R v Mitchell, 2017 ABQB 717

Court of Queen’s Bench of Alberta Citation: R v Mitchell, 2017 ABQB 717 Date: 20171122 Docket: 151005097Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Bruce Jawn Mitchell Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] The Accused Bruce Jawn Mitchell applies to have this Court stay proceedings against him pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms

Part I of the Constitution Act, 1982 , being

Schedule B of the Canada Act1982 (UK),1982, c 11 [ Charter ]. Specifically, he argues that his rights under Charter s 11(

b) have been breached. II. Background Facts [ 2 ] The charges arise from alleged historical sexual assaults that occurred against several individuals during the late 1970s and early 1980s. The initial complainant lodged a complaint to the Calgary Police Service (“CPS”) on July 14, 2014. After a further complainant came forward the CPS charged Mr. Mitchell on August 18, 2015. CPS released Mr. Mitchell by way of an undertaking and a promise to appear, with a first appearance date of September 15, 2015. [ 3 ] Mr. Mitchell retained counsel within one-week of his arrest.

His counsel made a request for disclosure on August 24, 2015. [ 4 ] After the Crown provided Mr. Mitchell’s counsel with disclosure, on January 14, 2016, his counsel filed a written election to be tried by judge and jury. He also requested a preliminary inquiry, which was scheduled for 3 days, starting on September 26, 2016.

[ 5 ] On July 8, 2016, the Supreme Court of Canada rendered its decision in R v Jordan , 2016 SCC 27 , 29 CR (7th) 235, 335 CCC (3d) 403 [ Jordan ]. [ 6 ] On September 7, 2016, the Crown notified Mr. Mitchell’s counsel that new disclosure would be forthcoming. The Crown advised this Court that this new disclosure was not made available to it before September of 2016, and the Crown was not aware of its existence. The new disclosure was material, as it consisted of an audio-video interview that CPS conducted on September 6, 2016, with the first complainant’s brother, who alleged that Mr.

Mitchell had had sexual contact with him as well. [ 7 ] The Crown advised Mr. Mitchell’s counsel that it intended to call the brother as a witness at the preliminary inquiry. Despite the Crown’s efforts, it could not produce the audio-visual interview in advance of the preliminary inquiry. As a result, the parties agreed to adjourn the preliminary inquiry to June 8, 2017. This was the first available date that worked with the Crown's schedule. Mr.

Mitchell’s counsel was available in November of 2016. [ 8 ] Given the late disclosure, the Crown conceded on the record that the adjournment application was proper and that any delay would be borne by the Crown. [ 9 ] On September 26, 2016, the Crown sought a direct indictment, and on December 9, 2016, the Deputy Minister of Justice preferred a direct indictment against Mr. Mitchell. The direct indictment listed the 2 previous complainants, as well as the witness who was going to testify at the preliminary inquiry. [ 10 ] Mr.

Mitchell’s first appearance on the direct indictment occurred on January 6, 2017, during which Mr. Mitchell’s trial date was set for March 5, 2018. This was the earliest available date for a 2-week jury trial in the Court of Queen’s Bench. [ 11 ] The total delay under consideration is 30 months, 27 days. III. Discussion [ 12 ] In Jordan , the Supreme Court of Canada articulated a new paradigm for courts dealing with delay applications pursuant to Charter s 11(b).

The majority set the foundation on which the analysis would be built by saying the following: At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

Jordan at para 46 . [ 13 ] Although one might be inclined to think of the timelines that the Jordan court articulated as being inviolate, much like a limitation period, it would be wrong to so find. The court’s use of the word “presumptive” clarifies this.

In fact, in the recent decision R v Mamouni , 2017 ABCA 347 at para 77 , Slatter JA said, “The framework sets fixed presumptive time limits for the prototypical ordinary case, but it should not be regarded as an inflexible template.” In fact, the Jordan court anticipated this when it said, “To rebut this presumption, the Crown must establish the presence of exceptional circumstances”: Jordan at para 47 . [ 14 ] Gillese JA provides a useful way in which to approach the Jordan paradigm in R v Coulter , 2016 ONCA 704 at paras 34-40 , 340 CCC (3d) 429.

She said the following: Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). Subtract defence delay from the total delay, which results in the "Net Delay" ( Jordan , at para. 66 ). Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ). If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ).

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [Emphasis in original]. [ 15 ] There is one other step in this process. Courts must consider the “transitional exceptional circumstance,” which may “justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan ”: R v Cody , 2017 SCC 31 , 349 CCC (3d) 488, 37 CR (7th) 266 [ Cody ]. [ 16 ] Neither the Crown nor this Court sees any defence delay in the case at bar.

Thus, the net delay exceeds the presumptive ceiling of 30 months, so the delay is presumptively unreasonable. Thus, an important issue that this Court must determine is whether the late disclosure is a “discrete event.”

A. Discrete Event [ 17 ] Discrete events fall within exceptional circumstances, which Jordan describes as follows: Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. Jordan at para 69 [emphasis in original]. [ 18 ] A discrete event will not automatically lower the presumptive ceiling. The Crown must take steps to mitigate the delay.

In Jordan , the court said the following: The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason , the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell , 2016 SCC 26 (S.C.C.) ).

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). Jordan at para 75 [emphasis added]. [ 19 ] In Cody , one of the issues involved new disclosure. On May 3, 2013, the Crown advised defence counsel of new disclosure involving a misconduct allegation against one of the investigating officers. The Charter applications that were scheduled to commence on May 6, 2013, had to be adjourned.

The new disclosure was provided by the end of June, but the court could not accommodate a summer hearing. Defence counsel was not available for a September hearing, so the Charter applications were heard in October of 2013. On this issue, the court said the following: We agree with the Crown that the emergence of this new disclosure obligation qualified as a discrete event, and would deduct a portion of the delay that followed.

It was reasonably unavoidable and unforeseeable, and the Crown acted responsibly in making prompt disclosure, following up as the matter proceeded, and seeking the next earliest available dates. The Crown may have been able to take additional steps, such as disavowing any reliance on the officer’s evidence or tendering it through an agreed statement of facts. However, the requirement is that of reasonableness: the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.

Cody at para 54 . [ 20 ] In the case at bar, this Court finds that the new disclosure was a discrete event that was reasonably unavoidable and unforeseeable, as the investigation was continuing. Once CPS advised the Crown of the new disclosure, the Crown immediately advised Mr. Mitchell’s counsel of the new disclosure’s existence. The Crown then needed time to consider what it would do with the new disclosure. Ultimately, it decided to add a charge against Mr. Mitchell. As in Cody , the Crown in the case at bar acted responsibly in immediately advising Mr.

Mitchell’s counsel that the new disclosure would be forthcoming. The Crown wanted the evidence of the third complainant to be heard during the already-scheduled preliminary inquiry, but “it proved impossible to provide a copy of the new disclosure to defence prior to the commencement of that preliminary inquiry.” [ 21 ] The Crown provided this Court with a hypothetical scenario in which the September 26, 2016, preliminary inquiry was heard. This is a hypothetical scenario, which this Court will not consider inasmuch as the preliminary inquiry was never heard.

The preliminary inquiry was adjourned to a time eight and one-half months later. Mr. Mitchell’s counsel advised on the record that he was available in November of 2016, but the Crown was not. In any event, this, too, is hypothetical in the sense that this preliminary inquiry never occurred, because the Crown sought a direct indictment, which the Deputy Minister of Justice preferred on December 9, 2016.

The Crown argues that this is how it mitigated the delay, inasmuch as it allowed the parties to obtain a trial date earlier than if the adjourned preliminary inquiry had proceeded. [ 22 ] In retrospect, the disclosure was not extensive. The parties, however, did not know this at the time they decided to adjourn the preliminary inquiry. In hindsight, the preliminary inquiry might have proceeded as scheduled, but it is not the role of this Court to second-guess the decisions of the Crown and Mr.

Mitchell’s counsel at the time the disclosure became known. [ 23 ] As a result, because of this discrete exceptional event, some delay would have occurred. It would not be reasonable to expect the “system” to be able to fit a 3-day preliminary inquiry into its

schedule on short notice. In fact, despite the fact that Mr. Mitchell’s counsel was available in November of 2016, there was no evidence provided to this Court that the “system” could fit a 3-day preliminary inquiry into that window. [ 24 ] Nevertheless, the Crown requested the Deputy Minister of Justice to prefer a direct indictment, which was done seventy-one days later. This “short-tracked” this matter, as the parties could then appear in criminal appearance court to set a trial date. [ 25 ] There is no doubt in this Court’s mind that this discrete exceptional event would reduce the total period of delay.

The Crown required time to decide what it would do with the new disclosure. Equally, Mr. Mitchell required time to determine how he would deal with the new disclosure. This Court finds that such reduction would bring the delay under the presumptive ceiling, viz , at least twenty- seven days. [ 26 ] Because the delay is under the presumptive ceiling, Mr. Mitchell must show this Court that the delay is unreasonable. He has not done so.

[27] As a result, this Court finds that Mr. Mitchell’s Charter s 11(

b) rights were not breached and this Court dismisses hisapplication. B. Transitional Exceptional Circumstance [28] The court in Cody said that a court’s consideration of the transitional exceptional circumstance “should be the final step in theanalysis, taken only where ... the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delaycannot be justified based on case complexity”: Cody at para 67. Although this Court has dismissed Mr.

Mitchell’s Charter s 11(b)application based on the discrete exceptional circumstance, it will nonetheless discuss the transitional exceptional circumstance, as theparties provided this Court with argument on it. [29] The court in Cody provides how courts should undertake this analysis when it said the following: When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took placebefore or after Jordan was released.

For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that wererelevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan wasreleased, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).

Cody at para 71 [emphasis added]. [30] In R v Gopie, 2017 ONCA 728 at para 119, Gillese JA similarly said, “Considerations of prejudice and the seriousness of theoffence can inform whether the parties’ reliance on the previous state of the law was reasonable.” [31] In the case at bar, the time before the Supreme Court of Canada released Jordan was about eleven months, from August 18,2015, to July 8, 2016. During that period, did the parties rely on the pre-Jordan factors?

Those factors, and the methodology forapplying them, are articulated in R v Morin, (SCC), [1992] 1 SCR 771, 71 CCC (3d) 1 [Morin], which provides thefollowing: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula, but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" ... While the Court has at times indicatedotherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 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, and (

e) other reasons for delay; and 4. prejudice to the accused. ... The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. ... The length of this period may be shortened bysubtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to theinterests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. Morin at 787-788 [citations omitted]. [32] Courts in the pre-Jordan era warned trial courts not to approach the issue by taking a formulaic approach. In R v Conway, (SCC), [1989] 1 SCR 1659, 49 CCC (3d) 289 at 1674, L'Heureux-Dubé J said: In deciding a claim made under s. 11(

b) of the Charter, the correct approach is in my view to evaluate the reasonableness of the overalllapse of time. A piecemeal analysis is generally not appropriate. In a case where each individual period, taken in isolation from theothers, may constitute a reasonable delay, the total period may nevertheless be unreasonable for the purpose of s. 11(b). … However,nothing prevents a court from focussing on specific time periods which may be significant in the overall assessment, as going to theweight to give to specific delays, as opposed to their reasonableness.

See also R v Bennett (1991), (ON CA), 64 CCC (3d) 449 at 467 (Ont CA), aff’d (SCC), 74 CCC(3d) 384 (SCC); R v Slaney (1992), (NL CA), 75 CCC (3d) 385 (Nfld CA) [Slaney], aff’d (SCC),

[1993] 2 SCR 228, where Goodridge CJN said the following: A view of the total time lapse is, of course, necessary to determine its reasonableness. This view, however, has little significance unlessone also views the component parts of the total period. The total period may be unreasonable even though each component is itselfreasonable. In contrast, the total period may be reasonable and yet a component of it unreasonable. Slaney at 392. [33] Thus, in the end, this Court must conduct an overall analysis of the reasonableness of the delay.

However, this Court mustalso be alive to the fact that it must exercise caution when conducting its analysis. As Fraser CJA said in R v Koruz (1992) 1992 ABCA144 , 72 CCC (3d) 353, 125 AR 161 (CA), aff’d (SCC), [1993] 1 SCR 1134 [Koruz]: The reasonableness standard is not an absolute one. And it cannot be measured against a framework which demands military precision inthe taking of each step in the trial process. We do not live in a perfect world. And while one can strive for perfection, the simpleexigencies of life militate against that ever occurring.

People die, they get sick, they take holidays, they are sometimes absent withoutexplanation, they forget, they marry, they make mistakes and their families, for whom they may be responsible, do likewise. For these reasons, a court should exercise its power to find an infringement of s. 11(

b) with restraint and with due regard to objectiveevidence, not merely subjective intuition. … Koruz at paras 37-38 [emphasis added]. [34] In the case at bar, we know the length of the delay and the Crown, rightly, makes no suggestion that Mr. Mitchell waived anyof the time periods. [35] In terms of inherent time requirements of the case, there are a number of factors that courts must take into account.

Theyinclude the Crown’s processing of the charge, the accused retaining counsel who must then analyze the charge and seek judicial interimrelease of the accused pending the trial, the Crown gathering disclosure and forwarding it on to the accused’s counsel for their review,further disclosure, and scheduling the various steps the parties must take.

When speaking about disclosure in this context, this Court isreferring to the “usual disclosure” in any criminal trial that facilitates the parties feeling they are ready to set this matter down for thenext step in the proceeding, and not the additional disclosure that arises as the matter progresses. [36] Mr. Mitchell concedes that the period from August 18, 2015, to January 14, 2016, is properly characterized as involvinginherent time requirements. Thus, the inherent time requirements reduce the length of delay by almost 5 months.

Remember, this is apre-Jordan analysis. [37] Except for the new disclosure, one could hardly say that either the Crown or Mr. Mitchell was complacent or careless in theiruse of time. [38] In Morin, Sopinka J described systemic delay or limits on institutional resources as follows: When a case is ready for trial a judge, courtroom or essential court staff may not be available and so the case cannot go on. This lattertype of delay is referred to as institutional or systemic delay.

Morin at 791. [39] In the case at bar, the parties did not provide this Court with evidence concerning why the scheduling of the preliminaryinquiry took 149 days following Mr. Mitchell’s election. As well, the parties provided this Court with no evidence why the trial wasscheduled 14 months from their appearance in criminal appearance court. Mr. Mitchell argues that all this time should be consideredinstitutional or systemic delay, but provides this Court with no evidence as to why it should so classify it. Nor did the Crown. [40] If this Court gives the benefit of the doubt to Mr.

Mitchell and assumes that the time from the charge to the scheduling of thepreliminary inquiry is inherent delay and the balance, being 25.5 months, is systemic, the question is whether this is unreasonable. InMorin, Sopinka J said: ... [I]t is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts.With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested inAskov. In such a case, this institutional delay would be in addition to the delay prior to committal.

This reflects the fact that aftercommittal the system must cope with a different court with its special resource problems. It is therefore essential to take into account theinevitability of this additional institutional delay. ... These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment bytrial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to timeto reflect changing circumstances. ...

Morin at 799 [emphasis added]. [41] This means, assuming there is a preliminary inquiry, institutional delay should be no more than 14 and 18 months. [42] In Koruz, Fraser CJA emphasizes that these are guidelines only and they are not fixed limitations: Koruz at para 47. In R vGodin, 2009 SCC 26, [2009] 2 SCR 3 [Godin], the court was dealing with a case where there was a 21-month delay from the date of thecharges to the completion of the one-day preliminary inquiry. The total post-charge delay was 30 months.

Cromwell J noted that thisperiod “substantially exceeded” the Morin guideline of 8 to 10 months, but “[t]hat, on its own does not make the delay unreasonable”:

Godin at para 5. [43] In other words, depending on the circumstances, any delay might be considered, in the pre-Jordan era, to be reasonable orunreasonable. [44] There can be no doubt that an allegation of sexual assault is very serious, but this Court must not allow the seriousness of thecharges to overwhelm its Charter s 11(

b) analysis: R v Côté, 2011 SCC 46, [2011] 3 SCR 215; R v Williamson, 2016 SCC 28 at para 34.However, it is a factor that this Court must consider in its analysis. As stated the Ontario Court of Appeal said in R v Baron, 2017 ONCA772 at para 73, “In cases applying the transitional exceptional circumstance, the seriousness of the alleged offence remains a significantconsideration,” citing, among others, Cody at paras 70-71 [emphasis added]. [45] In Godin, the Supreme Court of Canada clarified the meaning of prejudice to the accused in, when it said: Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custodyor bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminalcharge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin, at p. 801, even inthe absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn" … Godin at paras 30-31. See also R v Askov, (SCC), [1990] 2 SCR 1199 at 1232, 59 CCC(3d) 449; Slaney at 388-389. [46] Mr. Mitchell did not provide this Court with any evidence to show that he has suffered specific prejudice. He relies on theinferred prejudice that arises from the effluxion of time.

As with institutional delay, this Court gives the benefit of the doubt to Mr.Mitchell that he has suffered some prejudice. It would be difficult, however, for this Court to classify this prejudice as being seriousprejudice. [47] The final step in a Morin analysis requires the court to balance the various factors it is gleaned from the facts before it. TheCourt in Morin said the following: The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors.

A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. ... The length of this period may be shortened bysubtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to theinterests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. Morin at 788 [citations omitted]. [48] In Godin, the Supreme Court of Canada provided further guidance to trial courts when they conduct the Morin analysis whenit said the following: This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certaindelays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

As SopinkaJ. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather bya judicial determination balancing the interests which [Charter s 11 (b)] is designed to protect against factors which either inevitably leadto delay or are otherwise the cause of delay." Godin at para 18. [49] Thus, the balancing is, indeed, a balancing. It is not simply evaluating the effect that the delay might have on Mr. Mitchell orconducting an arithmetical analysis of the various dates and to whom this Court will attribute blame.

A finding of delay or prejudice toMr. Mitchell is not sufficient to answer the question of whether a delay is unreasonable. There must be a balancing of a matrix of factors.This Court must use a scale which on the one side it must place Mr. Mitchell’s rights, including any prejudice he has suffered or mightsuffer, and on other side, societal interests; some of which weigh in Mr. Mitchell’s favour, some of which weigh in society’s favour.

Asthe Ontario Court of Appeal stated in R v Kovacs-Tatar (2004), (ON CA), 192 CCC (3d) 91 at para 58, 124 CRR(2d) 164, (Ont CA): The interests involved do not just include the accused's liberty and security interests and his or her interest in a fair trial. There aresocietal interests in ensuring that an accused is tried within a reasonable time, to minimize the prejudice to accused and ensure they aretreated humanely and fairly (Morin at p. 12). But, there is also a societal interest in ensuring that accused are tried on their merits.

AsSopinka J. said at p. 13 of Morin, "As the seriousness of the offence increases so does the societal demand that the accused be brought totrial." [50] When this Court looks at the Morin factors, Mr. Mitchell’s time to trial has not been unreasonably delayed. In coming to thisconclusion, this Court has examined the steps that the Crown has taken in an attempt to truncate the time to trial through the request tohave the Deputy Minister of Justice prefer a direct indictment against Mr. Mitchell. As well, it has placed in the balance the seriousnessof the charges that Mr.

Mitchell is facing, the minimal prejudice he has suffered, and the overall responsible behaviour of the Crown’scounsel and Mr. Mitchell’s counsel. As well, this Court has not lost sight of the fact that the institutional delay in Alberta is somewhatunique in this country, which Morin has said can be taken into account.

[ 51 ] Accordingly, the case at bar fits squarely within a transitional exceptional circumstance, which permits this Court to dismiss Mr. Mitchell’s Charter s 11(

b) application on this basis, as well. IV. Conclusion [ 52 ] In conducting a post- Jordan analysis, this Court starts with the recognition that the 30 months, 27 days exceeds the presumptive ceiling. As mentioned earlier, it finds that there was a discrete event, viz , the new disclosure, which was reasonably unforeseen or reasonably unavoidable. The Crown’s immediate disclosure might have saved the preliminary inquiry, but there would have been delay even following the hearing of the preliminary inquiry.

In any event, the Crown took whatever steps it could to move this matter forward by asking the Deputy Minister of Justice’s to prefer the direct indictment. The preferring of a direct indictment obviated the need for a preliminary inquiry. There was some delay in the Deputy Minister of Justice responding to the Crown’s request to prefer a direct indictment. Jordan , however, addressed this concern when it said the following: ...

Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov .

This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings. Jordan at para 97 . [ 53 ] Alberta is one of those jurisdictions that is plagued with institutional delays. See e.g. Mahoney J’s comments in R v Wilson , 2017 ABQB 68 at para 53 . The Supreme Court of Canada rendered Jordan on July 8, 2016. The Deputy Minister of Justice preferred the direct indictment 5 months later.

Although one might have expected the Deputy Minister to respond immediately on his receiving the Crown’s request on September 26, 2016, in the wake of Jordan , the Jordan court recognized that “in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift culture: Jordan at para 94 . [ 54 ] As well, in Cody , the court said that “the Jordan framework now governs the s. 11(

b) analysis and, properly applied , already provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt”: Cody at para 3 [emphasis added]. The criminal justice system cannot adapt immediately. The court in Jordan and Cody recognized this. [ 55 ] In R v Pyrek , 2017 ONCA 476 at para 32 , 349 CCC (3d) 554, Laskin JA said the following: Finally, in Jordan itself, at para. 98 , the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization.

The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling.

And the delay was caused … not by "repeated mistakes or missteps". [ 56 ] The case at bar, did not “vastly exceed” the presumptive ceiling, and the slight delay was not caused by “repeated mistakes or missteps” on the Crown’s part. [ 57 ] Applying Jordan and considering the law as it previously existed, it is clear to this Court that the overall delay that has occurred in the case at bar was well within the bounds of reasonable having regard to the reasons for the delay, the prejudice to Mr. Mitchell, and the societal interest in having this matter tried on its merits.

As stated in Jordan at para 102 : “Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one”. [ 58 ] Thus, whether one approaches this from a Morin perspective, or a Jordan perspective, or a transitional, hybrid perspective, the delay in having this matter heard was not unreasonable. [ 59 ] Accordingly, this Court finds that Mr. Mitchell’s Charter s 11(

b) rights were not breached and, accordingly, it dismisses his Charter s 11(

b) application. Heard on the 5 th day of October, 2017. Dated at the City of Calgary, Alberta this 22 nd day of November, 2017. K.D. Yamauchi J.C.Q.B.A. Appearances:

Adam Drew Crown Prosecutor's Office for the Crown James Wyman Der Barristers for the Accused