CITATION: R. v. Bullen, 2017 ONSC 6204

COURT FILE NO.: 13-30424

DATE: 2017/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DAVID JOHN MAYNE BULLEN

Applicant

Roderick W.A. Sonley and Jessica Legrand, for the Respondent

Genevieve McInnes, for the Applicant

HEARD: October 19-20, 2017

REASONS: SECTION 11(b) APPLICATION

Table of Contents

Nature of the Proceedings. 2

Context 2

Jordan Framework. 4

Analysis. 6

Calculating the Total Period of Delay. 6

Delay Waived by the Defence. 6

Delay Solely Caused by the Defence. 7

(a) General Principles. 7

(b) Application in this Case. 8

Exceptional Circumstances. 10

(a) General Principles. 10

(b) Discrete Exceptional Events. 11

(c) Exceptionally Complex Case. 17

Transitional Provisions. 18

(a) Length of the Delay. 18

(b) Defence Waiver 18

(c) Inherent Time Requirements. 18

(d) Actions of the Accused. 19

(e) Actions of the Crown. 19

(f) Institutional Delay. 20

(g) Other Reasons for Delay. 20

(h) Balancing. 21

Disposition. 22

Aitken J.

Nature of the Proceedings

[1] David Bullen (Bullen) seeks a stay of proceedings under s. 24(1) of the Charter[^1]on the grounds that the period of delay from the date he was initially charged until the anticipated end of his trial, a period of approximately five years, is unreasonable pursuant to s. 11(b) of the Charter and the principles enunciated in R. v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381 and R. v. Cody, 2017 SCC 31, 411 D.L.R. (4th) 619.

[2] On October 23, 2017, I denied Bullen’s application and undertook to subsequently provide written reasons. These are those reasons.

Context

[3] In October 2011, the Ontario Provincial Police (OPP) began an investigation (Project Mayday) into cocaine trafficking in Eastern Ontario and Western Quebec. As of September 2012, this investigation became known as Project Adelaide.

[4] Project Adelaide was a lengthy and complex investigation with 69 Judicial Authorizations, three One Party Consent Authorizations, four full-blown Part VI authorizations, and the use of a Police Agent. There were members in the targeted group living in Ontario and Quebec and communications occurred in both English and French. On take-down day, October 16, 2013, 25 search warrants were executed. Ultimately, eight individuals were charged: David Bullen, Viorel Gheorghevici, Ryan Jones, Charles Ethier, Michel Côté, Michel Pedneault, Jordan McGregor, and Richard Perron. All individuals faced conspiracy and criminal organization charges, alleging they conspired together, along with other unidentified co-conspirators, in the trafficking of cocaine. Bullen, the alleged leader in the organization, was charged separately from the others and was arrested only on October 21, 2013, when he returned to Canada from abroad.

[5] Four co-accused, Gheorghevici, Perron, McGregor, and eventually Côté resolved their criminal charges by way of pleas. The trial of Ethier and Jones was heard by Hackland J. in the fall of 2016. On January 27, 2017, Hackland J. convicted the two of various charges, including conspiracy to traffic in cocaine and trafficking in cocaine. At the end of the trial, Ethier and Jones sought a stay of proceedings based on an alleged breach of their rights under s. 11(b) of the Charter. That application, and a subsequent application for a stay under ss. 7 and 11(d) of the Charter due to alleged non-disclosure of some intercepted communications, were denied by Hackland J.

[6] Bullen is now being tried pursuant to a preferred indictment with seven outstanding counts: two counts of conspiracy to traffic in cocaine, two counts of trafficking in cocaine, two counts of possession of cocaine for the purpose of trafficking, and one count of instructing a person to commit a criminal offence while being a member of a criminal organization. The intercepts collected during this investigation topped 100,000. In addition, there were hundreds of hours of surveillance. The task of organizing this information for the purpose of disclosure was enormous and challenging. Needless to say, once in receipt of this disclosure, it was a daunting task for Crown counsel to ensure that all required disclosure had been made and for Defence counsel to review the disclosure and assure themselves that they had everything they needed to make full answer and defence.

[7] Bullen is also facing three additional sets of charges in the Ontario Court of Justice. The first set of charges, laid in October 2016, relates to conspiracy to traffic in cocaine, firearms offences, and breaches of recognizance. Those charges are scheduled for trial commencing April 30, 2018. The second set of charges, laid in June 2017, relates to fraud and entering into an agreement to receive a criminal rate of interest. Those charges are in their infancy. The third set of charges, laid in September 2017, allege obstruction of justice in regard to Bullen’s activities while incarcerated. The fact that Bullen is facing additional charges in the Ontario Court of Justice creates added scheduling challenges.

[8] As explained in R. v. Picard, 2017 ONCA 692, 141 W.C.B. (2d) 276, at paras. 53-55, complexity comes into play at two junctures in the Jordan analysis.

[9] First, the fact that a case is particularly complex can be considered an exceptional circumstance that the Crown can rely on in rebutting the presumption that a delay over the presumptive ceiling is unreasonable. In considering whether a case is particularly complex in this respect, the court must look at the entirety of the case, from start to finish. Just because a case may be relatively easy to present at trial does not mean that, in the early stages, it was not complex (Cody, at para. 64; Picard, at para. 62). As the Supreme Court said in Jordan, at para. 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. [Emphasis in original]

[10] Second, the complexity of the case is considered when applying the transitional exceptional circumstance. Where the delay exceeds the presumptive ceiling, cases already in the system prior to the release of Jordan will not automatically be stayed if the delay results from the fact that “the case is of moderate complexity in a jurisdiction with significant institutional delay problems” (Jordan, at para. 97). In addition, the complexity of the case may serve to excuse longer delays for cases already in the system where the parties reasonably relied on the approach to such delay that would have been taken under the Morin[^2] jurisprudence (Picard, at para. 55).

[11] This case is a very complex case representing years of work by numerous law enforcement and prosecution personnel. The investigation covered a number of years and numerous suspects. Gang activity is alleged. This is a case of more than moderate complexity, and is being tried in Ottawa, which, for many years, has had significant institutional delay problems due to a lack of judicial resources and a lack of courtroom space.

[12] I find that the complexity inherent in the prosecution of this case must inform the analysis both of the existence of exceptional circumstances under Jordan and the existence of a reasonable reliance by counsel on the Morin approach to delay.

Jordan Framework[^3]

[13] In Jordan, the Supreme Court of Canada confronted the criminal justice system’s complacency with delay by introducing a new framework for s. 11(b) applications under the Charter. The new framework can be summarized as follows.

[14] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling of 30 months for cases tried in the superior courts, the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances (Jordan, at paras. 46-47, 68). The presumptive ceiling takes into account inherent time requirements under Morin and the increased complexity of criminal cases over the last 25 years (Jordan, at para. 53). Once the ceiling has been reached, it is assumed that the accused suffered prejudice to their Charter rights to liberty, security of the person, and a fair trial (Jordan, at para. 54).

[15] If the total delay (minus defence delay or delay attributable to exceptional circumstances) falls below the ceiling of 30 months for cases tried in the superior courts, the onus is on the defence to show that the delay was still 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” (Jordan, at para. 48; emphasis in original). Stays beneath the ceiling are expected to be rare and limited to clear cases.

[16] Defence delay includes any delay waived by the defence or any delay caused solely by the conduct of the defence. A defence waiver can be explicit or implicit but must be clear and unequivocal and based on the accused’s full knowledge of his or her rights (Jordan, at paras. 60-61). Delay caused solely by the defence comprises “those situations where the accused’s acts either directly caused the delay … or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, at pp. 1227-28, quoted in Jordan, at para. 63). Such delay includes delay caused if the court and the Crown are ready to proceed, but the defence is not (Jordan, at para. 64). That being said, defence actions legitimately taken to make full answer and defence are not considered defence delay. Defence counsel must be allowed preparation time, even where the court and the Crown are ready to proceed, and defence applications that are not frivolous will generally not count against the defence (Jordan, at para. 65).

[17] Where the total delay (less defence delay) exceeds the ceiling, the Crown can only rebut the presumption of unreasonable delay if the Crown can show that there were exceptional circumstances causing the extra delay (Jordan, at para. 81). More will be said about exceptional circumstances later.

[18] In Jordan, at paras. 92-104, the majority discussed transitional provisions to apply to those cases where charges were laid prior to the release of Jordan on July 8, 2016. The Court’s directions can be summarized as follows:

• The new framework, including the presumptive ceiling, applies to cases in the system, subject to two qualifications:

o the first deals with cases in which the total delay (minus defence delay and delay caused by exceptional circumstances) exceeds the ceiling, and

o the second deals with cases in which the total delay (minus defence delay and delay caused by exceptional circumstances) falls below the ceiling.

• In regard to the first qualification, if the Crown can establish that there is a “transitional exceptional circumstance” making the time the case has taken justified based on the parties’ reasonable reliance on the law as it previously existed, then a stay will not be granted.

• In regard to the second qualification, the defence need not demonstrate having taken initiatives to expedite matters for the period of delay prior to July 8, 2016.

[19] Considerations that should inform whether the parties’ reliance on the previous state of the law was reasonable include:

• Prejudice to the accused;

• The seriousness of the offences charged;

• The existence of significant institutional delay problems in the jurisdiction where the case is being heard; and

• The need to afford Parliament, the legislatures, and Crown counsel time to respond to the change of the law brought into effect by Jordan.

[20] More specifically, the Court warned that the integrity of our justice system and the public’s perception of the administration of justice would be seriously damaged if the application of the new legal framework in Jordan resulted in thousands of charges being stayed, as was the result following Askov. Most importantly, the Court emphasized, at paras. 100-103, that the assessment of what is or is not a reasonable delay for cases already in the system should not be dramatically different under the Jordan framework from what it was under the Morin framework:

Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before Jordan was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time….

For cases already in the system, the presumptive ceiling still applies; however, “the behaviour of the accused and the authorities” – which is an important consideration in the new framework – “must be evaluated in its proper context” (Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance.

Analysis

Calculating the Total Period of Delay

[21] The total delay from the laying of the charges on October 11, 2013, to the anticipated completion of the trial on October 5, 2018, is 1821 days (60 months).[^4]

Delay Waived by the Defence

[22] There were two periods during which Bullen expressly waived his s. 11(b) rights:

• 211 days from April 20, 2015 to November 16, 2015. The court and Crown counsel were available to conduct a preliminary inquiry on the earlier date but Defence counsel wanted to adjourn the preliminary inquiry until November 16, 2015. On February 19 and 26, 2015, in order to secure the adjournment, Bullen provided a waiver. In that the Crown preferred a direct indictment against Bullen on March 8, 2015, the waiver from April 20, 2015 to November 16, 2015 in regard to the delay of the preliminary inquiry never became relevant.

• 333 days from February 22, 2016 to February 5, 2017 (with the exception of 17 days from November 28 to December 14, 2016, when pre-trial motions were heard). The Court and Crown counsel were available to commence the trial on the earlier date and Defence counsel was not available until February, 2017, aside from the few weeks for pre-trial motions. On May 27, 2015, in order to secure the later trial date, Bullen provided a waiver.

[23] A deduction of 333 days from 1821 days leaves a balance of 1488 days or 48.9 months.

Delay Solely Caused by the Defence

(a) General Principles

[24] In Cody, the Supreme Court of Canada explained in greater detail the concept of “defence delay”. It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66; Cody, at para. 28) and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges (Cody, at para. 30).

[25] Examples of defence delay include:

• “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63; Cody, at para. 30);

• where the court and Crown counsel are ready to proceed, but the defence is not (Jordan, at para. 63, Cody; at para. 30); and

• other defence actions or conduct that the trial judge finds has caused delay warranting a deduction from the Jordan ceiling (Jordan, at para. 64; Cody, at para. 30).

[26] Both the decision to take a step and the manner in which it is conducted can amount to defence delay warranting a deduction (Cody, at para. 32). “Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay” (Cody, at para. 32).

[27] Inaction, and omissions, can amount to defence conduct that is considered illegitimate in the context of a s. 11(b) application (Jordan, at paras. 113 and 121; Cody, at para. 33). Defence counsel are expected to actively advance their clients’ right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and use court time efficiently (Jordan, at para. 138; Cody, at para. 33).

[28] The statement of Cromwell J. in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, that: “[s]cheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability” may no longer be applicable post-Jordan when the court has to categorize a period when the court and Crown counsel are available, but defence counsel is not. See, in this regard: R. v. Mallozi, 2017 ONCA 644, 141 W.C.B. (2d) 439, at para. 31-38; R. v. Mouchayleh, 2017 NSCA 51, 193 W.C.B. (2d) 560, at para. 26; R. v. Schenkels, 2017 MBCA 62, 140 W.C.B. (2d) 593, at para. 53; and R. v. Khoury, 2016 QCCS 5009, 134 W.C.B. (2d) 256, at para. 21.

[29] Finally, an accused person has the right to make full answer and defence, and Defence counsel is entitled to pursue all legitimate, available, substantive and procedural means to defend their client (Jordan, at para. 66; Cody, at paras. 34-35).

(b) Application in this Case

[30] I attribute no Defence delay to the period from October 11, 2013 to March 17, 2014 – the date of the first judicial pre-trial, even though Crown counsel was anxious to have an earlier judicial pre-trial date and the court could have offered earlier dates. Major packages of disclosure were provided to Defence counsel on October 23, 2013, January 9, 2014, May 6, 2014, and December 4, 2014. On January 23, 2014, the initial s. 189 notice of intention to produce intercepted communications was served on Defence counsel. In addition, as soon as Crown counsel became aware of other items to disclose or whenever Defence counsel requested specific disclosure, Crown counsel promptly delivered that documentation. The disclosure was voluminous. It was understandable that Defence counsel required a lengthy period in order to sufficiently digest the Crown disclosure so that the judicial pre-trial would be meaningful. As well, quite understandably, during the early period, the focus was on obtaining bail for Bullen. On November 8, 2013, on consent, Bullen was granted bail subject to a number of restrictions.

[31] There were several occasions where Crown counsel and the court were anxious to move the case forward but Defence counsel sought an adjournment for reasons that did not appear to have anything to do with enabling Bullen to make full answer and defence. Those periods include the following:

• 21 days from March 27 to April 16, 2014. On March 26, 2014, Crown counsel and the court had been ready to set trial dates in the Ontario Court of Justice, but Defence counsel was not prepared to do so.

• 32 days from March 10 to April 10, 2015. On March 9, 2015, Crown counsel was ready to set a date for a judicial pre-trial but Defence counsel wanted the matter adjourned.

[32] There were several occasions where Crown counsel and the court were available but Defence counsel was not. Those periods include the following:

• 97 days between December 1, 2014 and March 7, 2015. On April 16, 2014, Bullen re-elected to be tried by judge alone in the Superior Court of Justice and asked that the 6 weeks of trial scheduled for April 2015 be converted to a 3-week preliminary inquiry starting on April 20, 2015. The court had been able to offer earlier dates for a preliminary inquiry from December 2014 forward. Crown counsel was available, but Defence counsel was not. Within this period, there were other reasons as well why delay should be attributed to the Defence. By way of example:

o On January 30, 2015, Defence counsel brought a motion to adjourn the preliminary inquiry on the grounds that the Defence wanted to wait until the Crown had laid money laundering and proceeds of crime charges that the police were investigating. The motion was contested and could not be dealt with in the forum where Defence counsel had brought it.

o On February 6, 2015, the motion had to be adjourned further because Defence counsel had not provided the court or Crown counsel with the materials to be relied on by the Defence. It was eventually heard on February 19, 2015, with the motions judge adjourning, in part, to await a waiver of s. 11(b) rights by Bullen.

o Bullen did not have the right to insist that the Crown charge him with proceeds of crime and money laundering offences at the same time as it was prosecuting the conspiracy and trafficking offences now before the court. Despite that, Defence counsel brought a motion to adjourn the preliminary inquiry for several months in the hope that, if the Crown were going to pursue such charges, they would do so in the intervening period – thereby giving Bullen a sense of the full extent of jeopardy he was facing. Bullen waived his 11(b) rights in regard to the period of the adjournment of the preliminary inquiry. This was a tactical decision taken by the Defence. Although the request for an adjournment was couched in the language of protecting Bullen’s fair trial rights, and Perkins-McVey J. made reference to that, in my view, what persuaded her to grant the adjournment was the fact that Bullen was providing a clear and unequivocal waiver of the period of delay. Perkins-McVey J. acknowledged that the adjournment could be for naught, as no money laundering or proceeds of crime charges might ever be pursued by the Crown and the only result of allowing the adjournment would be to further extend the delay already associated with the case. In other words, it was entirely speculative as to whether Bullen’s fair trial rights would be any better protected as a result of the adjournment.

• On April 10, 2015, the court offered 6 weeks of trial time starting February 22, 2016. Crown counsel was available. Defence counsel advised that the first date he was available for a 6-week trial was in February 2017, one reason being that he had a teaching commitment for the month of January 2017 that he was unwilling to forego. On May 27, 2015, 4 weeks of pre-trial motions were scheduled for November 28, 2016 with 9 weeks of trial scheduled to commence on February 6, 2017. The delay occasioned by the lack of availability of Defence counsel was captured under a defence waiver of s. 11(b) rights given on May 27, 2015.

• On February 16, 2017, Defence counsel, Vince Clifford, was appointed to the Ontario Court of Justice. His co-counsel, Genevieve McInnes, took over the role of Bullen’s lead defence counsel. This event resulted in an immediate trial delay of 18 days, though, as I will explain later, it had further impact on the issue of delay. Although this event could be considered Defence delay, I am choosing to handle it as an exceptional circumstance in the form of a discrete event, as was done in Cody, at para. 49.

• 28 days from January 1-28, 2018, when Defence counsel was unavailable due to a teaching commitment.

• 83 days from April 9-June 30, 2018, when Defence counsel was unavailable due to trial commitments, and trial preparation, involving either Bullen or other accused.

• 65 days from July 1-September 3, 2018 – a delay included in the Jordan calculation because the trial could not be completed before the summer break due to the unavailability of Defence counsel for much of the period from January to June 2018. Had Defence counsel been available, the trial could easily have been completed prior to the summer.[^5]

[33] The number of days attributed to defence delay (other than that already waived) is 326. Deducting 326 days from 1488 days leaves a balance of 1162 days or 38.2 months - over the Jordan ceiling.

Exceptional Circumstances

(a) General Principles

[34] In Jordan, at para. 69, the Supreme Court of Canada explained the concept of “exceptional circumstances” within the context of an application under s. 11(b).

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

• Exceptional circumstances need not be rare or entirely uncommon (para. 69).

• Crown counsel must show that he or she took reasonable available steps to avoid and address the problem before the Jordan ceiling was exceeded (para. 70).

• In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (para. 71).

• The period of delay caused by discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded (para. 75).

• Particularly complex cases are “cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute (para. 77).

• If the trial judge finds that the case was particularly complex such that the time taken to complete the case is justified, then the delay is reasonable.

(b) Discrete Exceptional Events

[35] The Crown advances three reasons to deduct periods of delay by virtue of discrete exceptional events.

[36] On May 4, 2017, Ray J. declared a mistrial as a result of a cascading series of discrete events – each one compounding the impact of the others in regard to trial delay. The mistrial arose in the context of an application being brought by Bullen under s. 7 of the Charter due to an alleged non-disclosure of relevant information by the Crown. Ray J. made it clear that the mistrial was not being granted as a remedy under s. 7 but, instead, as a result of his assessment that it may be impossible to complete the trial prior to his mandatory retirement date of October 10, 2017. On May 2, 2017, he stated:[^6]

I am satisfied, there is no evidence before me that would support a stay. The stay is … addressed when there is conduct of a party, the Crown, that is deserving of strong response. That’s, that’s when a stay, or when there’s no other remedies, the remedy of last resort. … Ms. McInnes was addressing the true remedy in this case and that is her request for an adjournment. That’s not a s. 7 issue. It’s just simply a practical solution to ensure that Mr. Bullen gets a fair trial. And, but the mistrial is arising, not by reason of anything [the Crown] or Ms. McInnes has done. This is why I am raising it. It is simply the fact that my birth certificate has got a particular date on it, a compulsory [retirement] date for me.

[37] I will review the three discrete events.

[38] First, there was the unforeseen and unforeseeable event of Defence counsel, Vince Clifford, being appointed to the Ontario Court of Justice on February 16, 2017, during the middle of the trial. This resulted in a change of lead counsel, with Genevieve McInnes, a recent addition to the Defence team,[^7] taking over the role of lead counsel. Not only did Ms. McInnes require time to “get up to speed” as lead counsel, but also, her assumption of the leadership role opened the door for her to put her own stamp on the defence and closed the door for Clifford J. to play any role during the balance of the trial. This was very significant in regard to the second discrete event – the discovery during the trial that the Defence did not have in its possession all of the disclosure that it believed necessary in order to make full answer and defence.

[39] During the course of Ms. McInnes’s trial preparation on March 22, 2017, she came to realize that, although the Crown had provided the Defence with the monitor post reports (MPRs) listing all intercepts deemed pertinent by the police, only those audio recordings to be relied on by the Crown had been provided. That disclosure had been provided to the Defence approximately three years earlier, and the evidence was that, on many occasions, Mr. Clifford, as he then was, had accessed and reviewed that disclosure. Crown counsel, Mr. Sonley, also confirmed that, during the judicial pre-trial on March 17, 2014, he had explained to Mr. Clifford that the only audiotapes and transcripts provided in the Crown disclosure packages were the ones being relied on by the Crown and that, if the Defence wanted others after reviewing the MPRs, they should request them. Following the judicial pre-trial, Mr. Sonley did not confirm in writing this message to Mr. Clifford regarding the nature of the disclosure provided by the Crown; he assumed that Mr. Clifford had heard and understood his message and that nothing further was required in writing.

[40] The appointment of Clifford J. to the Ontario Court of Justice placed out of reach his confirmation of what oral communications regarding disclosure had occurred between himself and Crown counsel, Mr. Sonley, during the three and a half years preceding the trial, and placed out of reach his understanding of the import of such communications.

[41] Crown counsel responded promptly to Ms. McInnes’s inquiries and, on April 3, 2017, delivered to Ms. McInnes a hard drive containing the line summaries and audio of all of the intercepts (over 100,000). At Ms. McInnes’s request, on April 5 and 6, 2017, the Crown delivered to Ms. McInnes hard drives containing the audio for only the intercepts identified by the police as being pertinent (over 11,000).

[42] Ms. McInnes brought an application before Ray J. under ss. 7, 11(d), and 24 of the Charter seeking a stay of proceedings or, alternatively, an order excluding all wiretap evidence on the grounds that the Crown was in breach of its Stinchcombe obligations concerning disclosure of all relevant wiretap evidence. At the time of that application, counsel agreed that, since communications occurring during the course of a pre-trial were privileged, no evidence regarding Mr. Sonley’s statement to Mr. Clifford at the pre-trial of March 17, 2014 could be included in an application record placed before Ray J. In his reasons for his ruling on this application (R. v. Bullen, 2017 ONSC 2777), 139 W.C.B. (2d) 251, Ray J. made the following findings of fact:

• “The evidence in this large scale project is enormous, and includes considerable surveillance and wiretap evidence. Disclosure of this substantial evidence by the Crown took place regularly but over an extended period of time. Any questions or enquiries by the defendant were promptly answered by the Crown” (para. 4).

• The MPRs contained approximately 11,500 intercepts on 3,500 pages, and represented the intercepts considered pertinent by the police, with the accompanying audios and transcripts being provided for only those intercepts to be relied on by the Crown (para. 26).

• Production of the MPRs alone was an acceptable form of disclosure; however, they should have been accompanied by an explanation that the audios for most of the intercepts were not in the Tech Brief. By not providing that explanation, the Crown did not meet its disclosure obligations (para. 26).

• “[H]ad the Crown forwarded the electronic disclosure in October, 2013 with a covering letter explaining that the Tech Brief contained only the intercepts that the Crown would be relying on; and that the MPR contained a summary only of all the relevant intercepts – including those in the Tech Brief, … there would now be no question about the relationship between the two folders of evidence, and the extent of the disclosure” (para. 24).

• “There is no suggestion that the Crown intentionally breached its Stinchcombe obligations. The Crown did not refuse any of the defence requests for disclosure” (para. 4).

• “[Ms. McInnes] had not been involved in the defence until the beginning of pretrial motions and had not therefore been privy to the disclosure exchanges at the time they had taken place” (para. 17).

• “I accept the Crown’s evidence, as an officer of the Court, of Mr. Sonley’s conversation with the defendant’s previous counsel. It is possible that the defendant’s previous counsel had misunderstood the Crown’s remarks.[^8] There is no evidence that the defendant’s previous counsel had made a tactical decision not to request the audio recordings summarized in the MPRs” (para. 25).

• “Leaving aside whether the defendant’s previous counsel had actually reviewed the MPRs, had the defendant’s current counsel … conducted due diligence, and conducted the same review four years ago, the disclosure would have been dealt with; and this application would not have been necessary. The evidence is that they did not” (para. 28).

• [T]he defendant’s trial fairness rights have been compromised by a combination of the failure of the defence to thoroughly review the wiretap disclosure, and the failure of the Crown to describe the disclosure of the Tech Brief, the MPRs, and their inter-relationship” (para. 31).

[43] Ray J. determined that the appropriate remedy to deal with the disclosure problem, which had arisen through a combination of the Crown not confirming his message to Mr. Clifford in writing and Defence counsel not confirming earlier in the course of trial preparation that they had all they required, was to allow an adjournment so that Ms. McInnes could review any audiotapes she deemed significant in making full answer and defence and have them transcribed and translated, as necessary. Further funding might also have to be secured. Ms. McInnes advised that it would take her several months to accomplish these tasks. Ray J. considered Ms. McInnes’ request for “several months” to be somewhat excessive, and he believed that there was no reason why the trial could not resume at the beginning of September.[^9] In fact, both Ray J. and Crown counsel were prepared to carry on the trial during the summer months, but Ms. McInnes was not prepared to do so. This is where the third discrete event came into play and compounded the impact of the other two discrete events.

[44] The third discrete event was the looming mandatory retirement of Ray J. making him unable to preside at the trial after October 10, 2017. Had the trial proceeded as originally contemplated, the October retirement of Ray J. would have been irrelevant.

[45] Of concern to Ray J. was the possibility that, once the trial resumed, other unforeseen circumstances could arise requiring a further adjournment of the trial – pushing its completion date beyond his retirement date. Ray J. concluded that he had no choice but to declare a mistrial.

[46] Each of these three discrete events played a significant role in causing a delay in the completion of this trial.

[47] In regard to the first discrete event, had Clifford J. not been appointed to the Ontario Court of Justice, and had he remained as lead Defence counsel, the evidence is inadequate to persuade me that the disclosure issue would ever have arisen or, if it did, that it would have resulted in a delay of several months in getting the trial finished. Mr. Clifford may have fully understood the message conveyed to him by Mr. Sonley during the pre-trial on March 17, 2014, thereby obviating the need for the Crown to have sent a confirming letter following the pre-trial. During one of his many reviews of the disclosure provided, Mr. Clifford may have realized that not all audiotapes of intercepts listed in the MPRs were provided to the Defence and may not have considered the others significant enough to request. A third alternative is that Mr. Clifford may not have reviewed the MPRs, even though part of the disclosure package, and may have misunderstood what was included in the Tech Brief. The disclosure issue may have arisen at trial during Defence counsel’s last minute preparation. But even had the disclosure issue arisen at trial, considering Mr. Clifford’s familiarity with the case through his three and a half years representing Bullen and having access to Crown disclosure, it is unlikely that an adjournment of several months would have been required to deal with the problem.

[48] Ray J. and the Crown indicated their willingness to continue the trial through the summer and into the fall in order to get the trial completed by October 6, 2017. Therefore, even if a modest adjournment had been necessary with Mr. Clifford as lead Defence counsel to deal with the disclosure issue, the trial could have been completed before October 6, 2017, and the retirement of Ray J. would not have come into play.

[49] Had Clifford J.’s appointment to the Bench happened, but the disclosure issue not arisen, the trial would have continued after the brief adjournment requested by Ms. McInnes and would have been completed by April 2017, with the retirement of Ray J. being irrelevant.

[50] In short, it was the combination of the three discrete events that created “the perfect storm” and caused considerable delay in getting the trial completed. The question is how much time should be attributable to these three discrete events.

[51] Defence counsel argued that basically all of the time from the discovery of the misunderstanding regarding disclosure to the trial should be attributed to the Crown. I totally reject that argument. Ray J. did not place responsibility for the “disclosure issue” squarely on the Crown and there is nothing before me to suggest that this would be a fair and reasonable treatment of the issue. Throughout the unfolding of this case, the Crown has provided disclosure in a timely, efficient, and organized fashion – with Crown counsel making special efforts to assist Defence counsel in managing the large volume of disclosure being delivered. Every request for further disclosure was promptly handled and satisfied. Crown counsel believed that Mr. Clifford knew exactly what he had and did not have and that if there was anything further he wanted, he would request it. Crown counsel had no reason to believe otherwise. Whatever Mr. Clifford understood, it was clear in March 2017 that Ms. McInnes believed that the disclosure of the actual intercepted communications had been inadequate. Had that disclosure been analyzed at some time prior to the middle of the trial, Defence counsel would have been aware of what the disclosure entailed, anything further Defence counsel wanted could have been promptly produced, and the trial would not have to have been adjourned.

[52] In Mallozzi, the Court of Appeal categorized two mistrials as being exceptional events that were reasonably unforeseeable. In making the Jordan calculation, the Court consequently deducted the period of time from each mistrial to the first date that the court and Crown counsel were prepared to proceed promptly with a new trial.

[53] In this case, potential new trial dates in the fall of 2017 and early in 2018 were blocked off at the first opportunity, namely at the judicial pre-trial of May 9, 2017. Ms. McInnes was not available during the month of January, 2018 due to a teaching commitment. In my view, in that this commitment was months in the future, Ms. McInnes should have made arrangements to free up that month so that the trial could be completed. As well, in May 2017, the court made it clear that dates could be provided from the beginning of April to the end of June 2018, but Ms. McInnes indicated that she had other matters scheduled during this timeframe, some involving Bullen and some involving other accused, and she was not available from April through to the end of June 2017. These periods, when the court and Crown counsel were available but Defence counsel was not, fall under defence delay for purpose of the Jordan calculation.[^10]

[54] Over the summer and into the fall of 2017, there were numerous emails between Crown and Defence counsel and the Trial Coordinator in an effort to block off trial dates. Dates were repeatedly reviewed and massaged at each successive Assignment Court. Without question, the court, Defence counsel, and Crown counsel worked hard to create trial time in this matter. This involved both Crown and Defence counsel trying to adjourn other commitments. It also involved the court keeping counsel informed as soon as other matters resolved or had to be adjourned and offering to give this case priority. The situation was a nightmare for trial coordination. I commend the perseverance and commitment of that office for the steps it took to make a trial judge and courtroom space available at the earliest dates on which counsel were available. I also commend both Crown and Defence counsel for the efforts they took to streamline the next trial.

[55] At a judicial pre-trial on July 21, 2017, the court offered the following dates, and the Crown was available for all of them:

• The weeks of October 2, October 10, October 16, and October 23, 2017;

• The weeks of November 27 and December 4, 2017; and

• The weeks of April 9 through to the end of June 2018.

[56] Ms. McInnis indicated that she was not available on the following dates:

• The week of October 2, 2017;

• November 28, November 30, December 1, and December 4-5, 2017; and

• The weeks from April 9 to the end of June 2018.

[57] By August 2017, the court, Crown counsel and Defence counsel had additional availability:

• The week of November 13, 2017; and

• The weeks of February 20 and 26, 2018.

[58] By that time, it was decided that Bullen’s s. 11(b) application would be heard the week of October 10 with the trial proceeding the week of October 16.

[59] By August 2017, the court offered the following additional dates. Crown counsel was available for all of them:

• Ten weeks from September 4 to November 2, 2018; and

• Six weeks from November 13 to December 21, 2018.

[60] As Defence counsel was also available for the first four weeks, they were also confirmed as potential continuation trial dates.

[61] Meanwhile, in early May, Bullen had applied to Legal Aid Ontario for further funding. By July 2017, Legal Aid Ontario had advised Bullen that it would take a further three to four months to assess his application for legal aid because it was going to take that length of time for the necessary financial and tax documentation to be accumulated.

[62] On July 14, 2017, Bullen brought an application under s. 462.34(c)(ii) of the Code seeking a release of the monies from the sale of his matrimonial home that had earlier been seized by the Crown pursuant to a Restraint and Management Order. Bullen stated that he required these funds to finance his defence of the outstanding charges against him because Legal Aid Ontario had not yet approved his application and he had no other source of funds. Evidence was heard on August 30, 2017 and submissions on September 15, 2017. Due to the lateness of the application, Parfett J. granted Defence counsel’s request to delay Bullen’s s. 11(b) application and the commencement of the trial. Thus, at the judicial pre-trial on September 6, 2017, the following dates were confirmed:

• The week of October 16, 2017 would be used for the s. 11(b) application;

• The trial weeks would be:

o Week of October 23, 2017;

o Week of November 14, 2017;

o November 27-29, 2017;

o December 6-8, 2017;

o Week of February 12, 2018 (tentative);

o Weeks of February 20 and 26, 2018; and

o Weeks of September 10, 17, 24 and October 1, 2018.

[63] At that pre-trial, Ms. McInnes put on the record that she had been or had become available the following weeks that were not, ultimately, set aside for this matter: the weeks of October 30, November 6, November 20, and December 11, 2017, and the week of January 29, 2018.

[64] Ultimately, the following dates were set aside for the trial:

• October 23-27, 2017;

• November 14-17, 27-29, 2017;

• December 6-8, 2017;

• February 12-March 2, 2018; and

• September 4-October 5, 2018.

[65] In my view, in the aftermath of the mistrial, it is reasonable to categorize the following periods of delay as being caused by discrete exceptional events:

• February 16 to March 5, 2017 (18 days). Ms. McInnes sought an adjournment following Mr. Clifford’s appointment to the Ontario Court of Justice.

• April 3 to May 4, 2017 (32 days). Ms. McInnes brought an application under ss. 7 and 11(d) of the Charter as a result of the disclosure issue. Ray J. declared a mistrial on May 4, 2017.

• May 5 to October 15, 2017 (164 days). Ms. McInnes wanted a lengthy delay before returning to trial to obtain a further retainer and funding to continue her representation of Bullen and to review the additional disclosure she had received.

[66] These periods of delay total 214 days. If this period is deducted from the 1162 days referred to in paragraph 33 above, it would result in a total delay of 948 days or 31.2 months – slightly above the 30-month ceiling.

(c) Exceptionally Complex Case

[67] As described at the commencement of these Reasons, this case was exceptionally complex from start to finish, both in terms of the evidence collected and the legal issues involved. The total delay of 31.2 months was reasonable in all of the circumstances as a result of the complexity of the case. I base that conclusion on the following:

• The crimes being investigated involved alleged conspiracy and drug trafficking in the context of alleged gang activity.

• The investigation covered a period from 1997 to 2013.

• Over 100,000 intercepts were received, plus hundreds of hours of surveillance.

• A number of police forces were involved.

• Activities in both Quebec and Ontario were investigated, with both English and French communications being involved.

• Eight individuals were charged following the investigation.

• There were weeks of pre-trial motions.

• At different times, the trial has been scheduled for 6-9 weeks.

• Ottawa is a jurisdiction that has suffered from chronic shortage of judges and courtroom space.

• Crown counsel in this case have done their very best in moving this case forward as expeditiously as possible, including severing Bullen’s case from those of the other seven accused, preferring an indictment when the preliminary inquiry was delayed, making early disclosure, responding promptly to all disclosure requests by Defence counsel, agreeing to accept the pre-trial rulings of Ray J. for the purpose of the new trial, agreeing that the evidence heard before Ray J. could be tendered by way of transcript at the new trial, and making themselves available on virtually all occasions when the court offered trial dates.

• As efforts were being made to reschedule this case, delay ensued due to other criminal charges against Bullen proceeding through the courts.

Transitional Provisions

[68] As well, this was a transitional case. The information was sworn on October 11, 2013. Jordan was released on July 8, 2016. Therefore, approximately 33 months had elapsed during which Morin was the leading authority on how s. 11(b) of the Charter should be applied in regard to trial delay. The Crown has satisfied me that the time this case is anticipated to take is justified based on the parties’ reasonable reliance on Morin until July 2016 and based on the diligent efforts of Crown counsel and the court to have this case concluded at the earliest possible date, following the release of Jordan. Crown counsel showed remarkable flexibility on short notice in trying to reschedule the trial. As well, despite Ottawa being plagued by lengthy, persistent, and notorious institutional delays, occasioned, in part, by Ottawa’s expanding population, by vacancies in its complement of judges not being filled in a timely fashion, and by a shortage of courtroom space, the court gave priority to this case and offered dates far earlier than would have been the norm at the time for a trial of this length.[^11]

[69] Defence counsel also made significant efforts to adjourn other matters so as to free up dates and to cooperate with Crown counsel to simplify and streamline the next trial, including agreeing that the trial could be conducted in pieces over a number of months.

[70] In doing an analysis under Morin, I have attempted to follow the directions recently set out in Picard. Appendix A contains a chart summarizing that analysis.

(a) Length of the Delay

[71] Under Morin, the first question is whether the length of the delay from charge to the end of the trial warrants an inquiry (Picard, at para. 77). A length of 60 months from the laying of charges to the anticipated end of the trial certainly warrants inquiry. It raises an issue of the reasonableness of this delay in all the circumstances of the case.

(b) Defence Waiver

[72] Periods of defence waiver must first be subtracted from the overall delay (Picard, at para. 77). Here, the only relevant period of delay waived by the Defence is that between February 22, 2016 and February 5, 2017 (with the exception of November 28 to December 14, 2016), totalling 333 days or 11 months.

[73] Thus, the net period of delay is 49 months.

(c) Inherent Time Requirements

[74] In considering the inherent time requirements of the case, the court must take into account the complexity of the case – in terms of evidence, factual issues, legal issues, the number of charges, and the number of accused persons. As well, inherent time requirements will be higher in situations where one or more pre-trials occur (Picard, at paras. 78 and 134).

[75] In Picard, the Court of Appeal indicated that six months was a reasonable intake period for a moderately complex case. The Picard case was moderately complex because it had to be carefully crafted through the accumulation of circumstantial evidence, forensic evidence, and the recovery of electronic data in various forms. Two police forces were involved in the investigation. Numerous witnesses in the Ottawa and Thunder Bay regions were interviewed, and the crime had to be contextualized within a drug trafficking framework. That being said, the case involved only one accused, one crime (a killing), one victim, and one point in time. It did not have the level of complexity seen in the case at hand. That complexity was described in detail in paragraphs 3 to 12 above.

[76] In this case, an initial intake period in the Ontario Court of Justice of just over five and a half months, from October 11, 2013 to March 26, 2014, was completely reasonable. During this period, disclosure of voluminous materials was made, bail was dealt with, and a judicial pre-trial was held. On April 16, 2014, a 3-week preliminary inquiry was set to start on April 20, 2015. The court and Crown counsel were available to commence the preliminary inquiry in December, 2014, but Defence counsel was unavailable until April 20, 2015.

[77] There was a secondary, very short, intake period of 49 days once the case arrived at the Superior Court of Justice.

[78] As a result of a mistrial being declared in the middle of the trial, there was a further intake period of 164 days while everyone regrouped, Defence counsel obtained a new retainer and additional funding, and judicial pre-trials were held.

(d) Actions of the Accused

[79] As will be seen from Appendix A, there were significant delays caused by the lack of availability of Defence counsel, namely, Vince Clifford until February 16, 2015, and Genevieve McInnes from that date forward.

(e) Actions of the Crown

[80] There is no evidence that any of the delay in this case was caused by the conduct of the Crown. In fact, Crown counsel have tried very hard throughout to move this case forward without delay and to make themselves available for any trial dates offered by the court.

[81] In this regard, I reject the Defence submission that delay should be attributed to the Crown for not consenting to Bullen’s application for funding at the earliest opportunity once a mistrial was declared. The Crown has charged Bullen with a number of economic crimes in other proceedings. The evidence collected in regard to those charges, as well as the evidence from this set of charges, may strongly deter the Crown from providing a consent to funding. The Crown is not obliged to consent to such applications regardless of the accused’s circumstances so as to comply with the requirements of Jordan to do everything reasonable in its power to reduce delay.

[82] In fact, in this case, Defence counsel could, and should, have brought her application for funding earlier than she did. She knew as of May 2017 that legal aid funding was unlikely and that Bullen was taking the position that he had no resources or assets to fund his defence.

(f) Institutional Delay

[83] Institutional delay occurs when the parties are ready for the next step in the proceeding, but the system cannot accommodate them. Under the Morin guidelines, institutional delay for cases tried in the provincial court should be no more than 8-10 months, with an additional 6-8 months from committal to the commencement of trial for cases tried in the Superior Court. Crown delay also counts in favour of a finding of unreasonable delay (Picard, at para. 78).

[84] Here, I have calculated the institutional delay as being 10.9 months – well within the Morin guidelines. This result was arrived at, in part, by my considering a portion of the delay between the time when trial dates were set to the trial date itself as being required to allow counsel to clear their calendars for the trial and to prepare for it.

[85] In Picard, at para. 92, the Court of Appeal stated: “[u]nder the Morin regime, institutional delay does not automatically start to run from the day the preliminary inquiry date is set or from the day the trial date is set” (see also R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 32). In Picard, the Court of Appeal considered it reasonable to allow counsel just over four months to clear their calendars and to prepare for the preliminary inquiry. The Court considered a period of just over five months to be a reasonable period for counsel to prepare for and make themselves available for trial. In Picard, it was anticipated that the preliminary inquiry would take five weeks, the pre-trial motions would take two weeks, and the balance of the trial would take six weeks. In this case, it was originally anticipated that the trial in the Ontario Court of Justice would take four weeks of pre-trial motions and six weeks of trial time. Subsequently, Bullen re-elected trial by judge alone in the Superior Court of Justice. It was anticipated that the length of the preliminary inquiry would be three weeks. After the Crown preferred a direct indictment, it was estimated that pre-trial motions would take four weeks, and the balance of the trial would take nine weeks. Clearly, a trial of this length requires a lengthy period of preparation, particularly keeping in mind the anticipation that at least 3,500 intercepts out of a potential 100,000, and hours of surveillance videos, would form part of the evidence.

[86] In categorizing delay in this case under Morin, I have allowed preparation time for the preliminary inquiry of 137 days or 4.5 months, considering the lengthy review of disclosure inherent in preparation for the preliminary inquiry. I have allowed preparation time for trial of 145 days or 4.8 months, which is modest, considering the complexity of the case.

(g) Other Reasons for Delay

[87] The misunderstanding between Crown and Defence counsel in March 2017 regarding the contents of the disclosure provided to the Defence years earlier, and the mistrial declared by Ray J. on May 4 were further reasons for delay in this case. I have characterized much of this delay as inherent/neutral delay, but it could have been characterized as “other”, more in keeping with the Jordan category of discrete exceptional event.

(h) Balancing

[88] At the balancing stage, the court considers the reasons for the delay, the prejudice caused to the accused as a result of the delay, and the interests that s. 11(b) of the Charter seeks to protect. Part of that consideration is balancing those interests with the societal interest of bringing cases to trial. As the seriousness of the offences increases, so does the societal need to see the accused brought to trial (Picard, at para. 79).

[89] Bullen is charged with very serious offences. Society has a strong interest in seeing that those charged with such serious offences are brought to justice (Picard, at para. 135).

[90] Although normally with the length of delay in this case, prejudice to the accused would be inferred, I do not consider prejudice to Bullen to be a strong factor in the Morin analysis.

[91] In regard to Bullen’s liberty interests, he was incarcerated from October 21to November 8, 2013, when he was released on bail, subject to conditions. Those conditions included his living at home, reporting in once a week, respecting a curfew of 9 p.m. to 6 a.m., not leaving the home otherwise except when accompanied by two of his four sureties (except when reporting in), not having visitors without having two sureties present (except certain family members and then only in the presence of a surety), not leaving Ontario, staying within a radius of 25 kilometers of his home, not possessing any communication devices or computing devices except one land line, not being involved in any financial transaction over $500 aside from normal expenses, and other standard terms. Although these conditions were restrictive, they were amended from time to time to allow Bullen and his family to move on three separate occasions and to attend medical appointments beyond at 25 kilometer radius. As well, while he was on bail, Bullen was able to assist his wife in regard to various building projects, much as he had done in the past.

[92] On October 26, 2016, Bullen was charged with a second series of offences, 27 in all, relating to conspiracy to traffic in cocaine, trafficking in cocaine, and various breaches of his bail terms. Bullen has been incarcerated ever since. The summary of evidence presented by the Crown in regard to these charges is impressive and Bullen has not sought any bail review since his arrest. Bullen did not contest his bail being revoked when a hearing under s. 524(8) of the Code was held in November 2016.

[93] Bullen testified that his bail conditions were extremely onerous and made life difficult for his wife and children because he was not able to help with family chores or easily attend the children’s extracurricular activities. It must be noted that, prior to his arrest, Bullen was in the habit of leaving his family to fend for themselves as he travelled to Montreal most weeks to see friends and travelled abroad on his own for weeks at a time. He also acknowledged having been involved in an extra-marital relationship for 4-5 years. Thus, his assertion that, not being able to participate in family events by virtue of strict bail conditions, has caused him significant emotional harm deserves minimal weight.

[94] In regard to Bullen’s security interests, there is no question that he suffered loss of privacy by having to be in the company of his sureties from time to time and having to submit to police door knocks. As well, he no doubt experiences stress and anxiety as a result of the very serious charges that he is now facing. His legal fees to date have been high. But much of the prejudice that Bullen experiences in this regard relates to the number and nature of the charges themselves, and not necessarily to the delay in the case – much of it resulting from the lack of availability of his counsel.

[95] The bulk of the evidence against Bullen consists of intercepts and surveillance videos, as well as seized items. Most of the witnesses are professional law enforcement officers, with notes available to refresh their memories. This is not a case where evidence is being obviously degraded due to the passage of time.

[96] Finally, it is important to observe that, as of the commencement of the trial in February 2017, no s. 11(b) application had been brought on behalf of Bullen – a strong indication that, as of that date, the Defence’s assessment was that an 11(b) application would not be successful under the Morin principles. In other words, both parties were placing reliance on the law as it previously existed and were of the view that Bullen’s right to be tried within a reasonable period of time had not been infringed.

[97] In the period following the release of Jordan, Crown counsel and the court had very little flexibility in terms of advancing trial dates. Defence counsel was unavailable until the scheduled trial date in February 2017 and a formal waiver had been provided by Bullen in regard to this period.

[98] After balancing all of the factors under the Morin analysis, I conclude that the delay in this case has not been unreasonable and Bullen’s s. 11(b) rights have not been infringed.

Disposition

[99] It is for these reasons that Bullen’s s. 11(b) application was dismissed on October 23, 2017.

Aitken J.

Released: November 14, 2017

APPENDIX A

DELAY CALCULATIONS UNDER THE MORIN FRAMEWORK

Dates

Time from Previous Event

Classification of Time From Previous Event

Nature of Current Event and Outcome of Current Event

Jan. 1, 1997 – Dec. 19, 2012; Dec. 19, 2012-Oct. 16, 2013; Oct. 9, 2013

N/A

Date of the alleged offences.

Oct. 11, 2013

1 day

Inherent - Intake

Information sworn.

Oct. 21, 2013

Accused arrested.

Oct. 12-22, 2013

11 days

Inherent – Intake

Defence counsel sought adjournment to Oct. 24, 2013.

Oct. 23, 2013

First wave of disclosure provided.

Oct. 23-24, 2013

2 days

Inherent – Intake

Defence counsel sought adjournment to Oct. 28, 3013.

Oct. 25-28, 2013

4 days

Inherent – Intake

Defence counsel sought adjournment to Oct. 31, 2013.

Oct. 29-31, 2013

3 days

Inherent – Intake

Defence counsel sought adjournment to Nov. 4, 2013.

Nov. 1-4, 2013

4 days

Inherent – Intake

Defence counsel sought adjournment to Nov. 6, 2013.

Nov. 5-6, 2013

2 days

Inherent – Intake

Defence counsel sought adjournment to Nov. 7, 2013.

Nov. 7, 2013

1 day

Inherent – Intake

Defence counsel sought adjournment to Nov. 8, 2013.

Nov. 8, 2013

1 day (29 days in total from charge to consent bail release)

Inherent – Intake

Bail hearing – consent release.

Jan. 9, 2014

Second wave of disclosure provided.

Jan. 23, 2014

Initial s. 189 Notice delivered to Defence counsel.

Nov. 9, 2013 -Feb. 5, 2014

89 days

Inherent – Intake

Attendance to set date for JPT – Mar. 17, 2014 set on consent. Significant amount of disclosure had recently been provided to Defence counsel. Court first offered Feb. 24, 2014. Crown counsel was unavailable that date. No other dates were canvassed after Defence counsel stated that he needed until Mar. 17 to review disclosure for purposes of a JPT.

Feb. 6-Mar. 17, 2014

40 days

Inherent – Intake

JPT held. Estimate of trial time: 2 weeks pre-trial motions, 6 weeks trial.

Mar. 18-26, 2014

9 days

Inherent – Intake

Attendance so case could be spoken to. Defence counsel asked for one month adjournment. Crown counsel already had green sheet expiring Apr. 16, 2014. Matter adjourned to that date. Trial date of April 15, 2015 set – first available date for Defence counsel, Vince Clifford.

Mar. 27-Apr. 16, 2014

21 days

Defence – no reason was provided as to why an adjournment was required.

Further JPT held. Defence counsel asked that 6 weeks of trial scheduled for Apr. 2015 be converted to 3 weeks of PI. Defence re-elected trial by judge alone. At request of Defence counsel, matter to proceed to PI on Apr. 20, 2015. Further attendance on May 2, 2014 confirmed date and fact that Court had earlier dates it could have offered for PI from December 2014 onward, when Crown counsel was also available. (Green sheet evidence).

Apr. 17, 2014 -Jan. 30, 2015

289 days

Inherent – 4.5 months (137 days from Apr. 17-Aug. 31, 2014) as preparation time for PI. Institutional – 3 months (91 days from Sept. 1-Nov. 30, 2014) because first available court date was Dec. 1, 2014. Defence – 2 months (61 days from Dec. 1, 2014 – Jan. 30, 2015) because Apr. 20, 2015 was first available date for Defence counsel after December 1, 2014.

On. Jan. 30, Defence counsel sought to adjourn PI on grounds that the Accused might be facing additional charges. Matter adjourned for 1 week by Court.

May 6, 2014

Third wave of disclosure provided.

Dec. 4, 2014

Fourth wave of disclosure provided.

Jan. 31-Feb. 6, 2015

7 days

Defence – Defence counsel did not meet procedural requirements for motion.

On Feb. 6, matter adj. to Feb. 19, 2015 as Defence counsel had not provided the Court or Crown counsel with materials being relied upon. Focus hearing scheduled for Feb. 10 cancelled.

Feb. 7-19, 2015

13 days

Defence – Defence counsel had not provided the Court or Crown counsel with necessary materials

Defence’s adjournment request argued. Court reserved until Feb. 26, 2015.

Feb. 20-26, 2015

7 days

Defence – Defence’s application to adjourn PI was unnecessary and only served to delay proceedings. It triggered the Crown to prefer a direct indictment. In the alternative, this delay could be considered inherent delay – time for the judge to deliver her ruling.

Defence application to adjourn PI granted. Defence counsel provided waiver for s. 11(b) purposes. New PI date set Nov. 16, 2015. This date confirmed on Mar. 10, 2015.

Feb. 27-Mar.7, 2015

9 days

Defence – This period was Defence delay due to earlier assessment that delay from Dec. 1, 2014 to Apr. 20, 2015 was due to lack of availability of Defence counsel

MOVE FROM

OCJ TO SCJ

Mar. 8, 2015

1 day

Inherent – Intake

Direct indictment preferred against Accused, discontinuing OCJ proceedings.

Mar. 9, 2015

1 day

Inherent – Intake

First appearance on a direct indictment. Crown ready to set JPT date; Defence counsel reluctant to do so and sought adjournment to Apr. 10, 2015 Ass. Ct.

Mar. 10-Apr. 10, 2015

32 days

Defence

Crown sought earliest possible dates for JPT and trial. Defence opposed both and sought adjournment to June. JPT scheduled for May 27, 2015. First date Defence counsel available for 6 week judge alone trial was Feb. 2017. Earlier dates (Feb. 22, 2016) offered by Court and acceptable to Crown.

Apr. 11-May 27, 2015

47 days

Inherent – Intake

JPT in S.C.J. Trial dates set: Nov. 28, 2016 P-T motions, 4 weeks; trial to commence Feb. 6, 2017, 9 weeks. Bullen waived s. 11(b) rights as dates selected to accommodate Defence counsel. Crown and Court available on earlier dates.

May 28, 2015- Feb. 21, 2016

270 days

Inherent/Neutral –3.2 months (96 days to Aug. 31, 2015 for trial preparation). Institutional – 5.7 months (174 days to Feb. 21, 2016 because first available trial date of Feb. 22, 2016).

Feb. 22, 2016-Nov. 27, 2016

280 days

Defence – Defence waiver

Defence waived the period from when the Crown and the Court were available until when Defence counsel was available.

Apr. 19, 2016

Fifth wave of disclosure provided.

Nov. 28-Dec. 14, 2016

17 days

Inherent

Pre-trial motions.

Dec. 15, 2016-Feb. 5, 2017

53 days

Defence – Defence waiver

Defence waived the period from when the Crown and the Court were available until when Defence counsel was available.

Feb. 6-7, 2017

2 days

Institutional

Matter put over to Feb. 8, 2017 due to unavailability of Ray J.

Feb. 8-15, 2017

8 days

Inherent

Trial.

Feb. 16-Mar. 5, 2017

18 days

Defence

Defence counsel, Vince Clifford, was appointed to the OCJ. Adj. was requested by new Defence counsel, Genevieve McInnes.

Mar. 6-17, 2017

12 days

Inherent

Trial continues.

Mar. 18-Apr. 2, 2017

16 days

Institutional

Ray J. on vacation. Counsel dealing with disclosure issue that arose during course of Defence counsel’s trial preparation.

Apr. 3-May 4, 2017

32 days

Inherent/Neutral – Charter application re disclosure. Crown and Defence share responsibility for disclosure issue arising during course of trial. Problem amounted to a misunderstanding between the two.

Defence brought application under ss. 7 and 11(d) of Charter. Ray J. declared a mistrial on May 4, 2017. Matter adj. to May 9, 2017 to set new trial dates.

May 4, 2017

Mistrial declared.

May 5-8, 2017

4 days

Inherent – Intake

May 9, 2017

1 day

Inherent – Intake

Extensive JPT held. New trial dates blocked off – 2 weeks in Sept, weeks of Oct. 2, 10, 16, 23, 2017 and weeks of Feb. 20-Mar. 2, 2018. These dates to be confirmed at Ass. Ct. May 12, 2017.

May 10-12, 2017

3 days

Inherent – Intake

Nothing could be accomplished at May 12, 2017 Ass. Ct. Matter put over to June 9, 2017 Ass. Ct.

May 13-June 9, 2017

28 days

Inherent – Intake

Joint request for adjournment to Ass. Ct. July 14, 2017. Parties awaiting outcome of applications in other cases that might free up earlier trial dates.

June 10-14, 2017

35 days

Inherent – Intake

Ass. Ct.: JPT scheduled for July 21, 2017.

July 15-21, 2017

7 days

Inherent – Intake

JPT held. Trial dates set: Weeks of Oct. 17 and 23, 2017, Feb. 20 and 26, 2018. Dates scheduled for funding application on Aug. 30, 2017 and JPT on Sept. 6, 2017.

July 22-Sept. 5, 2017

46 days

Inherent – Intake

Matter put over to JPT Sept. 6, 2015 to confirm more trial dates.

Sept. 6, 2017

1 day

Inherent – Intake

Trial dates adjusted. Week of Oct. 10-13, 2017 was vacated. Week of Oct. 16, 2017 to be used for s. 11(b) application. Trial dates: week of Oct. 23, 2017, week of Nov. 14, 2017, Nov. 27-29, 2017, Dec. 6-8, 2017, weeks of Feb. 12 and 26, 2018, weeks of Sept. 10-Oct. 15, 2018.

Sept. 7-Oct. 15, 2017

39 days

Inherent – Defence had to secure funding, bring an application in this regard, and prepare for s. 11(b) motion. Otherwise the period from Oct. 2-15 would be Defence delay, as Crown counsel and court available and Defence counsel was not.

Oct. 16-29, 2017

14 days

Inherent – s. 11(b) motion and commencement of trial

Oct. 30-Dec. 31, 2017

63 days

Inherent – 14 days of trial time. Institutional – 49 days.

Jan. 1-28, 2018

28 days

Defence – Defence counsel unavailable due to a teaching commitment.

Jan. 29-Feb. 11, 2018

14 days

Institutional – it does not appear that these dates were ever offered.

Feb. 12-Mar. 4, 2018

21 days

Inherent – trial time

Mar. 5-Apr. 8, 2018

35 days

Institutional – it does not appear that these dates were ever offered.

Apr. 9-Sept. 3, 2018

148 days

Defence – Defence counsel was unavailable to complete the trial prior to the summer.

Sept. 4-Oct. 5, 2018

32 days

Inherent – trial time

Classification of Delays – R. v. Bullen

Total delay for OCJ

Classification

Total in days

Total in months

Inherent/Neutral (Intake)

304

10.0

Institutional

91

3.0

Crown

0

0

Defence waiver

0

0

Defence

118

3.9

Other

0

0

Morin guidelines for institutional delay set at 8-10 months in OCJ (here: 3 months.)

Total delay for SCJ

Classification

Total in days

Total in months

Inherent/Neutral

508

16.7

Institutional

241

7.9

Crown

0

0

Defence waiver

333

11.0

Defence (other)

226

7.4

Other: some of the inherent/neutral time could have been classified as other due to the three discrete exceptional events

0

0

Morin guidelines for institutional delay set at 6-8 months in SCJ (here: 7.9 months.)

Overall delays OCJ and SCJ

Classification

Total in days

Total in months

Inherent/Neutral

812

26.7

Institutional

332

10.9

Crown

0

0

Defence waiver

333

11.0

Defence (other)

344

11.3

Other

0

0

Total

1821

60.0 (rounded)

For cases involving a preliminary inquiry as is the case here (two-stage process), the Morin guidelines for institutional delay would be in the range of 14 – 18 months (here: 10.9 months).

CITATION: R. v. Bullen, 2017 ONSC 6204

COURT FILE NO.: 13-30424

DATE: 2017/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

DAVID JOHN MAYNE BULLEN

Applicant

REASONS– SECTION 11(B) application

Aitken J.

Released: November 14, 2017

[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^2]: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1.

[^3]: This repeats the summary I gave in R. v. Beaudin, 2017 ONSC 1079, at paras. 5-13.

[^4]: Throughout these Reasons, in calculating months from days, I divided the days by 30.4.

[^5]: This same approach was adopted by Parfett J. in R. v. Picard, 2016 ONSC 7061, 368 C.R.R. (2d) 64, and upheld on appeal (Picard, at paras. 116-119).

[^6]: Transcript, May 2, 2017, at 21-22.

[^7]: Ms. McInnes joined the Defence team shortly before the pre-trial motions were argued.

[^8]: This same finding was made by Hackland J. in the sister case of R. v. Ethier, 2017 ONSC 5072, at para. 11.

[^9]: Transcript, May 2, 2017, at 23.

[^10]: See Mallozi, at paras. 31-38.

[^11]: See Ethier, at para. 140; R. v. Hackett, 2017 ONSC 300, at para. 26.