CITATION: R. v. Windibank, 2017 ONSC 855

COURT FILE NO.: CR-12-2520-0000

DELIVERED ORALLY: Friday, February 3, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AMY LYNN WINDIBANK and

TODD JASON WINDIBANK

Richard L. Pollock, for the Federal Crown

Brian P. Manarin, for the Provincial Crown

Maria V. Carroccia, for the Defence

HEARD: December 16, 2016

REASONS FOR RULING ON s. 11(b) CHARTER APPLICATION

Howard J.

Introduction

[1] The applicants, Todd Jason Windibank and Amy Lynn Windibank, are charged in a four-count indictment that on or about June 24, 2010, they committed the offences of possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act,[^1] possession of a firearm without a licence, contrary to s. 91(1) of the Criminal Code,[^2] and related firearm offences, contrary to ss. 86(2) and 92(2) of the Criminal Code.

[2] The applicants now apply for an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms staying the proceedings against them on the basis that their rights to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, have been infringed.

[3] This case has long been in our court system. It began in June 2010. It went to trial for the first time in 2014. It went on appeal in 2015. It was returned for a second trial in 2016.

[4] However, on July 8, 2016, with the release of the Supreme Court of Canada’s landmark decision in R. v. Jordan[^3] and its companion, R. v. Williamson,[^4] the “legal landscape changed dramatically.”[^5] The majority of the Supreme Court in Jordan ushered in a new framework to be applied where an accused alleges that his or her s. 11(b) Charter right has been breached by unreasonable delay.

[5] The majority in Jordan observed that the previous framework for determining s. 11(b) applications, based on the principles set out in R. v. Morin,[^6] “had given rise to both doctrinal and practical problems that contributed to a culture of delay and complacency.”[^7] The court mandated a “change in direction.”[^8] At the core of the new Jordan framework is the notion of the presumptive ceiling, a time-frame beyond which delay will be presumed to be unreasonable for the purposes of s. 11(b). The presumptive ceiling for indictable offences in the superior courts of the provinces is 30 months from the time of charge to the actual or anticipated end of trial.

[6] The new Jordan framework is applicable to any case that was in the court system when Jordan was released.[^9] Consequently, the task for this court is to apply the new Jordan framework, with its transitional provisions, to the circumstances of the instant case.

Factual Background

[7] A detailed chronology of some of the events in the history of this proceeding is usefully set out in the various charts included in the factum of the respondent Crown.[^10] There is no need to recite all of the particulars of that chronology here.

[8] However, it assists to provide a general overview of the course of the proceedings.

[9] The charges in this case were laid as a result of a search of the applicants’ residential home. That search was authorized by a search warrant issued pursuant to an Information to Obtain a Search Telewarrant, sworn on June 24, 2010. At approximately 10:45 p.m. that same night, members of the Windsor Police Service entered the residential premises of the applicants and executed the search warrant. The Crown maintains that the following was seized from the residence:

a. 55.48 grams of cocaine, having an estimated street value of approximately $5,548;

b. a total of $11,460 in Canadian currency;

c. a total of $720 in U.S. currency;

d. a black Smith & Wesson 9 mm handgun, which was recovered from a safe found in a closet in the master bedroom;

e. two magazines containing 26 rounds of 9 mm ammunition;

f. a box of the brand name “Kleen-Bore” ammunition, recovered from the safe;

g. two black Telus cell phones and one red cell phone; and

h. a piece of paper suspected to be a debt list with prices and names written on it.

[10] On June 24, 2010, the applicants, along with one Keith McNorton and two other persons, were charged with a variety of offences contrary to the Criminal Code and the CDSA on a 27-count information.

[11] Mr. Robert DiPietro was retained to act for all five accused, including the applicants.

[12] From June to December 2010, the matter was adjourned from time to time to permit disclosure and defence review of disclosure. Ultimately, on January 18, 2011, a judicial pretrial conference was conducted in the Ontario Court of Justice.

[13] A number of pretrial discussions were held, issues were narrowed, and in March 2011, a preliminary hearing was scheduled for December 15, 2011.

[14] On December 15, 2011, three counts on the 27-count information were withdrawn against the applicant Todd Windibank, a further six counts were stayed, and the preliminary hearing was waived.

[15] The matter first proceeded in the Superior Court of Justice on February 3, 2012, at Assignment Court, at which time a judicial pretrial conference was scheduled for April 4, 2012.

[16] By June 15, 2012, the proceedings against Mr. McNorton and the other co-accused were resolved, leaving only the two applicants. The matter was further adjourned from time to time for pretrial to October 2012. Defence counsel waived delay from June 15, 2012, to October 3, 2012, a period of some four months.

[17] At the Assignment Court on December 7, 2012, Ms. Carroccia appeared for the applicant Todd Windibank and advised the court that there would be a Charter application, requiring some three to four days of hearing, and that she was prepared to set a date for that hearing. The applicant Amy Windibank continued to be represented separately by Mr. DiPietro. The presiding judge indicated that a further judicial pretrial conference should be scheduled, which was held January 7, 2013.

[18] Following the pretrial conference that was held on January 7, 2013, the matter proceeded to Assignment Court on January 11, 2013, where it was scheduled for the three-to-four-day hearing of the Charter application, which the presiding judge commented would be “likely determinative of the trial.” The application/trial was then scheduled for the week commencing June 24, 2013.

[19] However, the trial scheduled for the week commencing June 24, 2013, could not proceed at that time because the applicant Todd Windibank was ill with gastrointestinal issues all of that week. Accordingly, the matter was adjourned to the Assignment Court on July 12, 2013, to schedule a new trial date.

[20] In Assignment Court on July 12, 2013, the parties canvassed dates for a four-day hearing of the Charter application, which, it was anticipated, would largely resolve the matter. The applicant Todd Windibank continued to be represented by Ms. Carroccia, and the applicant Amy Windibank continued to be represented by Mr. DiPietro. The court offered dates starting the week of September 9, 2013, but Ms. Carroccia was not available. There is no indication in the transcripts whether counsel for the Federal and Provincial Crown were ready to proceed in September. Dates in December 2013 were offered by the court but were not available for Ms. Carroccia, Mr. DiPietro, or the Provincial Crown. Dates during the week of January 20, 2014, were offered by the court and were available for the defence but not for the Provincial Crown. Dates during the week of January 27, 2014, were offered by the court and were available for the defence and Provincial Crown but not for the Federal Crown. Dates during the week of February 24, 2014, were offered by the court and were available for Ms. Carroccia, the Provincial Crown, and the Federal Crown but not for Mr. DiPietro. Ultimately, the matter was scheduled for the week commencing March 17, 2014.

[21] On March 3, 2014, Mr. DiPietro brought a motion to be removed as counsel of record for the applicant Amy Windibank, indicating to the court that Ms. Carroccia would continue to act for both Todd and Amy Windibank. The motion was granted.

[22] The trial commenced on March 17, 2014, before Quinn J., at which time the court heard the defence application made pursuant to s. 24(2) of the Charter to exclude all evidence obtained from the search of the applicants’ residence on the basis that the ITO did not disclose reasonable and probable grounds to support the issuance of the warrant, as a result of which their rights under s. 8 of the Charter to be secure from unreasonable search and seizure were violated.

[23] For reasons delivered on March 20, 2014, Quinn J. granted the application and excluded the evidence.[^11] The Crown offered no further evidence and, in the result, all charges were dismissed against the applicants.

[24] An appeal was taken to the Ontario Court of Appeal by the Federal Crown, which appeal was heard on May 27, 2015. Pursuant to a very brief appeal book endorsement, the Court of Appeal allowed the appeal, set aside the acquittals, and ordered a new trial.[^12]

[25] A new indictment was filed on June 12, 2015, following which a judicial pretrial conference was held on July 16, 2015. Ultimately the matter was scheduled for trial commencing April 11, 2016.

[26] The new trial commenced before me on April 11, 2016, with the hearing of a renewed defence application to exclude the evidence seized from the residence on largely the same grounds that were argued before Quinn J. two years earlier. On that morning, counsel for the applicants provided the Crown with an amended factum on the issue of arrest. The factum sought to expand the scope of the s. 9 argument to both applicants, arguing that there were no reasonable and probable grounds to arrest the applicant Todd Windibank, that his arrest was therefore contrary to s. 9 of the Charter, and that the evidence obtained as a result of the allegedly unlawful arrest should be excluded. In my ruling delivered April 13, 2016, I permitted the late amendment and ruled that the application be deemed to be amended in accordance with those particulars of the s. 9 grounds set out in the amended factum of the applicants delivered April 11, 2016.

[27] The hearing of the application was concluded on April 22, 2016, and was then adjourned to August 26, 2016, for decision. For reasons delivered orally on August 26, I dismissed the defence application to exclude the evidence. Ms. Carroccia then gave notice of her intention to bring the s. 11(b) application. The matter was adjourned to November 7 and 8, and December 16, 2016, for the hearing of the s. 11(b) application and the continuation of trial.

[28] A further judicial pretrial conference on the s. 11(b) application was held on October 31, 2016. The November 7 and 8, 2016, dates were vacated, and the defence waived the delay between November 7, 2016, and December 16, 2016.

Legal Framework

[29] Subsection 11(b) of the Charter provides that:

Any person charged with an offence has the right …

(b) to be tried within a reasonable time; …

[30] In R. v. Coulter, our Court of Appeal summarized how to apply the new Jordan framework using the following steps:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).[^13]

Analysis

Total delay

[31] The total delay is the period from the charge to the actual or anticipated end of trial.[^14]

[32] The charges here were laid on June 24, 2010. The matter was scheduled for continuation of trial and argument on the s. 11(b) application on November 7, 8, and December 16, 2016. The November 7 and 8 dates were vacated. Counsel argued the s. 11(b) application before me on December 16, 2016, at the conclusion of which we scheduled February 2 and 3, 2017, for the continuation of trial.

[33] Using February 3, 2017, as the anticipated end of trial, the total delay in this case is 2,417 days, which is 6 years, 7 months, and 11 days, that is, over 79 months.

[34] I pause to observe that I have not been referred to, nor have I discovered in the course of my own review, any s. 11(b) decision released after Jordan where the total delay was in the order of 79 months, with the exception of the 86-month total delay that the Court of Appeal assessed in R. v. Manasseri.[^15]

[35] Other than Manasseri, the longest delays I have noted occurred in cases where the total delay was more than 50 months – in R. v. Mannings, the total delay was 57 months,[^16] in R. v. Bishop, it was 51 months,[^17] and in R. v. Jones and Schmidt, it was 53.5 months[^18] – and, I would note, in all of these cases the request for a stay of proceedings based on breach of s. 11(b) was granted. I do of course realize that the total delay figure is not in any way determinative – indeed, it is merely the first step in the assessment – but I raise that observation just to give some context to the current circumstances.

Defence delay

[36] As summarized in Coulter, the Jordan framework requires that one must subtract the period of defence delay from the total delay to obtain the “Net Delay.”[^19] Defence delay has two components: (a) waiver by the defence, and (b) delay caused solely the conduct of the defence.[^20] That said, as Pomerance J. observed in R. v. Porter, “defence delay is a limited, but not a closed, category. It may take on girth as novel situations arise.”[^21]

Defence waiver

[37] “Defence waiver of delay can be explicit or implicit, but it must be clear and unequivocal.”[^22]

[38] As summarized above, in the instant case, there are three periods of defence waiver, as follows:

a. at the Assignment Court before Pomerance J. on June 15, 2012, Mr. Pollock for the Crown stated that the Crown was ready to set a date for both the pretrial conference and trial. Mr. DiPietro for the defence requested that the matter be put over to August 3, 2012, because he needed to receive further instructions. Mr. DiPietro waived the delay on the record, which amounts to almost seven weeks;

b. at the Assignment Court before Patterson J. on August 3, 2012, Mr. DiPietro requested another pretrial conference. The matter was put over to a pretrial on October 3, 2012, and then to Assignment Court on October 5, 2012. Mr. Pollock raised the issue of delay, and Mr. DiPietro confirmed that he was waiving delay for the further delay, which amounts to nine weeks; and

c. at the pretrial conference held before Pomerance J. on October 31, 2016, when the dates for continuation of trial on November 7 and 8, 2016, were vacated, Ms. Carrroccia waived the delay between November 7, 2016, and December 16, 2016, which amounts to six weeks.

[39] Accordingly, the total period of defence waiver is 21 weeks and four days, or almost five months.

Defence-caused delay

[40] Defence-caused delay arises where the acts of the defence either directly cause the delay or are shown to be a deliberate and calculated tactic employed to delay the trial, such as, for example, frivolous applications and requests. As well, where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay.[^23]

[41] In Jordan, the majority explained that legitimate defence preparation time would not be considered defence-caused delay, in the following terms:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence.[^24]

[42] As summarized above, there are three main periods of defence-caused delay, as follows:

a. on March 7, 2011, there was an attendance before the Ontario Court of Justice to set a date for the preliminary hearing. The court offered March 28, 2011, and the Crown was available then, but Mr. DiPietro indicated he was not available until December of that year. The preliminary hearing was set for December 11, 2011, representing a defence delay of nine months;

b. on January 11, 2013, at Assignment Court before Thomas J., the parties attended to schedule three to four days to argue the Charter application. The court offered dates starting April 15, 2013. Counsel appearing as agent for Mr. DiPietro indicated that the first week that was available was June 24, 2013, and the matter was scheduled for the Charter application at that date. I note that the transcript does not indicate whether counsel for the Federal and Provincial Crown were ready to proceed on April 15, 2013 or not. However, Ms. Carroccia has submitted that the two month period from April to June 24, 2013, should be assessed as defence-caused delay, and, in the circumstances, I accept her submission; and

c. on July17, 2015, at Assignment Court before Pomerance J., the parties attended to set dates for a seven-day trial. The court offered dates commencing December 7, 2015, and both Crowns were ready to proceed then, but Ms. Carroccia and Mr. DiPietro were, collectively, not available until April 11, 2016. The trial was then scheduled for seven days commencing April 11, 2016. This period of defence-caused delay amounts to four months.

Summary

[43] Tallying the sum of the defence-caused delay arising out of the attendances on March 7, 2011 (being nine months), January 11, 2013 (two months), and July 17, 2015 (four months), the total period of defence-caused delay is 15 months

[44] Accordingly, adding the sum of almost five months of defence waiver and 15 months for defence-caused delay, the total period of defence delay is 20 months.

Net Delay and the presumptive ceiling

[45] To calculate Net Delay here, one subtracts the 20 month period of defence delay from the total delay of 79 months to arrive at a Net Delay of 59 months in the instant case.

[46] The Net Delay here of 59 months clearly exceeds the presumptive ceiling of 30 months by a considerable margin. Indeed, the Net Delay here is essentially double the presumptive ceiling, that is, nearly twice the number of months beyond which, the Supreme Court of Canada has mandated, it is presumed that there is unreasonable delay.

[47] It bears emphasizing one feature of the presumptive ceiling, and that is its relationship to the notion of prejudice. In Jordan, the Supreme Court held that prejudice should no longer play an explicit role in the s. 11(b) analysis, ruling that “the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached.”[^25] However, the majority explained that the notion of prejudice “informs the setting of the presumptive ceiling,” in the following terms:

Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” … This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.[^26]

[48] Where the Net Delay exceeds the presumptive ceiling of 30 months, as here, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.[^27] If the Crown cannot, the delay is unreasonable, and a stay will follow.[^28]

Exceptional circumstances

[49] “Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon.”[^29] “The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.”[^30]

Discrete events

[50] In Jordan, the first example that the Supreme Court gave to illustrate a discrete exceptional event was “medical or family emergencies.”[^31] In this case, as indicated above, the trial could not proceed as scheduled for June 24, 2013, as Mr. Windibank was ill the entire week. Accordingly, the matter was adjourned to the Assignment Court on July 12, 2013, to schedule a new trial date.

[51] At the Assignment Court, the court offered dates as of September 9, 2013, but Ms. Carroccia was not available. The matter was ultimately scheduled for the week commencing March 17, 2014. However, dates during the week of January 20, 2014, were offered by the court and were available for the defence but not for the Provincial Crown.

[52] Ms. Carroccia has conceded that this period of time should be treated as a discrete event for the purposes of the Jordan analysis but submits that the delay to be deducted is the four-and-a-half month period from September 9, 2013, when the court offered available dates, to January 27, 2014. Respectfully, I disagree on the latter point, as it excludes the period from the scheduled trial date in June 2013 until the offered dates in September 2013. In my view, the total period from June 24, 2013, to January 27, 2014, should be assessed as the delay resulting from the discrete event of Mr. Windibank’s illness. That period is seven months.

Remaining Delay

[53] In Coulter, the Court of Appeal’s summary of the Jordan framework indicates that one must subtract the delay caused by discrete events (here, seven months) from the Net Delay (59 months) to arrive at what the Court of Appeal termed “Remaining Delay.”[^32] In this case, the Remaining Delay is 52 months.

[54] I pause to note that the Remaining Delay here of 52 months is more than the “total delay” figure in almost every other s. 11(b) decision that has been rendered in the aftermath of Jordan.

Particularly complex cases

[55] The Coulter summary indicates that if the Remaining Delay exceeds the presumptive ceiling – which it obviously does here – then “the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.”[^33]

[56] All counsel are agreed that this is not a complex case. The delay here remains presumptively unreasonable.

The appellate delay

[57] One of the features of this case that requires particular attention is the treatment of the period of time following the dismissal of the charges by Quinn J. at the first trial on March 24, 2014, until May 27, 2015, when the Court of Appeal allowed the Crown’s appeal from the acquittal and ordered a new trial. This is the period of what has been called “appellate delay.” Here, it amounts to 14 months.

[58] Under the pre-Jordan framework, the leading case on appellate delay under s. 11(b) was R. v. Potvin, in which the Supreme Court of Canada held that appellate delay is not included in the s. 11(b) analysis.[^34] In Potvin, Sopinka J. for the majority held that, “s. 11(b) does not apply to delay in respect of an appeal from conviction by the accused, nor an appeal from an acquittal by the Crown.”[^35]

[59] The reasoning of Sopinka J. focused on the interpretation of the words “[a]ny person charged” in s. 11(b), from which he concluded that, as a general rule, “[a]ny person charged” under s. 11 does not include an accused person who is a party to an appeal.[^36] Generally speaking, the reasoning was that a person acquitted or convicted of a charge is no longer a person charged for the purposes of s. 11.[^37]

[60] In terms of how the s. 11(b) analysis should proceed where a new trial is ordered, Sopinka J. held that:

This does not mean that when there is an adjudication relating to a charge which is appealed, s. 11(b) is spent. If on the appeal the judgment is set aside and the matter is remitted for trial, the accused reverts to the status of a person charged. As stated by D.H. Doherty (now a justice of the Court of Appeal for Ontario) in “More Flesh on the Bones: The Continued Judicial Interpretation of s. 11(b) of the Canadian Charter of Rights and Freedoms” (1984), Canadian Bar Association — Ontario; Annual Institute on Continuing Legal Education, at p. 9:

Section 11(b) does not appear to operate at the appellate stage. Section 11(b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time. If, however, a new trial is ordered on appeal, or some other order is made directing the continuation of the trial proceedings, the constitutional clock should be rewound at the time of the order by the appellate court.[^38]

[61] The language of the operative phrase “the constitutional clock should be rewound” caused some confusion in the post-Potvin jurisprudence. Some lower courts took the position that the clock should be “rewound” to zero as of the date of the new trial, thus effectively excluding from the calculation of total delay the period of time preceding the appeal.[^39] However, the more authoritative position later emerged that the constitutional clock is not rewound to zero but, rather, rewound only to where it was before the appeal, thus including the period of time preceding the appeal in the s. 11(b) analysis.[^40]

[62] I have been unable to find any decision released after Jordan that has dealt with the treatment of appellate delay. That said, it is instructive to consider the comments of Watt J.A. in R. v. Manasseri. In that case, counsel agreed that the period of 18 months should be deducted from the gross total delay of 86 months to reach a total delay of 68 months.[^41] There, the accused Kenny had been discharged on assault causing bodily harm and manslaughter. The Crown moved to quash the discharge. The certiorari application was dismissed, but on the Crown’s appeal, the Court of Appeal allowed the appeal, quashed the discharge, and remitted the matter to the preliminary hearing.[^42]

[63] Watt J.A. discussed the proper treatment of the period consumed by the certiorari and appellate proceedings in the following terms:

As a result of the Crown’s application for certiorari and subsequent appeal, Kenny was not a “person charged with an offence” from December 9, 2008 until at least June 2, 2010 and, more likely, until his formal committal on August 12, 2010. In accordance with previous authority, counsel exclude from the total delay the 18 month period during which certiorari and appellate proceedings were on foot. See: R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at pp. 907-908.

In the circumstances of this case, I am content to proceed on the basis of counsels’ agreement, that is to say, with a total delay of 68 months. That said, I do not wish to be taken as having finally determined post-Jordan that, to use a compendious expression, “appellate delay” should be deducted in calculating the total length of time between the charge and the actual or anticipated end of the trial. Counsel did not join issue on the deductibility of appellate delay in their pre-Jordan submissions. Whether the period encompassed by the motion for certiorari and related appeals is deducted or remains included makes no difference to the location of these proceedings vis a vis the presumptive ceiling or upon whom settles the onus of rebuttal.

Quite understandably, Jordan is silent on the relevance of appellate delay to ascertainment of the total length of time between charge and the actual or anticipated end of trial. After all, the time between charge and verdict in Jordan did not include any prerogative remedy or appellate proceedings. What seems envisaged at the first step of Jordan is a simple mathematical calculation of the time lapse between two fixed events: charge and the end of trial. What seems to be required is an answer to a question: How long did it take from charge to verdict to complete this case? Implicit is the assumption that during this entire period the accused would be “person charged with an offence” under s. 11(b).

Despite leaving a final decision about the relevance of appellate delay to the Jordan framework to another day, I offer two observations about it in the circumstances of this case.

First, unlike this case, Potvin did not involve extraordinary remedy proceedings to review a discharge at the conclusion of a preliminary inquiry and an appeal thereafter. Potvin involved a Crown appeal from a stay of proceedings entered by a trial court. That said, the Criminal Code provides no right of appeal from a discharge, or for that matter, from a committal, at the conclusion of a preliminary inquiry. The only judicial review mechanism is to invoke the extraordinary remedy jurisdiction of the superior court and thereafter the rights of appeal conferred by s. 784(1) of the Criminal Code. It would seem incongruous to treat the time taken in pursuit of extraordinary remedies differently than that taken in appeals from convictions, acquittals or stays of proceedings as Potvin mandates.

Second, s. 11(b) may only be invoked by a “person charged with an offence”. Under Potvin, a person who is a party to an appeal is not a “person charged with an offence”: Potvin, at pp. 908-909. The same could be said of a person discharged at the conclusion of a preliminary inquiry. That person is not a “person charged with an offence” from the date of discharge until the discharge is set aside and committal ordered or a direct indictment preferred under s. 577 of the Criminal Code.

In the result, I am satisfied that the total time between charge and verdict — 86 months — should be treated as 68 months in accordance with the position taken by counsel. There is no basis upon which to deduct defence delay from that period.[^43]

[64] True enough, there is nothing in Jordan or its companion decisions that speak to the issue of appellate delay, which, as Watt J.A. observed, is quite understandable given that the procedural history of Jordan did not involve any appellate proceedings. The other side of that coin, however, is that there is nothing in Jordan that mandates or suggests a departure from the Supreme Court’s treatment of appellate delay in Potvin. In short, I agree with Mr. Manarin’s submission that Potvin continues to be dispositive of the treatment of appellate delay until such time as there is further and different guidance from an appellate court in the post-Jordan context.

[65] Thus, on balance, I agree with the position of the Crown that the period of appellate delay cannot, in effect, be counted against the state. Put differently, the accused ought not to be able to include in the calculation of unreasonable delay for the purposes of the Jordan analysis that period of time that was occasioned by appeal proceedings.

[66] Indeed, if that were not so, and if an accused were permitted to include the period of appellate delay as part of a claim of unreasonable delay, that may well be used as an inappropriate strategy by some accused persons to commence frivolous appeals merely for the purpose of “running out” the Jordan clock.

[67] That said, there is merit in the point that was made by McLachlin J., as she then was, in her dissenting judgment in Potvin, where she emphasized the seriousness of the position of a person who has been acquitted but is facing an appeal, as follows: “[t]he anxiety which an accused who has been acquitted faces while awaiting the possibility of a second trial must be considerable. … [T]he situation of an accused on an appeal from an acquittal is much closer to the situation of an accused awaiting trial than to a person who has not been charged.”[^44] In my view, the comments of the current Chief Justice suggest that, in circumstances like the present, at some point in the assessment there should be at least some regard for the totality of the delay, including the appellate period.

[68] Those same comments in the dissenting judgment in Potvin were advanced in criticism of the rationale offered by the majority decision of Sopinka J. in Potvin, that a person who is a party to an appeal is not a “person charged with an offence” for the purposes of s. 11 of the Charter.[^45] I note that the second observation of Watt J.A. in Manasseri would seem to echo if not embrace that same rationale of the Sopinka majority in Potvin that was so strongly criticized by the dissenting judgment penned by our current Chief Justice.[^46] I highlight that divide to underscore the need, as Watt J.A. touched on, for appellate guidance on the relevance of appellate delay under the current Jordan framework.

[69] However, for present purposes, consistent with the direction suggested by the comments of Watt J.A. in Manasseri following the majority in Potvin, I conclude that, in the circumstances here, the period of appellate delay in this case should be deducted from the total calculation of unreasonable delay.

[70] Again, the period of appellate delay in the instant case amounts to 14 months. Deducting that amount from the Remaining Delay of 52 months, one is left with 38 months, which is still significantly more than the presumptive ceiling. As Watt J.A. observed in Manasseri, “[w]hether the period encompassed by the [appellate delay] is deducted or remains included makes no difference to the location of these proceedings vis-à-vis the presumptive ceiling or upon whom settles the onus of rebuttal.”[^47]

Transitional exceptional circumstances

[71] The majority in Jordan held that the new framework applies to cases currently in the system, subject to two qualifications for cases in which the Remaining Delay exceeds the presumptive ceiling.[^48]

Jurisdictions with significant institutional delay

[72] One qualification was recognized for cases of moderate complexity before the courts in a jurisdiction with significant institutional delay problems. The majority in Jordan acknowledged that judges “in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality,” as Crown counsel would be constrained in judicial centres with systemic delay issues.[^49]

[73] That qualification does not apply to the instant case, as the court in Windsor does not suffer from significant institutional delay.[^50]

Reasonable reliance on the previous state of the law

[74] The other transitional exceptional circumstance recognized by Jordan was said to arise where “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 to the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice.[^51]

[75] This approach to transitional cases is intended to allow the parties and the court system some time to adjust to the new framework and reflects the majority’s acknowledgement that the new analytical framework established under Jordan represents a significant “departure from the law that applied to s. 11(b) applications in the past.”[^52]

[76] At the same time, the majority expressly disavowed any suggestion that the transitional provisions should be regarded as a “Charter amnesty.” The majority maintained that, “[f]or cases currently in the system, the s. 11(b) right will receive no less protection than it does now.”[^53] The court explained that, “the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system.”

[77] Not surprisingly, the Crown here places great emphasis on what it submits was the parties’ reasonable reliance on the law as it previously existed under the Morin framework. Indeed, most of the Crown’s factum is devoted to setting out a Morin analysis.

[78] The Crown submits that: “[i]n a case that arose prior to July 8, 2016, there would typically have been substantial reliance upon the now-overruled framework for determining what was a reasonable time to get a case to trial and what was not.”[^54] It further submits that: “[i]n accordance with the Morin line of jurisprudence, therefore, where it is found there was little or no actual prejudice attributable to the delay in the case, or the Accused made no efforts to ameliorate such prejudice, and where the case involves serious charges, these remain relevant factors in applying the transitional exception.”^55

[79] I do not deny that considerations such as prejudice and the seriousness of the offence, which often played a significant if not decisive role under the Morin framework, should inform the court’s determination of whether the parties’ reliance on the previous state of the law was reasonable. Indeed, that approach was expressly approved by the majority in Jordan.[^56]

[80] That said, I do not think it would be appropriate for the court, in assessing the parties’ reasonable reliance on the previous state of the law under Morin, to allow such considerations of prejudice, seriousness of the offence, etc., all of which were relevant under the Morin framework, to so overwhelm the Jordan transitional analysis that we, in effect, permit the previous test for unreasonable delay to continue to apply to cases currently in the system.

[81] In short, in my view, while it is important to be contextually sensitive to the parties’ reliance on the Morin framework, at the same time we cannot ignore the central fact that Jordan overruled and replaced the Morin framework.

[82] In saying that, I have not overlooked the very candid and pragmatic observations offered by Mr. Manarin, which I unreservedly accept, that there is a certain language that is used within the context of the criminal bar, and there are certain understandings that flow from the messaging of that language, all of which language, understandings, and dialogue between the Crown and members of the defence bar are essential for the efficient operation of the criminal justice system.

[83] And so I am not unsympathetic to the Crown’s argument that when defence counsel – not Ms. Carroccia, I would hasten to add – states, for example, that a given case “rises or falls on the warrant,” that type of language is used to convey a specific messaging, which is understood within the discourse of the criminal bar.

[84] Having said that, and without in any way detracting from the importance of the dialogue between Crown and defence counsel, but rather, indeed, promoting it, my own view is that the point of Jordan was to ensure that in the context of that dialogue between Crown and defence counsel, considerations of unreasonable delay under s. 11(b) would always be part of that dialogue and always on the agenda for discussion.

[85] Moreover, it has long been the law that what the Crown is required to do is remain vigilant in ensuring that its decisions on the conduct of a criminal prosecution not compromise the accused’s s. 11(b) rights.[^57] That obligation assumes increasing importance where the delay in bringing the accused to trial surpasses four, five, six years, and beyond.

[86] On balance, in my view, the approach adopted by the Supreme Court of Canada in Williamson, the companion case to Jordan, is instructive here.

[87] In Williamson, the accused was charged in January 2009 with historical sexual offences against a minor. The delay between the charges and the end of trial was approximately 35.5 months. The accused did not waive any period of this delay, and solely caused only one-and-a-half months of the delay. Subtracting the brief period of defence delay, the net delay was 34 months, which was still above the 30-month presumptive ceiling.

[88] Although the Supreme Court expressly recognized that the 34-month net delay presented a “close case,” it held that the transitional exceptional circumstance did not apply, and the delay was unreasonable.[^58] The court summarized its reasoning as follows:

Ultimately, we agree with the Court of Appeal that, while the s. 11(b) question in this case is “very difficult” (para. 64), looking at the big picture, the previous state of the law cannot justify the nearly three years it took to bring Mr. Williamson to trial on relatively straightforward charges. As the Court of Appeal observed, while the crimes committed by Mr. Williamson are very serious, “the balance weighs in favour of [his] interests in a trial within a reasonable time, over the societal interest in a trial on the merits” (para. 68). Although Mr. Williamson did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay that plagued the prosecution, and Mr. Williamson was reasonably proactive in attempting to move the matter along. Not even the absence of significant prejudice to Mr. Williamson’s Charter-protected interests can stretch the bounds of reasonableness this far.

[89] In my view, similar considerations apply to the instant case. In particular:

a. Looking at “the big picture” here, reliance on the previous state of the law under Morin cannot justify the more than six-and-a-half years it has taken to bring the applicants to trial on straight-forward charges.

b. While there is no doubt that the “drugs and guns” offences allegedly committed by the applicants are no doubt very serious, it certainly cannot be said that they are any more serious than the heinous crimes of historical sexual assaults against a minor as alleged in Williamson.

c. The balance weighs in favour of the applicants’ interests in a trial within a reasonable time over the public interest in adjudication on the merits of the alleged offences.

d. Although the applicants may not have suffered significant prejudice, the case against them was simple, and Ms. Carroccia was reasonably proactive on their behalf in attempting to move the matter along.

e. Not even the lack of significant prejudice, a factor upon which the Crown could previously rely, can possibly stretch the bounds of reasonableness to excuse a 79-month total delay or even a 38-month net Remaining Delay.

[90] On balance, I find that the Crown has failed in its onus to demonstrate that the time expended to complete the trial proceedings is justified by the parties’ reasonable reliance on the Morin framework that existed for the determination of s. 11(b) claims prior to Jordan. I am satisfied that the transitional exceptional circumstance does not apply, and that a net Remaining Delay of 38 months (or 52 months if appellate delay is not deducted) is unreasonable.

Conclusion

[91] I very much appreciate that the serious nature of the charges before the court strongly supports the societal interest in an adjudication of the alleged offences on their merits. Indeed, that was a significant consideration for the court when I ruled, earlier in this proceeding, that the defence application under ss. 8 and 24(2) of the Charter must fail and the evidence seized from the search of the applicants’ residential home must be admitted at trial.

[92] However, as the Supreme Court reminds us in Williamson, “the ultimate question of guilt or innocence has nothing to say about whether the time taken to try [an accused] was reasonable.”[^59] For just as society has an interest in an adjudication on the merits, society also has a fundamental interest in respecting Charter values and ensuring that the constitutional rights of all accused persons are not defeated by proceedings that linger in our courts for years. Considering the totality of the delay in this case, it is simply too much, and it is unreasonable.

[93] Accordingly, for all of these reasons, and notwithstanding the able argument of Mr. Pollock, as supplemented by Mr. Manarin, I conclude that the applicants have established on a balance of probabilities that their rights to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, have been infringed in the circumstances of the instant case. As a result, the application is granted, and the proceedings are stayed against the applicants pursuant to s. 24(1) of the Charter.

Original Signed by “Howard J.”

J. Paul R. Howard

Justice

Delivered Orally: February 3, 2017

CITATION: R. v. Windibank, 2017 ONSC 855

COURT FILE NO.: CR-12-2520-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AMY LYNN WINDIBANK and TODD JASON WINDIBANK

REASONS FOR RULING ON s. 11(b) CHARTER APPLICATION

Howard J.

Released: Oral Decision – February 3, 2017

[^1]: Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA].

[^2]: Criminal Code, R.S.C. 1985, c. C-46.

[^3]: R. v. Jordan, 2016 SCC 27, 335 C.C.C. (3d) 403 [Jordan].

[^4]: R. v. Williamson, 2016 SCC 28, 336 C.C.C. (3d) 1 [Williamson].

[^5]: R. v. Porter, 2016 ONSC 7173 (S.C.J.), at para. 3, per Pomerance J.

[^6]: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

[^7]: R. v. Coulter, 2016 ONCA 704, 340 C.C.C. (3d) 429, at para. 31 [Coulter].

[^8]: Jordan, at para. 5.

[^9]: Coulter, at paras. 31 and 55; and Jordan, at para. 96.

[^10]: See the Factum of the Respondents, dated December 14, 2016, at pp. 17-18, 21-22, 24, and 28.

[^11]: R. v. Windibank, 2014 ONSC 1767 (S.C.J.).

[^12]: R. v. Windibank, 2015 ONCA 387.

[^13]: Coulter, at paras. 34-41 [emphasis in original].

[^14]: Coulter, at para. 34; and Jordan, at para. 47.

[^15]: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 326 [Manasseri].

[^16]: R. v. Mannings, 2017 ONSC 440 (S.C.J.).

[^17]: R. v. Bishop, 2016 ONSC 7734 (S.C.J.).

[^18]: R. v. Jones and Schmidt, 2016 ONSC 7388 (S.C.J.).

[^19]: Coulter, at para. 35.

[^20]: Ibid., at para. 43; and Jordan, at paras. 61 and 63.

[^21]: R. v. Porter, at para. 51. In Porter, Pomerance J. held that the time incurred following the delivery of a defence alibi notice, including the Crown’s investigations and disclosure of new material, defence review of the new disclosure, etc., was better characterized as a discrete exceptional circumstance as opposed to defence delay because it was both “unforeseen and unavoidable” and such treatment of that period was “preferable in that it does not purport to assign blame for delay” (at para. 58).

[^22]: Manasseri, at para. 303.

[^23]: Coulter, at para. 44; and Jordan, at paras. 63-64.

[^24]: Jordan, at para. 65.

[^25]: Jordan, at para. 81.

[^26]: Ibid., at para. 54.

[^27]: Coulter, at para. 45.

[^28]: Jordan, at para. 47.

[^29]: Coulter, at para. 46; and Jordan, para. 69.

[^30]: Coulter, at para. 48; and Jordan, para. 71.

[^31]: Jordan, at para. 72.

[^32]: Coulter, at para. 38.

[^33]: Ibid., at para. 39.

[^34]: R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880 [Potvin].

[^35]: Ibid., at pp. 907-908.

[^36]: Ibid., at p. 908.

[^37]: Ibid., at pp. 910-911. The reasoning of the majority on the wording and context of s. 11(b) was strongly criticized by the three-person dissenting judgment of McLachlin J., as she then was, at pp. 886-893.

[^38]: Ibid., at pp. 912-913 [emphasis added].

[^39]: See, for example, R. v. Laflamme, [2002] O.J. No. 5584 (C.J.), at para. 16; R. v. Riopelle, 2013 ONCJ 253, at para. 12; and R. v. Smith (2014), 445 Sask. R. 143 (Q.B.).

[^40]: See, for example, R. v. Konnafis (1996), 16 O.T.C. 131 (Gen. Div.); R. v. Spencer, 2004 ONCJ 416, at para. 22; R. v. Owens, 2008 ONCJ 625, at para. 110; R. v. Barros, 2014 ABCA 367, 584 A.R. 362; R. v. Dias, 2014 ABCA 402, 588 A.R. 102; R. v. Nikkel, 2009 MBCA 8, 240 Man. R. (2d) 1; R. v. Follows, 2013 ONSC 7771 (S.C.J.); and R. v. Fitts, 2015 ONCJ 746, at para. 5, per Paciocco J.

[^41]: Manasseri, at para. 333.

[^42]: Ibid., at para. 334.

[^43]: Ibid., at paras. 335-341 [emphasis added].

[^44]: Potvin, at p. 890.

[^45]: Ibid., at pp. 886-893.

[^46]: Manasseri, at para. 340.

[^47]: Ibid., at para. 336.

[^48]: Jordan, at para. 95; and Coulter, at paras. 56-57.

[^49]: Ibid., at para. 97.

[^50]: R. v. Kemp, 2016 ONSC 7572 (S.C.J.), at para. 12, per Patterson J.

[^51]: Jordan, at para. 96; and Coulter, at 56.

[^52]: Jordan, at para. 93.

[^53]: Ibid., at para. 103.

[^54]: Factum of the Respondents, dated December 14, 2016, para. 9.

[^56]: Jordan, at para. 96.

[^57]: Manasseri, at para. 373.

[^58]: Williamson, at para. 25.

[^59]: Williamson, at para. 32 [emphasis in original].