R. v. D.B., 2017 ONSC 7640

CITATION: R. v. D.B., 2017 ONSC 7640

COURT FILE NO.: CR-14-7699-00AP

DATE: 2017/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJETY THE QUEEN

Appellant

– and –

D.B.

Respondent

Dallas Mack

Ian Carter

HEARD: December 6, 2017

REASONS FOR DECISION

o’bonsawin J.

Background

1This is an appeal from the judgment of Justice Hoffman of the Ontario Court of Justice of February 13, 2017 in which he stayed the charges against the Respondent for unconstitutional delay, contrary to s. 11(b) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”).

2The Respondent’s son, (“child”), was admitted to the Children’s Hospital of Eastern Ontario (“CHEO”) on September 25, 2014. He was not yet 2 months old at the time. The physicians examined the child and took x-rays at admission and again on October 14, 2014. It was determined that the child had two broken ankles, three broken ribs and other suspicious bruising on his body.

3Dr. Michelle Ward, the on-call physician for the Child and Youth Protection Program (“CYPP”) at CHEO, was consulted regarding the child’s case. She determined that the child’s injuries were the result of trauma.

4The Children’s Aid Society (“CAS”) was contacted and Dr. Ward provided the CAS with her report dated October 16, 2014. In her report, Dr. Ward advised that she had consulted the following documents: the birth and Neonatal Intensive Care Unit (“NICU”) records obtained from the Ottawa General Hospital report related to the child’s birth (he was born 5 1/2 weeks premature) and image results including an abdomen and pelvis ultrasound dated September 25, 2014, a skeletal survey dated September 25, 2014, a CT head scan dated September 25, 2014 and a skeletal survey dated October 10, 2014.

5An investigation was completed by the Ottawa Police Service (“OPS”) and on December 30, 2014, an information was sworn charging the Respondent with assault causing bodily harm in relation to the child.

6On April 30, 2015, Dr. Ward’s report, the skeletal survey dated October 10, 2014 and the other medical records surrounding the child’s admission at CHEO were produced by the Crown to the Defence. These medical records were obtained by the OPS through the Respondent’s consent authorization (as the father of the child) dated October 17, 2014. More specifically, his consent related only to “EMERGENCY & FOLLOW-UP CYPP”.

7On June 29, 2015, after an intake process that included one counsel pre-trial and three judicial pre-trials, 6 days of trial were set for May 16-20 and 30, 2016. At point, the delay to the end of the trial would have been 517 days, or 1 year and 5 months (a total of 17 months).

8On February 29, 2016, approximately 10 months after Crown disclosure was provided to the Defence, the latter wrote to the Crown seeking the skeletal survey of September 2014 mentioned in Dr. Ward’s report. For an unknown reason (even to this day), this skeletal survey was not part of the original production of medical records from CHEO. It must be noted that this report was a few pages in length and was summarized in the October 10, 2014 skeletal survey report disclosed in April 2015. The Crown responded to the Defence that it would seek a copy of the September skeletal report. The OPS tried on many occasions to get a copy of the skeletal report without success. The skeletal report was finally produced to the Defence on October 3, 2016.

9In February 2016, the Defence did not request the NICU medical records from either the Crown or from CHEO, the Health Information Custodian (as per s. 2 of the Personal Health Information Protection Act, 2004, S.O. c. 3, Sched. A (“PHIPA”), which I will explain later in my decision).

10On April 26, 2016, the Defence filed a third party records application in order to obtain a copy of the child’s NICU medical records from CHEO. This was the first time the Defence sought the NICU records referred to in Dr. Ward’s report. The records application was listed for May 3, 2016.

11On May 3, 2016, a representative from CHEO attended Court and brought approximately 450 pages of NICU medical records. The Crown consented to the application for the production of the NICU medical records. No one took the position that these records were covered by the consent previously provided to CHEO. It is clear from the original consent, that the NICU medical records were not part of the request. The NICU medical records were provided to the Defence on May 9, 2016, after they had been vetted by the Crown. The Defence asserts that there were many pages of Progress Notes, Clinical Chart Notes and documents that were not referred to in Dr. Ward’s report. These documents were not requested by the Defence.

12On May 10, 2016, the Defence sought an adjournment of the trial after reviewing the NICU medical records due to the extensive length of the documents. At this point, the issue of the September skeletal survey was not particularly at issue.

13The adjournment was granted in part. At the suggestion of the Crown, the trial commenced with 2 days of voir dire to determine the voluntariness of the Respondent’s statement. Defence counsel agreed with this suggestion in order to salvage some of the previously scheduled dates for the trial. When the second trial dates were scheduled, Defence counsel suggested that the trial could be set in front of any available judge, allowing the ruling on the statement voir dire to be applied in that proceeding. The matter was then adjourned to continue to trial on December 19, 2016 for 5 days.

14On July 8, 2016, the Supreme Court of Canada (“SCC”) released R. v. Jordan, 2016 SCC 27, and on September 30, 2016, the Defence filed a motion seeking a stay of proceedings alleging a violation of Respondent’s s. 11(b) Charter rights. On November 29, 2016, the trial judge stayed the proceedings with reasons to follow. He rendered his oral Reasons for Decision on February 13, 2017.

Trial Judge’s Reasons

15In his oral Reasons for Decision, the trial judge indicated in part:

• “[A]s I said at page 2 of the November 29th transcript, the lack of adherence to the Crown disclosure obligation which was not inadvertent or caused by human error or exceptional circumstances, it was an error in principle by not inquiring of an witness who was going to be called as an expert witness everything that the witness relied on in coming to their conclusion. This caused the first trial dates not to go ahead” (p. 6).

• “Here the Crown failed to provide a significant portion of the medical records considered by their expert in a timely fashion. The Crown bears a responsibility to ensure complete disclosure has been made” (p. 13).

• “That the requirement by the police and Crown to obtain and disclose all material reviewed by the expert or were available to the expert, that this is a requirement is an essential safeguard to test the expert’s opinion and a safeguard against wrongful convictions in the post Smith inquiry era, an inquiry which dealt with precisely this type of evidence” (p. 14).

• “Ultimately, a little more than a week before the first scheduled trial dates, based on a request by defence as a result of information received from their expert about a month prior to the trial, and requested about a month prior, based on that, a little more than a week before the trial hundreds of pages of new medical records of the complainant were disclosed although not the skeletal report” (p. 16).

• “[T]he reasons for the delay, unacceptable police/Crown failure to get everything their medical causation expert had at her disposal, and the insufficient priority given to the trial continuation dates results in the total Morin and Jordan delay being unreasonable in all the case specific circumstances” (p. 18).

• “While dealing with the traditional exceptional circumstance, which is applicable in this case, Jordan makes clear that these principles of the Crown’s disclosure obligation will apply with equal force to the new 11(b) framework” (p. 9).

• “The Morin totals are:

Period 1: All inherent defence caused delay due to the confusion initiated by the defence over the Crown election. So there is no attributing of Morin delay for that period.

Period 2: Of the 11 months to set the trial date about nine months of Lahry, delay, given that about two months should be required to prepare for this moderately complex trial.

Period 3: About six months or a little more was caused due to the Crown’s disclosure failure voiding the first set of trial dates” (pp. 10-11).

• “I also take into account that there was some additional prejudice, although limited, due to the delay, but I find that most of the prejudice was caused by the charge. These were serious allegations in which the public had a very high interest in a trial on the merits and that is a factor in the Morin weighting, but no longer a consideration in the new Jordan analysis” (pp. 15-16).

Issues

16There are two issues on this appeal:

• Did the learned trial judge err in attributing the post-May trial date delay to the Crown?

• Did the learned trial judge err in his application of the transitional exception?

Position of the Parties

17The Crown takes the position that the trial judge erred in his assessment of the delay (approximately 6 months) arising from the adjournment of the trial. The trial judge characterized this delay as attributable to the Crown’s failure to disclose materials, in particular the NICU medical records. The Crown argues that this delay should have been attributed to the Defence instead, since he waited approximately 10 months after the Crown’s disclosure to seek the NICU medical records.

18In the alternative, the Crown submits that under the transitional exception, the overall delay, including the delay attributed to the adjournment, is justified and not unreasonable. The position taken with respect to the records in question, the decision to seek an adjournment, the Crown’s position on the adjournment and the Court’s ruling on the adjournment is that these were all decisions made pre-Jordan at a time when the case was not otherwise in s. 11(b) jeopardy. While leading to an overall delay beyond the Jordan ceiling, those decisions, at that time, were not unreasonable. Properly considered, the Crown argues that this delay is justified under the transitional exception.

19For its part, the Defence argues that the trial judge did not err in his characterization of the delay from the first trial dates to the second trial dates. The delay was caused because the Crown failed to provide the Defence with the documents its expert relied on. The Defence states the NICU medical records were first party records. Both in the criminal and civil context, Courts have recognized that documents reviewed by and relied on by an expert to formulate her opinion are to be disclosed to the opposing party. This delay was appropriately considered as part of the net delay.

20The Defence further submits that the Crown’s argument as it relates to the trial judge’s Morin analysis must fail. The Defence’s position is that the delay in this case exceeded the Morin guidelines.

Analysis

Standard of Review

21The applicable standard of review will depend upon the nature of the error alleged in the appeal of a s. 11(b) stay.

22The standard of review for errors of fact is palpable and overriding error, while correctness is the standard of review for errors regarding the articulation and application of legal principles, errors in the assessment, characterization and allocation of the delay factors, and errors in relation to the balancing of interests and for the ultimate conclusion on reasonableness of delay (Jordan, at para. 233; R. v. Geene, 2009 ONCA 329, at para. 44; R. v. Vandermeulen, 2015 MBCA 84, at paras. 23-30; R. v. N.N.M. (2006), 2006 CanLII 14957 (ON CA), 209 O.A.C. 331 (C.A.), at para. 6; R. v. Konstantakos, 2014 ONCA 21, at para. 5).

23In the present appeal, the standard of correctness applies to the three errors alleged by the Crown. The alleged errors are as follows:

• the first is an error in the articulation and application of legal principles regarding whether the NICU medical records were first party or third party records and is reviewable on a standard of correctness;

• the second is an error in the assessment, characterization and allocation of the delay factors; and

• the third is an error in the assessment of the transitional exception and the standard is correctness.

Did the learned trial judge err in attributing the post-May trial date delay to the Crown?

24The main issue is to determine the nature of the NICU medical records. It is clear from my review of this matter that the Crown never had in its possession the NICU medical records. These records were always held by CHEO as the Health Information Custodian under the PHIPA regime. Records held by a hospital in Ontario are covered by PHIPA. Normally, in the hospital context, physicians are independent contractors and are not considered the Health Information Custodian; rather, it is the corporate hospital that is the Health Information Custodian. Clinical records held by hospital Health Information Custodians may be released in three main circumstances: by consent of the individual (s. 19(1)), if there are reasonable grounds to believe that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons (s. 40(1)) and in compliance with a summons (s. 41(1)(d)(i)).

25The trial judge determined that the delay of approximately 6 months arising from the adjournment of the first set of trial dates was attributable to the Crown’s failure to disclose the NICU medical records. In its Factum, the Defence concedes that on May 3, 2016, the trial judge made comments as to the Crown providing documents to its expert and not disclosing them to Defence counsel. This was indeed an error since Dr. Ward had completed her report to the CAS as part of her involvement with the CYPP at CHEO prior to the involvement of the police. The Crown had not provided Dr. Ward with any documents to review. However, by the time the trial judge heard the s. 11(b) submissions on October 31, 2016, he was more aware of the facts and understood that the Crown did not have possession of the NICU medical records. The trial judge concluded that the Crown did not meet its obligation under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, as it did not inquire of Dr. Ward regarding the documents she reviewed and relied upon in coming to her conclusion.

26The NICU medical records were third party records. Their production, absent the Respondent’s consent, required a third party record application by the Defence and this was actually done by way of a third party record application but only in April, one month prior to the first set of trial dates.

27As a starting principle, the Crown has an obligation under Stinchcombe to provide disclosure to the Defence of the documents that it has in its possession. “The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the ‘fruits of the investigation’, that is to say, material gathered during the investigation of the offence with which the accused is charged” (R. v. Jackson, 2015 ONCA 832, at para. 82 (Bold added)). Clearly, the Crown’s Stinchcombe disclosure obligation does not extend to third party documents.

28In Jackson, at paras. 83-84, the Court of Appeal explained the third party production regime, also known as an O’Connor production:

Third Party (O’Connor) Production

A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation. This scarcely surprises. After all, third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them: O’Connor, at para. 102.

The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134. The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced.

29In practice, once the subpoena duces tecum is received by the police, it is served on the hospital and in Ontario, the requirements of s. 41(1)(d)(i) of PHIPA are met and the third party medical records are disclosed. This is exactly what happened in this matter: the Defence filed its third party record application, a subpoena duces tecum was served on CHEO and in turn, the latter disclosed the NICU medical records.

30Courts have held that access to therapeutic records held by CAS does not change the status of those records and that possession by the police of internal records related to an approved instrument does not change their status as third party records (R. v. Hudson, 2001 CarswellOnt 4664 (S.C.), at para. 50; R. v. W.G.G. (2002), 2002 CanLII 41634 (ON CA), 158 O.A.C. 305 (C.A.), at paras. 11-12; Jackson, at paras. 91-98; R. v. Quesnelle, 2014 SCC 46, paras. 11-18). Consequently, in this case, the NICU medical records held by CHEO maintain their third party records status.

31With regards to the issue of relevance, it is a necessary consideration in relation to production but does not change the nature of the record nor the regime under which access is gained by the Defence. In Quesnelle, at paras. 12 and 18, the SCC notes with regards to principles governing Crown disclosure:

In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, this Court recognized that the Crown cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence. This Court also recognized that police have a duty to disclose, without prompting, “all material pertaining to its investigation of the accused” (para. 14) as well as other information “obviously relevant to the accused’s case” (para. 59)

The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence: Criminal Code, s. 278.2(3). [Emphasis in original.]

32The issue of the missing document, in this case, the September skeletal survey, is triggered by a defence request. This request signals to the Crown that the information is perceived to be relevant, or even possibly important. The request alleviates the Crown from a standard of perfection and clairvoyance. In R. v. Horan, 2008 ONCA 589, the Court of Appeal stated, at paras. 26-27:

Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one. However, Stinchcombe has not completely overhauled the paradigm of the adversary process in which trials are dynamic and as events unfold, prosecution and defence may find that they have to respond quickly to changes in strategy and changes from the expected testimony of witnesses.

In my view, for the following reasons the trial judge mischaracterized the issue relating to Dr. Reid as a disclosure issue. One cardinal principle of the disclosure obligation is that, subject to issues of privilege, the Crown is required to produce all relevant information in its possession. Since Stinchcombe, the courts have taken a very broad view of relevancy and repeatedly urged the Crown to err on the side of disclosure: see e.g. R. v. Wilson (1994), 1994 CanLII 1137 (ON CA), 87 C.C.C. (3d) 115 (Ont. C.A.). However, the Crown cannot be expected to disclose information before trial whose relevancy first becomes apparent during the trial itself and the prosecution cannot be expected to disclose what it does not have. As was accepted in Wilson at p. 120, “The Crown cannot be held to a standard of clairvoyance.”

33It is clear that Dr. Ward was not retained by the Crown as an expert witness. She was a Consultant Pediatrician and Director of Clinics, CYPP at CHEO. However, her report led to the joint investigation by the CAS and the OPS. The Crown was intending to call Dr. Ward as an expert witness based on her report.

34In this case, as previously stated, the child’s “emergency and follow-up CYPP” medical records were originally disclosed as per the Respondent’s consent. However, neither the Defence nor the Crown requested the NICU medical records because at that time, either they were not deemed to be relevant or neither party turned their mind to whether or not they were relevant. It is only when the Defence’s expert requested the NICU medical records just one month prior to the first trial dates that this issue came to light.

35During her submissions, Defence counsel advised the trial judge that:

[I]t’s difficult to know when you’re a lawyer or layperson looking at medical records what those records are actually supposed to look like, so, I didn’t know until speaking to my expert. I suppose Your Honour may find that my expert and I should have consulted in relation to that sooner. Uh, and I would just point out just very briefly to that, that certainly … an expert retained on a, a legal aid budget for a very short period of time and consultation … does put the defence at a bit of a disadvantage in relation to how much time and when they get to speak to their expert (Submissions Transcript, October 31, 2016, at p. 115).

36Later in its submissions, the Crown pointed out to the trial judge that:

[T]he COR Court transcripts reveal those consultations with an expert were taking place. That’s what led to the February 29th request for disclosure. It’s the two months that come after that where we’re still, where we’re not aware of these documents that are now being sought…. [I]t’s difficult for the Crown to accept that all those – and I, having practiced on the defence side and having practiced as a Crown for multiple years now, and, as Your Honour’s pointed out, nobody knows like a trial lawyer that your prep is gonna happen in the days and, sometimes if you’re really lucky, weeks leading up to a trial … but in this case the record reveals a consultation such as those were taking place in advance, and the disclosure request only came much later, in fact, too late to save the trial date” (Submissions Transcript, October 31, 2016, at pp. 130-131).

37In my opinion, on April 30, 2015, the Crown fulfilled its Stinchcombe disclosure obligation when it disclosed all first party documents including Dr. Ward’s report to the CAS, the October 2014 skeletal survey and other medical records from CHEO related to the child’s September 2014 hospitalization. It must also be noted that the Crown disclosure of Dr. Ward’s report was completed one year before the first set of trial dates and constitutes the required notice of the existence of the NICU medical record as required per Quesnelle.

38Defence counsel was aware from Dr. Ward’s report that the child was born prematurely at 34 weeks and 4 days, thus the review of the NICU medical reports. Under the heading of “PRIOR HEALTH RECORDS” in her report, Dr. Ward indicates that she reviewed the “birth and NICU records obtained from the Ottawa General Hospital report that Jayden was born in breech position by caesarean section at 34 weeks and 4 days (approximately 5 ½ weeks early)”. I do not accept Defence counsel’s submission that as a lawyer or layperson, she should not be expected to have identified the need to request disclosure of the NICU medical records until after speaking with her expert some two months prior to the first trial dates.

39Furthermore, the letter from Defence counsel dated February 29, 2016 and the application of April 26, 2016 are quite different. The February 29 disclosure request related to the missing skeletal survey report dated September 25, 2014 and to the redacted/blacked out areas of the hospital records that were originally disclosed by the Crown to the Defence. The request for the redacted/blacked out areas of the hospital records was subsequently abandoned by the Defence. If Defence counsel deemed the NICU medical records potentially relevant to its case, at the latest, she should have requested them in February.

40It must also be noted that certain information in the NICU medical records, such as the laboratory results, were actually in Dr. Ward’s report. In fact, my review of the Transcript of counsels’ submissions demonstrates that some of the pages disclosed in May 2016 were related to an illness prior to the injuries to the child’s ankles and were totally unrelated (Submissions Transcript, October 31, 2016, at p. 119). The Crown submitted “approximately 120 pages … that relate to the infant’s birth leading up to the hospitalization relating to his ankles” (Submissions Transcript, at p. 132). There are approximately 400-450 pages post-dating Dr. Ward’s report. With regards to the missing skeletal survey that should have been in the original Stinchcombe disclosure, the Crown indicated that several attempts were made by the police officer to get a copy from CHEO. It was not in the Crown’s file. However, the results of the September 25, 2014 skeletal survey are listed in Dr. Ward’s report as are the results of the October 10, 2014 skeletal survey. The Defence could simply not lie in the weeds until the month before the first set of trial dates and make its production request for the NICU medical records.

41The facts and circumstances of this case establish that the child’s NICU medical records are properly characterized as third party documents: (a) they relate to his birth; (b) they were separate records from those related to the September 2014 hospitalization; (c) they were in the possession of CHEO as the Health Information Custodian at all material times; (d) their existence pre-dated the criminal investigation; (e) they were not the fruits of the investigation; (f) they were never seized by the police nor obtained by the Crown; and (g) the child and CHEO possess privacy interests in them.

42In addition, the fact that Dr. Ward reviewed or had access to the NICU medical records for the purpose of drafting her report does not change their nature. Even if they had been released to the CAS, they would have retained their status as third party records and the privacy interest would still remain.

43The fact that the NICU medical records may be relevant to Dr. Ward’s opinion does not change their nature. The Crown consented to the production order requested by the Defence, however, CHEO still remained the Health Information Custodian and holder of the records.

44The Jordan decision requires that defence delay is to be deducted from the total delay. There are two components to defence delay: either waiver or delay caused solely by the conduct of the defence. In the Respondent’s case, waiver is not an issue. The second component, conduct of the defence, comprises “those situations where the accused’s acts either directly caused the delay … or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Jordan, at para. 63, citing R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-28). In addition, the defence must be permitted preparation time, even when the Crown and the Court are ready to proceed with the matter. Defence “applications and requests that are not frivolous will also generally not count against the defence” (Jordan, at para. 65).

45The determination of defence delay is not about laying blame. It is about fairly attributing delay under the s. 11(b) context and identifying the cause of delay (R. v. Gandhi, 2016 ONSC 5612, at para. 44). At para. 44 of Gandhi, Code J. references R. v. Shertzer, 2009 ONCA 742, at para. 131, and states:

[I]t must be borne in mind that the defence approach to disclosure will impact on the pace of the proceedings. Some counsel may choose to pursue every possible relevant piece of information in the Crown’s possession, while other counsel may choose a more focused attack on specific crucial Crown witnesses. Neither approach is necessarily unreasonable, but the former approach can result in significantly longer inherent time requirements.

46It must be noted that there is no comprehensive list of actions that might be characterized as defence delay. However, two have been identified in the caselaw and find support in the pre-Jordan principles. The first action is the delay occasioned where the Crown and the Court are ready to proceed and the Defence is not, or chooses to adjourn the matter (Jordan, at paras. 64-67; R. v. Beaudoin, 2017 ONSC 1079, at para. 18; Gandhi, at paras. 21-23; R. v. Coulter, 2016 ONCA 704, at paras. 44, 73 and 76). The second action consists of unreasonable or frivolous requests or motions brought by an accused which directly cause delay. These should be characterized as defence delay. For example, when the Defence chooses to adjourn a proceeding to obtain disclosure and conduct a bail hearing, this equates to defence delay (Gandhi, at paras. 21-23 and 31-36; R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 (C.A.), at para. 47).

47The SCC further explained the concept of defence delay in R. v. Cody, 2017 SCC 31, at paras. 32-35:

Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).

This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct.

We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter. [Emphasis in original.]

48In the Respondent’s case, the records application was not frivolous, however, the fact that Defence counsel waited over two months to seek the NICU medical records that her expert identified as relevant led to the adjournment and the resulting delay. Had Defence counsel asked for the NICU medical records in February, she would have been ready to proceed on the first scheduled trial dates. The Defence determined that it wanted to pursue every possible relevant piece of information, however, the NICU medical records were third party information in the possession of the CHEO and not the Crown. Consequently, I conclude the 6 month delay falls squarely at the feet of the Defence, leading to the 20.5 months being reduced to 14.5 months, falling within the allowable time delays set out in Jordan.

Did the learned trial judge err in his application of the transitional exception?

49In the alternative, if I am incorrect in my finding that the NICU medical records are third party documents and that the 6 month delay is attributable to the Defence, I am of the view that the transitional exception applies in this case. For cases, such as this one, that were in the legal system at the time of Jordan, a transitional exception was recognized by the SCC. This exception permits reasonable reliance on the law as it existed prior to Jordan to justify delay. If the parties conducted themselves in accordance with the pre-Jordan s. 11(b) principles resulting in delay beyond the ceiling, the delay will be justified. The SCC stated in Jordan, at para. 94:

Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases. However, in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture. As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated. [Bold added.]

50The overview provided by the majority regarding the transitional exception is as follows, at paras. 95-97:

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

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings. [Bold added.]

51As noted in Jordan, for most cases already in the system, Jordan should not automatically transform what was previously considered as reasonable delay into an unreasonable delay. The presumptive ceiling still applies to these cases. However, the conduct of both the Crown and the Defence must be evaluated in the proper context. The reasonableness of a period of time to prosecute a case is driven by the surrounding circumstances. The reliance of the parties on the law as it was pre-Jordan is one such circumstance (Jordan, at paras. 102-103). This reliance could justify delay post-Jordan.

52The pre-Jordan law is re-stated in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, which was reviewed in R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45. These decisions deemed the relevant considerations under s. 11(b) as follows:

(a) Length of the delay;

(b) Reasons for the delay, including:

a. Inherent time requirements;

b. Actions of the accused;

c. Actions of the Crown;

d. Limits on the institutional resources; and

e. Other reasons for the delay;

(c) Waiver of any time periods; and

(d) Prejudice to the accused.

53The above-noted factors were intended to be applied in a manner which is consistent with the purpose and principles of s. 11(b): the interests of the accused and the interests of society. The first principle of interests of the accused is designed to protect the accused’s liberty, security and right to a trial while the evidence is fresh and available. The second principle of interests of society is to ensure those charged with a criminal offence are treated fairly while at the same time ensuring that they are brought to trial to be dealt with according to the law (Morin, at p. 786; MacDougall, at paras. 29-30). As stated in Morin: “The general approach to a determination as to whether the right has been denied is not 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 inevitably lead to delay or are otherwise the cause of delay” (p. 787).

54There are several reasons that have been recognized by the Courts as valid to justify a delay in the proceedings: inherent delay, actions of the accused and institutional delay. Firstly, inherent time periods may arise at any stage of the proceedings and for a variety of reasons. There are two common reasons: (a) intake activities; and (b) time required to try a case (R. v. Adam et al., 2006 BCSC 350, at para. 142). Since intake activities are not a relevant reason in the Respondent’s matter, I will not delve into it. However, the time required to try a case is very relevant. This has been recognized as including time required for pre-trial motions, reasonable time required to schedule continuation dates and reasonable time to permit rulings and judgments to be delivered (R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 59 O.A.C. 161 (C.A.); R v. Gordon (1998), 80 O.T.C. 241 (Gen. Div.), at para. 256; R. v. Tran, 2012 ONCA 18).

55Secondly, delays caused by the conduct of an accused cannot be used to support a s. 11(b) violation claim. This was described by the SCC in MacDougall, at para. 48:

Delays intentionally caused by, consented to or requested by the accused cannot be used in support of a claim that a s. 11(b) violation has occurred: Conway, supra, at p. 1673. Otherwise, there might be an incentive to employ dilatory tactics in order to escape justice. However, only those actions of the accused which directly contribute to the delay — such as a request for an adjournment — or which constitute a deliberate attempt to delay the trial, will count against an accused. Such actions are inconsistent with a desire to proceed with the trial and are therefore inconsistent with an assertion of a s. 11(b) violation: see Morin, supra.

56Thirdly, with regards to institutional delays, Morin set the following guideline of 8-10 months of institutional delay in Provincial Court (Morin, at p. 799). This period can be adjusted upwards or downwards, depending on a host of factors in the case, including prejudice to the accused, the seriousness of the charges and the like (R. v. C.R.G. (2005), 2005 CanLII 32192 (ON CA), 77 O.R. (3d) 308 (C.A.), at paras. 20-22; R. v. Hackett, 2017 ONSC 300, at para. 23).

57It is important to properly describe prejudice. The term, as referred to when dealing with s. 11(b) matters, requires a determination of prejudice that has resulted from the impugned delay:

An accused who claims prejudice, beyond the prejudice common to most accused and inferred from any delay, is claiming an entitlement to a speedier trial than other accused in apparently similar circumstances. The only way for the system to accommodate that claim is to hear it expressed. There comes a point, in my opinion, where an accused who is suffering a special prejudice from the delay of his trial must bring his or her plight to the attention of the prosecuting authorities and the courts (R. v. Bennett (1991), 1991 CanLII 2701 (ON CA), 3 O.R. (3d) 193 (C.A.), at p. 222).

58It is clear that prejudice can be inferred from the length of the delay, however, the degree of the prejudice inferred from the passage of time is dependent, to an extent, on the action or inaction of the accused during the period in question.

59We must now turn to the balancing of the accused’s interest in a speedy trial and society’s interest in a trial on the merits. In R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 192 O.A.C. 320 (C.A.), at paras. 24-25, the Court of Appeal determined that in the balancing of factors, prejudice and seriousness of the offence were often significant factors:

However, the applications judge failed to factor the heightened societal interest in a trial on the merits, given the very serious nature of Seegmiller’s alleged crime, into his balancing of the interests protected by s. 11(b) of the Charter. This was an error in principle. In accordance with the principles articulated in Morin, the gravity of the offence of sexual assault, by itself, increased society’s interest in ensuring that Seegmiller was brought to trial.

Where the nature of the allegation establishes a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused’s fair trial interests) takes on added significance in the s. 11(b) calculus. The applications judge found that the suggested prejudice to Seegmiller was deserving of little weight, but failed to appreciate the significance of that assessment in a case like this one, where the societal interest in a trial on the merits is high. The applications judge also observed that “the degree of prejudice to the accused is not such as to require that the period of acceptable delay be shortened”. This observation correctly recognizes that real prejudice can shorten the period of acceptable delay in a proper case; however, it fails to also recognize that the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable. I agree with the Crown’s submission that the applications judge failed to appreciate how the lack of real prejudice to Seegmiller impacted on the requisite s. 11(b) analysis. This is reversible error. [Bold added.]

60If I am incorrect and the adjournment of the first set of trial dates in this matter is not Defence delay and it is determined that the Crown should have taken steps to obtain and produce the NICU medical records earlier, this conduct and the decisions related to the adjournment that followed must be considered in light of the law as it existed pre-Jordan. This is well explained in Cody, at para. 71:

When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).

61In R. v. Picard, the Court of Appeal held that the trial judge erred in her application of the transitional provision, in part because of a failure to consider the actions of the parties in the proper context (2017 ONCA 692, at para. 131). In the Respondent’s case, to the extent the Crown could be blamed for not having obtained and/or produced the NICU medical records, this decision must be viewed in the appropriate context. The same can be said for the Defence’s request for the adjournment and the Crown’s consent to the adjournment of the first set of trial dates.

62The Crown alleges that the trial judge erred when he (a) failed to have regard to the seriousness of the offence; (b) failed to have regard to the impact of complexity; and (c) failed to assess the prejudice in the context throughout the proceeding.

63The Defence argues that the Crown took the trial judge’s comments about the seriousness of the charge out of context. I disagree. In my view, the trial judge did not appropriately balance the rights of the Respondent with those of society. He determined that the “seriousness of the charge is not a factor in this analysis and as with the Morin Guidelines the Jordan ceilings do not replace the core issue which always remains one of the reasonableness of the delay taking into account case specific factors” (Reasons for Decision Transcript, p. 4). The trial judge’s finding regarding the seriousness of the charge is clear on its face. The Defence argues that later in his decision, the trial judge stated: “These were serious allegations in which the public had a very high interest in a trial on the merits and that is a factor in the Morin weighing, but no longer a consideration in the new Jordan analysis” (Reasons for Decision Transcript, pp. 15-16). In my view, the trial judge finds that they were serious allegations, however, he does not put any weight on it since they are “no longer a consideration in the new Jordan analysis”. The error here is that the trial judge failed to consider the reliance on the law as it stood at the time of the procedures in this matter. As stated in Jordan at para. 103:

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

64It must be noted, however, that the trial judge did not have the benefit of reading Cody, which was issued in June 2017 after the rendering of his oral Reasons for Decision in February 2017. In Cody, at para. 70, the SCC determined that seriousness of the charge has a role under the transitional exceptional circumstance:

It is important to clarify one aspect of these considerations. This Court’s decision in R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown’s indifference (paras. 26-29). Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties’ general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances. [Bold added.]

65The Court of Appeal in Picard, at para. 135, also reiterated that the trial judge must consider the seriousness of the offence:

First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits. The trial judge appears to have interpreted the Supreme Court of Canada’s decision in Williamson as standing for the proposition that the seriousness of the offence was neutral. As a result, she failed to take this interest into account. In Cody, the court makes it clear that, when doing the Morin analysis in the context of the transitional exceptional circumstance, the seriousness of the offence remains a significant consideration: paras. 70-71.

66The case at bar includes serious allegations of breaking both ankles and three ribs of a child who was not even two months old. The seriousness of the allegations should have led the trial judge to have placed more emphasis on society’s interest in a trial on its merits.

67With regards to the issue of complexity, the trial judge found this case to be “moderately complex”. The Crown argues that he failed to properly consider this factor in his analysis of the transitional exception. Picard offers assistance with regards to the analysis of the issue of complexity. Again, the trial judge did not have the benefit of reading Picard since it was issued after his oral Reasons for Decision were rendered. The Court of Appeal in Picard stated, at paras. 71-73:

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

i. the complexity of the case

ii. the period of delay in excess of the Morin guidelines

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

iv. the defence efforts, if any, to move the case along

v. prejudice to the accused

In considering the transitional exceptional circumstance, the trial judge in this case effectively ignored the first consideration, the complexity of the case. She simply stated that she would not reiterate the analysis she had already undertaken in finding that case complexity did not justify the delay and noted that, at most, this could be described as “a moderately complex case.”

The complexity of the case appears to have played no further role in the trial judge’s analysis of the transitional exceptional circumstance. This was an error. As was stated recently in R. v. Pyrek, 2017 ONCA 476, at para. 30, “although this case was not sufficiently complex to meet the requirement of exceptional circumstances under Jordan, for transitional cases moderate complexity bears on the reasonableness of the delay.” [Bold added.]

68The Defence, on the other hand, argues that the trial judge’s finding of moderate complexity was appropriately considered. In his decision, the trial judge stated:

I also find for reasons I will indicate an approximate 15 month Morin delay, and I found this to be only a moderately complex case.

Period 2: Of the 11 months to set the trial date about nine months of Lahry, delay, given that about two months would be required to prepare for this moderately complex trial (Reasons for Decision Transcript, pp. 6, 10-11).

69In line with Picard, a moderately complex case like the Respondent’s matter bears on the reasonableness of the delay. The Crown also asserts that the trial judge erred in his consideration of prejudice in light of the conduct of the defence throughout the proceedings. Any prejudice claimed or accepted by the trial judge must be properly assessed in light of the following actions of the defence, which do not support an interest in pursuing a trial in an expeditious manner. The Crown relies on three issues:

a) Much delay in the proceedings is directly attributed to Defence’s confusion over the Crown election. The reason for this confusion is unclear. The Crown’s election was clear on its screening form dated January 15, 2015. Notwithstanding this, on June 1, 2015, Defence counsel remained unclear about the Crown’s election. This confusion led to delay. It illustrates a disinterest in expediting proceedings.

b) The attendance of different agents for counsel for the Respondent, with unclear instructions – including surrounding the request for records in February, March and April 2016 – also led to delays and illustrate a disinterest in an efficient progress of the proceedings.

c) The failure to consult or retain an expert in a timely fashion. It is difficult to ascertain when and to what extent an expert had been retained or consulted, but what is clear is that it was only shortly before April 26, 2016, that the Defence had any real discussion with his expert that led to the request for the NICU medical records.

70The Defence argues that the trial judge found that the Respondent had suffered some prejudice, although the majority of the prejudice suffered was as a result of being charged. The Defence submits that the trial judge’s assessment of prejudice is entitled to some deference. The Court read the Respondent’s Affidavit and heard him testify at the hearing. Furthermore, the trial judge assessed the actions of the Defence. The trial judge subtracted some delay of the Defence’s confusion with respect to the Crown’s election, but also noted actions taken by the Defence to try and expedite the matter, such as agreeing to conduct the voir dire to use some of the allotted time, and suggesting that another judge hear the trial and be bound by the voir dire ruling.

71Since the standard of review in this case is correctness, deference is not provided to the trial judge. I agree with the Crown’s submissions regarding the trial judge’s lack of appropriate consideration of the prejudice in light of the Defence’s conduct. Instead, he relied heavily on the fact that the “defence, in this case, in attempt to expedite the trial agreed to start the trial over after the first trial dates were adjourned with the voir dire ruling applying to a new trial, no evidence on the trial had yet been called” (Reasons for Decision Transcript, p. 6). There were ample submissions before the trial judge regarding the issue of the Defence’s confusion over the Crown’s election. The Screening Form dated January 15, 2015, clearly set out that the Crown intended to proceed by summary conviction. This confusion led to delay. As noted earlier, the Defence’s delay in requesting the NICU medical records led to the delay of 6 months due to the adjournment of the first set of trial dates. Lastly, the Defence’s failure to consult and/or retain an expert in a timely fashion also led to adjournment of the first set of trial dates.

72In line with Jordan, Cody and Picard, I have concluded that the trial judge erred in his determination that the transitional exception did not apply in the Respondent’s case. Taking into account the seriousness of the offence and its moderate complexity, as compared to Defence conduct throughout the proceedings, the delay is not fatal and is reasonable. A proper application of the transitional exception would have justified the delay under Jordan. The Crown and the Defence proceeded under the pre-existing s. 11(b) principles.

73The Crown provided a helpful chart of the time periods in his Factum. These were not contested by the Defence. The pre-Jordan timelines are as follows:

a) the intake or inherent delay was 103 days (approximately 3.4 months), a delay which is reasonable and neutral;

b) the institutional delay was 322 days (approximately 10.6 months), a delay slightly outside of the Morin range of 8-10 months; and

c) there was a Defence delay of 2.5 months.

74In applying the Morin framework, weighing the length of the delay, the reasons for the delay, the significant prejudice to the Respondent and the societal interest, the delay was not unreasonable.

75Furthermore, the Crown also produced a chart illustrating the delay under Jordan. The total Jordan delay is the delay from the date the information was sworn until the end of the trial. He calculated the Jordan delay at 718 days (approximately 23.6 months). The attributable Defence delay was 293 days (approximately 9.6 months), and should be deducted from the total delay. The remaining impugned delay is 425 days (approximately 14 months). This 14 months is below the presumptive Jordan ceiling of 18 months and is entirely reasonable.

Conclusion

76I allow the Crown’s appeal, dismiss the s. 11(b) application and remit the matter back to the Ontario Court of Justice for trial.