CITATION: R. v. Beaulieu, 2017 ONSC 6543

COURT FILE NO.: CR-14-330

DATE: 20171101

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

STEPHANIE BEAULIEU

Applicant

Jennifer E. Briscoe, for the Respondent

Bella Petrouchinova, for the Applicant

REASONS FOR DECISION

BARNES J.

INTRODUCTION

[1] Stephanie Beaulieu (the Applicant) is charged with three counts of possession of a controlled substance included in Schedule I, for the purpose of trafficking, contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; and one count of possession of proceeds of crime of a value exceeding $5,000 contrary to section 354(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The Applicant submits that her section 11(b) Charter right to be tried within a reasonable time has been infringed. The Applicant seeks a stay of proceedings pursuant to section 24(1) of the Charter.

BACKGROUND FACTS

[3] The Medical Pharmacy Group Limited (MPGL) suspected that the drug inventory at one of its pharmacies had been depleted by theft. MPGL hired a private investigator to investigate.

[4] In the early evening of July 19, 2012, after the subject pharmacy had closed, the private investigator informed police that there were two individuals in the pharmacy, behind the counter, moving around in a manner that suggested that they were selecting items. The investigator identified one male and one female inside. Police waited nearby. When the two individual’s left the pharmacy, the male was seen carrying a black backpack. He entered his vehicle: a white Audi. The female got into her vehicle as well, drove and parked beside the Audi.

[5] Police arrested the male, who was identified as Daniel Beaulieu. The bag he was carrying was searched. A few thousand opiate pills of different varieties were found in the bag. The pills had an estimated street value of $97,010.

[6] The female was also arrested. She was identified as Odalia Medeiros-Sousa. In her purse, the police found a few hundred opiate pills of different varieties with an estimated street value of $2,460.

[7] Daniel Beaulieu is the Applicant’s husband. As a result of his arrest, the police secured their residence. While waiting for a search warrant to search the residence, the police saw Carlos Ariganello leaving the residence. He was carrying a duffel bag that he placed in his van. The police searched the bag and found a few thousand opiate pills of different varieties. The pills had an estimated street value of $86,025. The police also found $18,000 in cash in the bag.

[8] Mr. Ariganello testified at the preliminary inquiry that the Applicant had given him the bag for safe keeping. He said she told him that it contained money. He was surprised that it also contained opiates. Mr. Ariganello was released from police custody on the day he was first questioned by the police.

[9] The Beaulieu residence was searched. Police found oxycodone tablets with a street value of $6,290.

PROCEDURAL HISTORY

[10] The information was sworn on July 19, 2012. The first appearance date was August 20, 2012. The Applicant was charged along with Ms. Medeiros-Sousa and Mr. Beaulieu. All three accused were represented by counsel. The Provincial Crown delegated the Criminal Code charges to the Federal Crown. The matter was adjourned to August 23, 2012 to be linked with the federal charges.

[11] On August 23, 2012, the matter was adjourned to September 28, 2012 in order for the Crown to provide disclosure.

[12] On September 28, 2012, the Crown’s disclosure was not ready. There was an acknowledgment that this case was a large project. The matter was adjourned to November 2, 2012 for disclosure.

[13] On November 2, 2012, the Crown informed the Court that disclosure was ready for pickup. Ms. Medeiros-Sousa’s counsel had already picked up her disclosure and said he was seeking additional disclosure. Mr. Wiley appeared on behalf of the Applicant and was ready to set a pretrial date. Mr. Beaulieu’s counsel had not picked up his disclosure. Because of counsels’ schedule it was difficult to set up a date for pretrial. The Crown advised the Court that a crown pretrial was available on two days’ notice. The case was adjourned to December 7, 2012 to set a date for a judicial pretrial.

[14] On December 7, 2012, the Crown was ready to conduct a judicial pretrial that month. The first date that defence counsel were available was February 1, 2013. Therefore, the judicial pretrial was scheduled for February 1.

[15] On February 1, 2013, a judicial pretrial was held before Justice Currie. The case was spoken to before Justice Katherine MacLeod. No one spoke for the Crown. Defence counsel, Mr. Navarrete, spoke on behalf of all parties. He said that the Crown had advised that there was substantial disclosure outstanding. Counsel advised that the Crown had requested that Justice Currie manage the case and recommended that the matter return on April 5, 2013. The case was adjourned to April 5, 2013 before Justice Currie.

[16] On April 5, 2013, a further judicial pretrial took place. All parties were in agreement that the matter should be adjourned for another month. On consent, the case was adjourned to May 10, 2013.

[17] On May 10, 2013, Mr. Cohn, counsel for Ms. Medeiros-Sousa, explained that the case had returned for the production of additional disclosure. The Crown advised it was seeking to expand the dates of the offences and that, as a result, there was going to be a potential resolution of the case. The Court expressed concern about the age of the case and noted that it had been described as complex. No party took issue with that description. The Crown said she was waiting for additional disclosure. The case was adjourned to June 7, 2013 on consent.

[18] On June 7, 2013, the Crown submitted there was sufficient disclosure to set a date for a preliminary inquiry. However, defence counsel took a different view. Counsel for the Applicant advised the Court that he was waiting for additional disclosure. He requested that a further judicial pretrial be scheduled in order to determine the length of time required for either a preliminary hearing or trial. Counsel for the Applicant explained that he was not in a position to set a date for a preliminary inquiry. Counsel for Ms. Medeiros-Sousa advised the Court that the Crown was trying to determine whether it could connect certain pieces of evidence to his client. On consent, the case was adjourned to July 5, 2013 to set a date for a preliminary inquiry.

[19] On July 5, 2013, the case was adjourned to April 15, 2014 to commence a five day trial. The confirmation date was February 28, 2014. A continuing judicial pretrial was set for August 21, 2013. The Applicant’s counsel told the Court that he had been retained for the next judicial pretrial but not yet retained for the trial.

[20] On August 21, 2013, there was a judicial pretrial. Ms. Medeiros-Sousa indicated her intention to plead guilty. Mr. Beaulieu re-elected to trial by judge and jury in the Superior Court, converting the April, 2014 trial dates into preliminary inquiry dates. The Crown provided Mr. Beaulieu with additional disclosure; an analysis of the contents of his computer hard drive. The matter was adjourned to September 26, 2013 for another judicial pretrial.

[21] On September 26, 2013, there was a judicial pretrial. Counsel for the Applicant, Mr. Wiley, had a conflict of interest. It was noted that the Applicant may need new counsel. On consent, the case was adjourned to October 11, 2013 to address the issue of conflict, which was to be spoken to.

[22] On October 11, 2013, the Court was informed that Mr. Wiley was no longer the Applicant’s counsel of record. The Applicant’s new counsel was Ms. Allison McKay (as she then was). The matter was adjourned to October 18, 2013 to set a date for a continuing judicial pretrial before Justice Nelson. The Crown provided some additional disclosure. On October 18, 2013, the case was adjourned to December 2, 2013 for a judicial pretrial before Justice Nelson.

[23] There were non-germane court appearances on November 18 and November 28, 2013. On December 2, 2013, the case was adjourned to the February 28, 2014 confirmation date.

[24] On December 2, 2013, the case was adjourned to the February 28, 2014 confirmation date. There were non-germane Court appearances on December 31, 2013 and February 6, 2014.

[25] On February 28, 2014, the preliminary inquiry and discovery dates, commencing April 15, 2014, were confirmed.

[26] On April 15, 2014, the preliminary inquiry began. Counsel for Mr. Beaulieu said committal was not in issue. One witness was called. The case was adjourned to continue on April 22, 2014.

[27] On April 22, 2014, no evidence was heard. The preliminary inquiry was adjourned to continue on May 6, 2014. The Court was to hear evidence from Ms. Medeiros-Sousa. She had pled guilty and became a Crown witness.

[28] On May 6, 2014, Ms. Medeiros-Sousa testified on behalf of the Crown. The Applicant was ordered to stand trial on the current charges and was discharged on others. Evidence scheduled to be heard the next day was of no relevance to the Applicant as it related entirely to the co-accused Mr. Beaulieu. As such, counsel for the Applicant said she would appear on the next scheduled date, which was also scheduled for an exit judicial pretrial. The matter was adjourned to May 16th, 2014 to be spoken to and for an exit judicial pretrial.

[29] The final appearance in the Ontario Court of Justice took place on May 16, 2014. The Applicant was ordered to appear in the Superior Court assignment court on June 20, 2014.

[30] The first appearance in the Superior Court was on June 20, 2014. Mr. Beaulieu and the Applicant’s counsel were available on August 8, 21, and 25 for a judicial pretrial. The matter was adjourned for a judicial pretrial on August 8, 2014.

[31] On August 8, 2014, a judicial pretrial was held for the Applicant and Mr. Beaulieu. The matter was adjourned to September 12, 2014 to the assignment Court to set a date for trial.

[32] On September 12, 2014, Ms. Sussman appeared as counsel on behalf of the Applicant, and as an agent for Mr. Beaulieu’s counsel. Counsel advised that the Applicant was prepared to set a date for trial. However, Mr. Beaulieu had been unable to meet with his counsel. Therefore, the matter was adjourned to the first available assignment court date on October 17, 2014 in order to set a date for trial.

[33] The transcript for the October 17, 2014 court appearance ends with counsel for the Applicant asking for the Court’s indulgence to determine if February 17, 2015 was available for a two day section 8 and 9 Charter motion. The transcript does not indicate whether those dates were selected for the motion to be heard.

[34] The next transcript is from October 31, 2014. Ms. McKay (as she then was) appeared for the Applicant, and as an agent for Mr. Beaulieu’s counsel. The purpose of that appearance was to set dates for the section 8 and 9 Charter motion. The matter was adjourned to February 17, 2015, for a two day section 8 and 9 Charter motion. November 14, 2015 was set as a confirmation date.

[35] On November 14, 2014, the parties confirmed the February 17 and 18, 2015 dates for the section 8 and 9 Charter motion. The trial readiness date was set for February 6, 2015.

[36] On January, 23, 2015, counsel for Mr. Beaulieu informed the Court that he was missing a transcript of the evidence given by an important witness. He had ordered the transcript but it was not ready and he wanted an adjournment to obtain it. The case had been scheduled to return on February 6, 2015 in order to confirm the February dates for the section 8 and 9 Charter motion. Counsel had dates available of March 24, 25, 26 and 27. The Court offered dates of June 8, 15, or 22. The matter was adjourned to the week of June 22, 2015, for a two day section 8 and 9 Charter motion. The motion was not to begin before June 24, 2015.

[37] On June 19, 2015, an agent for Mr. Beaulieu’s counsel advised the Court that counsel was involved in a jury trial that was anticipated to continue past its scheduled completion date. This placed the June Charter motion dates in jeopardy. Counsel for Mr. Beaulieu sought an adjournment, which was granted. The Applicant’s counsel was not opposed to the adjournment, but stated that the Applicant was not waiving her section 11(b) rights. The Crown was ready to proceed, but did not oppose the adjournment request. December 14 and 15, 2015 were selected for the two day motion. The Applicant’s counsel was not available on those dates. However, it was determined that the Applicant was not participating in the section 8 and 9 Charter motion. The Court reiterated that it was ready to set a trial date at any time the parties wished to set one.

[38] On November 20, 2015, Mr. Beaulieu’s counsel sought a third adjournment of the section 8 and 9 Charter motion because the transcript of an important witness’ testimony had not been ordered. Mr. Beaulieu waived his 11(b) rights. The Crown was prepared to proceed on the already scheduled date but was not opposed. The Applicant was not opposed. She reiterated that she was not a participant in the motion and was not waiving her section 11(b) Charter rights. The Court informed the parties that the offer to set a trial date was still open. The matter was adjourned to August 15, 2016 for a two to three day pretrial motion.

[39] On August 16, 2016, the co-accused, Mr. Beaulieu’s, pre-trial motion began but did not finish. It was adjourned to continue on August 17, 2016. The agent for the Applicant’s counsel informed the Court that the Applicant was just tagging along on this motion. The Applicant did not participate in the motion.

[40] On August 17, 2016, the section 8 motion was continued and evidence completed. The motion was adjourned to October 28, 2016 for submissions.

[41] On October 28, 2016, Mr. Beaulieu’s counsel requested an adjournment because a transcript required for argument was not available. The Crown was not opposed. Mr. Beaulieu’s counsel appeared as agent for the Applicant’s new counsel. The Applicant advised the Court that she was not opposed to the adjournment but was not waiving her 11(b) rights. It was her intention to bring a section 11(b) application. The date for submissions was adjourned to January 13, 2017.

[42] On January 13, 2017, submissions were completed. The Applicant did not participate on that date. The matter was adjourned to April 21, 2017, to the assignment Court in Brampton.

[43] On January 30, 2017, counsel appeared to rectify the problem by way of a bench summons. On consent, the matter was adjourned to February 3, 2017 for a judicial pretrial.

[44] On February 3, 2017, the Court advised that the pretrial judge had delivered his reasons ahead of schedule. The Applicant’s new counsel was in attendance. Counsel for Mr. Beaulieu was also in attendance. The first date the Court offered for trial was February 21, 2017. The Applicant’s counsel was not available on that date. The Applicant advised the Court that she wished to set a date for a section 11(b) motion. The section 11(b) motion was scheduled for May 16, 2017. Additionally, a two and a half week trial was scheduled to begin on November 14, 2017.

LAW

[45] In R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27, the majority of the Supreme Court of Canada introduced a new analytical framework for assessing whether an accused’s section 11(b) Charter rights have been breached. This analytical framework replaced the previous framework articulated by the Supreme Court in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

[46] At the heart of the Jordan framework is a presumptive ceiling beyond which the delay is considered unreasonable. Delay is calculated from the date the charge was laid to the date the trial is completed or the date of expected completion. The presumptive ceiling for cases in the Provincial Court is 18 months. The presumptive celling for cases in the Superior Court is 30 months: Jordan, at para. 46.

[47] The Jordan calculation involves the following steps:

1. Determine the total delay from charge to completion or anticipated completion of the trial: Jordan, at para. 66.

2. Determine whether the presumptive ceiling has been exceeded. To make this determination, subtract any periods of delay attributable to or waived by the defence: Jordan, at para. 66.

3. If the presumptive ceiling has been exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. An exceptional circumstance is a circumstance that (1) the Crown could not have reasonably foreseen or one that is reasonably unforeseeable, and (2) a circumstance the Crown could not easily have remedied: Jordan, at paras. 68-69.

4. An example of an exceptional circumstance is a delay caused by a discrete event, for example, an illness or an unexpected event at the trial. Whether an event qualifies as a discrete event is determined by the particular circumstances. Delay caused by a discrete event is subtracted from the period of the delay. Another example of an exceptional circumstance is the complexity of the case. If the Crown can demonstrate that the delay is reasonable given the complexity of the case, the delay must be found to be reasonable and no further analysis is required: Jordan, at paras. 69-81.

5. There is always inferred prejudice from the fact of being charged. Delay above the presumptive ceiling is not transformed from unreasonable to reasonable because of the absence of actual prejudice: Jordan, at para. 54.

6. The seriousness or gravity of a case does not constitute an exceptional circumstance: Jordan, at para. 81.

7. If the Crown fails to rebut the presumption of unreasonableness, the delay is unreasonable and the charges must be stayed: Jordan, at paras. 76, 81.

8. If the delay falls under the presumptive ceiling, the burden shifts to the defence to show that the delay is nonetheless unreasonable. To accomplish this, the defence must demonstrate (1) that the defence took meaningful steps to expedite the proceedings, and (2) the “case took markedly longer than it should have”. If the defence fails to satisfy these two requirements, it has failed to discharge its burden and the application must fail: Jordan, at paras. 82-91.

9. If the charges were in existence before Jordan, and the net period of delay exceeds the presumptive ceiling, a “transitional exceptional circumstance” analysis is required. Under this analysis, the Crown has the burden of demonstrating that the delay is justified based on “the parties’ reasonable reliance on the law as it previously existed”: Jordan, at para. 96.

This requires a contextual assessment analysis. The contextual analysis is sensitive to (1) “the manner in which the previous framework was applied “and (2) “the fact that the parties behaviour cannot be judged strictly against a standard of which they had no notice”. Therefore, significant considerations under the old framework such as seriousness of the offence and prejudice, form part of this analysis: Jordan, at para. 96.

Other contextual factors to consider include: (1) whether the parties’ reliance on the “previous state of the law” was reasonable. This is in recognition of the fact the system requires reasonable time to adjust to the new law; and (2) whether the case is of moderate complexity and is in a jurisdiction plagued by “lengthy, persistent and notorious institutional delays” which reasonably explains the period of delay: Jordan, at paras. 96 -97.

10. If the period of delay falls below the presumptive ceiling, the burden shifts to the defence to demonstrate that (1) its conduct (initiative) did not contribute to the delay. This includes a consideration of defence action or inaction, which must be assessed in the context of the previous Morin framework where the defence was not required to demonstrate that they took action to expedite the trial. Secondly, the defence must show that (2) the period of delay “markedly exceeds what is a reasonable period of delay for the case under consideration. If the defence fails to discharge this burden the application must be dismissed: Jordan, at paras. 96 -99.

ANALYSIS

[48] The Applicant was charged on July 19, 2012. The trial is scheduled for two and a half weeks beginning November 14, 2017. It is scheduled to be completed on December 6, 2017. The total delay from the date the charges were laid until the anticipated conclusion of the trial is 64 months and 17 days or 1966 days. This total delay exceeds the presumptive ceiling of 30 months or 913 days for the conclusion of a trial in the Superior Court.

[49] The charges in this case were laid before the Jordan framework became law, and as such, this is a transitional case. The presumptive ceiling has been exceeded. Therefore, the delay is presumptively unreasonable. The Jordanframework raises the following issues: (1) are there any periods of defence delay; (2) are there exceptional circumstances to rebut the presumption; and (3) how does the framework apply in this transitional case?

Are there any periods of defence delay?

[50] Two types of defence conduct are considered in this analysis. The first is waiver of periods of delay by the defence. Waiver may be explicit or implicit. It must be clear and unequivocal. The accused must have full knowledge of his or her rights. The accused must have full knowledge of the effect of the waiver on his or her rights: Jordan, at para. 61. In effect, mere acquiescence to the inevitable does not constitute a valid waiver:Morin at para. 38; R. v. Gandhi,2016 ONSC 5612, [2016] O.J. No. 4638, at para. 20.

[51] The second type of defence delay is caused solely by the conduct of the defence: Jordan, at para. 61. This conduct includes frivolous defence applications and requests, as well as circumstances where the Court and Crown are ready to proceed but the defence is not: Jordan, at para. 64. Defence conduct that does not fall into this category includes circumstances where defence counsel is unavailable, but so is the Court and the Crown, as well as circumstances where the defence takes legitimate action to respond to the charges. Legitimate action includes (1) time allowed for defence to prepare even if Crown and the Court are ready to proceed, and (2) defence application requests that are not frivolous: Jordan, at para. 64-65; R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 31.

[52] In this case, major periods of delay were caused by the following circumstances; the co-accused’s decision to bring a Charter motion; the four consecutive adjournments of the Charter motion sought by the co-accused; the Crown’s decision to try the Applicant and co-accused jointly; and the Applicant’s decision to “just tag along” for the motion rather than bring a severance application.

[53] This case raises the issue of how delay caused by a co-accused should be treated under the Jordan framework. Prior to Jordan, delay caused by a co-accused was treated as neutral delay: R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963, at para. 138; R. v. Whylie,2006 CanLII 9037 (ON CA), [2006] O.J. No. 1127 (C.A.), at para. 24. Under the Jordan framework, delay caused by a co-accused is not attributed to all jointly charged accused persons. Instead, the conduct of each accused must be assessed and attributed to its delay on an individual basis. Post Jordan, the concept of neutral time no longer exists: Gopie, at paras. 128 -136; R. v. Ny, 2016 ONSC 8031, [2016] O.J. No. 6618, at paras. 37-38. Under the Jordan framework, the actions or inactions of a co-accused which contributed to the delay are considered under the exceptional circumstances aspect of the analysis: Gopie, at paras. 128-142.

[54] As a general proposition, the Crown has a legitimate interest in conducting joint trials because it is generally in the interest of the administration of justice to do so. Joint trials conserve judicial and other criminal justice resources, avoid inconsistent verdicts, and avoid “witnesses having to testify more than once”: Gopie, at para. 138.

[55] The Crown’s legitimate interest in joint trials must be balanced against the right of an accused, who is doing everything possible to move the matter along to be tried within a reasonable time, but is delayed by the actions of a co-accused. Such an accused should not be held hostage by the actions of a co-accused, or by the inability of the system to provide earlier dates: Gopie, at paras. 131–132,139; R. v. Heaslip,[1983] O.J. No. 172 (C.A.), at pp. 496-497; R. v. Vassell, 2016 SCC 26, [2016]1 S.C.R.625, at paras. 6-7.

Delay solely caused by actions of the defence

[56] The Crown submits that there are nine periods of delay in this case which were caused by the actions of the Applicant.

[57] The first period is between November 2 and December 7, 2012, a 35-day period. On November 2, the Applicant requested judicial pretrial dates, but did not have the co-accused’s available dates. Therefore, the matter was adjourned to December 7, 2012 to schedule a judicial pretrial.

[58] I disagree with the Crown’s attribution of this period of delay. The focus of the analysis is on the sole conduct of the Applicant. The Applicant was not the sole cause of this delay. On this date, disclosure was ready for pickup. Only the Applicant had picked up her disclosure. Furthermore, the Applicant was ready to set a date for a judicial pretrial. In fact, the matter was adjourned to December 7, 2012 because the other co-accused’s counsel could not coordinate their calendars. The 35 day delay in this period is attributed to Ms. Medeiros-Sousa and Mr. Beaulieu. This delay was not caused by the Applicant.

[59] The Crown submits that the delay between December 7, 2012 and February 1, 2013, a 56 day period, was caused by the Applicant because she and her co-accused jointly requested an adjournment to February 1, 2013. The Crown notes that it had earlier dates available in December 2012.

[60] I do not find the Applicant responsible for the delay in this period. The Crown may have had earlier dates available. However, it did not specify on the record, or by other sworn testimony, the date when it was available. Therefore, I do not place much weight on the Crown’s suggestion that it was available as of December 21, 2012. I conclude that the actions of the Applicant and her co-accused were not solely responsible for this period of a 56 day delay.

[61] The Crown submits that the third period of delay caused by actions of the defence is the period from June 7, 2013 to July 5, 2013, a 28 day period. The Crown was anxious to set a preliminary inquiry date but the Applicant had not retained counsel. On June 7, the Crown indicated that it was ready to set a date for a preliminary inquiry; however, the Crown was also agreeable to an adjournment to July 5, 2013 in order to discuss a possible resolution with the Applicant’s co-accused.

[62] Counsel for the Applicant indicated that he had been retained only to represent Ms. Beaulieu at preliminary matters and a judicial pretrial. Thus, a preliminary inquiry date could not be set for the Applicant, even though the Crown was ready to do so, because Ms. Beaulieu had not retained counsel for that proceeding. Nevertheless, the Crown gave no indication that it was ready to proceed to a preliminary inquiry or to a trial against the Applicant alone. Therefore, the Applicant’s failure to retain counsel for a preliminary inquiry was not the sole reason for this period of delay. It should also be noted that, on that date, the main purpose of the adjournment was to accommodate case resolution discussions between the Crown and the Applicant’s co-accused.

[63] On July 5, 2013, the parties settled on April 15, 2014 as the first day for a preliminary inquiry in this matter. The Respondent submits that the trial verification form indicates that the Court offered the earlier dates of March 17 and 18, 2014. The Applicant was not available for trial on these earlier dates. Therefore, I attribute the 39 days of delay between March 17, 2014 and April 15, 2014 to the actions of the Applicant.

[64] The Crown submits that on August 8, 2014, after the judicial pretrial in the Superior Court, counsel for the Applicant requested an adjournment until September 12, 2014. Therefore, the Crown argues this period of delay was caused by the action of the Applicant.

[65] I cannot determine why the 35 day delay between August 8, 2014 and September 12, 2014, occurred. The transcript for the Court appearance simply indicates that a pretrial took place, counsel for the Applicant appeared and the Court remanded all accused to the September 12, 2014 assignment Court date. There is no indication that this occurred at the request of the Applicant.

[66] The Respondent submits that the periods of delay between June 19, 2015 to November 20, 2015, and November 20, 2015 to August 16, 2016 should be attributed to the actions of the Applicant. The Respondent explains that the Applicant did not oppose these two requests by her co-accused to adjourn the pretrial motion. Instead, the Applicant stated that she was not waiving her section 11(b) rights. The Applicant did not accept the Court’s offers on both occasions to set a trial date as soon as possible.

[67] The pretrial motion was a motion attacking the search warrants executed at the Applicant and Mr. Beaulieu’s residence. These search warrants yielded the illicit drugs that form the subject matter of some of the charges facing the Applicant and her co-accused. Thus, although the Applicant was not participating in the pretrial motion, a favourable result in the motion would have also benefitted the Applicant. It is not argued that the section 8 motion was a frivolous motion. Therefore, if the Applicant had participated in it, the period of delay attributed to the motion would not have constituted defence delay: Jordan, at para. 64-65; Cody, at para. 31.

[68] It was the Crown’s decision to prosecute the Applicant and her co-accused jointly. This meant that the trial of the Applicant alone could not take place unless either the Applicant or the Crown sought to separate the trials. Under the Jordan framework, the responsibility for delay caused by the joint trial falls to the Crown. The Crown is required to be proactive. This passage from Jordan, at para. 70, explaining the exceptional circumstance analysis, is instructive:

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the Court, seeking assistance from the defence to streamline evidence or issues for trial or to curtail pretrial applications, or resorting to any other proper procedural means. The Crown, we emphasize is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay.

[69] It is the Crown’s prerogative to decide how to conduct this prosecution. The Crown decided to prosecute both the Applicant and her co-accused jointly and to wait until the section 8 motion was completed. This was a logical course of action because the section 8 motion directly impacted the case against both the co-accused and the Applicant. This decision caused the trial of the Applicant to be delayed. The Crown did not take the Court up on its offer to set a trial date for the parties, including the Applicant, as soon as possible.

[70] The tactics employed by the Applicant also caused the delay during this period because the Applicant made a strategic decision to not waive her section 11(b) rights or take the Court up on its offer to set a trial date as soon as possible. The Applicant chose to simply wait for the outcome of the co-accused’s section 8 and 9 Charter motion. Nevertheless, the Applicant’s strategic choices were not the sole cause of the delay as required under the Jordan framework, and therefore, this period of delay cannot be attributed to the Applicant.

[71] The Respondent submits that the delay between October 28, 2016 and January 13, 2017, a 77 day period, should be attributed to the Applicant. Counsel for the co-accused asked for an adjournment of the scheduled submissions in order to prepare his submissions. The Applicant also advised that she was in the process of retaining new counsel, and was awaiting counsel’s review of her file.

[72] On October 28, 2016, the Court raised the issue of a section 11(b) infringement. Counsel for the Applicant indicated that such an application was within consideration. However, just as the delay associated with the Charter motion cannot be attributed to the Applicant, this period of delay is also not of the Applicant’s doing. The delay during this period was caused by the co-accused. The trial is set to begin on November 14, 2017. The 266 day delay between February 21, 2017 and November 14, 2017, is attributed to actions of the Applicant. The first date the Court offered the parties was February 21, 2017. However, the Applicant’s counsel was not available for a three week trial until November 14, 2017. The Applicant concedes that this period of delay was due to defence action.

[73] Thus, the Applicant solely caused the delay in this matter during two periods: (1) for 39 days between March 7, 2014 and April 15, 2014, and (2) for 266 days between February 21, 2017 and November 14, 2017. The total period of delay caused by actions of the Applicant is therefore 305 days.

Defence Waiver of periods of delay

[74] The Respondent submits that the Applicant waived the following periods of delay: (1) between April 5, 2013 and May 10, 2013; (2) between May 10, 2013 and June 7, 2013; (3) between August 8, 2014 and September 12, 2014; (4) between September 12, 2014 and October 17, 2014; and (5) between October 31, 2014 and June 19, 2015.

[75] Waiver may be explicit or implicit. It must be clear and unequivocal. Mere acquiescence to the inevitable does not constitute a valid waiver: Morin, at pp. 13–15; Ghandi, at para. 20.

[76] The time between April 5, 2013 and May 10, 2013, and between May 10, 2013 and June 7, 2013 was taken to enable the Crown to receive and provide additional disclosure in the Ontario Court of Justice and for the parties to explore the possibility of a resolution.

[77] The Crown’s intent was to prosecute all accused jointly. This is the Crown’s prerogative. However, against this reality, the Applicant was simply acquiescing to the inevitable and did not waive these periods of delay.

[78] I have already attributed the delay between August 8, 2014 and September 12, 2014 to delay caused solely by the conduct of the Applicant. No date was set on September 12, 2014. Instead, the co-accused’s lawyer requested an adjournment in order to meet with his client. The Applicant agreed. The matter was adjourned to October 17, 2014, however, the Applicant’s agreement, as a co-accused, did not amount to a waiver of this period of delay. The Applicant simply acquiesced to the inevitable.

[79] On January 23, 2015, the parties vacated the dates of February 17 and 18, 2015, which had previously been set for the pretrial motion. The case was adjourned for two days of motions during the week of June 22, 2015 sittings. The motion was not to commence before June 24, 2015. The Applicant did not participate in the motions. Within the context of her status as a co-accused, she was simply acquiescing to the inevitable. The Applicant’s conduct does not amount to a waiver of this period of delay.

[80] Therefore, I find the Applicant has not waived any periods of the delay to date.

[81] In summary, the total length of delay from the date of the charge on July 19, 2012 to the expected date of completion on December 6, 2017 will amount to 1,966 days. After deducting the 305 days of delay attributed solely to the Applicant, the case will take 1,661 days to complete. The presumptive ceiling is 30 months or 913 days. Therefore, by the expected date of completion, the case will have extended 748 days beyond the presumptive ceiling. This net delay is presumptively unreasonable.

Are there exceptional circumstances to rebut the presumption of unreasonableness?

(a) Discrete events

[82] The Chartermotion is a discrete event that constitutes an exceptional circumstance in this case. The Crown decided to prosecute the Applicant and the co-accused jointly, and as a result, the co-accused’s Charter motion was relevant to the Applicant’s case. Furthermore, the Applicant decided to wait until the completion of the co-accused’s section 8 and 9 Charter motion before setting a date for trial. Thus, the circumstances that delayed the Charter motion must be taken into consideration when assessing the total delay in the Applicant’s case.

[83] In particular, submissions on the Charter motion were scheduled to commence on August 17, 2016. However, the co-accused’s counsel was unable to attend on that day because he was scheduled elsewhere. As a result, the matter was adjourned to October 28, 2016 for submissions. This resulted in 72 days of delay in moving the Charter motion forward.

[84] This delay was outside the Crown’s control. It was reasonably unforeseeable and reasonably unavoidable. The Crown could not reasonably have remedied this circumstance once it arose. The delay caused by a discrete event is to be deducted from the net period of delay: Jordan, at para. 69. Therefore, the net delay of 748 days is reduced by 72 days. The total delay after accounting for this discrete event is 676 days.

(b) Complexity

[85] The prosecution of this case initially involved the prosecution of three accused jointly and the management of voluminous disclosure. However, the case is not complex.

[86] Firstly, the allegations against the accused individuals are straightforward. Mr. Beaulieu and Ms. Medeiros-Sousa were found in actual possession of illicit drugs and money. The case against the Applicant is circumstantial but not complex.

[87] Secondly, the case became more manageable for the Crown once Ms. Medeiros-Sousa pled guilty and became a Crown witness. The number of accused persons was reduced from three to two.

[88] Finally, while Mr. Beaulieu’s section 8 Charter motion may have complicated the proceedings, it was a straightforward challenge of a search warrant on reasonable and probable grounds. Moreover, the Applicant decided not to participate in the Charter motion. This provided the Crown with the option of severing her from the co-accused’s proceedings and trying her alone. I have already noted that there are many legally sound reasons for the Crown to proceed jointly. However, in this case, trying the Applicant separately would have likely resulted in an earlier trial.

Applying the transitional exceptional circumstance framework to this case.

[89] This case began before Jordan became law. The net period of delay exceeds the presumptive ceiling. Therefore, a Jordan transitional exceptional circumstance analysis is required. Under this analysis, the Crown has the burden of demonstrating that the delay is justified based on “the parties’ reasonable reliance on the law as it previously existed”: Jordan, at para. 96.

[90] Determining the parties’ reasonable reliance on prior law requires a contextual analysis. The analysis must be sensitive to the following: (1) “the

manner in which the previous framework was applied”; and (2) “the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice”: Jordan, at para. 96. Therefore, significant consideration under the old framework, such as the seriousness of the offence and prejudice, form part of the analysis: Jordan, at para. 96.

[91] Other contextual factors to be considered include firstly, whether the parties’ reliance on the “previous state of the law” was reasonable. This is in recognition of the fact the system requires a reasonable time to adjust to the new law. And secondly, whether the case is of moderate complexity and is in a jurisdiction plagued by “lengthy, persistent and notorious institutional delays” which reasonably explains the period of delay: Jordan, 96-97.

[92] These broad conceptual factors can be distilled into four relevant considerations: (1) the complexity of the case; (2) The period of delay in excess of the Morin guidelines; (3) the Crown’s response, if any, to any institutional delay; (4) the defence efforts, if any, to move the case along; and (5) prejudice to the accused: Gopie, at para. 178; R. v. Williamson, 2016 SCC 28, [2016] S.C.J. No. 28.

Complexity of the case

[93] For the reasons previously discussed, I conclude that this was a serious but straightforward case.

The period of delay under the Morin framework

[94] The Morin analytical framework is summarised in R. v. Gittens, 2014 ONSC 6499, [2014] O.J. No. 5353, at paras. 13–25, as follows:

1. The analytical framework for assessing delay was set out by Sopinka J., in Morin at para. 26. It involves the consideration of these factors: (i) the length of the overall delay; (ii) waiver of time periods; (iii) the reasons for the delay, including; (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources; (e) other reasons for delay; and (iv) prejudice to the accused.

2. "Waiver" refers to waiver of time periods encompassing the delay. Waiver by an accused must be clear and unequivocal, and given with full knowledge of the rights being waived and the effects of the waiver: Morin, at para. 33.

3. The "inherent time requirements" refers to all those activities that are necessary to prepare a case for trial. This includes the intake period. The more complex a case is, the more time, one would expect, will be required to prepare it for trial: Morin, at para. 36.

4. An assessment of "actions of the accused" involves all activities of the accused that contributed to the delay. This may include: requests for adjournments; motions to resolve legal issues, such as attacks on search warrants; change of venue applications, etc. This inquiry does not involve the assessment of blame: Morin, at para. 39.

5. "Actions of the Crown" refers to all actions taken by the Crown that have contributed to the delay. Delays that are due to the actions of the Crown and its officers weigh in favor of the accused: Morin, at para. 41.

6. "Limits on institutional resources" refers to the ability of the state to accommodate the parties when they are ready for trial. The focus here is on the ability of the state to provide sufficient resources to prevent unreasonable delay: Morin, at para. 42.

7. The Supreme Court of Canada has established a guideline of acceptable institutional delay, being eight to ten months in Provincial Courts, and an additional six to eight months after committal for trial: Morin, at para. 50; R. v. Godin, 2009 SCC 26 ["Godin"], at para. 5.

8. "Other reasons for the delay" refers to all other reasons for the delay that are not captured by the categories already referred to - for example, the actions of judges: Morin, at para. 54.

9. "Prejudice" refers to prejudice to the accused as a result of the delay. Prejudice may be inferred from the length of the delay itself, or it may result from the existence of actual prejudice. The presence or absence of prejudice may reduce or lengthen the amount of delay that is reasonable: R. v. Seegmiller, (2004), 2004 CanLII 46219 (ON CA), 192 O.A.C. 320 (Ont. C.A.) at para. 28. ….

10. The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at para. 56, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn." An analysis of delay is not determined by "the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitability lead to delay or are otherwise the cause of delay": Morin, at para. 26.

11. In assessing the reasonableness of the delay, the trial judge must deduct from the total period of delay the periods of delay captured by waiver, the inherent time requirements of the case, and the actions of the accused that contributed to the delay: Morin, at paras. 32, 36-39.

[95] In balancing the legitimate interests of the Crown in having co-accused persons tried together with the rights of a co-accused to be tried within a reasonable time, I have adopted the approach followed in R. v. Topol, 2008 ONCA 113, [2008] O.J. No. 535. I have found that some of the delay should be borne by the Crown because it became apparent, at least by the co-accused’s fourth request for an adjournment of the Charter motion, that the Applicant’s right to be tried within a reasonable time was in jeopardy.

Waiver

[96] The Applicant waived no periods of delay.

Inherent time requirements of the case

[97] The Applicant was charged on July 19, 2012. From that date to November 2, 2012, the day of the first judicial pretrial in the Ontario Court of Justice, disclosure was prepared and provided to the defence. The parties prepared themselves for the judicial pretrial. This 106 day period is an intake period and an inherent time requirement of the case.

[98] A judicial pretrial took place on February 1, 2013; the case was adjourned for another judicial pretrial on April 3, 2013 so that the Crown could provide additional disclosure. This 61 day delay is classified under inherent time requirements of the case.

[99] On April 5, 2013, a judicial pretrial took place. All parties were in agreement that the matter should be adjourned for a month. On consent, the case was adjourned to May 10, 2013 for the Crown to provide additional disclosure. On May 10, 2013, the Crown indicated an intention to expand the charges and the possibility of a resolution. On consent, the case was adjourned to June 7, 2013. The total delay of 63 days was due to the inherent time requirements of the case.

[100] On April 15, 2014, a preliminary inquiry began. It concluded on May 6, 2014 and was adjourned to May 16, 2014 to be spoken to and for an exit judicial pretrial. This 31 day delay was due to the inherent time requirements of the case.

[101] On June 20, 2014, a judicial pretrial date was set. On August 8, 2014, a judicial pretrial was conducted. The case was adjourned to the September 12, 2014 assignment court to set a date for trial. This 94 day delay falls under the inherent time requirements of the case.

[102] The pretrial motion began on August 16, 2016. The co-accused, Mr. Beaulieu’s, pretrial began and concluded on August 17, 2016. The agent for the Applicant’s counsel informed the Court that the Applicant was “just tagging along”. The Applicant did not participate in the motion. The case was adjourned to October 28, 2016 for submissions. The 73 day delay between August 16, 2016 and October 28, 2016, was due to the inherent time requirements of the case.

[103] On January 13, 2017, submissions were completed. The Applicant did not participate. The matter was adjourned to April 21, 2017, to the assignment Court in Brampton. On January 30, 2017, counsel appeared to rectify a problem by way of a bench summons. On consent, the matter was adjourned to February 3, 2017 for a judicial pretrial.

[104] On February 3, 2017, the Court was advised that the pretrial judge had delivered his reasons ahead of schedule. The 21 day delay between January 13, 2017 and February 3, 2017 is due to the inherent time requirements of the case.

Actions of the accused

[105] On December 7, 2012, the Crown advised that it was ready to conduct a judicial pretrial that December. The defence was not ready. The date of February 1, 2013 was selected for a judicial pretrial. This 56 day period of delay is attributed to the defence.

[106] On June 7, 2013, there was additional disclosure outstanding. The Crown indicated that there was enough disclosure to set a date for a preliminary inquiry. The Applicant was not in a position to set a date for a preliminary inquiry because she had not retained counsel for that purpose. The co-accused had their own reasons for not wanting to set a preliminary inquiry date. One counsel wanted to find out how certain pieces of evidence were linked to his client. Another counsel said his client was waiting for additional disclosure. There was no apparent reason why the disclosure was considered insufficient to set a date for a preliminary inquiry. On consent, the case was adjourned to July 5, 2013 to set a date for a preliminary inquiry. The 28 day delay during this period is attributed to actions of the defence.

[107] On July 5, 2013, the case was adjourned to April 15, 2014 to begin a five day trial. The Court offered March 17, 2013 for the trial but the defence was not available. The 29 days of delay between March 17, 2013 and April 15, 2013 is due to the actions of the defence. There were a number of Court appearances that did not affect this period of delay. These include a confirmation hearing; a re-election to trial by judge and jury in the Superior Court; the removal of the Applicant’s counsel from the record; Ms. Medeiros-Sousa’s guilty plea; and 4 judicial pretrials.

[108] On February 3, 2017, new counsel for the Applicant advised the court that the Applicant will bring an 11(b) motion. The Applicant’s new counsel and counsel for the co-accused were in attendance. The Applicant advised the Court that she wished to set a date for an 11 (b) motion. May 16, 2017 was set for that motion. The first trial date the Court offered was February 21, 2017. The Applicant’s counsel was not available. A two and a half week trial was scheduled to begin on November 14, 2017 and to be completed on December 6, 2017. The 287 day delay between February 21, 2017 and December 6, 2017 is due to the actions of the defence.

Delay caused by co-accused (neutral)

[109] On November 2, 2012, disclosure had been provided. The Crown and the Applicant were ready to set a date for a judicial pretrial. Coordinating a date with co-accused’s counsel however proved challenging. The defence’s request to adjourn the case to December 7, 2012 was granted. The 35 day delay from November 2, 2012 to December, 7, 2012 is due to the actions of the co-accused and is classified as neutral.

[110] On September 12, 2014, the Applicant was ready to set a date for trial but her co-accused was not. The case was adjourned to the next assignment court date, October 17, 2014, to set a date for trial. This delay was caused by the actions of the Applicant’s co accused. This 35-day delay is classified as neutral.

[111] On October 17, 2014, no trial date was set. In the interim, the co-accused had decided to bring a Charter motion. The co-accused’s counsel requested an adjournment because a crucial transcript was not ready. The transcript for this date ends with counsel for the Applicant asking for the Court’s indulgence to determine if February 17, 2015 was available for a two day section 8 and 9 Charter motion. It appears that those dates were not confirmed on October 17, 2014.

[112] The next transcript for the proceedings is dated October 31, 2014. On that date, Ms. McKay, as she then was, appeared for the Applicant and as agent for Daniel Beaulieu’s counsel. The purpose of that appearance was to set dates for the section 8 and 9 Charter motion. The matter was adjourned to February 17, 2015, for a two day section 8 and 9 Charter motion. November 14, 2015 was set as a confirmation date. The Applicant was not a participant in this motion but did not complain about this delay.

[113] On November 14, 2014, the parties confirmed the February 17 and 18, 2015 dates for the section 8 and 9 Charter motion. The trial readiness date was set for February 6, 2015. The 123 day delay between October 17, 2014 and February 17, 2015 is due to actions of the co-accused. This is neutral delay: Vassell, at paras. 6-7.

[114] On January 23, 2015, counsel for the co-accused requested another adjournment because of missing transcripts. The Applicant did not object. Counsel had dates available for March 24, 25, 26, 27, and 28, 2015. The Court could not accommodate those dates and offered dates of June 8, 15, or 22, 2015. The matter was adjourned to the sittings of June 22, 2015 for the two day section 8 Charter motion, not scheduled to commence before June, 24, 2015.

[115] The 35 day delay between February 17, 2015 and March 24, 2015 is attributed to actions of the co-accused. It is neutral time.

[116] On November 20, 2015, the applicant’s co-accused brought another application for the adjournment of the motion, once again because crucial transcripts were not ready. The co-accused failed to order transcripts of the discoveries. The co-accused waived his section 11(b) rights. The Crown was prepared to proceed but was not opposed. The Applicant was not opposed. She reiterated that she was not a participant in the motion and was not waiving her section 11(b) Charter rights. The Court informed the parties that the offer to set a trial date was still open. The matter was adjourned to August 15, 2016 for a two to three day pretrial motion. The 243 days of delay between December 15, 2015 and August 15, 2016 was caused by the co-accused.

[117] On June 19, 2015, the co-accused requested an adjournment because his counsel was involved in a jury trial which had run over the time estimated for its completion. This placed the June 2015 motion dates in jeopardy. The Applicant’s counsel did not oppose the adjournment request, but stated that she was not waiving her client’s section 11 (b) rights. The Crown was ready to proceed, but did not oppose the adjournment request. December 14 and 15, 2015 were set for the two day motion. The Court reiterated that it was ready to set a trial date at any time the parties wished to have one set. The 174 days of delay between June 24, 2015 and December 15, 2015, was due to the actions of the co-accused. This is neutral delay.

Crown Delay

[118] Pre and post Jordan, it remains the Crown’s obligation to ensure that an accused is brought to trial within a reasonable time. Under the Morin framework, the Applicant “was not required to demonstrate that they took action to expedite the trial” and action by the accused inconsistent with a desire for a timely trial was a relevant consideration in assessing the reasonableness of the delay: Jordan, at para. 99.

[119] The decision to conduct joint trials is the Crown’s prerogative and should not count against the Crown in the “transitional exceptional circumstance analysis”, except in those circumstances where it is plain and obvious that the delay above the ceiling was reasonably foreseeable and within the Crown’s ability to remedy or to take concrete steps in an effort to remedy. Such circumstances include instances where the co-accused’s conduct is causing significant delay. This was the circumstance in this case. By the fourth adjournment request, there had been 367 days of delay as a result of the co-accused’s previous adjournment requests.

[120] The fourth adjournment caused an additional 243 days of delay. At this time, the Applicant did not request a severance. Under the Morin framework, it was not her obligation to do so. It was the Crown’s obligation to consider what steps could be taken to mitigate the looming jeopardy of the Applicant’s right to be tried within a reasonable time and consider what action could be taken to mitigate this. Therefore, this period of 243 day delay which would ordinarily be considered neutral, on these facts vis-a-vis the Applicant’s right to a trial within a reasonable time, is attributed to the actions of the Crown.

Limits on Institutional Resources

[121] On July 5, 2013, the case was adjourned to April 15, 2014 to begin a five day trial. The Court offered March 17, 2013 for the trial but the defence was not available. The 255 day delay between July 5, 2013 and March 17, 2014 is institutional delay. There were a number of Court appearances that did not affect this period of delay. These include a confirmation hearing; a re-election to trial by judge and jury in the Superior Court; the removal of the Applicant’s counsel from the record; Ms. Medeiros-Sousa’s guilty plea; and four judicial pre-trials.

[122] The final appearance in the Ontario Court of Justice took place on May 16, 2014. The Applicant was ordered to appear in the Superior Court assignment court on June 20, 2014. This 25 day delay is institutional delay.

[123] On October 28, 2016, the co-accused’s counsel requested an adjournment of submissions because a transcript required for argument was not available. Defence counsel had ordered them and had been diligent in efforts to obtain them. The Crown was not opposed. Mr. Beaulieu’s counsel appeared as agent for the Applicant’s new counsel. The Applicant did not oppose the adjournment, did not waive her section 11(b) rights, and indicated that she intended to bring an 11(b) application. January, 13th, 2017 was selected for submissions. The 77 day delay between October, 28, 2016 and January 13, 2017 was due to limits on institutional resources.

[124] The 31 days of delay between March 24, 2015 and June 24, 2015 was due to limits on institutional resources.

[125] On February 3, 2017, the first date the court offered for trial was February 21, 2017. The Applicant’s counsel was not available. The 18 day delay between February 3, 2017 and February 21, 2017 is due to limits on institutional resources

The Morin Calculation

The total periods of delay caused by the inherent time requirements of the case; actions of the accused and co-accused (neutral) are deducted from the total period of delay as follows: (1) inherent requirements of the case = 449 days; (2) defence

delay = 677 days; (3) neutral (or co-accused delay) = 367 days. Therefore, the total deduction from the overall delay is 1491 days.

[126] The periods of delay left for consideration are: period of institutional delay = 396 days and delay attributed to the Crown = 243 days. The total period of institutional and Crown delay = 396 + 243 = 639. This period of delay is below the presumptive ceiling of 913 days.

The Crown’s response, if any, to any institutional delay

[127] It is the Crown’s responsibility to ensure that the Applicant’s trial is completed within a reasonable time. It is not the Applicant’s responsibility to ensure that she is prosecuted within a reasonable time: Gittens, para. 83; R. v. Bishop, 2016 ONSC 7734, [2016] O.J. No. 6366, at para. 7.

[128] This is aptly explained by the Supreme Court of Canada in the pre-Jordan case of R. v. Vasselle, 2016 SCC 26, [2016] 1 S.C.R. 625, which was explained and cited with approval by Watt J.A. in R. v. Manasseri, 2016 ONCA 703, [2016] 132 O.R. (3d) 401, at para. 323:

Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored. In assessing whether an individual accused’s right to [be] tried within a reasonable time has been reached: Vasselle, at para. 4. Where the Crown, as here chooses to prosecute both accused jointly, it must remain vigilant that a decision to proceed jointly does not compromise the section 11(b) rights of an individual accused: Vasselle, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused was done everything possible to move the case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vasselle, at para. 7. Sometimes, the crown may have to sever accused jointly tried to vindicate the section 11(b) rights of one burdened down by another for whom trial within a reasonable time seems anathema: Vasselle, at para. 10.

[129] This case is serious, though uncomplicated. The societal interest in having such cases tried on their merits cannot be ignored. However, the impact of the Crown’s decision not to sever or to take some other action to mitigate the infringement on the right of the Applicant to have her trial within a reasonable time, must be taken into account. This consideration is part of the contextual framework for the transitional exceptional circumstance analysis.

[130] Neither the Crown, the co-accused, nor the Applicant, accepted the Court’s offers to set a trial date prior to the completion of the pre-trial motion. The Applicant chose not to participate in the pre-trial motion. Instead, she asserted her section 11(b) rights and chose to tag along with the co-accused’s motion. This was clearly a strategic decision because she would benefit directly if her co-accused was successful in the motion. The Applicant’s conduct is relevant in the assessment of prejudice under the Morin framework.

[131] The dynamics of the case changed over time. For instance, Ms. Medeiros-Sousa pled guilty. The Applicant did not challenge the search warrant and the case against the Applicant was a straightforward circumstantial case. The co-accused had requested an adjournment of the case on at least three occasions; the last adjournment causing several months’ delay. Against this background, the Crown decided to still try the Applicant and the remaining co-accused jointly.

[132] This is not an exercise in assigning blame. It is an exercise in identifying reasons for the delay. Under the previous law, the Morin framework, it was recognized that even prudent legal decisions can cause delay. The Crown had the prerogative to pursue a joint trial. However, although a joint trial may have saved some judicial and related resources, that decision contributed to the delay in this case.

[133] The pursuit of a joint trial had adverse consequences in terms of the Applicant’s ability to get to trial within a reasonable time. In practical terms, the motion was irrelevant to the Crown’s ability to prosecute the Applicant on her own because the Applicant was not challenging the search warrant.

The defence efforts, if any, to move the case along

[134] The Applicant took meaningful steps to move this case along:

1. She retained Mr. Wiley before the first appearance in this case;

2. She instructed her counsel to set a date for preliminary inquiry, with or without counsel, even though she had not retained counsel for the preliminary inquiry at the time;

3. When her counsel, Mr. Wiley, was alleged to be in conflict, the Applicant, promptly retained new counsel. New counsel was retained and available to proceed on the preliminary hearing/discovery dates which had already been scheduled for the spring of 2014;

4. When the Applicant’s counsel of choice was appointed to the Bench, she consented to the transfer of the file to a different lawyer and retained that lawyer promptly;

5. When she was not satisfied with the pace at which the case was proceeding, she retained another counsel; new counsel expedited the preliminary inquiry, conceded committal and completed the preliminary hearing/discovery in three of the scheduled five days;

6. In the Superior Court, the Applicant’s counsel consistently informed the Court that she was not waiving her section 11(b) rights; and

7. The Applicant choose not to participate in the Charter motion.

Prejudice

[135] The total delay from the date the charges were laid until the anticipated conclusion of the trial is 64 months and 11 days or 1966 days. The Applicant provided an affidavit and viva voce evidence on the issue of prejudice. I find that the Applicant has suffered actual prejudice, as follows:

1. Marital strain: the Applicant and her co-accused are married. These charges have caused stress in the marriage. This type of stress reasonably follows from the fact of being charged. However, the length of the delay has converted this prejudice into one properly described as actual prejudice.

2. The Applicant and her husband have had to keep these charges secret from their young children for over five years.This type of stress reasonably follows from the fact of being charged. However, the length of the delay has converted this prejudice into one properly described as actual prejudice.

3. The Applicant suffers stress from worrying about the possibility of a jail sentence. This type of stress reasonably follows from the fact of being charged. However, the length of the delay has converted this prejudice into one properly described as actual prejudice.

4. As a result of these charges, the Applicant has developed depression and is taking antidepressants.

5. The Applicant has been unable to participate in her young children’s school trips. This type of stress reasonably follows from the fact of being charged. However, the length of the delay has converted this prejudice into one properly described as actual prejudice.

[136] As I have explained, the Applicant took reasonable and meaningful steps to expedite the case against her. The steps she took are considered within the context of the old framework. Under Morin, it was not her obligation to bring herself to trial within a reasonable time. It is the Crown’s obligation to do so.

[137] This was a case that had been significantly simplified by the fact that one co-accused had pled guilty. The Applicant had elected not to participate in the remaining co-accused’s Charter motion. The case against the co–accused was both direct and circumstantial. The case against the Applicant was almost entirely circumstantial.

[138] The Applicant’s decision not to participate in the Charter motion meant that the Crown had a clear path to trial on the merits without the participation of her co-accused. The case was serious but uncomplicated. I take judicial notice that Brampton is one of the busiest judicial districts in Ontario. However, under all the circumstances, the delay “markedly exceeds” what is reasonable.

[139] The Crown has failed to rebut the presumption of unreasonableness, and therefore, the Applicant’s section 11(b) rights have been breached and the charges against her are stayed.

Barnes J.

Released: November 1, 2017

CITATION: R. v. Beaulieu, 2017 ONSC 6543

COURT FILE NO.: CR-14-330

DATE: 20171101

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

STEPHANIE BEAULIEU

Applicant

REASONS FOR DECISION

Barnes J.

Released: November 1, 2017