R v Heerema, 2017 ABQB 787

Court of Queen’s Bench of Alberta Citation: R v Heerema, 2017 ABQB 787 Date: 20171219 Docket: 160052221Q2 Registry: Calgary Between: Philip Vincent Heerema Applicant - and - Her Majesty the Queen Respondent _______________________________________________________ Voir Dire Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] The Accused Philip Vincent Heerema 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 [ 2 ] Mr. Heerema faces a number of charges, including sexual assault, sexual exploitation of a young person while in a position of trust and authority, luring, voyeurism, and accessing, making and possession of child pornography. Some of the charges are historical, some arose more recently. All complainants were students who attended school at the place of Mr. Heerema’s employment. [ 3 ] The police arrested and charged Mr. Heerema on June 4, 2015. He was released on a Form 32 Recognizance on the same day, with conditions.

The conditions were varied with the Crown’s consent on July 29, 2015, and, again, on November 6, 2015. The recognizance now allows Mr. Heerema access to a cellular telephone, access to the internet, and supervised contact with children. [ 4 ] Mr. Heerema's trial is currently scheduled for 4 weeks from January 15, 2018, to February 9, 2018. If the trial concludes on February 9, 2018, 2 years, 8 months and 4 days, or 32 months and 4 days, will have elapsed since the police arrested and charged Mr. Heerema.

This is beyond the presumptive delay threshold of 30 months that the Supreme Court of Canada established in R v Jordan , 2016 SCC 27 , 29 CR (7th) 235, 335 CCC (3d) 403 [ Jordan ]. [ 5 ] The parties provided this Court with their own charts that outline the dates on which various matters occurred. There are some important dates contained in these charts that this Court summarizes as follows: June 4, 2015 Mr. Heerema arrested and charged June 5, 2015 to October 16, 2015 Disclosure gathered and provided to Mr. Heerema’s counsel

October 28, 2015 Matter adjourned to November 6, 2015, with consent of both parties to speak to consolidation of informations November 6, 2015 Informations consolidated Pre-preliminary hearing set for January 14, 2016 Preliminary inquiry scheduled for July 18, 2016 to July 29, 2016 Recognizance amended with Crown’s consent July 8, 2016 Supreme Court of Canada renders Jordan July 18, 2016 Mr. Heerema committed to stand trial September 23, 2016 In criminal appearance court, Mr.

Heerema elects to be tried by judge and jury Trial scheduled for January 15, 2018, to February 9, 2018 March 30, 2017 Pre-trial conference April 10, 2017 Direct indictment filed May 5, 2017 Re-election to judge alone June 16, 2017 Supreme Court of Canada renders R v Cody , 2017 SCC 31 , 349 CCC (3d) 488, 37 CR (7th) 266 November 15, 2017 Application that forms the subject-matter of this Court’s decision December 7, 2017 Application heard January 15, 2018 to February 9, 2018 Trial III.

Discussion [ 6 ] In Jordan , the Supreme Court of Canada set out how courts must address delay applications pursuant to Charter s 11(b). The majority said 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 . [ 7 ] 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” identifies this.

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.” 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 . [ 8 ] Gillese JA provides a useful way in which to approach a Charter s 11(

b) issue 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]. [ 9 ] There is one other step in this process. Courts must consider the transitional exceptional circumstances, which may “justify a

presumptively unreasonable delay where the charges were brought prior to the release of Jordan ”: Cody at para 67 . A. Preliminary Issue: Timing of Application [ 10 ] Before this Court addresses the delay issues in the case at bar, it must first address a preliminary issue involving Mr. Heerema’s bringing this application. [ 11 ] Chief Justice Wittmann and Associate Chief Justice Rooke issued a Notice to the Profession and Public dealing with Charter s 11(

b) applications in the wake of Jordan (“Notice”). The Notice was issued on April 25, 2017 as NPP#2017-01. The Notice is familiar to the parties in the case at bar, but this Court will provide the relevant provisions to frame its discussion. [ 12 ] In the case at bar, the parties already had a pre-trial conference.

Thus the Notice says, “the application and supporting documents must be served on the parties and the Court ... 60 days before trial ... or as directed by the Court.” It goes on to say, “all such applications must be scheduled for hearing at least 60 days in advance of the trial so as to allow these applications to be determined well before the trial ...” [ 13 ] The timing of Mr. Heerema’s application requires a further chart, which is as follows: March 17, 2017 Pre-trial conference held.

No indication of any Charter applications June 16, 2017 Cody rendered November 3, 2017 Crown advises Wilson J that she received an email from Mr. Heerema’s counsel on October 29, 2017, advising of his intention to bring a Charter s 11(

b) application November 5, 2017 Mr. Heerema’s counsel advises Wilson J that he felt that “in light of the Cody decision, I concluded that it would be appropriate to [make a Charter s 11(

b) application] Wilson J responds requiring the parties to file and serve the application and materials, in which Mr. Heerema’s counsel was to provide “a detailed written explanation why the time lines in the Notice ... were not complied with” November 13, 2017 Mr. Heerema’s counsel provides Wilson J with a copy of his materials. He provides no further explanation beyond the information he provided on November 5, 2017 November 14, 2017 Wilson J advises counsel that “Whomever hears [the Charter s 11(

b) application] can decide the issue of non-compliance and how Cody changed whatever had been said in Jordan to help explain your delay.” November 15, 2017 Mr. Heerema’s counsel files application and materials November 17, 2017 Wilson J appoints this Court as the case management judge pursuant to Criminal Code s 551.1, as “it is necessary for the proper administration of justice.” November 28, 2017 Crown files response brief and materials December 7, 2017 Charter s 11(

b) application heard January 15, 2018 Trial begins [ 14 ] There was a flurry of activity concerning the date that this Court would hear the Charter s 11(

b) application, and the parties chose December 7, 2017. [ 15 ] The “detailed explanation” that Mr. Heerema’s counsel provided to Wilson J about the delay between the rendering of Cody and the preparation of the materials to support the applications was simply that he had provided the file to his associate to allow her to conduct research and prepare the application. During oral submissions counsel took “full responsibility” for the delay. [ 16 ] In his email to Wilson J on November 5, 2017, Mr. Heerema’s counsel says that Cody drove his decision to make the Charter s 11(

b) application, but provides no argument on how Cody changed the landscape. It is not for this Court to parse through Cody and make such a determination. So far as this Court is concerned, Cody simply confirms what the Supreme Court of Canada said in Jordan . [ 17 ] The Crown argues that Mr. Heerema’s Charter s 11(

b) application ought to be dismissed summarily for his failure to comply with the Notice. In particular, it argues that the hearing “ must occur at least 60 days in advance of the trial date.” [Emphasis added]. Unlike the service of materials, which provides some leeway with the words, “or as directed by the Court,” the actual date for the hearing has no such leeway. The timing of the hearing is mandatory. The Crown cites Rosborough PCJ’s impressive decision in R v Bull , 2010 ABPC 68 at paras 11-19 to support its position that this Court ought to dismiss Mr. Heerema’s application summarily.

[18] Wilson J had the following to say concerning this same issue in R v Grayson, 2017 ABQB 108 at paras 5-6: Tardy notices of Charter applications are often sought to be excused because of the accused's superordinate right to make full answerand defence (s 650(3) of the Criminal Code) as enshrined within s 7 of the Charter ( Charkaoui v Canada, 2007 SCC 9 , [2007]1 S.C.R. 350).

But the right to make full answer and defence does not entitle an accused to "the most favourable procedures that couldpossibly be imagined" nor does it entitled an accused to procedures which only take his interests into account (R v Darroch, 2000 SCC46 at para 24). The accused is entitled however to rules and procedures that are fair in the manner in which they enable him todefend and answer the Crown's case. (R v Rose (1998), (SCC), 129 CCC (3d) 449 This requirement of fairness is owed to both Crown and defence. In the context of rules imposing filing deadlines, trial judges are not totreat them as inflexible.

Trial judges always have a discretion guided by the interests of justice including preventing unfairness andmaintaining the integrity of the process (R v Dwernychuk, 1992 ABCA 316 ; R v Loveman (1992), (ON CA),8 O.R. (3d) 51 (O.C.A.)). In my view our Alberta Rules reflect this. [Emphasis in original] [19] What this Court finds to be the most troubling is the cavalier attitude that Mr. Heerema’s counsel took in relation to thismatter.

They failed to comply with the Notice, and it was not until 61 days before the trial was to start that they even filed their materials.Because of this, the actual hearing could not be heard until 39 days before the trial is scheduled to begin. They had 136 days from thetime the Supreme Court of Canada rendered Cody to make the decision that they would be making the Charter s 11(

b) application. ThisCourt agrees with the Crown’s argument, which it articulates as follows: The Defence has had sufficient time to digest both the Jordan and Cody decisions and with due diligence comply with the Court ofQueen's Bench Rules (Rule 12 and Rule NPP#2017-0

I) to bring the s. 11(

b) application and have it heard within the time prescribed. ADefence scheduling reason or a tactical reason to delay the application beyond the guidelines established by Rule NPP#2017-01 are notlegitimate grounds for allowing the application to proceed on practically the eve of trial.

Further, allowing the application to proceedwithout an extraordinary circumstance explaining the delinquency would be inconsistent with the direction of the Supreme Court inJordan, that all parties to the criminal justice system change the way business is conducted; and also undermines the objective of RuleNPP#2017-01 which is to provide proper substantive and procedural notice to all parties to allow for fair hearing; to maximize the use ofscarce resources; and effect the culture change directed by the Supreme Court in the court system in Alberta. [20] The cavalier attitude that Mr.

Heerema’s counsel exhibited puts pressure on the justice system, as it had to find an availablejudge to hear this application. It also put pressure on this Court, as it has no alternative but to drop everything on which it is currentlyworking to render a hasty decision to allow the parties to make whatever decisions they must make on the eve of the trial.

Mostimportantly, they themselves ignore the exhortation expressed in Cody where the court said the following: All justice system participants – defence counsel included – must now accept that many practices which were formerly commonplace ormerely tolerated are no longer compatible with the right guaranteed by s. 11(

b) of the Charter. Cody at para 35 [emphasis in original]. [21] The question becomes whether this Court should dismiss Mr. Heerema’s application summarily. Although it is arguable thatWilson J essentially waived this Court’s right to dismiss Mr. Heerema’s application by appointing it to hear the Charter s 11(b)application, he did not, in this Court’s view, fetter this Court’s discretion. He specifically left this issue in the hands of this Court by hisNovember 14, 2017 email to the parties. [22] This Court is inclined to dismiss Mr. Heerema’s application summarily based on the foregoing.

However, the questionbecomes whether Mr. Heerema should suffer as a result of the “sins of his counsel.” The answer, quite simply, is no. Mr. Heerema isentitled to receive the full and careful consideration by this Court of his application. This delay did not affect the trial time that the partieshad scheduled. It simply puts further pressure on an already-burdened justice system. Bluntly, it shows a lack of respect for the justicesystem. [23] This Court still has time, albeit somewhat truncated, to consider and render its decision.

It has used its best efforts to provideits decision to counsel timely, although the lack of court resources following the hearing and on the eve of the Christmas break has putfurther pressure on the system. [24] Thus, it will not dismiss this matter summarily, and will consider carefully the other arguments that the parties placed beforeit. B. Total Delay [25] In the case at bar, the total delay is 32 months, 4 days, which is beyond the presumptive ceiling. C. Defence Delay [26] The Supreme Court of Canada in Jordan described defence delay as follows: Defence delay has two components.

The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver canbe explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, aswell as the effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s.11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in theoverall assessment of reasonableness" (R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659 (S.C.C.) , per L'Heureux-Dubé J., atp. 1686).

... The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises"those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate andcalculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Jordan at paras 61, 63. [27] Of importance in the case at bar is whether Mr. Heerema has implicitly (or explicitly, for that matter) waived delay by virtueof his agreement to the dates set for the preliminary inquiry and the trial.

In his brief of argument, he says the following: The Applicant further submits that his counsel's consent to the preliminary inquiry dates from July 18 to July 29, 2016 and the trial datesfrom January 15, 2018 to February 9, 2018 may not constitute as waiver because the Applicant did not have a real choice between twoavailable dates.

The dates selected by Counsel were the first dates available by the Court. [28] In her affidavit that was provided to this Court, Carolyne Ayre, who was appearing in Criminal Appearance Court onSeptember 23, 2016, on behalf of the assigned Crown in the case at bar, deposed as follows: When discussing potential dates with Ms. Quesnelle, I suggested we were likely looking into 2018 and Mr. Fay agreed, stating that hedid not have any availability in 2017. Upon hearing this, the first trial date offered by Ms. Quesnelle was jury selection January 4, 2018with the trial to commence January 11, 2018 for four (4) weeks.

These dates were acceptable to the Crown and Mr. Fay. Then, onreflection, Mr. Fay stated he was asked by his wife to book off the first week of January for vacation. So we looked at the next date,which was jury selection January 11, 2018 with a trial to commence January 15, 2018 for four (4) weeks. [Emphasis added]. [29] Ms. Ayre’s evidence remains unchallenged. [30] In R v Tetrault, 2017 ABQB 349 at para 11, Renke J provided a survey of cases that have considered whether courts havedrawn an inference of waiver of delay from agreements on trial dates.

He provided the following: Substantial authority supports the legitimacy of an inference of waiver from agreement to trial dates. Thus: R. v. Smith, (SCC), [1989] 2 S.C.R. 1120 (S.C.C.) Sopinka J at 1136: "Agreement by an accused to a future date will inmost circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay hasoccurred.

While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally becharacterized as more than silence." Askov, Cory J at 1229: "It may well be that the setting of trial dates and the agreement to those dates by counsel for the accused may besufficient to constitute waiver." Morin at 790: "As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference ofwaiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable." R. v. Heikel, 1992 ABCA 142 (Alta.

C.A.), Fraser JA, as she then was, at para 25: "I acknowledge that there may well be cases where anagreement to a date constitutes nothing more than agreement to the inevitable. In these cases, consent to a date does not give rise to aninference of waiver: Morin, supra, at 17. But in the absence of any evidence that this is so, a counsel's consent to a trial date can give riseto an inference of waiver. It follows that I reject the defence submission that no such inference should be drawn on the basis that agreeingto a date simply means that counsel is available on that date." R. v. Chang, 2016 ABQB 297 (Alta.

Q.B.) [Chang 2016], Gates J at para 33: "In R. v. Smith (1989), (SCC), 52 C.C.C.(3d) 97 (S.C.C.), the Court held that agreement to a future trial date will, in most circumstances, amount to waiver." See also Marek at para 47; R. v. Koruz, 1992 ABCA 144 (Alta. C.A.), Fraser CJA, affd sub nom R. v. Schiewe, (SCC),[1993] 1 S.C.R. 1134 (S.C.C.). [31] In the case at bar, this Court is satisfied that Mr. Heerema’s counsel was not agreeing to the inevitable.

In fact, when offeredthe slightly earlier date, he asked that that date be delayed by one additional week to deal with his familial commitments. [32] Nothing was mentioned as to Mr. Heerema’s counsel’s availability at any time during 2017. Nor did anyone say that theearliest dates available were those in January of 2018. In fact, Ms. Ayre had the assigned Crown’s

schedule for 2017 and 2018. [33] Mr. Heerema’s counsel expressed no objection to the January 2018 trial dates, or the dates scheduled for the preliminaryinquiry, for that matter. [34] Accordingly, this Court finds that the delay from November 6, 2015, to July 29, 2016, and the delay from September 23,2016, to February 9, 2018, constitutes a clear and unequivocal waiver of delay on Mr. Heerema’s part. [35] Cody and Jordan also deal with the lack of availability of the accused’s counsel, which will be attributed to the accused. SeeCody at para 30, and Jordan at paras 64-65. Mr.

Heerema’s counsel’s lack of availability in 2017 speaks to this issue as well. [36] This Court acknowledges that there would be some delay in having this matter heard, which, in the pre-Jordan era, wasreferred to as “institutional delay.” However, even if this Court were to include some institutional delay, this Court finds that the netdelay after removing defence waiver would still be well-below the presumptive ceiling of 30 months.

D. Onus Shifts [ 37 ] In Jordan the majority said the following: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

Jordan at para 48 . [ 38 ] In R v Nasery , 2017 ABQB 564 at paras 173-74 , Gates J provided an excellent explanation of how an accused person can meet this onus when he said the following: To meet this burden, the Defence must show that it took steps to try and have the matter heard as expeditiously as possible. At para. 84, the court explained: "'Action or non-action by the accused is inconsistent with a desire for a timely trial' ( Morin , at p. 802). Here, the trial judge should consider what the Defence could have done, and what it actually did, to get the case heard as quickly as possible.

Substance matters, not form." The court elaborated on this point at para. 85: . . . in order to justify a stay beneath the ceiling, [it is incumbent on the defence] to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates , was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(

b) application) reasonably and expeditiously . At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly. The second factor that the Defence must establish in order to justify a stay in cases where the presumptive ceiling has not been met is that the time to trial "markedly exceeds the reasonable time requirements of the case" (at para. 87).

There are a number of component factors in determining the reasonable time requirements of the case, including the complexity of the case, the steps taken by the Crown to expedite the proceedings, and the circumstances of the location in which the case arises. [Emphasis in the quotation added]. [ 39 ] There is very little evidence before this Court that Mr. Heerema took any meaningful steps to that demonstrate a sustained effort to expedite the proceedings. The Crown produced its disclosure timely, and Mr. Heerema did not seek to expedite the disclosure. Certainly, the cooperation exhibited by the Crown and Mr.

Heerema during the early stages of this case was the norm pre- Jordan . Although the parties should be commended for this cooperation, one wonders whether this level of cooperation will continue to exist post- Jordan . [ 40 ] The Crown took many steps in an attempt to expedite the proceedings. In the interests of time, this Court will not articulate all those steps, but suffice it to say that not one of those steps caused further delay. [ 41 ] This Court does not know what the “earliest possible hearing date” might have been because Mr.

Heerema’s counsel said he was simply not available in 2017. [ 42 ] As well, this Court has already commented on Mr. Heerema’s counsel’s delay in dealing with the Charter s 11(

b) application. [ 43 ] Neither Jordan nor Cody provides an explanation of what might be considered a complex case. This makes sense inasmuch as even a one-count indictment could spawn a myriad of complexities. In the case at bar, the indictment contains 20 charges against Mr. Heerema, which includes 8 complainants. The charges involve historical sexual assaults and other related charges dating back to 1992. There was voluminous disclosure that included electronic media, and forensic examinations.

There will be about 20 witnesses. [ 44 ] Although this case does not rise to the complexity of, say, a multinational fraud, it is not a simple case. The legal issues concerning the elements of the various offences are many. [ 45 ] Finally, the Supreme Court of Canada said the following in Jordan : ... 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 . [ 46 ] 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 and R v Stephan , 2017 ABCA 380 at para 191 . The Supreme Court of Canada went on and said, “in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift culture: Jordan at para 94 . [ 47 ] Thus, this Court finds that Mr. Heerema has not met his onus to show that the resulting delay is unreasonable. E. Transitional Exceptional Circumstance

[ 48 ] The court in Cody said that a court’s consideration of the transitional exceptional circumstance “should be the final step in the analysis, taken only where ... the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity”: Cody at para 67 . [ 49 ] This Court finds it unnecessary to consider the transitional exceptional circumstance in this specific case.

Even had it considered the transitional exceptional circumstance, it is mindful of the following words that Laskin JA stated in R v Pyrek , 2017 ONCA 476 at para 32 , 349 CCC (3d) 554: 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". [ 50 ] The case at bar, did not “vastly exceed” the presumptive ceiling, and the Crown is not guilty of “repeated mistakes or missteps.” [ 51 ] 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. Heerema, 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”. IV. Conclusion [ 52 ] As a result of the forgoing, this Court finds that Mr. Heerema’s Charter s 11(

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

b) application. Heard on the 7 th day of December, 2017. Dated at the City of Calgary, Alberta this 19 th day of December, 2017. K.D. Yamauchi J.C.Q.B.A. Appearances: Allan Fay Fay Snukal Prezpiorka & Associates for the Applicant Martha O'Connor Alberta Justice, Specialized Prosecutions for the Respondent