COURT FILE NO.: CRIMNJ(F)788/17 DATE: 2019 03 08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – NIGEL COUTINHO

O. Melnik, for the Crown Respondent G. Pannu, for the Applicant

HEARD: January 28, 2019

REASONS FOR DECISION ON s. 11(b) APPLICATION

J.M. Woollcombe J.

Introduction

[1] The applicant, Nigel Coutinho, is charged with four counts of trafficking in a controlled substance, contrary to s. 5(1) of the Controlled Drugs and Substances Act, one count of trafficking in a firearm, contrary to s. 99(1)(a) of the Criminal Code and one count of trafficking in ammunition, contrary to sop 99(1)(a) of the Criminal Code. He is scheduled to have a five day trial in the Superior Court from April 8 to 12, 2019.

[2] Mr. Coutinho applies under s. 24(1) of the Charter for a stay of proceedings on the basis of unreasonable delay, and a violation of s. 11(b) of the Charter.

[3] For the reasons that follow, the application is allowed and the charges are stayed.

The Legal Framework

[4] Since July 8, 2016, the legal framework to be applied to determining whether there has been a violation of an accused’s s. 11(b) right is that set out in R. v. Jordan, 2016 SCC 27. The approach was summarized by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31 beginning at para. 20:

20 The new framework established in Jordan for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts ( Jordan, at para. 46).

21 The first step under this framework entails "calculating the total delay from the charge to the actual or anticipated end of trial" ( Jordan, at para. 60). In this case, an information was sworn against Mr. Cody on January 12, 2010, and his trial was scheduled to conclude on January 30, 2015. This makes the total delay approximately 60.5 months.

22 After the total delay is calculated, "delay attributable to the defence must be subtracted" ( Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then "depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling" ( Jordan, at para. 67 (emphasis in original)).

23 If the net delay falls below the ceiling:

... then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

[Emphasis in original.]

( Jordan, at para. 48)

24 If the net delay exceeds the ceiling:

... then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

( Jordan, at para. 47)

25 Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay ( Jordan, at paras. 95-96).

[5] It is important to understand what is meant by the phrase “defence delay” as explained in the appellate authorities. There are two types of defence delay:

a. “delay waived by the defence” and

b. “delay that is caused solely by the conduct of the defence” ( Jordan, at para 61; Cody at para. 29).

[6] Net delay over the ceiling of 30 months for cases in the Superior Court is presumptively unreasonable. That presumption may be rebutted by the Crown if it can establish the presence of “exceptional circumstances” ( Jordan at para. 47).

[7] “Exceptional circumstances” in this context refers to circumstances that are outside the Crown’s control in the sense that they are both reasonably unforeseen or reasonably unavoidable and that Crown counsel cannot reasonably remedy the delay from the circumstances once they arise. They need not be rare or entirely uncommon. While the list of circumstances that may be “exceptional” is not closed, generally, exceptional circumstances fall into two categories: discrete events and particularly complex cases ( Jordan at para. 71).

[8] While the Jordan framework applies to cases that were already in the system at the time of its release, the Supreme Court qualified it. Of relevance here is that for cases in which the ceiling is exceeded after defence delay and exceptional circumstances are deducted, a transitional exceptional circumstance may arise where the Crown can satisfy the court that the delay is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual analysis as to what caused the delays. However, if the parties have had time following the release of Jordan to correct their behaviour and the system has had some time to adapt, the trial judge should take this into account ( Jordan para. 96; R. v. Williamson, 2016 SCC 28 at para. 24; R. v. Coulter, 2016 ONCA 704 at paras. 56-57).

Analysis

Total delay

[9] The total delay in this matter spans from June 30, 2011, the date on which Mr. Coutinho was charged, to April 12, 2019, the date on which his trial is anticipated to be completed. This is 2,843 days, or 93 ½ months, or 7 years and 9 ½ months.

Defence Delay

[10] The issue of how much of the delay was caused by the defence is at the heart of the dispute between the parties.

[11] There are significant periods of time that are not in dispute as being defence delay. In order to set out what I have determined to be, or not to be, defence delay, I shall review what happened over the course of the proceedings and indicate where I have found defence delay.

The period up until the first scheduled preliminary inquiry

[12] The applicant was charged with two others on June 30, 2011. The parties agree that the time from the date from June 30, 2011 until December 16, 2011 is part of the time to be included in the delay calculation. By that point, applicant had retained counsel, Mr. Christie, had been released on bail, and had received 6 volumes of disclosure.

[13] Following the appearance on December 16, 2011, the defence waived the delay until March 16, 2012. This is 91 days and is agreed by the parties to be defence delay. Over this period, there were a number of court appearances. Repeatedly, counsel asked for adjournments and indicated that he wished to have discussions with the Crown.

[14] On March 16, 2012, Mr. Christie indicated that he had contacted the Crown’s office to have a Crown pre-trial but been told that no Crown was available. The matter was adjourned to April 13, 2012. On that date, a judicial pre-trial (JPT) was scheduled for May 11, 2012 and a return date set for June 1, 2012. The parties agree that this time should be included in the delay calculation.

[15] On June 1, 2012, Mr. Christie asked for the matter to be adjourned until June 22 and indicated that the matter was “on a resolution track”. He waived s. 11(b). On the June 22, 2012 appearance, an articling student appeared for Mr. Christie and sought an adjournment to June 29, 2012. On June 29, the applicant did not appear in court and the presiding justice refused to adjourn the matter because there had not been a designation filed. The matter was traversed to another court with Mr. Christie indicating that he would have his client attend. Neither the applicant nor counsel attended in that court and the matter was adjourned to July 13, 2012. The parties agree that the delay from June 1 to July 13, 2012 is defence delay of 42 days.

[16] On July 13th, a student attended on behalf of Mr. Christie and sought a two week adjournment so counsel could have discussions with the Crown. The Crown expressed concerns, given that disclosure had been provided in April, 2012, and asked that any further discussions take place before the return date. The matter was adjourned to July 27, 2012.

[17] On July 27th, Mr. Christie indicated that the case was “on a resolution track” and that he would be having a meeting with the Crown “within the next couple of days”. When the Justice indicated concern that the case had gone over “many times”, Mr. Christie said that “there are some special circumstances”. The matter was adjourned to August 17, 2012.

[18] The parties agree that the delay from July 13 to August 17, 2012 is defence delay of 35 days.

[19] On August 17, 2012, Mr. Christie sent a note indicating that he was sick and asking for the matter to be adjourned 1 week. The matter went over to August 24th. The parties agree that this is an exceptional circumstance and that a period of 7 days should be deducted from the overall delay.

[20] On August 24, 2012, Mr. Christie waived s. 11(b) and asked for a three week adjournment. The Crown asked that Mr. Christie contact him the following week in order to move discussions forward. The parties agree that the delay from August 24 to September 14, 2012 is defence delay of 21 days.

[21] On September 14, 2012, Mr. Christie appeared and indicated that the parties were “heading toward resolution”. Counsel for the co-accused did not attend but asked that the matter be adjourned to September 21st so counsel could set new JPT dates. Mr. Christie did not waive s. 11(b) and said that he wanted instructions that the other counsel were to attend on the next date as the matter could not move forward. The parties agree that the delay from September 14 to 21st, 2012 should be included in the delay calculation.

[22] On September 21, Mr. Christie again indicated that the case was on “resolution track” and asked that it be adjourned to October 12. S. 11(b) was waived. On October 12th, Mr. Christie again sought an adjournment asking that the matter return on November 2, 2012 and indicating that the case was “on resolution track” and that he was having discussions with the Crown’s office. Section 11(b) was waived to November 2nd. Counsel agree that the time from September 21 to November 2, 2012 is defence delay of 43 days.

[23] On November 2, 2012, Mr. Christie attended at court but the co-accused and their lawyers were not present so the matter was adjourned for one week to November 9, peremptory on all parties to set a JPT. Mr. Christie indicated that the co-accused’s counsel needed to address a conflict issue on the next date and said that it was his position that the co-accused’s counsel had to get off the record for both of the co-accused. The parties agree that this delay should be included.

[24] On November 9, 2012, there was a JPT with all parties. Mr. Christie then said “we’re asking for two weeks to adjourn for Mr. Coutinho’s matter”. The Crown indicated that she was prepared to set a date for the preliminary inquiry, and that the Crown was anxious to proceed. While the transcript of the appearance before Justice Blacklock is not complete, it appears that there remained a conflict issue. The matter was adjourned to November 23rd so that there could be a further JPT.

[25] On the basis of the revised charts provided to me by the parties after the oral hearing, I understand that the parties agree that this 14 day delay from November 9 to 23, 2012 is as a result of exceptional circumstances resulting from the conflict issue and so should not be included.

[26] On November 23, Mr. Christie appeared. The co-accused were not in court, nor was their counsel. Justice Cowan indicated that he had conducted a JPT that morning and that the applicant was anxious to move the matter forward and to set a date for a preliminary inquiry, but that this could not be done without input from counsel for the co-accused. The matter was adjourned to December 21. On December 21, while the entire transcript has not been filed, it appears that the matter was again adjourned for a further JPT and to set dates for a preliminary inquiry. On January 4, 2013, the parties agreed to adjourn the matter to January 25 so that Justice Cowan could case manage it. It was adjourned again on January 25, with an indication that Justice Cowan was case managing it and that there would be a further JPT on February 8. On February 8, it was adjourned again, with the Crown indicating that “we are kind of in a holding pattern, Your Honour. Mr. Christie wants to set a prelim date for Mr. Coutinho.” The matter was adjourned to March 8, at which time it was adjourned again for a further JPT with Justice Cowan on March 22.

[27] Finally, on March 22, the matter was before Justice Cowan. It is not clear that a JPT took place, and not all of the appearance before Justice Cowan has been transcribed. What is transcribed is Mr. Christie indicating that he was prepared to set a preliminary inquiry date and that he had been trying to get the matter moving since December. The Crown indicated that it was also prepared to set preliminary inquiry dates but said that “given the situation”, it would be best to adjourn for two weeks. The matter went to April 5, 2013.

[28] On April 5, the Crown indicated that “we really must set a date on this matter today, or traverse the matter to Justice Cowan’s court to explain why we’re not setting the date.” There were Informations missing and so the matter was adjourned to April 12. Again, some of the discussions in court have not been transcribed. But the matter went over to April 12, 2013 to set dates for the preliminary inquiry.

[29] The parties agree that all of the time from November 23, 2012 to April 12, 2013 should be included in the delay.

[30] On April 12, 2013, while the entire transcript has not been produced, it appears that the accused was not present. Mr. Christie asked that the matter be adjourned to April 19, 2013. The Crown agreed to the adjournment request for the week so that a date could be set for the preliminary inquiry.

[31] At the oral hearing, both sides agreed that this time should be included in the overall delay. When the revised charts were filed, the Crown position changed on the basis that the defence sought the adjournment. While the transcript does not make entirely clear what happened, I cannot conclude that this delay was defence delay and so include this 7 days in the overall calculation.

[32] Mr. Coutinho was arrested on new charges and had a bail hearing. Mr. Christie asked on April 15, 2013 that his new charges be brought before the court on April 19 with the federal charges.

[33] On April 19, 2013, it became clear that despite there having been multiple pre-trials, there had not been a decision made as to how long the preliminary inquiry would take. In addition, it appears that the Crown still had two Informations and agreed that the charges should be put onto one Information. The matter was adjourned to May 3 to set a date for the preliminary inquiry, peremptory on the Crown to have a new Information before the court.

[34] Both sides agree that this two week delay from April 19 to May 3, 2013 should be included. I agree that this was not defence delay. At no point on April 19 did the Crown ask for the Court to set dates. Instead, counsel agreed that it would have a new Information for the next date. This time should be included.

[35] On May 3, Mr. Christie did not attend at court, but sent an articling student. It appears from the limited transcript that has been filed that it was the defence that asked for a two week adjournment to set the dates for the preliminary inquiry. The matter was adjourned to May 17. In my view, it was the defence that was not prepared to set a date and the time from May 3 to 17, 2013 is defence delay of 14 days.

[36] On May 17, 2013, the preliminary inquiry was set for February 20, 2014. The first date offered was January 16, 2014, a date on which the Crown was available but the defence was not. The parties agree that the period from May 17, 2013 to February 20, 2014 should count in the delay. They also agree that the delay from January 16 to February 20, 2014 is defence delay of 35 days.

The delay from the first scheduled preliminary inquiry to the second scheduled preliminary inquiry

[37] The preliminary inquiry did not proceed on February 20, 2014. The Crown indicated that the applicant was to be severed from the co-accused. She further indicated that the applicant was going to be “putting his matters over to a date into a federal court on a Friday pending possible resolution or waiving committal to Superior Court”. Mr. Christie was asked to choose a date for the matter to return and asked for it to come back on March 28, 2014, 36 days later.

[38] The applicant initially said that this time should count in the Jordan calculation because it was the Crown that brought the severance application after the resolution discussions. The Crown says that it is impossible to tell from the transcript why the applicant was being severed. But, the submission is made that in the months that followed, there were repeated waivers of s. 11(b), and that what was occurring was that the applicant and his counsel were looking for more time to resolve the matter.

[39] In his revised chart, the applicant says that this period is 36 days of defence delay. I agree.

[40] While the record is not nearly as clear as it might be, I infer from both the comments of the Crown and from the fact that it appears that the applicant was not ready for a preliminary inquiry for the months that followed that the applicant was not prepared to go ahead with his preliminary inquiry and wanted the matter adjourned for further resolution discussions. In my view, the defence conduct in the period that followed showed “a marked indifference to the delay” ( Cody at para. 32). Accordingly, I find that this delay of 36 days is defence delay.

[41] From March 28, 2014 until January 2, 2015, the matter was spoken to and adjourned multiple times (April 25, 2014, May 23, 2014, June 6, 2014, June 13, 2014, and July 4, 2014). On each date, it was the defence that requested the adjournment. On each occasion, s. 11(b) was waived. It is clear from the comments made at these appearances that Mr. Christie viewed the case as “on track to resolution”, that he was meeting with the Crown, that discussions were continuing throughout this period and that the defence had “no issue with delay”. The parties agree that this period from March 28, 2014 to January 2, 2015 is defence delay of 280 days.

[42] On January 2, 2015, Mr. Christie indicated that he needed to have a meeting with the Crown to have some discussions about resolution. He again said that the matter was “on a resolution track” and asked that it be returned on January 30th as he had a jury trial between the following week and the end of the month. The Crown appearing in Court indicated that the Crown who was dealing with the matter had some further information that he needed to check and to have further discussions with Mr. Christie so she was content for the matter to go over.

[43] While there was no express waiver of s. 11(b), the parties agree that this delay to January 30 is 28 days of defence delay.

[44] On January 30, 2015, Mr. Christie requested an adjournment as he was going to have a meeting with the Crown “to find out the final issues”. Counsel asked that the matter go to February 20, 2015. The parties are agreed that this is defence delay of 21 days.

[45] On February 20, 2015, the Crown indicated that the matter was “working towards resolution as I understand it”. Mr. Christie asked if it could come back for a judicial pre-trial. It was adjourned to March 20, 2015, 29 days later for a JPT.

[46] The applicant submits that this delay should be included because the Crown agreed that there should be a JPT. The Crown says that it was the defence who requested the JPT and that it was, as it had been for months, the defence that wanted the adjournment for further resolution discussions.

[47] In my view, this is defence delay of 29 days. The defence made the request for the matter to be adjourned. There had been waivers by the defence of the period since the date on which the preliminary inquiry had first been adjourned. And the defence asked for an adjournment on the next appearance. In my view, given the manner in which it was the defence that continued to seek adjournments in order to work towards resolution, this delay has to be as a result of the decisions of the defence.

[48] Beginning on March 20, 2015, and continuing through to May 8, 2015, there were further adjournments at the request of Mr. Christie so that he could have resolution discussions with the Crown. On one occasion (April 17, 2015), Mr. Christie waived s. 11(b) and indicated, when Justice Atwood commented on how old the case was, that s. 11(b) was not in issue. By May 1, 2015, Mr. Christie indicated that the matter required a further JPT in order to set a date for the preliminary inquiry as the resolution discussions had not been successful When asked if he wished to set the discovery date, it was Mr. Christie who said that he thought that a JPT was needed. The matter was set for a JPT on May 8, 2015.

[49] The parties agree that all of the delay from March 20 through to May 8, 2015 is all defence delay of 49 days.

[50] On May 8, 2015, Mr. Christie requested an adjournment to May 22, 2015 so that a JPT could be set. Crown counsel made the submission that the matter was “really dated”. He said that his understanding was that the case was headed to resolution but that it had been headed that way for months. He further indicated that the Crown’s position had been conveyed to the defence about a year before so that either it had to resolve in short order or a date should be set for a preliminary inquiry. Mr. Christie indicated that he anticipated setting a preliminary inquiry as his client’s position was that the Crown’s position “wasn’t the most reasonable”. He further indicated that there had been a “s. 11(b) waiver expressed as we’re moving forward”. As the May 22, 2015 date was not available due to a Crown conference, the matter was adjourned to May 28, 2015 with the direction from the court that this was the “last kick at the can” and that there should either be resolution that day or a date set.

[51] The Crown’s position is that no further JPT was required, as the defence knew the Crown’s position, and that the preliminary inquiry ought to have been set that day. The Crown’s position is that all of the delay to the next date is, therefore, defence delay. The applicant’s position is that the defence requested the delay, and that there is 14 days of defence delay, but that the period from May 22 to May 29 should be included because the court was not available.

[52] The Crown did not take the position in court on May 8th that a preliminary inquiry should be set that day. Crown counsel appeared to agree that the matter could go over for another JPT. Yet the court was not available on May 22nd. In my view, the delay from May 22 to 29th should be included. But, the delay from May 8 to 22nd is 14 days defence delay.

[53] On May 29, 2015, three days were set for a preliminary inquiry, beginning on January 27-29, 2016. The verification of trial provided by the trial coordinator form indicates that the first available date offered to the defence was January 4, 2016. The applicant’s counsel was not available until January 27th.

[54] The parties agree that the period from January 5, 2016, the first date offered for the preliminary inquiry and January 27, 2016, the date set, is 22 days of defence delay because Mr. Christie was not available.

[55] It is the applicant’s position that the delay from May 29, 2015 to January 5, 2016, which is 221 days, should be included in the overall calculation.

[56] It is the Crown’s position that all of the delay from the date of the first preliminary inquiry on February 20, 2014 to the next possible date for the preliminary inquiry of January 5, 2016, was defence delay. This submission rests on the fact that it was the applicant who asked for the first dates to be vacated, the applicant which then sought to adjourn the proceedings over the period that followed up until May 2015, and the applicant who, ultimately, was not ready to proceed with the preliminary inquiry in January 2016.

[57] Whether or not this period from May 29, 2015 to January 22, 2016 is defence delay is of some considerable significance on this application. At the oral hearing, I specifically requested that counsel subsequently provide to me any authorities that assisted with the determination of how to characterize delay caused as a result of ongoing discussions that do not lead to resolution. Each has indicated that the most helpful authority is Cody, although the Court in that case did not address this particular scenario.

[58] In Cody, the Court discussed at paragraphs 31-33 the fact that defence decisions to take certain steps may attract judicial scrutiny. There is a need to look at the particular conduct or action, in context, to determine whether or not it was legitimate. Inaction that is not legitimate may be the cause of defence delay as the corollary of the right to be tried in a reasonable time is that there is a “responsibility to avoid causing unreasonable delay”.

[59] I have found that the vast majority of the period after the initial preliminary inquiry was adjourned from February 20, 2014 until a new date was set in May 2015, is attributable to the applicant. Indeed, counsel agree that this was defence delay. In considering whether the period from May 29, 2015 to January 5, 2016 should be counted in the overall delay, I accept the Crown’s position that I should consider what happened in January 2016 to see whether it reflects that the defence was never ready to proceed.

[60] On January 22, 2016, the preliminary inquiry dates were again vacated because the parties thought that the matter was on a resolution track. It is clear from the appearance that day that both parties agreed that the preliminary inquiry should be adjourned. It was certainly not the case that the Crown was insisting that the matter proceed. Indeed, when Botham J. specifically raised with the parties her concern about vacating the preliminary inquiry dates, the Crown indicated that the defence was actively seeking to resolve the matter. I cannot conclude from the transcripts that this is a case in which the defence was never ready to proceed with the preliminary inquiry in the first place. Accordingly, I cannot conclude that all of the delay from May 29, 2015 to January 22, 2016 is defence delay. The record reflects that a second preliminary inquiry was being set because the discussions that both parties agreed to engage in further resolution, necessitating adjourning. Both parties wanted to set new dates. I find that the delay that was caused by setting new dates should be included.

The delay from the second scheduled preliminary inquiry to the third scheduled preliminary inquiry

[61] As I have indicated, the matter was brought forward from the preliminary inquiry date of January 29, 2016 and spoken to on January 22, 2016. At that time, the preliminary inquiry dates were vacated. The matter was adjourned to February 5, 2016.

[62] At the January 22, 2016 date, Crown counsel clearly indicated on the record that it was his understanding that s. 11(b) was not an issue with the adjournment of the preliminary inquiry. While counsel for the applicant did not say anything, neither did he disagree that s. 11(b) was not an issue.

[63] The Crown says that the delay from January 22, 2016 to February 5, 2016 was defence delay. The applicant’s position is that this delay counts in the overall time. I take Mr. Christie’s apparent acceptance that s. 11(b) was not an issue, in the circumstances of the adjournment, as an implicit waiver of s. 11(b) until February 5th and find that this is 14 days of defence delay.

[64] Mr. Christie did not attend at court on February 5, 2016. The matter was adjourned to February 19, 2016, at which point defence counsel asked for a further adjournment to March 11, 2016.

[65] The parties are agreed that the delay from February 5, 2016 to March 11, 2016 is 35 days of defence delay.

[66] On March 11, 2016, new preliminary inquiry dates were set of November 21, 22 and 23, 2016. This is a total delay of 255 days. The applicant was offered May 16, 2016 as the first available date. Counsel was not available until October 3, 2016.

[67] The applicant says that the delay from March 11 to May 16, 2016 should be included, that the period from May 16 to October 1, 2016 is defence delay of 140 days and that the period from October 3 to November 21, 2016 should be included.

[68] The Crown’s position is that all of this delay is defence delay because the record reflects that the defence was not, in fact, ready to proceed with the preliminary inquiry when it was set to begin on November 21, 2016.

[69] In my view, there is merit in the Crown’s position that all of the delay caused as a result of the adjournment of the preliminary inquiry from January 2016 until the new dates in November 2016 are defence delay. This includes not just the period between the first date offered to the defence and the date set (May 16 to November 21, 2016) but, instead, all of the delay caused as a result of the preliminary inquiry not proceeding in January 2016.

[70] I reach this conclusion because I accept that there is some considerable force in the position that when a preliminary inquiry is set, and then adjourned because neither counsel, nor the accused, attends as required, and the preliminary is then vacated, it cannot be said that the accused was in fact ready to proceed when the dates were set for the preliminary inquiry: R. v. Belchevski, 2012 ONSC 6158 at paras. 24-26.

[71] Accordingly, in my view, all of the delay from the March 11, 2016 until November 21, 2016 is 255 days of defence delay.

The delay from the third scheduled preliminary inquiry to the discovery

[72] As indicated, on November 21, 2016, the date the preliminary inquiry was to begin, neither Mr. Christie nor his client were present. The matter was adjourned several times between November 21 and February 10, 2017. In that period, the applicant advised that Mr. Christie was no longer his lawyer, although Mr. Christie had not applied to be removed as counsel. Duty counsel appeared for the applicant on some of the return dates. On January 13, 2017, Mr. Pannu appeared for the first time and sought an adjournment to make a Legal Aid application and obtain disclosure. Both parties agree that the delay from November 21, 2016 to February 10, 2017 is 81 days of defence delay.

[73] Over the period from February 10 to May 5, 2017, Mr. Pannu continued to request adjournments. These were in order to await a decision from Legal Aid, to review the disclosure and to confirm that he was retained. The parties agree there was 84 days of defence delay.

[74] On May 5, 2017, an agent appeared for Mr. Pannu and requested that the matter be adjourned for one week, indicating that s. 11(b) would be waived. The Crown indicated that she had conducted a pre-trial with Mr. Pannu the day before and that the defence wished to set another preliminary inquiry date, which was to happen on the return date. Crown counsel was asked if there had been a JPT and whether a judge had signed off on the time estimate of three days. She indicated that there had been several, but with previous counsel. The judge said that there needed to be another JPT with new counsel, given that three days were being requested. A JPT was set for June 5, 2017, and the matter was returnable on June 9, 2017 with the applicant.

[75] The applicant says that the time awaiting the JPT is included as the court required the JPT before the preliminary inquiry could be set. The Crown says that that the delay is defence delay, caused by a change in counsel, which re-set the process. The Crown says that the accumulation of time that results from a change in counsel should be attributable to the actions of the defence.

[76] I agree with the Crown. While the court did require the JPT, it was only because the applicant had a change in counsel. I cannot see how a delay in setting a JPT that is necessitated by the applicant’s decision to change counsel could be anything other than defence caused delay. I attribute the delay of 35 days to the defence as a result of the choice to change counsel.

[77] On June 9, Mr. Pannu indicated that he was seeking an adjournment of three weeks to obtain instructions from his client following the JPT. An adjournment was granted until June 30 and another adjournment was granted to the defence at that time, with the matter returning on July 7, 2017. The parties agree that this delay from June 9 to July 7, 2017 is defence delay of 28 days of defence delay.

[78] On July 7, 2017, the defence was in a position to set dates for the preliminary inquiry but the Crown sought a one week adjournment so that the assigned Crown could be present when dates were set. The parties agree that the one week delay in included. The matter went to July 14, 2017.

[79] On July 14, 2017, the discovery was set for October 4, 2017. The first date available was August 14, 2017, but the Crown was not available.

[80] In the oral hearing, the Crown’s position was that the entire time period was defence delay as a result of the applicant retaining new counsel. On the new chart filed after the oral hearing, the Crown position is that there are 31 days of defence delay and that 52 days should be included. The applicant’s position is that there were 82 days of delay that should be included.

[81] I see no basis upon which to say that the delay in setting the discovery hearing was as a result of the actions of the defence. The date set was the first day on which the Crown and court were able to proceed. The discovery did proceed that day. This time should be counted.

[82] On October 4, 2017, the discovery began and the matter was adjourned to the following day to continue. On October 5, 2017, the applicant failed to attend at court. A new date was set for October 31, 2017. Again on that day the applicant failed to attend and the matter was adjourned to November 17, 2017. The parties agree that the delay from October 5 to November 17, 2017 is 43 days of defence delay.

The delay from committal to trial

[83] On November 17, 2017, the discovery concluded and the applicant was committed to stand trial. The matter was adjourned to Superior Court Assignment Court on December 15, 2017. The parties agree that the delay from November 17 to December 15, 2017 should be included.

[84] In December 15, 2017, the trial was set for May 14, 2018. The first trial date offered was February 20, 2018, but counsel for the defence was not available.

[85] The applicant says that the delay from December 15, 2017 to February 20, 2018 should be included.

[86] The Crown says that the fact that counsel for the applicant was removed from the record on March 5, 2018 indicates that the applicant was not, in fact, ready to proceed with his trial when the date was set. For this reason, the Crown says that all of the delay between December 15, 2017 and March 5, 2018 is defence delay. In the alternative, the Crown submits that only the period from December 15, 2017 to February 20, 2018 should be included.

[87] It appears to me that Mr. Pannu conducted a JPT on behalf of the applicant on February 5, 2018, after the trial was set. The matter was adjourned at that time to February 26, 2018 for a further pre-trial. I cannot conclude, on the basis of the record, that defence counsel was not ready to proceed when the date was set. Accordingly, this period up to March 5, 2018 should be included.

[88] On March 5, 2018, Mr. Pannu applied to be removed as counsel of record. The parties are agreed that all of the delay after March 5, 2018, up to April 8, 2019, the date on which the trial is to begin, is all defence delay of 399 days.

[89] The remaining days, of April 8 to 12, 2019 is included as it is trial time.

Total defence delay / exceptional circumstances

[90] Adding all of the delay I have found to be defence delay and exceptional circumstances results in 1755 days which must be deducted from the total delay of 2843 days. This results in a total delay of 1088 days. This is 2 years 11 months and 3 weeks or 35.76 months. Any way it is counted, it is over the presumptive ceiling of 30 months.

Transitional Cases

[91] Because the delay is over the presumptive ceiling, and because the charges were laid before the Supreme Court of Canada’s decision in Jordan, this case is a transitional case in which the court must conduct a contextual analysis in order to determine whether the Crown has established that the time taken is justified based on the reasonable reliance on the law as it previously existed. If the parties have had time since the release of Jordan to correct their behaviour and the system has had time to adapt, this must be considered.

[92] Neither party has undertaken an analysis of the reasons for the delay as was contemplated in R. v. Morin, [1992] 1 S.C.R. 771. I can only assume that the applicant did not do so because it is for the Crown to rebut the presumption that the delay to trial is unreasonable. The Crown did not do so because in its analysis, the total delay was under 30 months, and so presumptively reasonable.

[93] As I have concluded that the total delay is over 30 months, and that it falls to the Crown to justify that delay, I must assess whether the Crown can rebut the presumption that the delay was unreasonable.

[94] The relevant considerations in informing whether there are transitional exceptional circumstances include:

a. the complexity of the case;

b. the period of delay in excess of the Morin guidelines;

c. any response by the Crown to institutional delay;

d. any defence efforts to move the case along; and

e. prejudice to the accused.

See: R. v. Faulkner, 2018 ONCA 174 at paras. 174-183; R. v. Gopie, 2017 ONCA 728 at para. 178; Williamson at paras. 26-30.

[95] I begin by observing that this case cannot be considered a complex one. While there were co-accused, the accused is now charged on charged alone on the indictment. The trial is expected to be five days. There are no pre-trial motions. There is nothing complicated about the allegations or the forthcoming trial. Nor have there been issues that can fairly be described as complicated in the last eight years.

[96] Next, I consider whether the institutional delay in this case exceeded the Morin guidelines of between 14 and 18 months for matters proceeding in the Superior Court.

[97] This requires consideration of the Morin factors. Morin required the court to balance four factors in determining whether delay was unreasonable:

a. the length of the delay;

b. defence waiver;

c. the reasons for the delay including the inherent time requirements, defence delay, Crown delay, institutional delay and other reasons for the delay; and

d. prejudice to the accused.

[98] Under Morin, institutional delay within a total of 14 to 18 months was generally found to be reasonable.

[99] In this case, the overall delay is 93 ½ months which, on any analysis, calls for scrutiny.

[100] There are many periods in which the defence waived the delay, as set out above.

[101] The more challenging issue in this case is how much of the delay was institutional, as opposed to neutral or defence delay.

[102] The charges were laid on June 30, 2011. Between then and December 16, 2011, disclosure was made, counsel retained and a bail hearing conducted. This is intake time and neutral.

[103] The defence waived the delay from December 16, 2011 to March 12, 2012. A JPT was then set for June 1, 2012. While there were clearly discussions between counsel and the Crown that were continuing, it seems to me that the delay in obtaining a JPT at this stage, given those discussions, should be seen as inherent time and neutral.

[104] The delay from June 1, 2012 until November 23, 2012 is, in my view, either defence delay or inherent delay. Over this period, Mr. Christie continued to ask that the matter be adjourned so that resolution discussions could continue. Some of the delay was to address a conflict issue that arose because of the co-accused. Certainly, in my view, none of this delay was Crown or institutional delay.

[105] On November 23, 2012, a JPT was conducted and the applicant appears to have wanted to set dates for a preliminary inquiry. This could not be done without input from counsel for the co-accused. There were several appearances, ultimately resulting in an adjournment to May 3, 2013 to set dates. I think the record reflects a clear desire on the part of the applicant to set dates for a preliminary inquiry as of March 22, 2013. I view the delay from then until May 3, 2013 as institutional delay. During this time period, the applicant’s position appears to have been that he was prepared to set dates. For various reasons, including that the number of days needed had not been determined and that there were still two Informations before the court, the Crown was content to have the matter repeatedly adjourned. This is 42 days of institutional delay.

[106] The delay in setting the dates on May 3, 2013 is clearly defence delay as a student sought the adjournment on behalf of Mr Christie.

[107] On May 17, 2013, the preliminary inquiry was set for February 20, 2014, with the first date available to the court being January 16, 2014. This is 247 days of institutional delay.

[108] This first scheduled preliminary inquiry was adjourned so that resolution discussions could continue. These discussions continued over the period until May 29, 2015. For some of these periods, there was an express waiver of s. 11(b). For other periods, counsel for the applicant has agreed that the delay was defence delay. The only period of time that I found was not defence delay was the period of 14 days between May 8 and 16, 2015 so that there could be a further JPT. Under the Morin analysis I view this delay as inherent as there needed to be a JPT before the preliminary inquiry dates could be set.

[109] On May 29, 2015, new dates were set for the preliminary inquiry on January 27-29, 2016. The first date that the court was able to offer was January 5, 2016. In my view, this results in an institutional delay from May 29, 2015 to January 5, 2016 of 221 days.

[110] These second preliminary inquiry dates were ultimately abandoned. I have found that the period between January 22 and March 11, 2016 when the new preliminary inquiry dates were set is defence delay.

[111] On March 11, 2016, a third preliminary inquiry was set for November 21, 2016. The first date offered was May 16, 2016. While on one analysis this would result in institutional delay from March 11, 2016 to May 16, 2016 (66 days) it is my view, as set out above, that in light of the fact that neither counsel nor the applicant attended at the November 21, 2016, the defence was not actually ready to proceed with the preliminary inquiry when it was set. As a result, this time should not be counted as institutional delay. I would characterize all of the delay to the November 21, 2016 preliminary inquiry as either defence delay or inherent delay.

[112] I have already concluded that the delay from the adjournment of the third preliminary inquiry until July 7, 2017 was delay caused by the defence. This was the period in which new counsel, Mr. Pannu, was retained and then conducted a JPT. It was not until July 7, 2017 that counsel was in a position to set new preliminary inquiry dates.

[113] The Crown sought an adjournment form July 7 to 14, 2017. This is 7 days of Crown delay.

[114] On July 14, 2017, the discovery was set for two days, beginning on October 4, 2017. While August 14, 2017 was available to the court, the Crown was not available. This results in institutional delay from July 14 to October 4, 2017 of 82 days.

[115] The discovery was not completed as anticipated on October 5, 2017 as a result of the conduct of the defence. The delay until November 17, 2017 is defence delay.

[116] On November 17, 2017, there was committal for trial. The matter was adjourned to Superior Court Assignment Court on December 15, 2017. That delay is intake time and is neutral.

[117] On December 15, 2017, the trial was set for May 14, 2018. The first date offered was February 20, 2018, resulting in an institutional delay of 67 days.

[118] While the trial did not proceed on that date, it was conceded on the application that all of the delay after that was defence delay. I would think that there might well be some of this time that would be considered institutional delay on a Morin analysis. But, I will assume that none of it should be considered institutional or Crown delay.

[119] The result of this Morin analysis is that the total institutional / Crown delay was 666 days, which is just over 22 months. Again, this exceeds the reasonable delay under Morin.

[120] The Crown has not provided any explanation for the institutional delay. It is noteworthy that after the Jordan decision was released, there is very little institutional delay. It appears that there were efforts made to move this matter along.

[121] I also observe that there were few real efforts by the defence to move this case along. I think it is fair to characterize the manner in which Mr. Christie conducted this case in the Ontario Court of Justice as lackadaisical. There were repeated assurances that the case was on a resolution track, but I can find nothing in the record to suggest that concrete steps were being taken along that track. There is little to no evidence of any steps being taken to ensure that this got to preliminary inquiry with any dispatch. Indeed, the opposite appears to be the case.

[122] In his affidavit, the applicant asserts that he has suffered actual prejudice from the delay in this case. This includes stress and anxiety. He says that the toll on him has been high as he has formed drug and alcohol addictions to cope with the stress and been faced with years of uncertainty. I accept that he has suffered significant prejudice caused by the extraordinarily long delay.

[123] In balancing the length and nature of the delay along with the seriousness of the offense and the prejudice to the accused, keeping in mind the public interest in trials occurring on their merits, the time taken in this case cannot be justified on the basis that it is a transitional case. As the analysis I have just conducted reveals, there is good reason to think that this case would have been stayed for unreasonable delay under the Morin principles.

Conclusion

[124] In Jordan, the Court spoke of a culture of complacency in addressing delay, and of a much needed shift in culture that is required from both sides. This case illustrates vividly what can go wrong when complacency takes over. There was a role for defence counsel to be sure. Counsel’s conduct, at best, amounted to passive acquiescence when it is examined in its totality. But, perhaps more importantly, there was a role for the Crown and the court in this case. In my view, these justice system participants failed to take the various steps they should have to ensure that the case moved along. Over the course of the many, many court appearances in the Ontario Court of Justice, there were a huge number of Crowns and members of the judiciary who touched the case. No one stepped back, when they needed to and should have, and took stock of what had gone wrong. Moreover, no one took the steps that were necessary to get the case on a reasonable track. Instead, everyone was prepared to permit the case to go along a never ending “resolution track”. The result was years of inexcusable delay.

[125] It was not until after there had been three aborted preliminary inquiry dates, and a discovery was being set, that anyone seemed genuinely concerned about getting to trial. Even though much of this was before Jordan, in my view, it was just too late.

[126] In the circumstances, I find that the delay exceeds the Jordan ceiling and that the Crown has not satisfied me that there are transitional exceptional circumstances that justify the delay.

[127] The charges are stayed.

Woollcombe J.

Released: March 8, 2019