CITATION: R. v. Brezden and Mulligan, 2017 ONSC 6376
COURT FILE NO.: 42/15
DATE: 20171110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Matthew Brezden and Carleigh Mulligan
Applicants
L. Webber, for the Crown
D. Costa, for the Applicant Matthew Brezden
C. DeMelo, for the Applicant Carleigh Mulligan
HEARD: October 5, 10 and 11, 2017
leItch j.
[1] On July 7, 2017, Matthew Brezden (“the Applicant Brezden”) and Carleigh Mulligan (“the Applicant Mulligan”) (collectively referred to as “the Applicants”) gave notice of their intention to bring an application seeking an order staying criminal proceedings against them on the grounds that their right to be tried within a reasonable time as protected by s. 11(b) of the Canadian Charter of Rights and Freedoms has been infringed.
Background facts
[2] On February 25, 2014, the Applicants were arrested and jointly charged along with another accused, Jacob Phillips, with possession of a Schedule II substance, cannabis marijuana, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[3] The information was sworn February 27, 2014. On January 10, 2017, a trial was scheduled to commence on September 5, 2017. The trial was originally scheduled for four days and thus was scheduled to conclude on September 8, 2017.
[4] The trial was adjourned at the request of the Applicants on August 31, 2017 to allow these applications to be heard. The trial is now scheduled to commence on November 20, 2017 with a trial estimate of five to seven days. The Applicants have waived delay from September 8, 2017 to the commencement of the rescheduled trial.
[5] The total delay in issue on these applications is the period from February 27, 2014, when the information was sworn, to September 8, 2017 which is 1,289 days or 42 months, 12 days.
[6] Subsequent to the hearing of these applications, the Applicants and the Crown filed charts outlining the various appearances and their attribution of delay. These appear as Schedules A and B respectively to these reasons.
The Jordan principles
[7] Pursuant to the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, for cases in a superior court, a delay from the date of the charge to the actual or anticipated end of trial less delay attributable to the defence is presumptively unreasonable if it exceeds 30 months.
[8] The Supreme Court in Jordan defined defence delay as either “delay waived by the defence” or “delay caused solely by the conduct of the defence”, meaning “those situations where the accused 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” (Jordan at paras. 61, 63 citing R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 at 1227–1228).
[9] In order to rebut the presumption established by Jordan, the Crown must establish “exceptional circumstances”. That is, the Crown must establish that there are discrete events or there is complexity arising from the evidence or the issues in the case. Delay arising from exceptional circumstances is subtracted from the net delay to determine if the presumptive ceiling has been reached.
[10] If the delay is found to be below the “Jordan threshold” the onus is on the Applicants to prove that the delay is unreasonable.
[11] Because this case began prior to the Supreme Court of Canada’s decision in Jordan, the “transitional exceptional circumstances” may justify a delay beyond the presumptive ceiling (see Jordan at para. 96).
[12] In considering this issue, as discussed in R. v. Williamson, 2016 SCC 28, a court should consider the complexity of the case; “the period of delay in excess of the [R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771] guidelines”; the Crown response, if any, to institutional delay; the defence efforts, if any, to move the case along; and, prejudice to the accused.
The transcript issue
[13] Before turning to the substantive issues on these applications, I will first deal with the Crown’s position that the Applicants have failed to establish the required evidentiary record for their applications. The Crown submitted that, as a result of the deficiency of their applications, the Applicants cannot establish that their rights were infringed thereby requiring the court to conclude that the applications ought to be dismissed.
[14] The Provincial Practice Direction governing s. 11(b) proceedings issued by the Chief Justice of this Court requires applicants to file transcripts of previous court appearances.
[15] The Practice Direction specifically states at para. 31 “[u]nless otherwise directed by a judge and subject to paragraph 32 below, the applicant’s application record must contain the transcripts of all prior court appearances in the case. Where an appearance included the hearing of evidence and submissions, only the portion of the transcript reflecting discussions about adjournments, scheduling and selection of the next court need to be provided” [emphasis added].
[16] In R. v. Codina, 2017 ONSC 4105, Akhtar J. dismissed the applicant’s s. 11(b) application without prejudice, because the applicant did not produce all the relevant transcripts. Akhtar J. made it clear that, in order to proceed, the applicant would have to provide a complete set of transcripts. In a later application in R. v. Codina, 2017 ONSC 4886, Akhtar J. again dismissed the applicant’s s. 11(b) application and noted that even though this time the applicant had complied with the filing deadlines set by the court, many of the transcripts filed contained only part of her court appearances. Akhtar J. stated that only requesting certain portions of the transcripts was unacceptable and was “something that [made] the task of determining correct periods of delay to be much harder.” However, for the sake of ensuring that the Charter claim was dealt with prior to trial, Akhtar J. allowed the application to proceed, but ultimately dismissed it.
[17] I note also that in R. v. Fast, 2016 ONSC 6426, Leach J. held that all transcripts were required before an application under s. 11(b) could proceed. The application was made mid-trial, and the applicant intended to rely not only on scheduling delays leading up to the trial, but also on the manner in which the Crown had advanced its case at trial. The applicant had provided transcripts of all scheduling matters, but had not provided transcripts of the proceedings at trial up to the date that the application was made, which Leach J. found was insufficient given the applicant’s intention to rely on the Crown’s actions during the trial.
[18] On these applications, the Applicants have produced all of the transcripts save and except five transcripts with respect to appearances on May 9, 2017 (13th appearance in assignment court), June 13, 2017 (14th appearance in assignment court), July 11, 2017 (15th appearance in assignment court), August 15, 2017 (16th appearance in assignment court), and August 30, 2017 (trial readiness hearing and hearing of Applicants’ motion to adjourn the trial to permit these applications to be heard).
[19] The Codina cases and Fast are the only cases that deal with missing transcripts and the current Practice Direction in a post-Jordan world,[^1] and in my view, all three cases can be distinguished from these applications.
[20] In the Codina cases, so many transcripts were missing that Akhtar J. did not have enough information in relation to each adjournment to characterize each delay or to determine what defence delay should be deducted. Conversely, the Applicants here have produced sufficient information from the transcripts provided to determine the cause of the delay, how the delay should be characterized, and if it should be deducted from the total delay. Fast is also distinguishable, because it involved a mid-trial application and the applicant’s intention to rely on the Crown’s actions beyond scheduling matters when arguing s. 11(b). On these applications, the Applicants are not relying on the Crown’s actions beyond the dates when the September 5, 2017 trial date was set. I have concluded that the transcripts beyond the dates that the trial was set are not necessary. It is apparent from the fulsome endorsements made by the presiding judges on the dates for which transcripts are not provided that those appearances did not impact on the scheduled trial date.
[21] The trial was set for the Applicant Mulligan on January 10, 2017. I am satisfied that any transcripts after that date are not necessary for the court to determine scheduling and delay issues in relation to the Applicant Mulligan (however, transcripts up to the date the Applicant Brezden’s trial was set have been produced). The trial for the Applicant Brezden was set on April 19, 2017. Similarly, I am satisfied that any transcripts after this date are also not necessary to determine scheduling and delay issues in relation to the Applicant Brezden.
The Jordan timeline
[22] As previously noted, the information was sworn February 27, 2014.
[23] Details respecting each of the appearances thereafter are contained in the charts prepared by counsel and need not be repeated in detail here.
[24] In addressing the Jordan timeline, I will also make findings that are relevant to a consideration of the Morin guidelines. (That is, although a consideration of the Jordan timeline requires an identification of defence delay and any delays caused by discrete events, I will also identify intake and inherent time requirements which are relevant to the Morin guidelines as part of the transitional case analysis.)
(i) February 27, 2014 to August 22, 2014 –168 days – intake/inherent delay
[25] There is no controversy that the period from February 27, 2014 to August 22, 2014 should be characterized as intake/inherent delay. This totals 168 days.
[26] I note that it is agreed that during this period there are 49 days of delay attributable to the Crown relating to the time during which the ITO was not disclosed.
(ii) August 22, 2014 to September 12, 2014 – 21 days – intake/inherent delay or defence delay?
[27] There was controversy over how this 21 days ought to be attributed with the Applicants asserting that it ought to be characterized as inherent delay.
[28] Mr. Farrington, former counsel for the Applicant Brezden, requested an adjournment to complete his review of the ITO and Mr. Prevost, former counsel for the Applicant Mulligan, followed along.
[29] When the 3-week adjournment was requested on August 22, 2014, counsel had had the ITO for 6 weeks and the disclosure for 13 weeks. I conclude that this 21-day period is delay attributable to both the Applicant Brezden and the Applicant Mulligan.
(iii) September 12, 2014 to October 17, 2014 – 35 days – conceded by the Applicants to be defence delay
[30] Therefore, by this point in time there is 56 days attributable to defence delay.
(iv) October 17, 2014 to October 31, 2014 – 14 days – inherent/intake or defence delay?
[31] While the Applicants asserted that these 14 days should be characterized as inherent delay because the delay was incurred to allow for resolution discussions, I conclude that this delay is appropriately attributable to the Applicants who requested an adjournment when the Crown indicated a readiness to set a resolution date.
[32] Therefore, by this point in time there is 70 days attributable to defence delay.
(v) October 31, 2014 to March 3, 2015 – 123 days – waiting for the hearing of the Dawson application scheduled for February 22, 2015 and the preliminary hearing scheduled for March 4, 2015 with an issue respecting whether 28 days ought to be attributable to the Applicant Mulligan’s defence
[33] The Applicants acknowledge that the court made available a date as early as February 4, 2015 when the Crown was available for the preliminary hearing, however, Mr. Prevost was not available for the preliminary hearing to be conducted on that date and the preliminary hearing was scheduled for March 4, 2015.
[34] I conclude that the period from February 4, 2015 to March 4, 2015 (28 days), is attributable to the Applicant Mulligan’s defence.
[35] Therefore, by this point in time there is 70 days attributable to defence delay and an additional 28 days attributable to the Applicant Mulligan’s defence.
(vi) March 4, 2015 to April 14, 2015 – 41 days – inherent delay
[36] During this time the preliminary hearing was conducted and both the Applicants were committed to trial in this Court.
(vii) April 14, 2015 to September 15, 2015 – 154 days – delay attributable to defence or discrete delay as asserted by the Crown?
28 days of 154 days attributable to defence delay
[37] April 14, 2015 was the first appearance of the Applicants in this Court following their committal. Their matter was adjourned to the May 12 assignment court at the request of Mr. Prevost to set a date for a certiorari application to quash the Applicant Mulligan’s committal. The Applicant Brezden followed along.
[38] There is a contention with respect to the period April 14, 2015 to May 12, 2015 (28 days), which the Crown asserted is delay attributable to the defence.
[39] While the Applicants characterize this time as inherent delay, I find that it is delay attributable to the Applicants’ defence.
63 days of 154 days conceded by the Applicants as attributable to defence delay
[40] The Applicants have conceded that the time from May 12, 2015 to July 14, 2015 (63 days) when the Applicants requested adjournments to perfect the application is delay which ought to be attributable to them.
The balance of the 154 days (63 days) not characterized as defence delay or a discrete event
[41] However, the Crown contended that the balance of this period of time leading up to the date when the certiorari application to quash the Applicant Mulligan’s committal was disposed of is a discrete event.
[42] A defence certiorari application could be argued to affect the delay calculations under s. 11(b) and Jordan in two ways. First, it could be argued that the application is “defence delay” and should be deducted from the total length of the delay. Second, the certiorari application could be argued to be an “exceptional circumstance” that rebuts the presumption that a delay greater than the ceiling is unreasonable; namely a “discrete exceptional event”. The Crown in this case has made both arguments.
[43] As noted by Aitken J. in R. v. Tsega, 2017 ONSC 3090, “there is no post-Jordan higher court jurisprudence directly on point offering guidance as to how the …delay attributable to certiorari applications… should be handled within the Jordan analytical framework” (at para. 33).
[44] The case law before Jordan often held that the time spent when an accused made a certiorari application did not count towards the calculation of total delay under s. 11(b) (see e.g. R. v. Cornacchia, [1994] O.J. No 1345 at para. 10 (C.A.); R. v. Harrison, [1991] O.J. No. 881 (C.A.)).
[45] The Supreme Court in Jordan said, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and specifically “defence applications and requests that are not frivolous will also generally not count against the defence” (Jordan at para. 65). The Supreme Court said a deduction of a legitimate defence application “would run contrary to the accused’s right to make full answer and defence” (Jordan at para. 65),
[46] Since Jordan, there is disagreement in the lower courts how defence certiorari applications should be treated under s. 11(b) and Jordan.
[47] For example, in Tsega, Aitken J. held that time spent on the certiorari application made by the defence should be deducted from the total amount of delay. Aitken J. held that the defence certiorari application was “delay attributable to a discrete exceptional event” (Tsega at para. 69). Aitken J. said the “[d]efence certiorari application was something over which the Crown had no control. [The accused] had every right to bring a certiorari application after he was committed to stand trial for first degree murder” but “[i]t cannot be said, however, that the Crown was acting unreasonably in initially opposing those proceedings” (Tsega at para. 70). Aitken J. also relied on Cornacchia, a pre-Jordan case holding that a defence certiorari application should be deducted from the total delay.
[48] I note that in addition to the issue of a defence certiorari application affecting delay, the effect on s. 11(b) of a Crown certiorari application that challenged the committal finding was also at issue in Tsega. I note further that the case law on Crown certiorari applications involving committal findings is inapplicable to cases involving s. 11(b) and defence certiorari applications, because during a Crown certiorari application challenging the conclusion to not commit an accused, an accused is at the time not a “person charged with an offence” as required for s. 11(b) of the Charter to apply. That is not the case when an accused makes a certiorari application against committal.
[49] In R. v. Richards, 2016 ONSC 6372, Salmers J. applied Jordan’s ruling on defence certiorari applications and held that the time required to complete the previous certiorari application should not be deducted from the total delay, because even though the certiorari application was unsuccessful, it was not frivolous. Salmers J. said “[s]imply because the defence application was unsuccessful does not mean that it was frivolous” (Richards at para. 14).
[50] On the other hand, in R. v. Jansen, 2017 ONSC 2954, Sosna J. also deducted the delay caused by the defence certiorari application from the total delay. However, unlike Aitken J. in Tsega, Sosna J. referred to the nature and frivolousness of the application in making his decision. He said that because the certiorari application was withdrawn for lack of legal aid financial support and the grounds for the application were never argued, the court was “unable to determine the legitimacy of the application, a factor in determining whether the delay caused was or was not attributable to the defence. The absence of this evidence [leads to an inference] that the application was frivolous” (Jansen at para .53). Sosna J. also cited Cornacchia, where the Court of Appeal said “[t]he appellant cannot complain of delay during the time his motion to quash was outstanding” (Jansen at para. 55 citing Cornacchia at para. 10).
[51] Additionally, even though a defence certiorari application was not at issue in R. v. Gandhi, 2016 ONSC 5612, [2016] O.J. No 4638, Code J. provided a helpful summary of “delays caused solely or directly by the defence’s conduct” and how this type of delay is addressed in a post-Jordan world. Code J. discussed how the new principles under Jordan would likely apply to pre-trial motions and pre-trial proceedings, including certiorari applications made by the defence. Code J. noted that prior to Jordan, “delay caused by defence motions in the nature of certiorari was delay caused by ‘actions or the accused’” (Gandhi at para. 21). Importantly, Code J. said that now under Jordan, “[c]omplex pre-trial proceedings that are particularly associated with substantial delays, ([perhaps including] proceedings in the nature of certiorari) … are not ‘delay attributable to the defence,’ assuming they are ‘legitimate’ and not ‘frivolous’” (Gandhi at para. 23). But Code J. also said pre-trial proceedings can be “exceptional circumstances” that permit the Crown to rebut the presumption that delay beyond the ceiling is unreasonable (Gandhi at para. 23).
[52] I am satisfied that Ms. Mulligan’s certiorari application should not be deducted from the Jordan delay calculation for a number of reasons.
[53] Firstly, I am satisfied her application was made on legitimate grounds and not made frivolously. I find the Applicant Mulligan’s certiorari application against committal was necessary for her to make a full answer and defence. The Supreme Court was abundantly clear that defence actions legitimately taken in response to charges laid against the accused are not “defence delay”. Though her application was ultimately unsuccessful, there is nothing in Gorman J.’s decision to indicate that the application was frivolous or not a legitimate action taken in order for the Applicant Mulligan to make full answer and defence in response to the charges laid against her.
[54] Further, the Applicant Mulligan waived her solicitor/client privilege over the communications with Mr. Prevost respecting scheduling and delay and her instructions relating to waiver of delay. Mr. Prevost was called by the Crown to testify on these applications. Mr. Prevost testified that he thought the Applicant Mulligan’s certiorari application had a reasonable possibility of being successful. I accept his evidence that no applications were brought on the Applicant Mulligan’s behalf to create delay and he pursued the applications based on his belief that they had merit.
[55] The Supreme Court stated that while determining whether defence actions were frivolous “is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions” (Jordan at para. 65). I am satisfied that Mr. Prevost, on behalf of the Applicant Mulligan, made the certiorari application legitimately to make full answer and defence.
[56] I conclude based on the guidance in Jordan that the delay arising from the certiorari application should not be deducted from the total delay as defence delay.
[57] Secondly, I conclude that a defence certiorari application does not qualify as an “exceptional circumstance”, or specifically a “discrete exceptional event”. While the Supreme Court in Jordan defined an “exceptional circumstance” as one that is (1) “reasonably unforeseen or reasonably unavoidable, and that (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (and Aitken J. accepted that a defence certiorari application met this definition in Tsega), the examples given by the Supreme Court are distinguishable from a defence certiorari application against committal (Jordan at paras. 69–74). For example, the Supreme Court listed medical and family emergencies, cases with international dimensions involving extradition hearings, and witnesses failing to testify as examples of possible “discrete exceptional events” (Jordan at paras. 72–73). The Supreme Court did not mention any routine applications taken by the accused in making full answer and defence, such as a certiorari application, when discussing “exceptional circumstances”. I do note that the Supreme Court said that listing all “exceptional circumstances” would be “impossible” (Jordan at para.71). But a conclusion that a defence certiorari application was a “discrete exceptional event” would conflict with the Supreme Court’s finding that “defence applications and requests that are not frivolous will also generally not count against the defence”, as such a position would “run contrary to the accused’s right to make full answer and defence” (Jordan at para. 65). Further, when discussing defence applications, which in my mind would include certiorari applications, the Supreme Court said that it had “already accounted for procedural requirements in setting the ceiling” (Jordan at para. 65).
[58] Thirdly, the cases that have found that the time taken for a defence certiorari application should be deducted from the total delay can be distinguished. The pre-Jordan cases, such as Cornacchia and Harrison are unhelpful since these cases are dated and do not consider the factors required by Jordan—specifically that “defence applications and requests that are not frivolous will also generally not count against the defence”. Additionally, I do not find Tsega persuasive for multiple reasons. With respect, Aitken J. did not consider the effect of Jordan’s ruling that defence applications that are not frivolous are necessary for the accused to make full answer and defence and cannot count against the defence and it seems to me that her finding that the delay caused by the certiorari application was a “discrete exceptional event” is not supported by Jordan and would in fact conflict with Jordan’s ruling on applications made by the defence (see Tsega at paras. 68–72). She also cited the dated case of Cornacchia. And although Richards was mentioned when dealing with the Crown certiorari application in Tsega, she did not address Salmers J.’s finding in Richards when dealing with the defence certiorari application, which is the portion of Richards most similar and applicable. Jansen can be distinguished, because Sosna J. found that the accused’s certiorari application was likely frivolous, whereas I have found the Applicant Mulligan’s application was not frivolous. Therefore, the case law supporting the deduction of the time taken for the Applicant Mulligan’s certiorari application is not persuasive. Richards is left as the most applicable and persuasive case on the issue, which supports the conclusion that the delay resulting from the certiorari application should not be deducted.
[59] Fourthly, the Crown’s arguments are premised on irrelevant sections of post-Jordan case law, on inapplicable pre-Jordan case law, or on arguments not supported by Jordan. For example, the Crown cited the portion of Tsega that dealt with the Crown certiorari application, which is inapplicable. The Crown also cited Cornacchia, which I have also mentioned is unhelpful in instructing on defence pre-trial applications because it was decided before Jordan and does not account for Jordan’s finding that legitimate defence applications are not to be counted as “defence delay”. The Crown also asked, in the alternative, that the certiorari proceedings be found to be a “discrete exceptional event”, which as I have already discussed is not supported by Jordan.
[60] Therefore, up to this point there is 161 days (70 days already found plus 28 days and 63 between April 14, 2015 and September 15, 2015 found here) attributable to delay by both Applicants and an additional 28 days attributable to the Applicant Mulligan.
(ix) September 15, 2015 to October 13, 2015 – 28 days – inherent delay
[61] There are no issues with respect to the progress of the case during this time. The judicial pretrial, which had been scheduled for September 15, did not proceed because Mr. Prevost did not file the required judicial pretrial memo (I attribute delay to the Applicant Mulligan below).
[62] Mr. Phillips re-elected to be tried in the Ontario Court of Justice. On September 18, 2015, Mr. Phillips pled guilty to possession of a Schedule II substance (cannabis marijuana) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
(x) October 13, 2015 to November 10, 2015 – 28 days – delay attributable to the Applicant Mulligan’s defence
[63] At the assignment court on October, the matter was adjourned because the previously scheduled judicial pretrial had been cancelled as a result of Mr. Prevost’s failure to file a judicial pretrial memo. It is conceded that this 28 days of delay is attributable to the Applicant Mulligan.
[64] Therefore, up to this point there is 161 days attributable to delay by both the Applicant Brezden and the Applicant Mulligan and an additional 56 days attributable to the Applicant Mulligan.
(xi) November 10, 2015 to December 8, 2015 – 28 days – inherent delay
[65] The matter was adjourned so that a judicial pretrial could be conducted on November 24, 2015.
[66] While the Crown contended that this delay ought to be attributed to the Applicants, I am satisfied that it should not be so characterized.
(xii) December 8, 2015 to January 12, 2016 – 35 days – delay attributable to the Applicant Brezden’s defence
[67] Mr. Prevost for Mr. Farrington requested an adjournment to obtain instructions and to set a date for guilty plea or trial.
[68] It was conceded that this 35-day delay ought to be attributed to the Applicant Brezden.
[69] Therefore, up to this point there is 161 days attributable to delay by both the Applicant Brezden and the Applicant Mulligan, an additional 56 days attributable to the Applicant Mulligan, and an additional 35 days attributable to the Applicant Brezden.
(xiii) January 12, 2016 to January 10, 2017 – 364 days – inherent delay, defence delay or discrete delay?
[70] On January 12, 2016, the court set August 25, 2016 as the date to hear applications brought by the Applicants asserting that their rights pursuant to s. 8 and s. 10 of the Charter were infringed.
[71] I note that an application readiness hearing was set for July 28, 2016. This hearing was adjourned at the request of the Crown for the Applicants to provide an evidentiary basis for the Applicants’ standing to bring the Charter motions.
[72] On August 4, 2016, the Crown noted that they were satisfied that the Applicants had standing.
[73] On August 5, 2016, the Charter applications were heard. The Applicants challenged the sufficiency of the Information to Obtain (the “ITO”) and the search warrant. When the Crown responded to the application, the Crown acknowledged the weakness of the redacted ITO disclosed to the Applicants with respect to the grounds that tie the alleged drug trafficking to the Target Residence. Nevertheless, the Crown submitted that the grounds disclosed were probably sufficient to uphold the search. However, at the commencement of the hearing of the applications, the Crown conceded the insufficiency of the redacted ITO. The Crown then proceeded to step 6 as described in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
[74] On September 22, 2016, an application readiness hearing was held with respect to the Crown’s Step 6 Garofoli application scheduled to be heard October 17, 2016.
[75] The Step 6 Garofoli application was heard October 17, 2016 and October 20, 2016.
[76] The Applicants’ applications were dismissed for reasons released on November 8, 2016.
[77] When the matter was spoken to in assignment court on November 8, 2016, the Applicants requested an adjournment to obtain their clients’ instructions. The court was advised that s.11(b) was waived and the matter was adjourned to the December 13, 2016 assignment court.
[78] In the assignment court on December 13, 2016, the Applicants again requested an adjournment and again advised the court that s. 11(b) was waived.
[79] At both the November 8, 2016 and December 13, 2016 assignment courts, the Crown opposed the adjournments and indicated a trial date should be set.
[80] On January 10, 2017, the trial was set for September 5 and 6, 2017.
[81] I will set out in more detail below of what occurred on January 10, 2017 and thereafter.
[82] I am satisfied that the bringing of the Charter applications cannot be delay attributable to the defence. As earlier noted, I accept Mr. Prevost’s evidence that all applications were brought based on belief that they had merit and they cannot be considered the type of applications that would justify an attribution of delay to the defence. In particular, I note also that while the Crown originally questioned standing, that issue was conceded. Further, while the Crown was originally prepared to argue the sufficiency of the ITO, the insufficiency was ultimately conceded at the hearing of the applications. I am satisfied that these applications proceeded as expeditiously as possible and I find that the Charter applications were a legitimate defence action to respond to the charges against the Applicants. I also am satisfied that these applications cannot be characterized as discrete exceptional events, particularly when the Crown made the concessions described above.
[83] In essence on these applications, the Crown placed the blame on the Applicants for not setting a trial date on January 12, 2016 and emphasized the dispositive nature of the Charter applications as against the Applicants. However, the Charter applications were equally dispositive against the Crown, a fact which is clear based on the concessions made by the Crown, the arguments made with respect to the exclusion of the evidence in issue and the comments of the Crown when the applications were scheduled for hearing.
[84] Specifically, the evidence in issue on the Charter applications was described as being crucial to the Crown’s case. Consistent with that characterization, when the hearing date for the Charter applications was set on January 10, 2016, Mr. Farrington on behalf of the Applicant Brezden stated, “As far as the defence is concerned we’re ready to set a date”. He then went on to explain that the Applicant Brezden, who was the only accused with standing, was going to challenge the sufficiency of the ITO. Mr. Prevost stated that he would be raising a s. 10 argument. The court raised the question of whether a trial date would be set or just a date for the Charter applications. Mr. Prevost noted he was “happy to set a trial date” and he also stated that he didn’t know if the Crown’s position respecting the Applicant Mulligan “would change if Mr. Farrington’s client resolves”. The Crown stated that it probably made sense to proceed with the Applicant Brezden’s Charter application “and that may impact on the outcome for the Applicant Mulligan, if the application is granted on behalf of Mr. Farrington’s client”. All counsel then confirmed they were content to only set dates for the applications to be heard.
[85] I note parenthetically that I am confident that post-Jordan, the Court would insist on setting a trial date, notwithstanding that defence counsel is proceeding with Charter applications which counsel describe as dispositive. Counsel would be obliged to accept the court’s direction on that point. Also, post-Jordan, the Crown would no doubt request the setting of a trial date even if the court did not so direct.
[86] Turning next to the issue whether the delay from November 8, 2016 to January 10, 2017 ought to be attributable to the Applicants, I note that it is clear that counsel through an agent made a representation to the court on each of the attendances that s. 11(b) was waived by the Applicants.
[87] Both Mr. Farrington and Mr. Prevost provided a written confirmation to current counsel for the Applicants that they did not have written instructions from the Applicants to advise the court that s. 11(b) had been waived.
[88] Both the Applicants testified on these applications and indicated that they always intended to deal with these charges as quickly as possible. They both indicated that they had no experience with the court process and had had relatively limited conversations with their former counsel, Mr. Farrington and Mr. Prevost.
[89] The Applicant Brezden testified he did not understand the legal procedures and trusted Mr. Farrington, a senior barrister, who he had retained because of his experience. The Applicant Brezden estimated that he had about four fulsome discussions with Mr. Farrington, the last of which was in March 2017 and the last discussion prior to March 2017 had been six to eight months previously. The Applicant Brezden also indicated that he and Mr. Farrington communicated by email and he had difficulty reaching him. The Applicant Brezden never complained about any adjournments of his case because of the faith he placed in Mr. Farrington and he was prepared to proceed as Mr. Farrington recommended, although, he had told Mr. Farrington he wanted to have the case dealt with as soon as possible.
[90] The Applicant Brezden acknowledged that there was no detail in his affidavit filed in support of these applications with respect to delay or the fact that he had informed Mr. Farrington that he wanted his case to be completed as soon as possible. However, the Applicant Brezden was adamant that the charges against him were affecting his reputation and his employment opportunities and he wanted the matter dealt with, as I will discuss more fully below.
[91] Both the Applicant Brezden and the Applicant Mulligan testified that of the 51 appearances in relation to their charges, they attended in court on a relatively small number of occasions and only when their counsel had asked them to be in attendance.
[92] The Applicant Mulligan was clear that she had been very naïve because of her inexperience and did not take an active part in the proceedings. As she put it, she now has a million questions she could have, and should have, asked, however, she too put her faith in her counsel. She was clear that she never gave any instructions to Mr. Prevost to delay the matter and had always wanted the case to proceed as quickly as possible. She was adamant that she told Mr. Prevost the first time that she met him that she wanted “this over with”. She too acknowledged she had never complained to her counsel about any adjournments but she indicated that she had not understood the procedure, had placed her confidence in her counsel, and was ready to proceed as he recommended.
[93] The Applicant Mulligan’s affidavit also did not include any information with respect to her conversations with Mr. Prevost regarding delay.
[94] The Crown was critical of those omissions from the affidavits of the Applicant Mulligan and the Applicant Brezden, however, I agree with the Applicants that it was clear from the application records that the Applicants would take the position that there had been no waiver of s. 11(b) delay and the Crown could not be taken by surprise. It is also clear from the judicial pretrial held in relation to these applications that the Applicants did not confirm that they were relying only on written material.
[95] In any event, pending the return of these applications, the Crown obtained from Mr. Farrington and Mr. Prevost their communications with the Applicant Mulligan and the Applicant Brezden with respect to scheduling and delay. Mr. Prevost was available to be called as a witness, and as earlier noted, did testify, although Mr. Farrington was not.
[96] Mr. Prevost’s testimony was consistent with the Applicant Mulligan’s. Mr. Prevost believed he had two to three meetings with the Applicant Mulligan. Mr. Prevost testified that it was clear to him from the outset that it was the Applicant Mulligan’s desire to have nothing to do with these charges and it was also clear to him, from the outset that she wanted, as he put it, “this to get done as soon as possible”.
[97] Mr. Prevost testified that he explained to the Applicant Mulligan at the outset that “it doesn’t work like that”, that he required Crown disclosure and that she had to “go through the process”. He advised her that he thought she had a “good chance” of being discharged at the preliminary hearing, however, that did not occur and as set out above he proceeded with the certiorari application on her behalf in good faith.
[98] Mr. Prevost also testified that the case was “being driven” by the Applicant Brezden and that the Applicant Mulligan was “following along” because it was clear that the Crown would not be prepared to “split” the case. Although he was in a position to set a trial date for the Applicant Mulligan early on, that could not occur because of “the position she was in”.
[99] Mr. Prevost recalled that there were times he and the Applicant Mulligan spoke in a general sense that a criminal case is a long process and he informed her that “these things take time”. He had never perceived there was any problem in his work on behalf of the Applicant Mulligan. Mr. Prevost was clear that there were no deliberate efforts on the Applicant Mulligan’s part to delay matters.
[100] Mr. Prevost acknowledged that he had never discussed with the Applicant Mulligan either the Morin framework or the Jordan framework respecting delay and he had never received any explicit waiver of delay from her. He proceeded in the way he dealt with all cases and did not review with her what an adjournment means in terms of the Morin or Jordan jurisprudence.
[101] He never discussed with the Applicant Mulligan what a waiver of s. 11(b) rights involves.
[102] He also candidly acknowledged that the lack of clear instructions regarding waiver of delay, may be a “shortcoming” on his part but at all times he believed he was acting in the Applicant Mulligan’s best interests.
[103] Mr. Prevost was clear that as a result of Jordan, he would be much more cautious in the future and acknowledged that he had made representations to the court without specific s. 11(b) instructions. He candidly indicated that he would take a more active role in obtaining instructions from his clients in the future as the Supreme Court and the Court of Appeal have now instructed.
[104] Although Mr. Farrington was not available to testify, email exchanges between the Applicant Brezden and Mr. Farrington were filed as exhibits, which reveal that the Applicant Brezden (in particular from December 9, 2016 through to February 20, 2017) was making considerable attempts to discuss his case with Mr. Farrington.
[105] I emphasize that the Applicants current counsel were very clear that they were not in any way asserting that prior counsel ineffectively represented the Applicants. The Applicants’ current counsel stated that in their view both prior counsel met the standards of reasonably competent lawyers at that time.
[106] It is clear on this evidentiary record that the Applicants did not give instructions to their counsel to waive their s. 11(b) rights. However, it is equally clear that prior counsel advised the court that s. 11(b) rights were being waived. I am satisfied that it was the intention of counsel that the Crown and this Court rely on the waiver. Indeed, based on the waiver, the Crown and this Court acquiesced to the Applicants’ request for adjournments on November 8, 2016 and December 13, 2016.
[107] Although those dates are post Jordan, I think it is fair to say, as Mr. Prevost candidly acknowledged, counsel had not taken into account what Mr. Prevost described as the “guidance” from the Jordan jurisprudence and he, and no doubt Mr. Farrington, would proceed differently now than they did then.
[108] I am satisfied that it must be found that the Applicants waived their s. 11(b) rights on November 8, and December 13, 2016 and find that the period from November 8, 2016 to January 10, 2017 (63 days) must be attributable to the defence.
[109] Therefore, up to this point there is 224 days attributable to delay by both Applicants, an additional 56 days attributable to the Applicant Mulligan and an additional 35 days attributable to the Applicant Brezden.
Attendances after January 10, 2017
[110] I note that the Crown attributed delay to the Applicant Brezden with respect to events that occurred following January 10, 2017 when the trial date was set. I will next review those events.
[111] On January 10, Mr. Farrington advised the court that he wished to schedule a date for the Applicant Brezden to enter a guilty plea and that was scheduled for January 26, 2017.
[112] On January 26, 2017, Mr. Farrington appeared and advised the court that the date for the guilty plea had been set without consultation with the Applicant Brezden and his family and the Applicant Brezden could not attend. Mr. Farrington requested a new date for the Applicant Brezden’s guilty plea and the matter was set to the February 14, 2017 assignment court because the Crown attending in court that day did not have the schedule of the assigned Crown.
[113] At the February 14, 2017 assignment court, Mr. Farrington appeared and requested a date for a Gardiner hearing [R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368] and guilty plea and the matter was set to March 30, 2017.
[114] On March 30, 2017, Mr. Farrington appeared with the Applicant Brezden and advised the court that he was in a conflict of interest because of a change in the Applicant Brezden’s instructions and Mr. Farrington made an oral motion to be removed from the record which was granted.
[115] The Applicant Brezden requested that the matter be adjourned to May because of the schedule of the new counsel he intended to retain, Mr. Costa, however, the matter was adjourned only to April 5, 2017.
[116] On April 5, the Applicant Brezden appeared and requested a further adjournment.
[117] On April 5, Mr. Donald appeared as a friend of the court and advised that the Applicant Brezden was in the process of retaining Mr. Costa and sought an adjournment of two weeks to April 19. The Crown sought an earlier date, however, the court granted the adjournment to April 19, 2017, noting that at that time a date for trial or resolution would be set peremptory on the Applicant Brezden with or without counsel. At that time the presiding judge noted that “the cause of the significant delay lies at the feet of [the Applicant] Brezden”.
[118] On April 19, 2017, Mr. Costa appeared with the Applicant Brezden and it was noted that the Applicant Brezden’s trial should coincide with the date set for the Applicant Mulligan’s trial “and the Crown would do a joinder application” (I note, however, that no such application would have been required because the counts had not been severed. Although the Applicant Mulligan had re-elected judge alone, the fact that her co-accused did not make such a re-election required that both Applicants proceed with a jury trial).
[119] It was noted that the Applicant Brezden’s trial would commence September 5, 2017 with or without counsel, on a peremptory basis and the trial estimate was extended by two days with the result that the trial was scheduled to conclude September 8, 2017 (which is the date utilized for the calculation of delay on these applications).
[120] A further judicial pretrial was to be scheduled. The judicial pretrial did not proceed as scheduled because the new counsel was awaiting disclosure from previous counsel. The presiding judge noted that counsel’s failure to attend on the assumption that an adjournment would be granted was presumptuous and the pretrial was to deal also with issues concerning s. 11(b) of the Charter independent of pending disclosure. The matter was then put to the June 13, 2017 assignment court to schedule a s. 11(b) judicial pretrial, a s. 11(b) hearing date, and a judicial pretrial on the merits.
[121] Mr. Prevost was removed as counsel for the Applicant Mulligan on June 13, 2017, and Ms. DeMelo was retained.
[122] The s. 11(b) judicial pretrial was scheduled for June 30 but it did not proceed because counsel did not file the required form 17, both counsel believing they could rely on the previous form 17s filed. It was noted that two opportunities for a s. 11(b) judicial pretrial (June 12 and June 30) had been “squandered by the defence”.
[123] The matter was set to be spoken to July 11 at which time the s. 11(b) judicial pretrial was scheduled for August 8. The pretrial proceeded on that date and the matter was adjourned to August 15.
[124] On August 15, it was noted that the Applicants wished to bring an application to adjourn the trial to permit the bringing of this s. 11(b) application.
[125] The matter was set before me on August 31, 2017 at which time I heard the adjournment application as described above. The adjournment was granted and the trial is now scheduled to commence on November 20, 2017.
[126] As set out above, Mr. Farrington reported to the court January 10, January 26, and February 14, 2017 that the Applicant Brezden would be pleading guilty.
[127] On these applications, the Applicant Brezden denied that he had such an intention. The Applicant Brezden testified that he never instructed Mr. Farrington that he wanted to plead guilty. He acknowledged that Mr. Farrington had indicated to him that the “next step” was to plead guilty.
[128] After the Applicant Brezden and the Applicant Mulligan testified, the Crown indicated she intended to call both Mr. Farrington and Mr. Prevost as witnesses on these applications. As earlier set out, only Mr. Prevost was able to testify. However, a series of written communications between the Applicant Brezden and Mr. Farrington were entered as exhibits on these applications as a result of the Applicant Brezden waiving privilege. These communications are consistent with and support the Applicant Brezden’s evidence.
[129] The Applicant Brezden also testified that he sought advice from his father after Mr. Farrington recommended he should plead guilty and his father contacted Mr. Costa for advice.
[130] The Applicant Brezden testified he had tried to reach Mr. Farrington a number of times and it was not his intention to terminate Mr. Farrington, but he had reached out to his father, who had reached out to Mr. Costa, who is now his current counsel, because they needed advice and were unclear about where things stood.
[131] The Applicant Brezden testified that it had been his intention and his hope that Mr. Costa could sort things out with Mr. Farrington and that he could continue to have Mr. Farrington represent him.
[132] The Applicant Brezden reiterated on cross-examination that he had not wanted Mr. Farrington to be removed from the record and had just wanted a second opinion when Mr. Farrington was suggesting to him that he should plead guilty. As the Applicant Brezden put it on cross-examination, he wanted a level playing field during his conversations with Mr. Farrington. He was adamant that there had never been any time that he had told Mr. Farrington that he was prepared to plead guilty to anything. Rather, he testified that he had been told by Mr. Farrington that pleading guilty was his only option. He was hoping that Mr. Costa “would mend the relationship” with Mr. Farrington, but Mr. Farrington had a negative opinion of him speaking with other counsel. He denied that he ever changed his mind and emphasized repeatedly that he never intended to plead guilty. Again, the Applicant Brezden’s evidence is consistent with his communications with Mr. Farrington.
[133] Mr. Farrington did not file and serve a motion to be removed from the record and instead, as set out above, made an oral motion for removal. The Applicant Brezden testified that he felt abandoned by Mr. Farrington.
[134] It cannot be said that the post January 10, 2017 events caused any delay in the Applicant Brezden’s trial. It is not as though the post January 10 events arising from Mr. Farrington indicating that the Applicant Brezden wanted to plead guilty meant the trial was delayed past September 2017. In other words, the Applicant Brezden’s trial was scheduled for the exact same time as it would have been if counsel for the Applicant Brezden had never given such an indication and instead had proceeded to set the case down for trial at the same time as the Applicant Mulligan: September 2017.
[135] Ultimately, because the Applicant Brezden was prepared to have his charges proceed to trial on the same date set for the Applicant Mulligan I will not attribute any delay to his defence arising from post January 10, 2017 events.
Conclusions with respect to the Jordan timelines
[136] Applying the foregoing conclusions that there is 224 days attributable to delay by both the Applicant Brezden and the Applicant Mulligan (21 days August 21–September 12, 2014; 35 days September 12–October 17, 2014; 14 days October 17–October 31, 2014; 28 days April 14–May 12, 2015; 63 days May 12–July 14, 2015; and 63 days November 8, 2016–January 10, 2017), with an additional 56 days attributable to the Applicant Mulligan (28 days February 4–March 4, 2015 and 28 days October 13–November 10, 2015), and an additional 35 days attributable to the Applicant Brezden (December 8, 2015–January 12, 2016), the total delay is as follows:
For the Applicant Brezden,
total delay 1,289 days less 259 days (224 plus 35) attributable to defence delay for a total of 1,030 days or more than 33 months.
For the Applicant Mulligan,
total delay 1,289 days less 280 days (224 plus 56) attributable to defence delay or 1,009 days or more than 32 months.
[137] These delays are presumptively unreasonable.
[138] Having found that the presumptive ceiling set by the Supreme Court of Canada in Jordan has been exceeded, the Crown bears the onus of rebutting the presumption of unreasonableness on the basis of exceptional circumstances.
[139] The exceptional circumstances as contemplated by Jordan, generally speaking, arise from discrete events and the complexity of the evidence or the issues.
[140] As previously discussed, I have not found that there are any discrete events on which the Crown can rely to rebut the presumption of unreasonableness or to put it another way, to reduce the net delay for the purpose of determining whether the presumptive ceiling has been reached.
[141] There is also no basis to conclude that the net delay in this case is reasonable in view of the complexity of this case. It is important to note that the Supreme Court of Canada instructed in Jordan that complex cases are ones where 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” (Jordan at para. 77) and provided as examples: voluminous disclosure, large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. That is not the case here.
[142] The preliminary inquiry was for disclosure and was very brief. The disclosure was not voluminous, although there were five search warrants based on confidential human source information; there was a Dawson application; the certiorari application; and the Charter applications discussed earlier. At trial expert evidence would likely have been presented with respect to whether the amount of drugs are suggestive of trafficking but that is not a “significant requirement for expert evidence”. The witness list is short. The charge period is of very short duration. There are not multiple counts. I am satisfied that the Crown has not established that the complexity of the case amounts to an exceptional circumstance sufficient to rebut the presumption that the delay over the presumptive ceiling is unreasonable.
The transitional exceptional circumstances
[143] I must also consider whether the delay in this case, which began before Jordan, can be justified by “transitional exceptional circumstances”.
[144] The Crown asserted that the time incurred in this case is justified based on the parties’ reasonable reliance on the previous state of the law, that is pre-Jordan.
[145] As previously noted, in considering transitional exceptional circumstances, as set out in Williamson, a court should consider the complexity of the case; the delay in excess of the Morin guidelines; the Crown response, if any, to institutional delay; the defence efforts, if any, to move the case along; and, prejudice to the Applicants.
[146] I turn first to the length of the delay under the Morin framework.
(i) The length of the delay under the Morin framework
[147] In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at 787–788, the Supreme Court of Canada indicated that delay must be analyzed by considering the length of delay, whether any time periods have been waived, the reason for the delay (including inherent time requirements of the case, actions of the accused, actions of the Crown, limits on institutional resources and other reasons for delay) and prejudice to the accused.
[148] According to the guidelines in Morin, institutional delay should be limited to eight to ten months in the Ontario Court of Justice and six to eight months between committal and trial in this Court with any delay attributable to the Crown counting in favour of unreasonable delay (see Morin at 798–799].
Ontario Court of Justice – February 27, 2014–March 4, 2015
[149] As noted previously, the parties agree that delay attributable to the Crown during this period is 49 days.
[150] The timeline in the Ontario Court of Justice can be characterized as follows:
Total Delay
370 days or 12 months and 5 days
Intake/Inherent/Neutral
B - 155 days: 127 days (February 27, 2014–May 23, 2014 and July 11, 2014– August 22, 2014); 28 days (February 4, 2015–March 4, 2015)
M - 127 days (February 27, 2017–May 23, 2014 and July 11, 2014–August 22, 2014)
Defence
B: 70 days (August 22, 2014–October 31, 2014)
M: 98 days: 70 days (August 22, 2014–October 31, 2014); 28 days (February 4, 2015 –March 4, 2015)
Institutional
96 days (October 31, 2014–February 4, 2015)
Crown
49 days (from May 23, 2014–July 11, 2014)
[151] The length of the overall institutional and crown delay in the Ontario Court of Justice (96 + 49 days) is below the Morin guideline of eight to ten months.
Superior Court of Justice – March 4, 2015–September 5, 2017
[152] The timeline in this Court can be characterized as follows:
Total Delay
919 days or 30 months and 4 days
Appellate/discrete event delay
0 days
Intake/Inherent/Neutral
116 days: 41 days (March 4, 2015–April 14, 2015); 28 days (September 15, 2015–October 13, 2015); 28 days (November 10, 2015– December 8, 2015); 19 days (October 20, 2016 – November 8, 2016)
Defence
154 days: 28 days (April 14, 2015–May 12, 2015); 63 days (May 12, 2015 – July 14, 2015); 63 days (November 8, 2016–January 10, 2017) plus
M: 28 days (October 13, 2015–November 10, 2015)
B: 35 days (December 8, 2015–January12, 2016)
Institutional
586 days: 63 days (July 14, 2015 – September 15, 2015); 282 days (January 12, 2016–October 20, 2016) *; 241 days (January 10 – September 8, 2017) * *without taking into account inherent time requirements discussed below
Crown
0 days
[153] The institutional delay set out above is comprised of the 63 days to dispose of the certiorari application after 91 days was attributed to defence delay according to their concessions made in relation to the Jordan timeline. By taking responsibility for this 91 days there was no institutional delay allocated for the time waiting for the certiorari application to be heard. Therefore, allocating only 63 days to institutional delay in regard to that application is more than reasonable.
[154] From January 12, 2016 when the Charter applications were scheduled to be heard until they were fully heard on October 20, 2017 (282 days), some period of time should be allocated to the inherent time requirements to be available for, and to prepare for, those applications. Similarly, from the 241 days representing the time from when the trial was set until the scheduled conclusion of, what I characterize as a short not complex trial, some period of time should be allocated to the inherent time requirements of being available, and preparing, for trial. There is no evidence on which to make such a calculation but generously allocating twenty percent of each of these periods to inherent delay yields an overall period of institutional delay in this Court of 481 days ((0.80 x (282 + 241)) + 63) or 15.5 months which exceeds the Morin guideline of 6 to 8 months.
(ii) The other factors relevant to the issue of transitional exceptional circumstances
[155] I begin by noting that I am satisfied that this case is not even moderately complex and complexity cannot bear on the reasonableness of the delay (see R v. Picard, 2017 692 at para. 73 citing R. v. Pyrek, 2017 ONCA 476 at para. 30). For the reasons outlined above, I cannot find that the complexity of the case justifies any delay.
[156] I note that overall institutional delay in both courts (96 + 481 days or 18.6 months) does not significantly exceed the total Morin guidelines. However, in addition to the institutional delay, the Crown has conceded 49 days of delay on its part in the Ontario Court of Justice. The length of the delay based on the Morin framework is therefore 20.19 months.
[157] The Crown did not press for earlier dates to be scheduled. While the Applicants have pursued various applications, I have found that they did not do so to delay the proceedings. I cannot find that Applicants can be faulted for not moving the case along more than they did.
[158] Although in the transcripts and the endorsements after January 10, 2017, this Court characterized conduct by the Applicant Brezden as defence delay, his conduct did not result in any delay in scheduling his trial because, as earlier explained, his new counsel agreed to be ready for trial on the date set for the Applicant Mulligan’s trial. The Crown asserted that the Applicant Brezden was content to let the matter proceed slowly because he sought adjournments during the time period after January 10, 2017. However, I cannot accept the Crown’s assertion. As a result of Mr. Farrington’s successful oral motion to be removed as counsel on March 30, the Applicant Brezden was before the court without counsel. He then acted on the direction of, and in accordance with, the schedule of Mr. Costa, who he hoped to retain. And importantly, once Mr. Costa was retained, the Applicant Mulligan’s trial date was established as the Applicant Brezden’s trial date.
[159] With respect to the issue of prejudice to the Applicants arising from the delay, it cannot be said that the Applicants’ liberty interests have been impacted by the terms of their interim release. The conditions of the Applicant Brezden’s release are not onerous and were revised on consent to remove a reporting condition. The Applicant Mulligan’s liberty interests have been less impacted as she has not been subject to any conditions.
[160] However, as the Applicant Brezden and the Applicant Mulligan testified, and as set out in their affidavits, the stigma of the charges has interfered with their ability to find employment and they have experienced stress and anxiety associated with the charges.
[161] The important consideration is whether the prejudice they described arises from the delay in issue or from the fact of the charges. I find that they have experienced prejudice because of the delay. The Applicant Mulligan’s and the Applicant Brezden’s evidence was credible. I accept their evidence that while the charges have been outstanding, the Applicant Brezden’s choice of schools has been impacted, he cannot pursue licensing to allow employment in a vocation he would like to pursue, his choice of employment and volunteer work is impacted because he cannot go abroad, and he has deferred life decisions such as marriage, children and property ownership. I also accept that the Applicant Mulligan similarly has deferred life decisions and has been unable to obtain the necessary credentials to allow her to volunteer or to obtain a placement in the field in which she is pursuing her education. For both the Applicant Brezden and the Applicant Mulligan, the anxiety arising from their charges has been prolonged by the delay. I am satisfied that the applicants have been prejudiced by the delay and the impacts they described arise from the delay and not only from the fact they are charged.
[162] In undertaking the qualitative analysis required by a consideration of transitional exceptional circumstances, I note that the majority of the overall delay, calculated pursuant to the Morin framework, arises from institutional delay. This finding favours a stay. The prejudice to the Applicants, who are not responsible for large portions of the overall delay, favours a stay. Factors which weigh against a stay, such as complexity and seriousness of the charges, are not present on these applications.
[163] I note also that a significant portion of the delay occurred after the release of Jordan. In other words, the parties did not completely operate under the Morin framework. This factor as well favours a stay.
[164] I appreciate that it is only a narrow category of transitional cases that warrant a stay. However, I conclude that these “transitional exceptional circumstances” do not justify a delay beyond the presumptive ceiling established by Jordan.
Conclusion
[165] For the foregoing reasons, I conclude that these applications must be allowed.
”Justice L. C. Leitch”
Justice L. C. Leitch
[^1]: The Crown in R. v. Swanson, 2017 ONSC 710 argued that the defence did not properly follow procedural rules by failing to provide all of the trial transcripts as required under the Practice Direction, but Smith J. did not address this issue when he dismissed the charges under s. 11(b), likely because the Crown conceded that the overall delays after accounting for defence delays exceeded the ceiling set in in Jordan.