R v Regan, 2016 ABQB 561

Court of Queen’s Bench of Alberta Citation: R v Regan, 2016 A BQB 561 Date: 20161007 Docket: 130975063Q1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Lance Matthew Regan Accused/Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ I. Introduction [ 1 ] The accused, Lance Matthew Regan (the Applicant), applies for a judicial stay pursuant to s. 24(1) of the Charter on the ground that his s. 11(

b) Charter right to be tried within a reasonable time has been violated. The case is set to be tried by judge and jury for four weeks commencing October 17, 2016. The time lapse between the initial charge and expected conclusion of trial is calculated at 62½ months. II. Timeliness [ 2 ] The Crown objects that the first notice of this application was at a final pre-trial conference on September 7, 2016.

Rule 12 of the Court of Queen’s Bench Criminal Proceedings Rules prescribes the form (CC-1) to be filed in respect of Charter remedies and requires service “…on the parties and the Court 7 days prior to the pre-trial conference or 60 days before trial, whichever is earlier, or as directed by the Court”. No request for direction was made to the Court, even in the face of requests during May and July 2016 for assistance to arrange for transport of the Applicant to British Columbia in order for defence counsel to be able to prepare for trial.

The Crown argues there was no justification for the failure to meet the filing deadline particularly given that defence counsel failed to identify any further potential motions at the last pre-trial conference in May 2016. [ 3 ] In further assessment of the circumstances, the Crown points to the Court’s direction to counsel on November 20, 2015: All right. If that completes it [submissions on O’Connor ] I will leave it that any further pretrial motions be considered with due diligence by Crown and Defence, so that we remain well prepared for – for commencement of trial

[ 4 ] Defence acknowledges the breach but asserts that Crown was neither surprised nor prejudiced. Moreover, the Court gave directions on September 10, 2016 for submissions and set a hearing date for argument such that no consequences should befall the Applicant. [ 5 ] The failure to provide proper notice is more than a technical or minor breach. Defence had plenty of opportunity to raise concerns with the delay as late as May 2016 when it sought help with obtaining the transfer of the Applicant to British Columbia.

As with breach of any rules, it is important for the Court to identify consequences especially where non-compliance may jeopardize or undermine the effective use of court trial time. On the other hand, nothing in the circumstances would suggest that the Applicant withheld instructions or that the lateness was deliberate. [ 6 ] I have no basis on which to conclude that the timing of the complaint raising s. 11(

b) was inspired by the decision in Jordan , 2016 SCC 27 , [2016] SCJ No 27, since that case was issued in early July and Defence waited for two months before seeking a fiat to raise it.

The total length of alleged delay has been known and calculable since November 2015 when the third set of trial dates was confirmed. [ 7 ] In all events, I reject Crown’s argument that non-compliance with the Rule ought to exclude the Court’s consideration of the application entirely: R v Warring, 2016 ABQB 236 , [2016] AJ No 422 at para 90 , or that the Applicant has waived his rights by breach of the time requirement: R v Brouillette , 2016 ABQB 214 , [2016] AJ No 924 at para 31 . [ 8 ] However, in the circumstances here I have decided that non-compliance with the Rules in the late filing of this matter is a factor which the Court is entitled to weigh as part of the overall circumstances.

III. Facts [ 9 ] On August 22, 2011, the Applicant was formally charged with the first degree murder of Mason Tex Montgrand based on an incident at the Edmonton Institution on August 16, 2011, where both were serving prison sentences. [ 10 ] After two appearances without counsel, the Applicant retained Peter Royal, Q.C. during November 2011 and the matter was adjourned to December 14, 2011 to allow defence counsel to review voluminous disclosure.

Defence counsel obtained four more adjournments, without objection, to review disclosure and consult with his client in custody (December 14, 2011, January 25, April 24, and May 22, 2012) before indicating on May 29, 2012 that the matter could be set down for preliminary hearing. [ 11 ] Crown and defence counsel were both complicit in failing to discuss the file and set dates for a preliminary hearing over the next seven appearances (May 29 to August 22, 2012).

On August 29, 2012, defence counsel adjourned confirmation of the preliminary hearing dates of October 15 to 17, 2013 in order to speak with Wheatley Prov. Ct. J. about possible earlier dates. [ 12 ] On September 7, 2012, defence counsel agreed to set the preliminary inquiry for October 15 to 17, 2013. Although a pre-trial conference was set for November 7, 2012, nothing further appears on any court records for over ten months. For whatever reason, on August 19, 2013 the Crown filed a direct indictment, sworn on August 8, 2013.

Also without explanation, the indictment was not provided to legal counsel until August 22, 2013. The preliminary inquiry did not proceed and the Provincial Court information was stayed effective November 1, 2013. [ 13 ] On October 11, 2013 Mr. Royal appeared in QB Appearance Court on the direct indictment to report as follows: …I can tell you that this man is in custody. He was being held in a Special Handling Unit in Sainte-Anne-des-Plaines in Quebec. I sent a designation for him to sign. I’d say that he’s excited by the fact that he doesn’t have a preliminary inquiry.

The Crown filed yet another direct indictment. I think he’s going to fire me because he thinks it’s my fault. And I told him I have no control over the Crown’s direct indictment. They filed it a week before the preliminary inquiry. He would not sign a designation. It was returned to me unsigned… (PC transcripts, 5/21-27) [ 14 ] On October 25, 2013, the Applicant appeared in person to complain about communications with prior counsel and a lack of trust. He also stated that his counsel did not inform him of the direct indictment, adding “and I would like a lawyer that’s going to fight for me to get a prelim.

I want a prelim”. The request to be removed as counsel was granted and the Applicant was directed to return with new counsel by mid-November 2013, which he did. [ 15 ] On November 29, 2013, new defence counsel Anna Konye re-elected to judge alone, with Crown’s consent, and confirmed a pre-booking of trial dates for October 20 to 29, 2014, and a pre-trial conference on March 13, 2014. [ 16 ] That conference was adjourned twice without explanation to May 15 and then August 7, 2014, when it was heard by Macklin J.

While the Crown filed the required CC7 form, at no time did defence counsel submit a completed form addressing disclosure, timeliness or other defence issues. [ 17 ] Macklin J. reported in writing to the parties that the Crown had confirmed during that conference that its lengthy witness list could be pared down to 11 or 12 witnesses. He further reported: The major evidentiary issue relates to a videotape of the alleged incident. The Crown has a videotape taken from 2 different angles of the alleged incident and the Defence is not prepared to consent to either its admission or continuity.

Accordingly, a voir dire will be necessary to determine its admissibility. There are not expected to be any other evidentiary or Charter issues. In short, the Defence requires the Crown to prove its case. [ 18 ] Nothing further transpired until October 3, 2014 when Ms. Konye applied to get off the record, having been discharged by the

Applicant, just 2½ weeks before trial. The Applicant was seeking approval from Alberta Legal Aid to retain a third legal counsel, thistime from British Columbia (Christopher Terepocki). The Court allowed Ms. Konye to withdraw. [19] The matter was set over for one week but no new counsel or agent appeared. The Crown confirmed it was ready to proceed,but the Court was obliged to cancel the trial dates due to unavailability of new counsel.

The Court advised the Applicant that the matterwas set over for two weeks, but that he must deal with this on an extremely urgent basis. [20] The matter was further set over on October 24 and November 14, 2014 to confirm Legal Aid’s approval of a request to alsoappoint co-counsel (Tonia Grace). On December 12, 2014, new defence counsel, Mr. Terepocki, re-elected back to judge and jury withthe Crown’s consent and confirmed 19 days for trial from November 2 to 27, 2015.

Counsel were required to set up a new pre-trialconference with Macklin J. but nothing transpired in that regard. [21] According to letters filed in the Application, defence counsel wrote to the Crown on July 17, 2015 to request additionaldisclosure and to advise the Crown that defence counsel was seeking third party records, attaching a list of those records. [22] Crown counsel responded on July 28, 2015 indicating that, because much of the requested disclosure was in the hands of thirdparties, defence counsel would need to bring an application pursuant to R v O’Connor, (SCC), [1995] 4 SCR 411,[1995] SCJ No 98.

The Crown also advised that it was ready to proceed with the November trial and there was likely insufficient timefor an O’Connor application before the November trial, and it opined that the O’Connor application should have been brought monthsprior. [23] Defence counsel responded on July 30, 2015 to indicate that they had given the Crown almost five months’ notice before trialwhich was sufficient (in actuality this period was only 3½ months) and requested some cooperation. [24] Defence counsel also indicated that they had been interviewing hard to reach witnesses, they were operating on scarceresources under the authorization of the legal aid board, and their client was more than 4,000 km away – all of which made it difficult toprepare for trial, including issues related to disclosure. [25] The Crown responded on August 6, 2015, indicating that it was requesting many of the items from the Correctional Service ofCanada (CSC) to expedite the process despite the fact that it was under no obligation to do so.

The Crown indicated that the defenceshould still bring an O’Connor application as production remained an issue. [26] On receipt of the Crown’s request, counsel for the CSC sent a letter to the Crown on August 19, 2015, indicating that the CSCwould not produce the documents unless defence counsel brought an O’Connor application. That position was communicated to defencecounsel the next day, August 20, 2015. [27] In early September 2015, defence booked court time on September 10, 2015 to speak to an O’Connor application fordisclosure of CSC records.

Although counsel was granted a fiat for late notice in order to argue the merits on further disclosure, theCourt chastised defence for its late filing to the jeopardy of trial dates. Counsel sought advice of co-counsel before confirming that thetrial would again need to be adjourned. [28] It was then agreed to use dates in the first trial week of November 2015 for the second stage of the O’Connor application ifrequired.

Counsel also agreed to apply for case management to conform with Court rules, which did not impede scheduling. [29] The Court heard the O’Connor application on September 23, November 9 and 10, 2015, and issued a decision on November20, 2015, directing further third party disclosure. With the concurrence of counsel, the trial was again adjourned for an additional 11½months, and was set for 19 days from October 17 to November 10, 2016. [30] The total time from the initial charge on August 22, 2011 to completion of trial on November 10, 2016 will amount to 62½months. IV. Law [31]

Section 11(

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

b) to be tried within a reasonable time. A. The Jordan Framework [32] Jordan has significantly changed the framework for s. 11(

b) analyses. The prior analytical framework developed in R vMorin, (SCC), [1992] 1 SCR 771, [1992] SCJ No 25 and subsequent decisions only remains relevant to the assessmentof the transitional exceptional circumstance. A

summary of the pre-Jordan framework is usefully set out in R v Lam, 2016 ABQB 489,[2016] AJ No 887. 1. Total Delay [33] Under the Jordan framework, the Court must first determine the total delay from the date of charge to the anticipated end oftrial (Jordan at para 49). [34] As part of this initial calculation of total delay, the Court must determine if any portions of time have been waived or are

attributable solely to the defence. The waiver of the accused must be “clear or unequivocal” waiver at a time when the accused has fullknowledge of his rights and the effects of waiver (Jordan at para 61; Morin at 790). It is not the right itself which is being waived, butrather the inclusion of specific periods in the overall assessment of reasonableness. Waiver can be explicit or implicit as long as the“clear or unequivocal” requirement is met (Jordan at para 61). [35] Delay attributable to the defence generally includes frivolous applications or requests aimed at causing delay.

In addition, ifthe court and Crown are ready to proceed but the defence is not, the period of delay resulting from that unavailability will be attributedto the defence (Jordan at paras 63-64). [36] Any delay attributable to defence or waived delay is deducted from the total delay (Jordan at paras 61-63). [37] The delay in a Superior Court trial is presumptively reasonable if the residual delay is shorter than 30 months andpresumptively unreasonable if it is longer (Jordan at paras 49, 105). 2. Delay under 30 months [38] If the delay is below the 30-month ceiling, the court is to presume that s. 11(

b) has not been violated. As counsel agreedduring oral submissions that this does not apply to the circumstances here, it is unnecessary to outline how defence may rebut thispresumption. 3. Delay over 30 months [39] If the delay is above the 30-month ceiling, it is presumed that a stay will be entered unless the Crown can demonstrate thatexceptional circumstances justify the total delay, such that the delay was not “unreasonable” (Jordan at paras 69, 105). [40] Exceptional circumstances lie outside the Crown’s control in the sense that: (1) they are reasonably unforeseen or reasonablyunavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise (Jordanat para 69). [41] While it is open to a trial judge to find new categories, the Supreme Court stated that exceptional circumstances typically fallunder two categories: discrete events and particularly complex cases (Jordan at para 71). The Supreme Court also recognized a“transitional exceptional circumstance” for cases currently in the system (Jordan at para 96; R v Williamson, 2016 SCC 28, [2016] SCJNo 28 at paras 24-25). a.

Discrete Events [42] Discrete events include a wide variety of circumstances such as medical and family emergencies, complications in cases withan international dimension, and unforeseeable developments at trial (Jordan at paras 72- 73). Any delay caused by discrete exceptionalcircumstances is deducted from the total delay. [43] If the total delay is less than 30 months after deducting delay caused by exceptional discrete events, it is presumed there hasnot been an unreasonable delay. If the delay still exceeds 30 months, the Court must proceed to the next exceptional circumstance. b.

Particularly Complex Cases [44] Extremely complicated cases sometimes require more than 30 months.

Therefore, the Supreme Court made an exceptionwhere the nature of the evidence or the nature of the issues requires an inordinate amount of trial or preparation time justifying delay(Jordan at para 77). [45] There are many factors that make a case more likely to fall under this exception including: vast amounts of disclosure,numerous witnesses, expert evidence, multiple charges, jointly tried co-accuseds, novel legal issues, and numerous significant legalissues being in dispute (Jordan at para 77). [46] If the complexity of the case justifies the time taken, there has been no unreasonable delay (Jordan at para 80). c.

Transitional Exceptional Circumstance [47] The Supreme Court recognized that the Jordan framework is a dramatic shift in the approach to s. 11(

b) applications.

As theCourt wished to avoid wide sweeping disruptive effects including a widespread staying of charges, the Court included a transitionalexception for cases already in the system (Jordan at paras 92, 97). [48] The transitional exceptional circumstance applies when the Crown establishes that the time the case has taken is justifiedbased on the previous legal framework upon which the parties reasonably relied (Williamson at para 24; Jordan at para 96). [49] As a result, the final step in the Jordan analysis for cases which were already in the system is for courts to weigh the factorsin Morin and R v Askov, (SCC), [1990] 2 SCR 1199, [1990] SCJ No 106, to determine if the delay was reasonableunder the old system.

As part of this analysis, “judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delaysshould account for this reality, as Crown counsel’s behaviour is constrained by systemic delay” (Jordan at para 97). [50] Morin established flexible guidelines for acceptable institutional delay – a reasonable delay for Superior Court trials where apreliminary inquiry is held was 14 to 18 months. Just because a case was outside the benchmark, however, did not mean that there was as. 11(

b) violation. The Supreme Court in Morin at 787-788 held that courts must also weigh:

1. the length of the delay; 2. waiver of 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, (

e) other reasons for delay; 4. prejudice to the accused. [ 51 ] It warrants note that case law under the Morin framework also considered the seriousness of charges.

So too in Jordan the seriousness of an offense was referenced as part of the transitional exception because this “often played a decisive role in whether delay was unreasonable under the previous framework” (para 96). [ 52 ] Nonetheless, the Supreme Court’s application of the transitional exception in Williamson seems to indicate that a person’s right to a trial within a reasonable time cannot be diminished based solely on the nature of the charges (para 34). The Court took the position that serious charges are precisely the cases that should be heard promptly, on the strongest possible evidence.

Therefore, the fact that a charge is serious may actually weigh in favour of finding a s. 11(

b) violation ( Williamson at para 36 ). [ 53 ] If the Crown cannot establish that the delay was reasonable under the old framework, the transitional exception will not apply and a stay will be entered ( Williamson at para 25 ). V. Analysis A. What is the total delay in this case? [ 54 ] As stated earlier, the Applicant was first charged with first degree murder on August 22, 2011. The delay between that day and the anticipated end of trial (November 10, 2016) is 62½ months. [ 55 ] Any waived delay or defence attributable delay must be deducted from the 62½ months. 1.

Waiver [ 56 ] The defence asserts that neither the Applicant nor his counsel clearly or unequivocally waived any delay in this case. [ 57 ] The Crown argues that defence counsel clearly and unequivocally waived the 11½ months of delay between the second and third trial. They rely on Mr. Terepocki’s statement during the first hearing to discuss O’Connor : “We’re agreeable to setting this trial down the road. We’ve spoken with the trial coordinator. It looks like October (2016) is the first sort of available time for a four-week trial.

So in the interests of justice, I think it makes sense” (QB transcripts, 79/29-32). The Crown characterizes this as an implicit waiver of the delay caused by the late application. [ 58 ] The Supreme Court in Jordan allows for implicit waiver, but only where it is clear and unequivocal (para 61). The Supreme Court in Morin at 790 held that implicit waiver requires something in the conduct of the accused from which it is sufficient to infer that the accused has understood that he had a s. 11(

b) guarantee, understood its nature and waived the right. This assessment of implicit waiver is consistent with Jordan (para 61 ) and was subsequently used in R v Mastronardi , 2016 BCSC 1289 , [2016] BCJ No 1498 at para 38 . [ 59 ] The statement made by defence counsel is insufficient to give rise to the inference that the defence clearly or unequivocally waived this 11½ month period of delay.

When read in context, the statement is properly understood to mean that defence counsel agreed with the Crown and the Court that the trial had to be adjourned to the next available date to allow time for the O’Connor application to be heard. [ 60 ] There is nothing in the defence counsel’s statement from which it can be inferred that counsel was waiving the Applicant’s s. 11(

b) right. Indeed, it would be contrary to Charter principles to rely on such equivocal wording to infer that the Applicant waived his right in relation to that portion of time required to seek disclosure that he might require in order to make full answer and defence. [ 61 ] Although it is not necessary that counsel explicitly refer to s. 11(

b) for there to be waiver, an agreement to reschedule in the interests of justice is too general, even where the predicament has arisen by the late filing by defence counsel, to which I will return. [ 62 ] I conclude that the words chosen do not support, expressly or by inference, clear and unequivocal waiver; no portion of the 62½ months is to be reduced on account of waiver. 2. Delay Attributable to Defence [ 63 ] The Crown initially took the position that defence delay was over 35 months in the aggregate and that the onus would shift to defence. During oral argument Crown came to assert that the following periods should be attributed to the defence:

- at least 4 months due to defence delay in Provincial Court appearances between January and the end of May 2012; - up to 2½ months due to delay caused by the Applicant’s failure to promptly

schedule initial trial dates in Queen’s Bench; - 12½ months due to adjournment of the first trial when the Applicant was not ready to proceed; and - 11½ months due to adjournment of the second trial when defence counsel brought a late O’Connor application. [ 64 ] Defence counsel asserts that no delay ought to be attributed to the defence. Defence counsel suggests that, at a minimum, some portion of the 12½ months between the first and second trial was caused by institutional delay.

In terms of the second trial dates, defence counsel argues that the Applicant did not want an adjournment; again, at a minimum, it was caused in part by institutional delay. Defence counsel also seems to suggest that institutional delay caused the O’Connor application to take longer than it otherwise would have, which in turn gave rise to the need to adjourn the second trial dates. Defence counsel further argues that this was a meritorious application and thus the defence was entitled to advance this application without it counting as defence attributable delay.

a) Provincial Court Appearances [ 65 ] It is clear from my review of appearances in Provincial Court that defence counsel required time to review voluminous disclosure ( Jordan at para 65 ). This could arguably take the two months granted to the end of January 2012. Thereafter it is important to accommodate for the fact that the Applicant was held in special handling in Quebec which affected the ability to review disclosure and obtain instructions. From the transcripts, continued requests were unopposed having regard to the status of the Applicant as a serving prisoner on other matters.

Curiously, defence counsel requested one week from May 22, 2012 to review disclosure by CCTV and by May 29, 2012 counsel had instructions to set a preliminary inquiry, so the earlier adjournments may have been excessive. I decline to characterize this as defence attributed delay but will return to the circumstances in examining the exceptional circumstances of the case.

b) Dismissals of Counsel [ 66 ] I categorically reject Crown’s assertion that any delay in setting the first trial dates after the direct indictment was attributable to defence. Notably, the change of counsel did not jeopardize the preliminary inquiry dates which were cratered by the direct indictment. [ 67 ] The Applicant’s decision to dismiss counsel must be viewed in the context of the filing of the direct indictment as I have earlier quoted. It is unnecessary to measure the extent to which the Applicant lost confidence in legal counsel due to the loss of any entitlement to a preliminary inquiry.

Certainly no fault attributes to defence counsel who are unable to explain Crown’s exercise of discretion; the two months to replace counsel and obtain trial dates in those circumstances is not within the spirit of delay attributable to defence. [ 68 ] More importantly, at no time prior to setting trial dates did Crown raise the setting of trial dates on the record. There is nothing before me to indicate that a trial would have been set for an earlier date if the accused had not discharged his initial counsel. Indeed, I find this is unlikely given the pace of the proceeding until that point.

I therefore conclude that the delay from the accused’s decision to dismiss counsel had no impact on the total delay and thus no time will be deducted from the 62½ months for the first change of counsel in 2014. [ 69 ] The same cannot be said of the subsequent change of counsel. [ 70 ] The decision to dismiss Ms. Konye could hardly have come at a worse time.

Although no CC7 was filed by defence and two pre-trial conferences had been adjourned, the matter was ostensibly ready for trial at the conference in August 2014 as reported by Macklin J. [ 71 ] I find that the 12½ month delay between the first and second trials is entirely attributable to defence. The Crown and the Court were prepared to proceed with trial on October 20, 2014.

The only reason the trial did not go ahead is because the Applicant dismissed counsel just three weeks before trial, without arranging for new counsel who could proceed on the dates which had been reserved for more than a year. [ 72 ] The Jordan decision sets out that the period of delay resulting from that unavailability will be attributed to the defence (para 64). Despite defence counsel’s argument that only some of this 12½ month period was due to the Applicant’s inability to proceed to trial earlier, the reason that any delay was required at all was because the Applicant was unable to proceed.

As noted in Jordan at paragraph 60 , the defence should not be allowed to benefit from its own delay-causing conduct. [ 73 ] I decline to apportion the institutional problems with the court calendar. Rescheduling due to untimely dismissal is a predictable and unavoidable consequence of the choice exercised by the Applicant for which he alone bears responsibility.

c) O’Connor Disclosure [ 74 ] I similarly find that the time between the second and third trials is defence attributable delay, notwithstanding the vigorous arguments of defence on this issue. [ 75 ] Defence counsel urges that they did not in the least want the disclosure of further relevant records to jeopardize the trial dates, particularly given that the Applicant was due for statutory release at that time.

They cited issues with the volume of documents already reviewed, difficulties with client communication as well as an aspiration to have Crown assist in facilitating release of materials from CSC as the true causes which led to the adjournment. [ 76 ] From the file, defence identified self-defence as an issue when new dates were set in December 2014. It was always known that the Court could order the transfer of the Applicant for trial preparation upon request. The harsh reality is that counsel simply left it

until September 2015 to notify the court of the issue with third party disclosure.

Although I declined to characterize the statements made on September 10, 2015 as a waiver, counsel badly miscalculated the timing of their request in terms of the jeopardy to trial dates. [ 77 ] As fairly described in R v Bennett (August 30, 2016) Edmonton 111281440Q2 at 10 (ABQB), counsel who set O’Connor applications in this court are expected to know the law and the procedure and time requirements of such an application. [ 78 ] The O’Connor application simply could not have been resolved in time for the November trial even though the Court: granted the fiat, set aside September 23, 2015 for stage one and set a contingent

schedule for required steps to complete the application on a timely basis. Defence counsel also failed to account for additional time needed before trial if the O’Connor application was successful for: 1) the CSC to gather the disclosure, 2) the disclosure to be provided to counsel, 3) counsel to review the disclosure, and 4) counsel to adjust their plans for the trial in accordance with the disclosure. [ 79 ] This trial was not delayed because defence brought an O’Connor application – it was delayed because defence counsel filed the O’Connor application with inadequate time to avoid jeopardy to the trial dates.

As I stated to counsel on September 10, 2015, the application should have been brought in May 2015 (QB transcript, 68/18-22). [ 80 ] Since the timing and not the substance of this application led to the adjournment, it is delay fairly attributed to defence ( Jordan at para 64 ). [ 81 ] Defence counsel notes that the O’Connor application was largely successful in compelling further disclosure. That is true. However, it would presumably have been just as successful if held earlier.

Nothing suggests that the application would have unavoidably jeopardized the November 2015 dates if it had been brought in a timely manner. In the result, it did not vary the amount of time required for trial as rescheduled. [ 82 ] Again, I find nothing to support defence’s argument that any portion of the second late adjournment should be characterized as institutional or otherwise than defence attributable delay. [ 83 ] Accordingly, a total of 24 months must be deducted from the 62½ months of delay, with a net delay of 38½ months.

As the 30 month ceiling has been exceeded, it is presumed that the Applicant’s s. 11(

b) right has been breached. B. Are there any exceptional circumstances that rebut the presumption? [ 84 ] The next step is to consider whether a discrete event, the complexity of this case, or the transitional exceptional circumstance justify any material portion of this residual delay. 1. Discrete events [ 85 ] Neither the Crown nor the defence has alleged discrete, exceptional circumstances as envisioned in Jordan and subsequent decisions. Indeed, on the record before me there is no evidence of any such circumstance and thus I find that this consideration does not apply. 2.

Complexity [ 86 ] The Crown suggests that unnecessary complexity with delay is now demonstrated, if not caused, by the Applicant’s decision to request a 19 day trial by judge and jury. However, the time required and type of fact finding involved standing alone are modest measures of complexity. [ 87 ] The Applicant on re-election with consent is entitled to a trial by judge and jury. He is also entitled to make full answer and defence even if that takes 19 days of court time. There is nothing before me suggesting that 19 days is an inordinate length of time for this trial.

The Applicant will not be penalized for exercising his constitutional rights, particularly as he re-elected well in advance of the trial dates now under consideration. [ 88 ] The Crown also argues that this is a complex case given the O’Connor application and the large amounts of disclosure required.

Hallmarks of particularly complex cases include voluminous disclosure ( Jordan at para 77 ). [ 89 ] While significant disclosure was produced in this case, the court must decide whether it meets the level of significant disclosure contemplated by Jordan to justify a finding of complexity (para 78). [ 90 ] The Lam decision is instructive because the type and amount of McNeil disclosure in that case exceeded what was typical. Crown argued that this made the case exceptionally complex (paras 63, 69).

The Court noted: “While McNeil disclosure issues are presumably infrequent, they are not inherently complex” (para 65) and then concluded that the increased volume of disclosure fell short of elevating it to a degree of significant complexity to justify the delay (para 70). Other factors bearing on that conclusion included that there was only one co-accused, there was not a large number of anticipated witnesses, and the charges did not encompass a long period of time (para 69). [ 91 ] In the same way, the fact that there was an O’Connor application in this case does not make it inherently complex.

There is nothing suggesting that this O’Connor application created exceptional disclosure and justified up to anything near 8 months of delay beyond the presumptive ceiling, particularly as there is only one charge, one accused, and few significant legal issues in dispute beyond self-defence. [ 92 ] Importantly, the timing of the O’Connor application has already been fully deducted as attributable to the defence.

While the O’Connor application added some complexity requiring perhaps as much as 3 or 4 months additional preparation between the second and third scheduled trials, all of the time between those trials has already been deducted as defence attributable delay. It would be unjust

to deduct time attributed to the complexity of O’Connor disclosure when that has already been treated as defence attributed delay. [93] Finally on the matter of complexity, the Crown urges that this is a completely novel case in Canadian law which makes thiscase more complex. [94] While the full evidence remains to be disclosed at trial, a claim of self-defence in a prison setting is not a unique argument: Rv McConnell, (SCC), [1996] 1 SCR 1075, [1996] SCJ No 51; R v Raphael, 2009 SKCA 16, [2009] SJ No 75; R vKnife, 2011 SKQB 444, [2011] SJ No 750; R v Tolway, 2009 NBPC 52, [2009] NBJ No 427; R v Plain, (ON SC),[1997] OJ No 4927, 44 OTC 8 (Gen Div); R v Kerr, 2004 SCC 44, [2004] SCJ No 39; R v Chan, 2005 NSCA 61, [2005] NSJ No 134; Rv MacDonald, (BC CA), [1997] BCJ No 1655, 95 BCAC 33. [95] Even if this was a novel issue, on balancing the factors I cannot say that this level of complexity is significantly or evenobviously beyond what is typical in a murder trial.

It carries no link to the delay between August 2011 and October 2014. [96] In

summary, the complexity as derived from the length of this jury trial, the volume of disclosure and the third party recordsconcerned with self-defence do not engage any fresh deduction as would bring this case near or below the 30 month threshold. 3. Transitional Exception [97] Because this prosecution was in the system prior to Jordan, the transitional exception must be considered. The Supreme Courtemphasized that for most cases that are already in the system, the release of Jordan should not automatically transform what wouldpreviously have been considered a reasonable delay into an unreasonable one (para 102).

The Supreme Court has mandated a flexible andcontextual approach. [98] Upon careful review of all the circumstances, I am obliged to conclude that the transitional exception does not apply. Theonly factors from the Morin analysis upon which the Crown may have relied beyond actions of the parties would be: (

a) limits on institutional resources, (

b) prejudice to the accused, and (

c) seriousness of the charge. [99] There is no suggestion that limitations on institutional resources affected the handling of this particular case by the Crown.True, Alberta is “plagued by lengthy, persistent and notorious institutional delays” (Jordan at para 97). One tool by which the Crownmay choose to expedite cases is the direct indictment. But the timing of its use here has been ineffective at best and quite arguablydetrimental. If the Crown had preferred its direct indictment in immediate response to the 14 month lag time for a 3 day preliminaryinquiry, different considerations may have arisen.

Instead, after a 10 month hiatus, the direct indictment led in some degree to theApplicant’s untimely change in legal counsel which advanced nothing. In short, it certainly does not fit into any “concrete plan tominimize delay” (Jordan at para 79). [100] It is fair to assume that the reason the Crown did not seek to pre-empt other cases to accommodate this matter was because ofthe long standing shortage of judges in this province relative to population growth and dramatic increase in demand.

It would be equallyfair to assume that it advances nothing if pre-empting simply shifts the problem to another case. [101] But institutional resources cannot qualify as a transitional exception standing alone. Numerous cases in Alberta as elsewherehave been dismissed for delay based on the specific circumstances despite obvious limits on resources: Lam; Brouillette; R v PJS, 2014ABQB 409, [2014] AJ No 762; R v Vassell, 2016 SCC 26, [2016] SCJ No 26.

So too in other jurisdictions Mastronardi, R v Stephen,2012 ONCA 411, [2012] OJ No 2678, R v Topol, 2008 ONCA 113, [2008] OJ No 535; and R v Horner, 2012 BCCA 7, [2012] BCJ No18. [102] The conduct of the Crown does not support that it was especially driven to exceed the reasonable limits under the Jordanframework (30 months) because of reliance on the previous state of the law.

Even ignoring that a preliminary inquiry never wasconducted, the case already exceeded the Morin framework (18 months) by 6 months when the direct indictment was served. [103] As to prejudice, the Applicant has served nearly all the 62½ months at issue, when he may otherwise have been entitled tostatutory release after only 51 months (all of the period to the end of the first set of trial dates at the end of November 2015). There isnothing in the conduct of the Crown in prosecution of this case which has extended that status.

While this militates against being toostrict or harsh in applying the new framework, it is hardly a compelling basis to excuse 8½ months extended delay. [104] Moreover, there is unavoidable prejudice in the total delay as affecting the memory of all witnesses, particularly where nopreliminary inquiry has been held. There is a very great risk of witnesses responding that they are simply unable to recall because theevent is now over 5 years ago.

While not as dramatic, the same problem would have been at play when the matter was first set to beheard in October 2014, before any defence attributed delay. [105] The seriousness of the charge is the most problematic consideration. On one hand, a first degree murder prosecution doesinvoke a public interest in having matters determined on the merits of the evidence (Morin at 787). Here, the Applicant was already aserving prisoner and there are some indicators that Crown may have raised no objection with the Defence adjournments because of theincarceration at the time of the new serious charges.

The exceptional circumstances may explain some of the early delay before defencewas ready to set the matter for preliminary inquiry as discussed earlier. That is not quite the same as factoring the seriousness of thecharge but there are some parallels. Jordan contemplates that seriousness and prejudice may inform whether reliance on the previousstate of the law was reasonable (para 96). [106] The problem is that in Williamson the Supreme Court stated clearly that a person’s right to a trial within a reasonable time

cannot be diminished based solely on the nature of the charges he or she faces (para 34). The Court further observed that the public interest is best served by trying serious charges on their merits in a timely fashion and that these are precisely the cases that should be heard promptly (para 36). This conclusion appears to be consistent with Jordan at paragraph 81 . [ 107 ] I am reinforced in not examining the seriousness of the offence as a basis for extension of time by the Lam decision at paragraph 99 .

However, in the spirit of the commentary in Jordan (para 96 ), the most that I am able to conclude as to reliance on the previous law, without getting tied into considerations of seriousness alone, is that the reliance by the parties on an initial lack of prejudice and the prolongation of disclosure review informs and justifies perhaps 2 or 3 months of delay. That is insufficient to relieve against the presumption of entitlement to a stay. [ 108 ] It is therefore difficult to rationalize that these considerations under the transitional exception taken cumulatively materially affects the consequences in this case.

It is a prosecution for first degree murder, the Applicant was a serving prisoner at the time of the homicide and there is little to suggest that the Crown has failed to act diligently, including efforts to facilitate privacy concerns of the CSC in the context of disclosure to make full and answer and defence. The Crown did, however, have a very real opportunity to minimize the impact of delay by the timely and prudent use of its direct indictment power when the dates for preliminary inquiry could not be moved forward.

It is not for the court to fault the Crown in this regard and I do not ( Jordan para 79 ). [ 109 ] But in the exercise of my responsibility to weigh public interest against the Applicant’s Charter rights, the circumstances cannot justify, explain, or diminish the net period of 38½ months of delay. These considerations also do not justify the total delay based on the previous legal framework upon which the parties reasonably relied. [ 110 ] Returning briefly to the failure to file this motion on a timely basis, it is a factor to be considered in the context of the other steps taken by defence.

If the net delay was 31 or 32 months, then given some pattern of other untimeliness (changing counsel, the O’Connor application) it would certainly be open for the court to dismiss this motion. It is not, however, serious enough to bridge or excuse the residual 4 or 5 months above the presumptive ceiling in the overall circumstances. 4. Other Circumstances Qualifying as “Exceptional” [ 111 ] Although the list of exceptional circumstances is not closed ( Jordan at para 71 ), I find that there are no other circumstances qualifying as exceptional. VI.

Conclusion [ 112 ] I therefore conclude that the Applicant’s s. 11(

b) Charter right has been violated. Accordingly, I order a stay of the proceedings under s. 24(1) of the Charter . Heard on the 5th day of October, 2016. Dated at the City of Edmonton, Alberta this 7th day of October, 2016. S.D. Hillier J.C.Q.B.A. Appearances: Ian Elford Jodie Currie for the Crown Tonia Grace Chris Terepocki Grace, Snowdon & Terepocki LLP

for the Accused