins on March 30, 2014 and counts each complete month plus the remaining days, the result is 17 months and 21 days.

The big picture is an overarching theme in Jordan. Judges ought to avoid failing to see the forest for the trees. At para. 91, when discussing the calculation of time, the Court urges judges to refrain from parsing each day or month; rather, “judges should step back from the minutiae and adopt a bird’s-eye view of the case.” At para. 111, the Court suggests that the new framework “replaces the micro-accounting process with a global assessment.”

By establishing presumptive ceilings, the Jordan decision also aims to “enhance analytical simplicity.” There is an important public interest component to this new approach: “the clarity and assurance it provides will build public confidence in the administration of justice.”

I believe that the method of calculating delay that is most consistent with Jordan’s goals is to start at one date and count the number of months that have elapsed since. It is clear, simple and accords with common sense and everyday experience.

Interestingly, [s. 28 of] the Interpretation Act (which applies only to statutory construction), mandates a similar approach to counting months.

Ashraf was adopted with respect to this point by Paciocco J. (as he then was) in R. v. J.M., 2017 ONCJ 4 at para. 45. I agree with Band J. that counting months rather than days is more consistent with the spirit of Jordan. I note that this appears to be the approach that was used in Cody.[^1]

[24] Based on the forgoing, I conclude that the overall delay in this case is 44 months and three weeks.

C. Defence Delay

(i) Waiver

[25] Defence delay is divided into two components: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence”: Cody, at para. 26. There are two periods where the applicant expressly waived the defence. The first was December 18, 2014 to January 15, 2015 and the second was March 10 to April 11, 2017. This totals approximately two months.

[26] In my view, the period between February 19, 2016 (when the preliminary inquiry before Wong J. was aborted and a plea was entered to the obstruct justice charge) and January 20, 2017 (when the applicant decided to elect to have a jury trial and waived the preliminary inquiry) should also be considered as having been waived by the applicant. As was made clear in Jordan (at para. 61) and Cody (at para. 27), waiver may be explicit or implicit, provided it is informed, clear and unequivocal. In this case, there was implicit waiver.

[27] In explaining to Wong J. why she preferred to start the trial on the drinking and driving charges anew before another judge, counsel for the applicant said “And if it assists the Court, I would be prepared obviously to waive delay”. When Wong J. said “Then with respect to Ms. Revutsky’s position . . . she’ll waive 11(b)”, the applicant’s counsel said nothing to contradict this. In my view, in these circumstances it was clear and unequivocal that the applicant intended to waive this period. There is nothing to suggest that this waiver, which was expressed through counsel, was not informed. This brings the total period of waiver to 13 months.

(ii) Delay Caused Solely by the Conduct of the Defence

[28] The concept of delay caused solely by the conduct of the defence was explained in Cody (at paras. 28-30):

In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66).

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

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64).

[29] As the Court made clear, it not only defence action that is considered, but inaction as well (at para. 32):

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 CanLII 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).

[30] Crown counsel submits that that between December 10, 2014 and March 4, 2015, the case “languished” and that this period ought to be considered as defence delay. Some of this period, December 18, 2014 to January 15, 2015, has already been deducted as waiver. In my view, the Crown is correct with respect to some, but not all of this period.

[31] On December 10, 2014, the applicant appeared without counsel, who had sent a message asking that the matter be remanded to December 18, 2014 in courtroom 503. During submissions on this application, counsel explained that while most set date appearances at College Park, where the proceedings took place, are before a Justice of the Peace, Courtroom 503 is reserved for guilty pleas and case management issues and is presided over by a judge. While no explanation was provided for the request to have the matter adjourned to Courtroom 503, it is reasonable to infer that there was some reason why counsel wished the matter to be before a judge rather than a Justice of the Peace. While it would have been preferable to have the reasons for the request made clear on the record, I am satisfied that this was a legitimate step taken to respond to the charges.

[32] On December 18, 2014, Ms. Revutsky advised the court that she wished to have further discussions with the Crown and the matter was adjourned to January 15, 2015. As stated, this period was waived.

[33] On January 15, 2015, the applicant appeared without counsel. Further disclosure, the nature of which is unclear in the record, was provided to him. The presiding Justice of the Peace said “So I guess sir you need to give that to your counsel”. The Justice of the Peace asked whether another Crown pre-trial was required. Crown counsel present that day replied that she was not the case manager of the file. The matter was then adjourned for three weeks to allow the applicant to provide the disclosure to his counsel and so that she could set a trial date. In my view, it was legitimate for the defence to have time to review the new disclosure, which I note was being provided 10 months after the charges were laid.

[34] On February 4, 2015, the applicant again appeared without counsel. He advised the court that he had been unable to reach his counsel and she had not sent any messages. In my view, this was an unacceptable state of affairs. The resulting adjournment to February 25, 2015, a period of three weeks, must be considered to be defence delay. This brings the total defence delay to 13 months and three weeks.

[35] On February 25, 2015, Ms. Revutsky sent a message through duty counsel asking that the matter return on March 4, 2015. The following exchange took place between duty counsel and the presiding Justice of the Peace:

DUTY COUNSEL: Sorry. Counsel did leave a message. They said please remand to March 4th.

THE COURT: All right. Is there a reason for that?

DUTY COUNSEL: He’ll be in College Park on March 4th so I think they can do peoples [sic] date that –

THE COURT: All right. So your lawyers requested a week, sir, so we’ll have you back March 4th, 10 a.m.

It would appear that duty counsel was not given an opportunity to finish explaining the reason for the request. As well, the Crown indicated that a count of impaired driving was being added. It would have been reasonable for the defence to take some time to absorb this development. In all the circumstances, I am satisfied that this period should not be characterized as defence delay.

[36] When the parties were ready to set a trial date after the aborted preliminary inquiry before Wong J., a trial date of January 13, 2017 was offered but the defence was not available so the January 20, 2017 date was set. This period of one week should also be characterized as defence delay, bringing the total defence delay to 14 months.

D. Net Delay

[37] As indicated, the overall delay in this case is 44 months and three weeks. The defence delay which must be subtracted from this is 14 months, leaving a net delay of 30 months and three weeks. This exceeds the ceiling in Jordan, albeit not by much. Based on counsel’s calculation of the total delay, the net delay would have been 31 months and 12 days. Either way, the delay is presumptively unreasonable unless the Crown can establish that there were exceptional circumstances. In this case, the Crown submits that because much of the delay occurred before the release of the decision in Jordan, the “transitional exceptional circumstance” applies.

E. The Transitional Exceptional Circumstance

(i) Overview

[38] The transitional exceptional circumstance was explained in Cody (at para. 68):

Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin [1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771].

[39] The transitional exceptional circumstance was recently considered by the Ontario Court of Appeal in R. v. Picard, 2017 ONCA at paras. 70-71:

A presumptively unreasonable delay can be justified under the transitional exceptional circumstance if it is shown that, on a correct assessment of the law as it previously existed, the time the case has taken is justified and the parties reasonably relied on the previous state of the law: Jordan, at para. 96.

To determine whether a transitional exceptional circumstance justifies a delay above the presumptive ceiling, the court must conduct a contextual assessment of all the circumstances: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. 513, at paras. 320-321. Following the example set in Williamson [2016 SCC 28], relevant circumstances include:

(i) the complexity of the case

(ii) the period of delay in excess of the Morin guidelines

(iii) the Crown’s response, if any, to institutional delay

(iv) the defence efforts, if any, to move the case along

(v) prejudice to the accused

I propose to consider each of these factors.

(ii) Complexity

[40] There is nothing in the record to suggest that this case is anything other than a routine drinking and driving prosecution. The only unusual aspect is the 15-year delay in laying the charges because the applicant gave the police a false name. However, the obstruct justice charge resulting from that has been dealt with and there has been no suggestion that the pre-charge delay has in any way increased the complexity of the case.

(iii) The Period of Delay in Excess of the Morin Guidelines

(a) The Morin Factors

[41] The assessment of the Morin factors is done to determine whether “the parties reasonably relied on the previous state of the law.” It follows that the Morin factors are only relevant up until the time that the decision in Jordan was released on July 8, 2016. In this case, Jordan was decided after the aborted preliminary inquiry before Wong J. but before the date of the trial which was supposed to proceed before Wolski J.

[42] The factors to be considered on a Morin analysis are (1) the length of the delay, (2) waiver of time periods, (3) the explanation for the delay and (4) prejudice. As the Morin analysis is only relevant up until the time Jordan was decided, I will consider the period up until the trial that was supposed to proceed before Wolski J. on January 20, 2017. Although Jordan was decided before this, the trial date had already been scheduled. This is a period of approximately 34 months and one week, which would have been sufficient under Morin to warrant further inquiry.

(b) The Explanation for the Delay

[43] Between the laying of the Information on March 14, 2014 and August 13, 2014, the applicant retained counsel, initial disclosure was provided and reviewed, and a Crown pre-trial conference was held and scheduled. In my view, these five months can properly be described as the intake period and therefore neutral for the purposes of the Morin analysis.

[44] It appears that between August 13, 2014 and December 18, 2014, the matter was repeatedly adjourned because disclosure remained outstanding. The nature of the disclosure is unclear. There are a number of authorities stating that the defence is not entitled to “every last bit of disclosure” before setting a trial date: R. v. Gandhi, 2016 ONSC 5612 at paras. 34-35; R. v. Lahiry, 2011 ONSC 6780 at paras. 106-115; R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) at para. 47, R. v. M.(N.N.) (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.) at paras. 36-43. In those cases, however, the disclosure remained outstanding despite the Crown’s best efforts to provide it. In this case, there was no explanation for the untimely disclosure, nor was there any suggestion from the Crown that the matter should have proceeded before disclosure was provided. The Crown cannot fail to meet its obligation to make timely disclosure and then attempt to attribute the ensuing delay to the defence for failing to do without material it ought to have received: R. v. Walker, 2013 SKCA 95 at paras. 28-30; R. v. Stanley, 2016 ONCJ 730 at para. 29. I note as well that later in the proceedings, the defence was prepared to proceed even though more disclosure remained outstanding. This was a routine drinking and driving prosecution and full disclosure should have been made far earlier than it was. As a result, this period, approximately four months, should be attributed to the Crown.

[45] The period between December 18, 2014 and January 15, 2015, about a month, was waived.

[46] On January 15, 2015, Ms. Revutsky did not appear or send a message. While this would ordinarily incline me to attribute this delay to the defence, I note that further disclosure was provided on that date which had to be reviewed. As a result, the time between then and the next appearance on February 4, 2015, about three weeks, should be neutral.

[47] On February 4, 2015, Ms. Revutsky again did not appear or send a message. I attributed this period, about three weeks, to the defence in the Jordan analysis and come to the same conclusion under Morin.

[48] On the following appearance on February 25, 2015, the defence requested that the matter go over for another week, although the reason for the request is unclear because the Justice of the Peace interrupted duty counsel. On the next appearance, March 4, 2015, a judicial pre-trial was scheduled for March 30, 2015 with a court appearance later that day. This period, about one month, is neutral.

[49] The judicial pre-trial was conducted with Moore J. on March 30, 2015. Afterwards, the court was advised that the parties wished to have a further judicial pre-trial but that Moore J. was unavailable until the end of April. The matter was accordingly adjourned to May 6, 2015 and then to May 20, 2015 so that counsel could continue their discussions. This period, approximately one month and three weeks, is neutral.

[50] On May 20, 2014, a preliminary inquiry was scheduled for February 19, 2016, the first available date. By now, more than a year had passed since the charges were laid. The matter had been repeatedly pre-tried and the parties were ready to proceed but the system was unable to accommodate them. In my view, these nine months are institutional delay.

[51] For the reasons explained earlier, the period between February 19, 2016 and the trial date before Wolski J. on January 20, 2017 was waived. By then, Jordan had been decided.

[52] The explanation for the delay employing the Morin framework is therefore as follows:

Neutral: 8 months, 2 weeks Waiver: 12 months Crown: 4 months Defence 3 weeks Institutional 9 months

The total institutional and Crown delay is 13 months. As all of the pre-Jordan portion of the proceedings took place in the Ontario Court of Justice, in my view the eight-to-10 month Morin guidelines for proceedings in that court apply. The delay in this case exceeds the upper limit of those guidelines.

(iv) The Crown’s Response, if Any, to Institutional Delay

[53] There is nothing in the record to indicate that the Crown made any efforts to expedite matters in this case.

(v) The Defence Efforts, if Any, to Move the Case Along

[54] The defence did nothing to move the case along and expressed no concerns about the pace of the litigation. However, I note that after the aborted preliminary inquiry before Wong J., defence counsel offered to waive the limitation period so that the Crown could proceed summarily, which would have had the effect of keeping the matter in the Ontario Court of Justice. Even when it became apparent that the new trial date would be on January 20, 2017, about 34 months after the charges were laid, the Crown insisted on proceeding by indictment. By doing so, the Crown created the possibility of the situation which eventually transpired, that a simple drinking and driving case would end up before a jury in the Superior Court. While it could equally be said that the defence could have kept the matter in the Ontario Court of Justice by electing a trial in that court, the applicant had a constitutional right to make the election that he did. Crown counsel’s reason for proceeding by indictment was that she did not wish to be bound the six-month maximum sentence that existed in 1999. While I have not been made privy to all of the details of this case, I find it difficult to accept that if the applicant were convicted, the six-month maximum would prevent a sentencing judge from imposing a fit sentence.

(vi) Prejudice to the Accused

[55] Mr. Frail swore an affidavit in which he stated “I have been prejudiced by the charges being outstanding for more than three and a half years”. No further detail is provided. In my view, prejudice resulting from delay cannot be established by a bald assertion such as this.

[56] Counsel for Mr. Frail submits that I should consider the fact that Mr. Frail spent 15 years with the prospect of being arrested for these charges hanging over his head. While she concedes that this period should not count for the purposes of the s. 11(b) calculation, she submits that it is nonetheless a relevant consideration. I disagree. The situation was entirely the result of Mr. Frail’s decision to provide the police with a false name. It was open to him to turn himself in at any time. In my view, it would entirely inappropriate to now allow Mr. Frail to rely on a situation of his own making to justify staying the charges against him.

[57] Other than the type of inferred prejudice which was well recognized in the pre-Jordan, jurisprudence, there is no prejudice in this case.

(vii) Conclusion on the Transitional Exceptional Circumstance

[58] As can be seen, some of the factors support the Crown’s position that the transitional exceptional circumstance applies while others do not. No one factor is dispositive. However, as the Ontario Court of Appeal made clear in R. v. Gordon, 2017 ONCA 436 at para. 20, “[t]o rely on the transitional exception, the Crown must show that the pre-Jordan delay was not unreasonable under the Morin analysis.” The Crown has not persuaded me that it was.

[59] Ultimately, the question to be answered is whether the Crown has demonstrated that the parties reasonably relied on the previous state of the law. This case was marked by complacency on the part of all parties. The Crown took a significant period of time to decide whether it would proceed with the charges and what charges it would proceed on. Although the case was not complex, it apparently took almost a year for full disclosure to be made. For its part, the defence did nothing to move the case along and wasted almost a year by failing to make its election as to the mode of trial in a timely fashion. In these circumstances, the delay cannot be said to result from the parties’ reasonable reliance on the previous state of the law. As Duncan J. recently observed in R. v. Zamani, 2017 ONCJ 616 at para. 42, “. . . the Crown must establish that it relied on the law as it previously existed. But such delay as occurred here was no more countenanced under Morin than it is under the new framework.”

[60] For these reasons, the Crown has failed to persuade me that the transitional exceptional circumstance applies.

III. DISPOSITION

[61] For the foregoing reasons, the application is granted. The proceedings are stayed.

Justice P.A. Schreck

Released: October 3, 2017

CITATION: R. v. Frail, 2017 ONSC 5886 COURT FILE NO.: CR-17-70000094-0000 DATE: 2017-10-03

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – PATRICK FRAIL

RULING

P.A. Schreck J.

Released: October 3, 2017

[^1]: The accused in Cody was charged on January 12, 2010 and his trial was anticipated to conclude on January 30, 2015. This is a period of 1843 days (or 1844 if one considers that 2012 was a leap year) which, when divided by 30, equals 61.43 months rather than the 60.5 months calculated by the Court.