R v Warring, 2016 ABQB 236

Court of Queen ’ s Bench of Alberta Citation: R v Warring, 2016 ABQB 236 Date: 20160425 Docket: 111009148Q3 Registry: Calgary Between: Her Majesty the Queen Crown - and - Gurpreet Singh Warring Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction & Overview [ 1 ] This is an application brought by Gurpreet Singh Warring, (“the Applicant”) seeking a remedy pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter ”). The Applicant says that his right to be tried within a reasonable time, as guaranteed by s. 11(

b) of the Charter , has been violated so as to warrant a judicial stay of proceedings. [ 2 ] For the reasons which follow, the application is dismissed. History of the Proceedings

[ 3 ] The Applicant was arrested and charged on June 21, 2011 with two counts of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA) , and two counts of possession of the proceeds of crime. He was released by a Justice of the Peace on the same date. His first court appearance was set for July 15, 2011. [ 4 ] On July 15, 2011, James Lutz went on record as counsel. Some disclosure was provided to Mr. Lutz at that time and the matter was adjourned for two weeks to July 29, 2011. A further two week adjournment to August 12, 2011, was granted in view of the fact that Mr.

Lutz was away at the time. [ 5 ] A new information jointly charging the Applicant and Sandeep Saini (“Saini”), Amarjeet Singh Sandhu (“Sandhu”) and Abdullah Irshad (“Irshad”) was sworn on August 11, 2011, and was before the court on August 12, 2011. The Applicant was charged, together with Saini, Sandhu and Irshad, with one count of possession of heroin for the purposes of trafficking; possession of marihuana, in an amount exceeding three kilograms, for the purposes of trafficking; as well as possession of the proceeds of crime.

On the same information, the Applicant was separately charged with two counts of trafficking in heroin and three counts of possession of the proceeds of crime. Saini, Sandhu and Irshad were also charged with a number of counts of trafficking in heroin; possession of heroin for the purposes of trafficking; as well as possession of the proceeds of crime.

The Crown advised that this new information would need to be replaced and a further adjournment to September 8, 2011, was granted for that purpose. [ 6 ] A new, twenty-six, a count replacement information was sworn on August 26, 2011, separately charging the Applicant with the same five offences set forth in the August 11, 2011, information. He was also jointly charged with Saini, Sandhu and Irshad with possession of heroin for the purposes of trafficking, and possession of marihuana, in an amount not exceeding three kilograms, for the purposes of trafficking.

This new information was before the court at the time of the September 8, 2011, court appearance. The Crown elected to proceed by indictment. Mr. Lutz, appearing for all four accused, advised the court that the replacement information joining all four accused created a conflict for him and that an adjournment would be required for new counsel to be retained. The matter was, accordingly, adjourned for three weeks to September 29, 2011. [ 7 ] On September 29, 2011, an agent for Patrick Fagan appeared and advised that Mr. Fagan was going on record as counsel for the Applicant, Mr. Sandhu and Mr. Irshad. Mr.

Lutz was formally removed as counsel at that time. Mr. Fagan’s agent indicated that he was still awaiting disclosure from either the Crown or former counsel. The agent indicated that an election of Judge Alone with a preliminary inquiry was proposed but asked to hold that in abeyance until the receipt and review of disclosure. The fourth accused, Mr. Saini, advised that he planned to retain Bran Popovic [sic] but had not yet done so. It was agreed that a three week adjournment to October 20, 2011, would be sufficient to enable the Crown to complete the redacting process. [ 8 ] Mr. St.

Germain appeared on behalf of the Crown on both the September 8 and September 29 court appearances. During the September 29 th appearance, he made no mention of the fact that Mr. Lutz had advised the court on the earlier date that he was unable to continue to represent all four accused due to the new joint charge. [ 9 ] On October 20, 2011, Ms. Funk appeared on behalf of Mr. Fagan. Mr. Andre Ouellettte went on record as counsel for Mr. Saini. Mr. Ouellette entered an election of Provincial Court Judge on behalf of his client. Ms. Funk advised that she had no specific instructions regarding election. Mr. St.

Germain again appeared on behalf of the Crown and confirmed that disclosure had been provided to counsel that same day. He advised that he was agreeable to a further adjournment. The matter was set over to November 1, 2011. [ 10 ] During the November 1, 2011, appearance, a further adjournment to November 25, 2011 was granted to sort out an issue regarding outstanding disclosure. Ms. Kaysi Fagan appeared on behalf of Mr. Fagan. Both she and Mr. Ouellette advised that disclosure was incomplete.

The Crown advised that she understood substantial disclosure had been provided on October 20, 2011, and requested that counsel send a letter to the Crown identifying what disclosure was still missing. [ 11 ] On November 25, 2011, two packages of disclosure were provided to each defence counsel (Mr. Ouellette and Ms. Fagan on behalf of Mr. Fagan). An election of Provincial Court Judge was made by Mr. Ouellette on behalf of Mr. Saini, while Ms. Fagan entered an election of Judge and Jury with a preliminary inquiry on behalf of the Applicant and the two other co-accused.

The matter was then adjourned to January 26, 2012, for the pre-preliminary inquiry meeting. The Crown noted that the “reasonable [sic] late date” for the pre-preliminary meeting was based on a defence request and that the Crown would have been ready on an earlier date. [ 12 ] When the matter was next in court on January 26, 2012, Ms. Fagan again appeared as agent on behalf of Mr. Fagan, as well as agent for Mr. Ouellette. At the request of Ms. Fagan, and the agreement of the Crown, the matter was adjourned to February 9, 2012. Ms. Fagan advised the court that:

Today my instructions are to seek an adjournment. Originally when these charges were laid, they were laid on- they were laid separately and Mr. Fagan did not anticipate a conflict. Now it’s one Information and he’d like to - - he would like to have some time to go through the file in order to determine if there is a conflict and the next steps from there. [ 13 ] Crown Counsel, Ms. Webber, appearing for the first time on the matter, made no submissions regarding the history of the file, specifically that Mr.

Lutz had withdrawn from the matter four months earlier on the basis of a conflict in representing all four accused. [ 14 ] On February 9, 2012, Ms. Fagan again appeared as agent for Mr. Fagan and Mr. Ouellette. She requested an adjournment for a few weeks, until March 1, 2012, to “point [the accused] in the right direction relative to new counsel.” [ 15 ] Ms. Fagan appeared again as agent for Mr. Fagan and Mr. Ouellette on March 1, 2012, and advised the court as follows: This matter has been kicking around 507 the PPM range, for the past few weeks.

Originally, these four individuals were charged on four separate information, now they’re only charged on one. He’s spoken to the Crown and he’s reviewed the file and he’s determined that there is no conflict for the purpose of the prelim. So, now we’re back in a position where we can set a date for a pre-preliminary meeting. The court advised Ms. Fagan of a form that was required to be completed when one counsel intends to represent more than one co- accused. Ms. Fagan advised that she would bring this to Mr.

Fagan’s attention and the matter was adjourned to March 8, 2012. [ 16 ] On March 8, 2012, a three-day preliminary inquiry was set for April 2-4, 2013, with the agreement of all counsel. Ms. Fagan again appeared as agent for both Mr. Fagan and Mr. Ouellette. The Crown had initially requested a block of four days for the preliminary inquiry, but requested three days when a four day block of time that was mutually agreeable to all counsel could not be found. [ 17 ] Appearing for the first time in person on April 2, 2013, Mr.

Fagan advised the court that the Applicant, Irshad and Sandhu were consenting to committal on particular counts set out in the Information. In the case of the Applicant, he was committed to stand trial on counts 14, 15 and 16. Sandhu was committed to stand trial on counts 1 and 3, while Irshad was committed to stand trial on counts 19 and 21. Mr. Ouellette, appearing for Saini, also agreed to committal on counts 1,3,5,7, and 9. The remaining counts in the information were withdrawn by the Crown.

The matter was then adjourned to May 31, 2013, in the Court of Queen’s Bench. [ 18 ] A nine count indictment signed May 23, 2013, charged the Applicant with two counts of trafficking in heroin. Saini, Sandhu and Irshad were separately and jointly charged with trafficking in heroin in the remaining seven counts. [ 19 ] During the first appearance in Court of Queen’s Bench, Hughes J. raised the issue of possible conflict in Mr. Fagan representing more than one co-accused. Ms. Watts appearing as agent for Mr. Fagan advised: This is the situation, My Lady.

My instructions are to seek an adjournment for approximately three weeks in order for Mr. Fagan to have an opportunity to canvas the potential conflict with his clients. The adjournment I am seeking is a bit lengthy. I appreciate that. My understanding is that Mr. Fagan is getting married next week and needs a bit more time than might normally be required. The matter was adjourned for four weeks to June 28, 2013. [ 20 ] Mr. Hersh Wolch appeared for the Applicant on June 28, 2013, and advised that he had been retained as a result of Mr. Fagan’s conflict. Given that Mr.

Fagan did not appear either in person or by agent, Mr. Wolch advised that he would appear on behalf of Mr. Fagan for his other clients. Mr. Ouellette appeared on behalf of Mr. Saini. Mr. Wolch requested a three week adjournment until July 19, 2013, to familiarize himself with the case. Hughes J. ordered Mr. Fagan to attend in person or by agent at the next appearance.

[ 21 ] On July 19, 2013, Mr. Wolch appeared on behalf of the Applicant, Ms. Ferg appeared as agent for Mr. Fagan and sought leave for Mr. Fagan to get off the record relative to Messrs. Irshad and Sandhu. Mr. Colin Winter also appeared as agent for Mr. Sandhu and advised that he was in the process of being retained. Mr. Irshad appeared personally and advised the court that he planned to retain Ms. J. Blumer but had not yet done so. The matter was adjourned for two weeks to August 2, 2013, given that the matter was not in a position to be set for trial. [ 22 ] The matter was next spoken to on August 2, 2013.

All four accused were represented by counsel at that appearance. The Crown advised that Ms. Blumer had received her disclosure only the day previous and that Mr. Winter was still awaiting disclosure. Mr. Winter proposed, and the Crown agreed, to a two week adjournment to September 20, 2013, to complete the disclosure process. [ 23 ] On September 19, 2013, the Applicant was taken into custody on a new charge of break, enter and theft. A further charge of robbery was added in November 2013. The Applicant was released from custody on September 27, 2013, following a show-cause and bail revocation hearing.

The terms of his release included $10,000 cash bail; a surety in the amount of $10,000; a condition of house arrest save for employment purposes, and a requirement to remain within the Province of Alberta. [ 24 ] On September 20, 2013, the matter was set for trial for seven days commencing June 9, 2014. A pre-trial conference was booked for January 24, 2014. In fixing the trial date, Ms. Blumer advised that her first availability for seven days was June 9, 2014. All other counsel confirmed their availability at that time. [ 25 ] A pre-trial conference was held before Hughes J. on January 24, 2014.

There is no evidence before the court as to what transpired at the pre-trial, though Mr. Wolch advised the Court on October 16, 2015, that Hughes J. “much encouraged” that the matter be streamlined. Mr. Wolch advised the court at that time that the Applicant had been “compelled to go along” with the jury election and a trial set for two weeks, notwithstanding that he wished a judge alone trial that was anticipated to be relatively brief. [ 26 ] The matter was next in Criminal Appearance Court on May 23, 2014. Mr. Wolch appeared for the Applicant and all other accused were represented by counsel.

The Crown advised the court at that time that there were to be three replacements indictments place before the Court – one naming the Applicant alone; a second related to Messrs. Saini and Sandhu; and a third naming Mr. Irshad alone. While all indictments were believed to have been filed, only one was actually before the court. Process was transferred at this point from the joint indictment to the replacement indictments. [ 27 ] Mr. Wolch elected Judge Alone on behalf of his client and advised that one day only was required for the trial.

He advised the Court that he was looking for a new trial date in the fall of 2014, and preferred not to proceed during the previously scheduled trial dates. He also advised of a possible resolution of the matter. The Crown did not oppose an adjournment of the trial and the matter was set over to June 6, 2014, to determine witness availability. [ 28 ] On May 26, 2014, the Crown signed a new indictment charging the Applicant with two counts of trafficking in heroin. On the same date, the Crown also signed a new indictment charging Irshad with two counts of trafficking in heroin.

The next day, May 27, 2014, the Crown signed a further indictment charging Saini and Sandhu together, and in the case of Saini, individually with various counts of trafficking in heroin. [ 29 ] On June 6, 2014, Mr. Wolch sought a further two week adjournment until June 20, 2014, in order to determine which of the dates proposed by the Crown would be best. [ 30 ] A further adjournment of one week was sought by Mr. Gavin Wolch, on behalf of Mr. Hersch Wolch at the time of the June 20, 2014 court appearance. Mr. Wolch advised the court that there was some confusion regarding the respective calendars of Mr. H.

Wolch and the Trial Coordinator. Process was transferred to the new indictment charging the Applicant alone and the Crown entered a stay of proceedings on the Q1 indictment relative to the Applicant. [ 31 ] At the June 27, 2014 appearance in Criminal Appearance Court, a two day trial set was set for March 11-12, 2015. [ 32 ] On May 15, 2015, the Provincial Crown entered a stay of proceedings in relation to the outstanding charges of robbery and break and enter.

[33] The trial of this matter was heard on March 11-12, 2015. At the conclusion of the evidence, the matter was adjourned to May29, 2015, for decision. The Court ordered a transcript of the trial evidence and counsel were provided with a timetable for the filing ofwritten submissions. [34] The completion of the trial transcript was delayed and counsel were unable to file their written submissions by the stipulateddates. On May 29, 2015, a new date of August 16, 2015 was set for decision. On that date, the Applicant was found guilty of two countsof trafficking cocaine to an undercover police officer. Mr.

Wolch informed the Court at that time that he had recently learned that NixonJ. had stayed the charges against Messrs.

Saini and Sandhu on June 25, 2015, having found a breach of their right to be tried within areasonable time. [35] At the instance of the Court, the Applicant’s bail conditions were relaxed with regard to his regular reporting requirements.Defence counsel sought a pre-sentence report and the sentencing hearing was set for October 16, 2015, to allow for the completion of thereport. [36] On October 9, 2015, the Applicant filed and served the Crown with a Charter Notice alleging a breach of his s. 11(

b) right tobe tried within a reasonable time. [37] On October 16, 2015, Mr. Wolch advised the Court that the Applicant had retained Ms. Karen Molle to bring the Charterapplication and to complete any sentencing matters that might be required, depending upon the outcome of the Charter application. Thematter was then adjourned to November 13, 2015 in Criminal Appearance Court, at which time a hearing date of January 27, 2016, wasfixed. The Law [38]

Section 11(

b) of the Charter provides that: 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time. [39] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771, the Court identified (at paras. 26-28) the purpose of s. 11(b): The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this court. .... The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the rightto a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh. [40] The interest of society was described by the Court as encompassing society’s interest in seeing that accused are treatedhumanely and fairly. Public confidence is enhanced by prompt trials.

At the same time, the Court recognized that some accused have nointerest in a speedy trial and that in such instances the interests of society will diverge from those of an accused. The Court went on todiscuss the societal interest in seeing those who break the law brought to justice. At para. 30, Sopinka J. stated: There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this courtrecognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was picked up inAskov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and

dealt with according to the law.” (pp. 1219-1220 [S.C.R.]). As the seriousness of the offence increases so does the societal demand thatthe Accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolvepersons accused of serious crime simply to clean up the docket. [41] The majority in Morin pointed out that there is no formula to be applied in determining whether or not the right to be triedwithin a reasonable time has been breached. Rather, a court is required to balance “the interests which the

section is designed to protectagainst factors which either inevitably lead to delay or are otherwise the cause of delay” (para.31). [42] The factors to be considered are: 1. The length of the delay; 2. Waiver of any time periods; 3. The reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. Prejudice to the accused. [43] The Supreme Court subsequently dealt with the proper

interpretation of s. 11(

b) in R. v. Godin, 2009 SCC 26, and a numberof other decisions. The guiding principles articulated by the Supreme Court in R. v. Conway, (SCC), [1989] 1 S.C.R.1659; R. v. Askov, (SCC), [1990] 2 SCR 1199, Morin, Godin and other decisions have been applied in countless trialand appellate court decisions in Canada, too numerous to mention. The Length of the Delay [44] The period to be examined in this process is the date of the charge to the end of the trial, including sentencing.

Periods thathave been waived are to be subtracted, leaving a period of time that is to be assessed to determine whether or not it is unreasonable. Inthis instance, the Applicant was arrested on June 21, 2011. His trial took place in Calgary on March 11-12, 2015. A date for hissentencing hearing was set for October 16, 2015, at which time the sentencing was adjourned to allow the Charter argument to be heard.The Applicant filed his Charter Notice on October 9, 2015. The total length of delay from the date of charge to the scheduled date ofsentencing is 52 months.

Waiver [45] In Morin, the Court indicated that allegations of waiver on the part of an accused should be addressed before moving to amore detailed consideration of the reasons for delay. The Court stated as follows (at paras. 37-39): If by agreement or other conduct the accused has waived in whole or in part his or her right to complain of the delay then this will eitherdispose of the matter or allow the period waived to be deducted.

This court has clearly stated that in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear andunequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on thoserights... Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringenttest for waiver set out above. .... Waiver requires advertence to the act of release rather than mere inadvertence.

If the mind of the accused or his counsel is not turned tothe issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may

be taken into account under the factor “actions of the accused” but it is not waiver. As I stated in Smith, supra, which was adopted inAskov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mereacquiescence in the inevitable. [46] In R. v. Smith, (1989) (SCC), 52 C.C.C. (3d) 97 (S.C.C.), the Court held that agreement to a future trial datewill, in most circumstances, amount to waiver.

At p. 109, the Court held: Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waived his right tosubsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trialor a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellantss. 11(

b) rights might be inferred based on the foregoing circumstances. [47] In a subsequent decision, R. v. Brassard, (SCC), [1993] 4 SCR 287, L’Heureux-Dube stated, at para. 2, “Inthe absence of any evidence that these consents amount to acquiescence in the inevitable, the consents constituted waiver or, as actions ofthe accused attributable to him.” See also Rahey v. R., (SCC), [1987] 1 SCR 588; R. v. Slaney (1992), (NL CA), 75 C.C.C. (3d) 385 (Nfld CA), aff’d (SCC), [1993] 2 SCR 228; R. v. Bennett (1991) (ON CA), 64 C.C.C. (3d) 449 (Ont. CA) aff’d (SCC), 74 C.C.C. (3d) 384 (SCC); R. v.

Heikl, 1992 ABCA 142 atpara. 27. [48] In R v Adam, 2006 BCSC 350, Romilly J discussed the impact of defense counsel's agreement to trial dates in the 11(b)context: [133] It matters not whether defence counsel's agreement for later trial dates amounts to waiver, actions of the accused or simply anindication of an absence of prejudice; whichever it may be, the agreement stops the running of the clock against the breach of theaccused's constitutional rights to be tried within a reasonable period of time.

Accommodating the needs of defence counsel counts againstthe defence when calculating delay under s. 11(b): see Allen; and R. v. Chatwell (1998), (ON CA), 38 O.R. (3d) 32(C.A.), aff'd (SCC), [1998] 1 S.C.R. 1207. [134] In R. v. MacPherson (1999), 127 B.C.A.C. 49, 1999 BCCA 403 (B.C. C.A.), the Court held that the Crown was not solelyresponsible for the delay created even though the rescheduling was made necessary by the Crown's failure to disclose a police officer'snotes in a timely manner. Similarly, the Crown is not responsible for delays created due to defence counsel's calendar: R. v.

Kwok(2002), 164 C.C.C. (3d) 182 (B.C. C.A.) at 189, 2002 BCCA 177 (B.C. C.A.). [49] Romilly J went on to determine whether consent to adjournments amounted to waiver by the accused of the resulting delay.He concluded that the consent to adjournment by defense counsel amounted to waiver rather than mere acquiescence. There was“absolutely no evidence” of acquiescence when defense counsel consulted his calendar and agreed to the proposed dates. [50] The requirement that defense counsel produce evidence of acquiescence was discussed by Fraser CJA in R. v.

Koruz, 1992ABCA 144, affirmed (SCC), [1993] 1 S.C.R. 1134, at para. 56: As for the suggestion that an agreement to dates should be treated as nothing more than an agreement to the inevitable, I reject thisposition. First, there is absolutely no evidence that this was so. Second, the practice of Crown counsel in Alberta pre-Askov to consultwith defence counsel on mutually convenient trial dates points to a contrary conclusion. What would have been the purpose of taking thetime to discuss dates if in the final result, the Crown was simply going to dictate that the first available date be chosen?

There wouldhave been none. [51] This position was affirmed more recently by the Alberta Court of Appeal in R v Sapara, 2001 ABCA 59 at para. 28, and byYamauchi J in R. v. Legerton, 2014 ABQB 162 at paras. 49-51. [52] I am satisfied that, absent evidence to the contrary, agreement between counsel to suggested dates should not be characterizedas mere “acquiescence to the inevitable.” If there is no evidence to establish counsel's agreement to dates was in fact acquiescence, thedelay stemming from the agreement to the dates will amount to waiver by the accused in the Morin analysis. The Reasons for the Delay (

a) Inherent time requirements of the case [53] Inherent time requirements recognize that some delay is inevitable. They cover the period required to prepare and process acase assuming the availability of adequate institutional resources. The inherent time requirements of a case are neutral in the s. 11(b)reasonableness assessment and do not count against the Crown or the accused. Any delay attributable to inherent time requirements isdeducted from the overall period of delay: R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45 at para 44; Rahey, at para.31, Conway, at para. 37; Morin, at para. 37; Koruz, at para. 45; Legerton, at paras.86-87.

[54] These time requirements include intake procedures - for example, bail applications, retention of counsel and disclosure, andrecognize that greater time is required if the case is complex or if the proceedings include both a preliminary inquiry and a trial. Thiselement also takes into consideration that counsel work on more than one file at a time and are not expected to devote all of their effortsto a particular matter. [55] In Morin, the Court specifically declined to set an administrative guideline for this intake period given regional variations.

Noadministrative guidelines have been established by the Alberta Court of Appeal or, indeed, directly addressed by any other court inAlberta. However, in Koruz, Fraser J A (as she then was), at para. 47, expressed reluctance to fix guidelines in the absence of statisticaldata regarding the issue of inherent or systemic delay. (

b) Actions of the Crown [56] As the Court in Askov stated , at para. 40: “it is the duty of the Crown to bring the accused to trial.” The actions of the Crownmay, however, also delay the trial. Even in the absence of fault or blameworthiness, the Crown cannot rely on its own actions orinactions to justify a delay that is otherwise unreasonable. In Morin, the Court cited Crown disclosure decisions, change of venueapplications and adjournments requested by the Crown as illustrative of the types of Crown actions contemplated by this factor. See also:R. v. MacIntosh, 2011 NSCA 111, aff’d 2013 SCC 23; R. v. Beason (1983), (ON CA), 7 C.C.C. (3d) 20 (Ont. C.A.) [57] The purpose of s. 11(

b) is not, however, to assign blame to either party, but rather to determine whether the period of delay inprosecuting an accused is unreasonable. It is not concerned with misconduct and should not be used as a means to punish the prosecutionor the police. As stated by the Ontario Court of Appeal in R. v.

Austin, 2009 ONCA 329, at para. 67, “[t]he focus of the exercise under s.11(b), however, is on the impact of the delay on the accused and society, not on weighing the seriousness of the causes of the delay orattaching blame”. [58] In Morin, in discussing delay caused by the conduct of the Crown, Sopinka J. stated at para. 46: As with the conduct of the accused this factor does not serve to assign blame. The factor simply serves as a means whereby actions of theCrown which delay the trial may be investigated.

Such actions include adjournments requested by the Crown, failure or delay indisclosure, change of venue motions, etc .... [S]uch delays cannot be relied upon the Crown to explain away delay that is otherwiseunreasonable. [59] While Sopinka J. states that a “failure or delay in disclosure” cannot be used to justify a delay, he does not state that this isegregious conduct that should be punished or made blameworthy.

It is a factor that may make the delay unreasonable but such conductby the police or prosecution should not be punished by granting a stay under s. 11(b). [60] This same idea was expressed by the majority in Conway, at para. 22: The Crown is free to use its prosecutorial discretion as it seems fit, provided that it does not conduct the prosecution in an abusivemanner.

We are not here concerned with fault but with the reasonableness of the over-all delays in bringing an accused to justice. [61] The comments made by the majority in Conway reflect the comments made by Lamer J. (as he then was) three years earlierwriting for three members of a seven person court (the majority decision did not address the issue) in R. v. Mills, (SCC),[1986] 1 S.C.R. 863 at paras. 190-191: The purpose of s. 11(b), however, is not to penalize or sanction misconduct by the authorities. The

section is concerned not with abuse ofprocess but with abusive process. The Crown's motives, whatever they may be, do not render a reasonable delay unreasonable nor canthey transform an unreasonable delay into a reasonable lapse of time. Thus, whether the delay is the result of malice, negligence orinadvertence is of little import, the remedy being in all cases at least a stay, except, of course, when considering additional remedies,such as damages. With respect, whether governmental delay is deliberate or not is irrelevant to the determination of the violation. Indeed, the right may be

violated, in some circumstances, despite the best intentions and best efforts of the authorities. The function of the doctrine of abuse of process is, therefore, in my view entirely distinct from that of s. 11(b). While a reduction in official misconduct may be a consequence of s. 11(b), this is not its purpose. In the eyes of the individual accused, it matters little whether the delay is imputable to the authorities or not; what truly matters is the extent to which the delay will impair his or her interests.

Section 11(

b) does not to any extent represent an entrenchment or an extension of the common law doctrine of abuse of process. [ 62 ] Finally, in applying the factors set out in Morin , supra , I am guided by Fraser, J.A.. writing for the majority in Koruz, at para. 32: What the court must assess is the reasonableness of the over-all delays in bringing an accused to justice: Conway , supra, at p. 307. This task is not, and should not be permitted to become, an exercise in assigning fault for each and every step in the trial process. (

c) Actions of the accused [ 63 ] Actions of the accused falling short of waiver must nonetheless be taken into account in deciding whether the delay is unreasonable. In considering the actions of the accused in this context, the objective is not to attribute blame or fault. Rather the purpose is to understand how the actions of the accused, including the strategic decisions of defence counsel, contribute to the overall delay. In Morin , the Court cited change of venue applications, attacks on wiretap evidence and defence requests for adjournments as examples of the type of actions contemplated by this factor. See also Askov , at paras. 95-96 . (

d) Limits on institutional resources [ 64 ] Inadequate resources may cause institutional or systemic delay. This delay begins when the parties are ready for trial but the system cannot facilitate a trial date. Systemic delay is delay to be attributed to the Crown in the absence of justification, whereas inherent time requirements are a neutral factor. [ 65 ] In Morin , the Court suggested 8-10 months as a guide to provincial courts and 6-8 month after committal for trial as a guideline in assessing reasonable institutional or systemic delay. Similar guidelines had previously been set by the Court in Askov .

However, the Court in Morin also indicated that regionally based guidelines relative to this type of delay were best left to provincial courts of appeal. These guidelines do not serve, in effect, as a limitation period to be applied in a mechanical fashion. In these types of applications, the court must consider all of the factors in determining whether or not a Charter breach has been established. [ 66 ] In Godin , the Court considered a period of 21 months from the date the charges were instituted until the completion of the preliminary inquiry.

However, Cromwell J observed, at para. 5, that notwithstanding that this period exceeded the Morin guideline “[t]hat on its own does not make the delay unreasonable.” [ 67 ] As discussed above, the Alberta Court of Appeal has never provided specific regional guidelines on permissible periods of systemic or institutional delay. The cases in Alberta tend to adopt the same time period as that stated in Askov .

However, in Koruz , a case decided after Askov but prior to Morin , the Alberta Court of Appeal held that an approximately eleven month delay from arraignment to the first scheduled six week trial date was not an unjustifiable systemic delay. The Court of Appeal signaled caution in setting a guideline. The Court also referred to the problems in assessing an appropriate number because of the dangers in drawing conclusions from statistical data: Koruz , at paras. 47-50. [ 68 ] More recently, in R. v.

Tshitenge , 2011 ABPC 117 , the Alberta Provincial Court stated "In the normal course, based on the time requirements of a full day trial and the resources available in this jurisdiction, it takes 9 to 10 months to obtain a trial date in this jurisdiction” (at para. 9). This case would seem to suggest that there is at least some authority in Alberta for roughly following the actual guidelines set forth in Askov and Morin . [ 69 ] It is, in my view, significant to note that both Askov and Morin were primarily, if not entirely, concerned with institutional or systemic delay.

In Morin , the sole source of delay was limits on institutional resources. In Askov , the Supreme Court was entirely concerned with systemic delay . The Court in Morin stated (at para. 48 ):

There is a point at which the court will no longer tolerate delay based on the plea of inadequate resources. This period may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. [ 70 ] The authorities recognize that there is distinction between the inherent time requirement of a case and systemic or institutional delay. Any time that elapses in the judicial system is not systemic delay. If it were, then the inherent time requirements of a case would be fully subsumed in systemic delay.

The Morin guideline of 14 to 18 months for institutional or systemic delay does not, in my view, incorporate the inherent time requirements of the intake stage of the process. (

e) Other reasons for delay [ 71 ] In deciding a s. 11(

b) application, the Court is required to consider or take into account all of the reasons for the delay. This category encompasses other reasons for delay that do not fit into the other four categories. As more fully described below, I would include under this category any delay occasions by the situation of conflict that arose for defence counsel in conjunction with the Crown’s decision to join the Applicant on an indictment naming three other individuals.

Prejudice to the Accused [ 72 ] Prejudice suffered by an accused is a factor necessary to justify a judicial stay by virtue of an unreasonable delay of a trial.

This factor relates to the prejudice to the accused suffered as a result of the unreasonable delay and not just prejudice suffered because of the criminal proceedings themselves. [ 73 ] Prejudice to an accused may arise from an inability to make full answer and defence because of the delay’s impact on evidence and witnesses testimony, prejudice to an accused's liberty interest in terms of pre-trial custody or bail conditions, and prejudice to an accused’s security of the person, "in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge”: Godin , at paras. 30-31 . [ 74 ] In Morin , the Court stated (at para. 61): ...in an individual case, prejudice may be inferred from the length of the delay.

The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined. [ 75 ] Later, at para. 62, the Court also stated: This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trial on the merits. Action or non-action by the accused which is inconsistent with a desire for a speedy trial is something that the court must consider. [ 76 ] The extent to which Morin makes prejudice a key factor in a. s. 11(

b) analysis is clear when the ruling is considered in its entirety. The Supreme Court accepted that there was a 14 ½ month delay, that the accused did not waive any period of delay, that the Crown and the Accused were not at fault for any of the delay, and that 12 months of institutional delay could be inferred because the inherent time requirements of the case was only 2 months. Even though the institutional delay was greater than the 8 to 10 month guideline just accepted, the Supreme Court held that there was no Charter violation.

The determining factor in Morin seems to have been that the delay could be accepted because the accused had not proven any prejudice. In Morin , the Court also noted that the accused failed to lead evidence of actual prejudice and, indeed, failed to respond to a letter from the Crown inquiring whether he wished to have his case expedited because of anticipated prejudice (at para. 78).

In the result, the Court held that the accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay (at para. 78). [ 77 ] Subsequently in Godin , the Court cautioned that the question of prejudice cannot be considered separately from the length of the delay. Godin also accepted that prejudice may be inferred from the length of the delay and that direct evidence is not always required. The inferred prejudice may be in the form of the charges hanging over the accused’s head, restrictive bail conditions, or

impairment of ability to cross-examine witness testimony. An appreciation of the potential risk of prejudice, as well as any actualprejudice, is necessary in determining if a delay is unreasonable. Balancing of the Factors [78] All of the Morin factors are to be considered by the Court in determining if an accused’s s. 11(

b) Charter right has beenviolated. In Morin, Sopinka J. explained, at para. 32, that: The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors... It must then be determined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, theexplanation for the delay and the prejudice to the accused. [79] However, the analysis must not proceed in a mechanical manner and the Court must not focus on only certain periods of delayor only on prejudice. As stated by the Court in MacDougall, at para. 41, “the ultimate question for determination is the reasonableness ofthe overall delay”. [80] This balancing exercise was done by the majority in R. v.

Sharma, (SCC), [1992] 1 S.C.R. 814, a companioncase to Morin, at para. 33: Applying the factors discussed above, particularly the actions of the accused, the paucity of prejudice and the guideline concerninginstitutional delay and taking into account the interests designed to be protected, particularly the relative seriousness of the charge, Iconclude that the delay herein was not unreasonable. [81] Accordingly, the finding of a delay or the finding of prejudice against an accused is not enough.

There must be a balancing ofthe prejudice suffered by the accused, the societal interest, and the explanation of the delay. Analysis 1) Timing of the Application [82] The position of the Crown is that the Applicant has waived the entire period from the date of the institution of the proceedingsto the date he filed his Charter application, a total of fifty one and one half (51.5) months, or four years, three months and seventeendays.

The Crown says that the Applicant was represented by very experienced counsel throughout and at no time did he provide anyindication that he was concerned about the amount of time taken to complete his trial. Rather, the Crown says he waited fifty eight daysfollowing his conviction to bring his concerns relative to a speedy trial to the attention of the Court and the Crown.

Finally, the Crownsays the trial delay only became an issue for the Applicant once his trial defence had failed and he had been convicted. [83] The position of the Defence is that it remained open to the Applicant to seek a remedy for an alleged breach of his s. 11(b)Charter right up until the conclusion of the sentencing process.

The Defence says that it would be inconsistent with the existence of sucha continuing right to find that the Applicant somehow waived the entire period as a result of the delay in initiating this application. [84] Morin contemplated that an accused could be found by his conduct to have waived his entire right to complain of delay. While the vast majority of the cases that interpret and apply s. 11(

b) address waiver in the context of portions of the overall delay, itseems clear that it is open to a court to find waiver of the entire period. As more fully set out below, I am satisfied that the Applicantwaived at least thirty one months of the delay through his agreement to the dates set for the preliminary inquiry and the trial. 2) Notice Requirement - Criminal Proceeding Rules [85]

Section 12 of the Court of Queen's Bench Criminal Proceeding Rules (“the Rules") governs the notice requirements for an

application seeking Charter relief. The provision requires that a Charter application must be served on the parties and the court sevendays prior to the pre-trial conference or sixty (60) days before trial, whichever is earlier. The Applicant clearly did not comply with thisrequirement. [86] The Rules do not, however, discuss what occurs when an accused fails to serve a Charter application in accordance with thisrequirement. Further, subsection 1(3) states that the Rules do not limit the jurisdiction or authority of the Court unless otherwiseexpressly provided. [87] The Court of Appeal in R. v.

Dwernychuk, 1992 ABCA 316, leave to appeal refused [1993] SCCA No 30, held, at para. 29,that Charter filing guidelines "are not intended to be treated as inflexible rules" and that the "trial judge should exercise his or herdiscretion in the interests of justice." The Ontario Court of Appeal came to a similar conclusion in R v Loveman (1992), (ON CA), 8 OR (3d) 51, holding that "where a Charter right is at stake, a trial judge will be reluctant to foreclose an inquiry intoan alleged violation." It is, however, important to point out that the court in that instance was dealing with a situation where there was nostatutory requirement or rule in place requiring the provision of advance notice of an intention to raise a Charter argument at trial.

Thedecision in Loveman was released simultaneously with the Court’s decision in R v Kutynec (1992), (ON CA), 7 OR(3d) 277. [88] In R v Henry, 2004 ABQB 440, Martin J. held that the Provincial Court trial judge erred in law in concluding that he lackedjurisdiction to entertain a Charter application in the absence of proper notice in accordance with the Rules. Martin J. explained that evenwithout notice, the court retains the discretion to permit such applications to proceed with the Crown's consent or to adjourn the trial sothat proper notice can be given.

She relied on both Dwernychuk and Loveman. [89] In R v XYZ, 2011 ABQB 95, Yamauchi J., citing Dwernychuk, Loveman, and Henry, permitted an accused to advance anargument alleging a breach of s. 9 of the Charter in circumstances where no prior notice had been filed.

Of note, however, Yamauchi J.explained that the s. 9 argument was necessary to "set the stage" for arguments regarding alleged violations of sections 8 and 10(b), forwhich prior notice was given. [90] Based on these authorities, I conclude that the failure to comply with the notice requirement in the Rules is not a bar, as urgedupon me by the Crown, to the court entertaining a Charter argument. However, I am satisfied that it is a matter that is properlyconsidered in examining the timing of this application.

As such, I am mindful of the words of Doherty J.A. in Loveman, at p. 55: A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process.The specific situations in which the trial judge must exercise that power are infinitely variable and his or her order must be tailored to theparticular circumstances. In the exercise of this inherent power, a trial judge may decline to entertain a motion where no notice, orinadequate notice, of the motion has been given to the other side.

This must be so even when the motion involves an application toexclude evidence pursuant to s. 24(2) of the Charter. Clearly, where a Charter right is at stake, a trial judge will be reluctant to foreclosean inquiry into an alleged violation.

There will, however, be circumstances where no less severe order will prevent unfairness andmaintain the integrity of the process. [91] In describing the factors to be taken into consideration, Doherty J.A. indicated, at p. 55, that, amongst other things, “the trialjudge had to be concerned with the effective use of court resources and the expeditious determination of criminal matters.” [92] The Applicant relies on the decision of the Manitoba Court of Appeal in R. v.

Loewen (1977), (MB CA),122 C.C.C. (3d) 198, for the proposition that an unreasonable delay allegation may be raised at the conclusion of the trial followingverdict but prior to sentencing. In my view, the decision in Loewen must be approached with caution given its unusual circumstances. [93] Loewen and others were jointly charged with two counts of money laundering, contrary to s. 19.2 of the Narcotic Control Act.Five days prior to the start of the trial, Loewen alone served notice of his intention to bring a Charter application alleging unreasonabledelay.

The trial judge declined to hear the application and directed that the trial proceed. She found that there was non-compliance withthe Queen’s Bench Rules and that the Crown had insufficient time to prepare for the application. On appeal to the Manitoba Court ofAppeal, the court allowed the appeal and remitted the matter back to the Court of Queen’s Bench for a determination of the Charterapplication on the merits. [94] At p. 206, a majority of the Court held:

Ideally, an Askov application should be made to the trial judge well in advance of the scheduled trial. The early hearing of the application will allow reserve time for the decision, if required, and will also allow valuable trial time to be used efficiently in the event of a decision in the accused’s favour. That is precisely why the Queen’s Bench Rules require notice of pending Charter applications at the first possible opportunity and preferably at the pre-trial conference, prior to trial dates being set.

However, the Rules are not rigid and must remain capable of dealing with issues as they arise. [ 95 ] Referring to the decisions in Dwernychuk , Loveman and Kutynec , the Court concluded that this was not the proper case for the trial judge to have declined to hear the accused’s Charter application, notwithstanding the failure to give proper notice.

As such, the Court concluded, at para. 18, that “ procedural requirements must give way to constitutional rights”. [ 96 ] The Applicant places great weight on a number of obiter passages in the majority decision of Helper J.A. that discuss possible options that would have been available to the trial judge to accommodate the Askov application without unduly disrupting the trial.

One of the arguments advanced by the Crown before the Trial Judge was that an adjournment of the trial would have been required given the Crown’s intention to examine defence counsel relative to his participation at various pre-trial conferences, thereby forcing him to withdraw from the case.

On appeal, the Crown sought to uphold the trial decision on a number of bases, including the fact that the trial had been scheduled for some period of time; various witnesses had been subpoenaed and were set to testify; a full hearing would be required to consider the Askov application; and an adjournment of the trial would adversely impact the court’s ability to effectively manage its trial schedule.

It was in this context that Helper J.A. suggested (at p. 206): In this case, an adjournment of the commencement of the trial may not have been the only means available to the trial judge to deal with the Askov application.

Upon Crown counsel’s request for time to prepare for the application and to present his submission, she could have decided to proceed with the trial and hear the Askov application at a convenient time during the course of, or at the conclusion of, the trial. [ 97 ] Continuing at p. 207, Helper J.A. stated: I am not advocating such a practice in all cases, and I am not suggesting this alternative method of proceeding is ideal. Far from it for the obvious reason that, if the application succeeds, a trial may not be required.

Additionally, in the case of a jury trial, a different approach to the late notice of an Askov application may have to be taken. Finally, in all cases, justice must not only be done, but must be seen to be done. Reasonable notice of Askov applications is recommended by the jurisprudence and required by the Rules. Notice operates in the best interests of all concerned for the management of trial schedules and the hearing of appeals.

This, however, was not the ordinary case, and this was not an ordinary delay. (emphasis added) [ 98 ] In separate, concurring, reasons, Kroft J.A. underscored the unique nature of the situation then before the Court. At p. 210, he stated: When exceptions to the timely notice policy are made, the trial judge will have to respond by making pragmatic adjustments to the preferred and proper procedure. They may be in the form of an adjournment or a reorganization of a previously planned trial schedule. Such changes may be inconvenient to counsel and to witnesses, may be costly and may result in even further delay.

The refusal to make them does not, though, justify a denial of justice. Helper J.A. has suggested that a postponement of the hearing until after the completion of the trial might have been a solution in this case. Although she may be right, I do not know enough about the circumstances pertaining to prior representations by counsel, the availability of witnesses or the contemplated trial

schedule to react to this suggestion. Postponement of the hearing of an application to stay until after the trial may be an option to be considered but to me, it seems to be the least desirable choice. As was pointed out by my colleague, a post-trial hearing is not likely to work where the trial is one before a jury. Even where the trial is to be before a judge alone, it will leave unresolved many of the scheduling problems and, more importantly, may leave an air of suspicion surrounding the ultimate hearing.

If the entire case is presented to the court before the Askov application is presented, there could easily be a perception that the proceeding is unfair. Let it be understood, though, that my comments here are an expression of concern and not a rejection of the suggestion that the hearing of an application might, in rare situations, follow the trial. [ 99 ] The facts in Loewen were very different from those in the matter now before me. As noted by the Court of Appeal, this was the only identified case at the time in which a trial judge had refused to entertain a Charter application brought by an accused.

In the current matter, counsel have not referred me to any other cases involving similar facts that have arisen since Loewen . It is for this reason that I approach the decision with caution and reject the Applicant’s reliance on the decision in this instance. In my view the key fact in Loewen was that the trial judge refused to hear the accused’s Charter application brought before the start of the trial.

It was the denial of even the opportunity to make the Charter argument that prompted the intervention of the Court of Appeal and led the Court to suggest that postponing the trial or, alternatively, the hearing of the application may have been better options than refusing to hear the application altogether. In my view, the Court of Appeal’s decision was a pragmatic response to a highly unusual fact situation. I do not read Loewen

as standing for the proposition that an accused may wait until the conclusion of his or her trial to raise for the first time that the trial didnot take place within a reasonable time. To the extent that the Applicant’s argument is based on such an

interpretation of Loewen, Irespectfully reject such a contention. [100] There is no suggestion in this instance that post-conviction delay is an issue in the sense that the Applicant is complaining of along delay from the date of conviction to the completion of the sentencing process. There is clearly authority for the proposition thatpost-conviction delay, either in conjunction with pre-trial delay or as stand-alone delay, can give rise to a breach of s. 11(b). See: R. v.Rahey, (SCC), [1987] 1 SCR 588; R. v. Gallant, (SCC), [1998] 3 S.C.R. 80; R. v. Bosley (1992), (ON CA), 18 C.R. (4th) 347 (Ont.

C.A.). [101] In my view, the timing of this application is highly problematic. In R. v. C.D., 2014 ABCA 392, the Court of Appeal dealt withanother instance where the accused sought a Charter remedy for an alleged breach of s. 11(

b) after trial and conviction, but just prior tosentencing. At para. 3, the Court observed: Unusually, the motion was not filed until well after conviction and trial, but before sentencing was to occur. The affidavit in support wasfiled only the morning of the scheduled sentencing, and the motion was argued that day. However, written and oral argument before us said little about that timing, and counsel felt that they had not fully researched the law onthat topic. The trial judge did not base himself on that ground, nor discuss the topic.

We will therefore not look on that as a possibleprocedural impediment to the defence motion. [102] In the absence of full argument on the point, I am not prepared to conclude that the Applicant’s impediment is purelyprocedural. Rather, I would conclude that, under all of the circumstances, the Applicant has waived the entire time period and is therebyprecluded from now complaining about delay. [103] The onus of proof in relation to alleged breaches of the Charter clearly rests with the accused person. As such, there is a clearrequirement for an accused to serve timely notice of his allegations in this regard.

It is not, in my view, open to an accused to await theoutcome of his trial and, if unsuccessful in the defence advanced, raise for the first time following conviction that his right to trial withina reasonable time has been breached. [104] It seems likely that the timing of the application was motivated by two factors: (

a) the finding of guilt on August 16, 2015; and (

b) the decision of Nixon J in R. v. Saini and Sandhu, Court of Queen’s Bench of Alberta, Action No. 111009148Q1, June 26, 2015. [105] The related charges against the Applicant’s former co-accused Saini and Sandhu were stayed by Nixon J on June 26, 2015, onthe basis of a finding of a breach of s. 11(

b) of the Charter. As with the case against the Applicant, the alleged trafficking offencesrelative to Saini and Sandhu took place in 2011. Nixon J found that a total of forty eight (48 ) months and three (3) days elapsed betweenthe date of arrest and the scheduled completion date of the trial. Both Saini and Sandhu brought their s. 11(

b) applications at thecommencement of the trial, prior to the calling of evidence. In the case of Saini, he served his Charter notice on the Crown and theCourt on September 29, 2014, thereby manifesting his discontent with the pace at which his matters were proceeding to trial long beforethe actual commencement of the trial.

A copy of Sandhu’s Charter Notice, assuming one was filed, was not located on the court file. [106] While much of the factual background to the Saini and Sandhu matter is obviously identical to that of the Applicant, I note thatNixon J. referred to the fact that the Crown in Saini/Sandhu conceded that there was no waiver of any time period by the accused personsand, moreover, that six hundred and thirty four (634) days were properly characterized as institutional delay. This is a very differentscenario to the one currently before the court.

Nixon J. also described the case as “a simple case” (at p. 100, l. 22) and that the Crownincreased the complexity of the case by adding the Applicant and Irshad to the September 8, 2011 information, only to revert to theoriginal formulation of the charges as against Saini and Sandhu in the indictment of May 27, 2014.

With great respect, I am unable toagree with Nixon J.’s characterization of this case as “simple” given its history. [107] While I appreciate that the Applicant may well question the different outcome in his case from those of his former co-accusedSaini and Sandhu, this does not create an entitlement to similar or identical treatment. The differences between the two situations are, inmy view, very significant, most particularly as regards the timing of the application, but also as regards the s. 11(

b) analysis. In theresult, I place little weight on this decision.

[108] Given the unique circumstances of this case, I am satisfied that this is the type of rare situation contemplated in Morin where anaccused can be found to have waived the entire period of the alleged delay. The Applicant was represented by senior, experiencedcriminal defence counsel throughout the process. Every adjournment was either initiated or consented to by counsel. The date selectedfor the preliminary inquiry and the first trial was, likewise, the subject of agreement between counsel. The second trial date came aboutas a result of a request for the Applicant’s counsel for an adjournment.

The actions of the Applicant throughout were inconsistent with adesire for an expeditious trial: R. v. Steel (1995), 1995 ABCA 410 , 174 A.R. 254 (C.A.). His concerns relative to delay onlybecame sufficiently serious as to warrant this application for Charter relief after his defence was rejected and he was found guilty of thecharges. I would, accordingly, dismiss his application on this basis. [109] If I am wrong in concluding that the Applicant waived the entire period of the complained delay, I go on to consider the matterin accordance with the Morin factors.

As such, the timing of this application falls to be considered in conjunction with the actions of theaccused, prejudice, and the overall balancing of the various factors. Length of Delay [110] The period of time to be reviewed is, as previously stated, approximately 52 months. In my view, this length of time is sufficientto raise an issue as to its reasonableness. Waiver [111] I am satisfied that the Applicant waived three period of time for a total of 32 months. These period are:

a) March 8, 2012 to April 4, 2013 (13 months) – The preliminary inquiry was set in Provincial Court on March 8, 2012. Based on thetranscript of proceedings from that date, there is nothing on the record to suggest that this was anything other than waiver. Specifically,this was a date selected by counsel as being mutually agreeable. In the absence of some evidence that this date was merely acquiescenceto the inevitable, I am satisfied that the agreement of the Applicant’s counsel to this date amounted to waiver.

b) September 20, 2013 – June 19, 2014 (9 months) – The first trial date was set in Criminal Appearance court on September 20, 2013.Ms. Blumer, counsel for Irshad advised the court that her first availability for a seven day block of time was June 9, 2014. All counselagreed to this date. There is no evidence that the Applicant was not in agreement with this date. I am satisfied that this period was alsowaived by the Applicant.

c) June 19, 2014 – March 11, 2015 (9 months) – The first trial date was adjourned as a result of a series of events, including the layingof a new separate indictment relative to the Applicant and the fact that Mr. Wolch elected trial by Judge Alone and advised that thematter could be completed in one day. At Mr. Wolch’s request, the trial was adjourned to a new date, ultimately determined to be March11-12, 2015.

In view of the fact that this new trial date was specifically requested by the Defence, I find that this period of time waswaived by the Applicant. [112] Taking into consideration the periods of time that were waived by the Applicant, I find that the period of delay to be assessed inthis instance is 21.5 months. 3) The Reasons for the Delay

i) Inherent Time Requirements of the Case [113] The focus of the consideration of delay in this instance must obviously include an examination of the total overall delay, 52months. [114] Given my findings of waiver of the three time periods, described above, I turn to consider the remaining blocks of time and, in

particular, the conflict issues relative to the period prior to March 8, 2012. I would define these blocks of time as follows:

a) Date of arrest to fix date for the preliminary inquiry – 8.5 months (June 21, 2011 - March 8, 2012)

b) Date of committal for trial to fix date for first trial date – 5.5 months (April 2, 2013 –September 20, 2013)

c) Date of conviction to date of sentencing - 8.5 months (August 16, 2015 – April 29, 2016) [ 115 ] Dealing with the second period – date of committal for trial to the fix date for the first trial date, I would characterize this 5.5 month period as partly the inherent time requirements of the case and partly delay occasioned as a result of the actions of the Applicant. [ 116 ] The period from the date of committal, April 2, 2013 to the first appearance in the Court of Queen’s Bench, May 31, 2013, a period of two months, was clearly part of the inherent time requirements of the case.

During this time the file was transferred from Provincial Court to the Court of Queen’s Bench and the Crown filed the indictment. The next four-week period, until June 28, 2013, is properly characterized as delay attributable to the actions of the Applicant. Part of the reasons for the adjournment was the fact that Mr. Fagan was away getting married. Another reason for the delay was to allow Mr.

Fagan to respond to the inquiry of Hughes J. on May 31, 2013, regarding his potential conflict in representing multiple, jointly charged accused. [ 117 ] The remaining 2.5 months that makes up this particular block of time is, in my view, properly attributed to the inherent time requirements of the case. During this time period, Mr. Fagan withdrew from the case and was replaced by three new counsel, including Mr. Wolch for the Applicant.

The process of retaining new counsel, ensuring that Crown disclosure was provided to the new counsel, and allowing for a period of time for new counsel to familiarize themselves with the Crown’s case was obviously required given the withdrawal of Mr. Fagan. Given that this was taking place over the summer months and involved three new counsel, I am satisfied that the time required to complete this process was reasonable under all of the circumstances. [ 118 ] Dealing with the third period, from the date of conviction to the date of sentencing, I would break this period into four parts:

a) Conclusion of trial evidence to date of Conviction - 5 months March 12, 2015 – August 16, 2016

b) Date of Conviction to date set for sentencing – 2 months August 16, 2015 – October 16, 2015

c) Date set for sentencing to conclusion of s. 11(

b) application – 5 months October 16, 2015 – March 21, 2016

d) Conclusion of s. 11(

b) application to sentencing – 1 month March 21, 2016 – April 20, 2016 [ 119 ] I would characterize the first five-month block of time, from the conclusion of the trial evidence to the date of conviction, as part of the inherent time requirements of the case. The first portion, until May 29, 2015, was required to obtain a transcript of the evidence and to allow counsel to prepare written submissions. Time was obviously required to allow for the preparation of the transcript and for counsel to prepare their written submissions.

The trial, while not lengthy, involved moderately complex issues relating to eyewitness identification and the use of photo-line ups. The defence called evidence, including evidence from the Applicant denying his involvement in either transaction. The scheduling of the date for the trial decision obviously had to take into account the schedules of the Court and both counsel. Ultimately, the date of May 29, 2015, had to be changed due to the late receipt of the transcript and the inability of the parties to complete their written submissions within the timeframes previously specified.

The matter was, accordingly, set over to August 16, 2015, for decision. [ 120 ] I am satisfied that the second part of this five-month period, until August 16, 2015, the date of conviction, was also part of the inherent time requirements of the case. An adjournment was required when the trial transcript was not completed as quickly as

anticipated. The transcript was necessary to permit counsel to prepare their written submissions. The resulting delay was not lengthy and spanned a portion of the traditional summer holidays. Again, the scheduling of the new date for the trial decision had to take into account the schedules of the Court and both counsel. [ 121 ] There was a further two month delay following conviction to allow for the preparation of a pre-sentence report requested by the Applicant’s trial counsel. The date of October 16, 2016, was fixed for this hearing.

I would characterize this two month period as delay attributable to the actions of the Applicant. [ 122 ] The five month delay that followed, from October 16, 2015 to March 21, 2016, was occasioned by the Applicant’s filing of his Charter application on October 9, 2015. This period of time involved the ordering and review of transcripts of the thirty court appearances related to this matter and the preparation of written briefs by both the Crown and the Defence.

At the conclusion of the hearing on January 27, 2016, judgment was reserved until March 21, 2016, at which time the Charter application was dismissed and a sentencing date was set for April 20, 2016.

In my view, this five month delay arose as a result of the actions of the Applicant. [ 123 ] The first block of time, from the date of the arrest to the fix date for the preliminary inquiry, July 21, 2011, to March 8, 2012, requires more detailed analysis in view of the Applicant’s contention that the Crown was responsible for much of this delay as a result of its failure to take action on the issue of the defence conflict.

While the conflict issue is more fully discussed below, I am satisfied that at least a portion of this initial eight and one half months is properly attributed to intake requirements and, as such, part of the inherent time requirements of the case. [ 124 ] Unfortunately, there is no evidence before me on the normal intake periods for matters in the Provincial Court of Alberta in this or any other region of the province. Likewise, there are no guidelines from the Court of Appeal relative to the inherent time requirements for criminal cases in this province.

In the absence of any such guidelines, I assess the time spent on the intake requirements in the context of the specific circumstances and requirements of this case. [ 125 ] First, unlike Morin , which involved a charge of impaired driving, this case was not ready for trial once all of the witnesses had been interviewed and their statements transcribed and disclosed to defence counsel.

Suspected drug samples were obtained through the two alleged undercover drug transactions involving the Applicant, as well as the trafficking and possession for the purposes charges against the Applicant and the other accused with whom he was initially charged. These samples were sent to Health Canada for analysis. This was an important part of the investigation, both to the Crown as well as to the Applicant.

It added to the overall complexity of the case so as to justify a greater period of time to complete this part of the process. [ 126 ] Second, the requirement for drug analysis, together with the fact that a preliminary inquiry was required, thus necessitating a two-stage trial process, added a degree of complexity to this matter that was absent in Morin .

In assessing the overall complexity of the case, I focus primarily on the circumstances that existed at the time, i.e. the Applicant and three others were jointly charged on a twenty six count information alleged nine separate incidents of trafficking heroin, one count of possession of heroin for the purposes of trafficking, one count of possession of marihuana (of an amount not exceeding three kilograms), and thirteen counts of possession of the proceeds of crime.

The preliminary inquiry was scheduled for three days. [ 127 ] The Applicant concedes that a number of the short adjournments that occurred during this stage are properly characterized as being part of the inherent time requirements of the case. As such, this time was required for standard intake processes, including the provision of disclosure.

However, as of the September 29, 2011 appearance, the Applicant says that all of the delay from this point forward until March 8, 2012, a period of approximately five and one half months, was occasioned by the Crown’s failure to properly address the defence conflict in representing all of the then jointly charged accused.

Specifically, the Defence says that as of September 8, 2011, the Crown was aware that one counsel representing all four accused was in a untenable position yet took no steps to resolve the matter. [ 128 ] Even assuming that there was a duty on the Crown to bring the conflict issue forward for resolution by the court, a subject more fully discussed below, the Applicant’s written brief is entirely silent on the degree of responsibility resting on the Applicant and/or his then counsel to deal with this issue.

As such, the Applicant seeks to place on the Crown the entire responsibility on the Crown for addressing an issue that was fundamentally related to the solicitor-client relationship that existed between the Applicant and his then counsel. For the reasons that follow, I am unable to accept the Applicant’s premise that this was a duty and/or responsibility that rested on the Crown alone. [ 129 ] In conclusion, approximately 14 months of the 22.5 month delay were the result of the inherent requirements of the case.

ii) Actions of the Crown Crown’s alleged failure to raise the conflict issue [130] There is no real dispute between the parties that some delay was occasioned as a result of the fact that both Messrs. Lutz andFagan had to withdraw from the legal representation of the Applicant on account of conflict of interest.

The Applicant argues that whilethe duty to raise issues of conflict, generally, is shared by the Crown, the Defense and the Court, in this instance the Crown is responsiblefor this entire period due to its failure to address the conflict from September 2011, through May 2013. [131] The Applicant states that the Crown was aware of the conflict throughout this period yet failed to act. The Crown agrees withthis general proposition, but says that there is no duty on the Crown to resolve them.

Further, the Crown states that in this case there wasno need for the Crown to raise the conflict issue as it was raised early in the proceedings by Mr. Lutz and eventually dealt with by Mr.Fagan. [132] Conflict is a serious concern that arises when there is a “substantial risk that the lawyer's representation of the client would bematerially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or athird person”: R. v. Neil, 2002 SCC 70 at para. 31.

Avoiding conflict is a core component of the duty of loyalty, which is owed to a clientby his lawyer by virtue of the solicitor-client relationship: Neil, at para. 16. [133] In R. v. Con-Drain, [2008] OJ No 1012, the Court found (at para. 20) that there is an obligation on both Crown and defensecounsel to raise an issue of conflict at “the earliest practicable stage,” (See also Neil at para. 38.) The law requires both parties to be alertand to avoid conflict issues, and that there is an onus on the Crown and defense to identify and resolve any conflict. [134] The Ontario Court of Appeal in R. v.

Atkinson (1991), (ON CA), 5 O.R. (3d) 301, 68 C.C.C. (3d), held thatthe trial judge had erred in attributing delay flowing from conflict entirely to the Crown. There were conflict issues in that case betweendefense counsel and a Crown witness, and the trial judge attributed the delay in resolving the conflict to the Crown. The Court of Appealoverturned that aspect of the decision because defense counsel had known about the conflict issue for the same period of time as theCrown, but had denied the conflict while continuing to act.

The Court of Appeal concluded that “the delay caused by counsel's conflictposition was wrongly viewed as delay attributable to the Crown and given weight it did not deserve.” (see para. 89). [135] Other decisions have categorized delays attributable to conflict as inherent or neutral time requirements, or as attributable to theparty that has the actual conflict: see R. v. Beauchamp, [2008] OJ No 5315 (Ont SCJ) and R. v. Krisza, [2009] O.J. No 2205 (Ont.S.C.J.).

In the related case of Saini and Sandhu, Nixon J. also considered this same issue and concluded that this was delay occasionedby the actions of the Fagan law firm and, as such, attributable to the defence. [136] Graesser J. considered this issue in R. v. Whitebear, 2012 ABQB 626. He concluded that the Court is also obliged to recognizeand deal with conflicts in criminal matters, as they may result in the disqualification of counsel for the accused, Crown counsel, or thetrial judge.

Graesser J. also reviewed the difficult issue of conflict in the context of multiple representations; (at paras 114-117). [137] In fleshing out the contents of a shared obligation to raise conflict, Graesser J. stated as follows at para.124: It is not up to the Crown or the Court to monitor defence counsel's potential conflicts. Records are not (to my knowledge) kept on whatclients defence counsel are acting for or who they have acted for in the past. No records are kept linking defence counsel to witnesses.

Ifsuch records were kept, there would likely be serious privacy issues, and the prospect of that appears to be somewhat "Big Brother"-like.Defence counsel's strategies cannot be permitted to sabotage the interests of justice and the individual fair trial interests of each accusedperson who finds him or herself in the criminal justice system. Nor should convenient disposition of matters where one counselundertakes multiple representation influence the Crown with respect to its duties. [138] The Applicant relies on the decision of Greckol J. in R. v.

Caines, 2011 ABQB 82, in which she dismissed an application for astay of proceedings based on unreasonable delay. Part of the alleged delay was said to flow from one of the defence counsel’s conflict ofinterest in that he not only represented two of the accused, but also extended to current and former representation of witnesses as well asunindicted co-conspirators. At paras. 366 and 371, Greckol J. found that the Crown had a duty to complain about this conflict earlier inthe proceedings and, as such, shared with defence counsel the responsibility for the resulting delay.

At para. 371, she stated: The Crown, however, shares this responsibility. The Crown was in possession of all of the relevant facts involving Mr. Chadi’s multipleconcurrent and successive representational roles. Indeed, because the facts that underlay the charges against the unindicted co-conspirators also will form part of the Crown’s case in the Koker prosecutions, I must conclude that the Crown had full knowledge of thevarious representations undertaken by Mr. Chadi when he became counsel of record in the various related matters (with the exception ofGregoire).

These matters should have been raised by the Crown for determination by a judge long before the conflicts required Mr.Chadi to with

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