R v Ledesma, 2018 ABQB 1055

Court of Queen’s Bench of Alberta Citation: R v Ledesma, 2018 ABQB 1055 Date: 20181221 Docket: 120236229Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Kyle Victor Ledesma Accused Restriction on Publication Temporary Publication Ban – By Order of the Court, this decision and any information concerning pretrial motions and voir dire proceedings must not be published before the jury retires to consider its verdict. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial Notice: The restriction on publication ended February 10, 2019. _______________________________________________________ Ruling on an Application to Stay the Proceeding on the Basis of an Alleged Violation of

Section 11(

b) of the Charter of the Honourable Mr. Justice M. David Gates

_______________________________________________________ Introduction and Overview [ 1 ] Kyle Victor Ledesma (“the Accused”) is charged with second degree murder in relation to the death of Dexter Bain, alleged to have taken place on November 27, 2010. The Accused was charged with murder on February 27, 2012. [ 2 ] The Accused was tried by a jury in a trial that commenced on February 17, 2015 (“the first trial”). On March 20, 2015, he was found guilty of second degree murder and sentenced to life imprisonment without eligibility for parole for 12 years.

He successfully appealed his conviction to the Alberta Court of Appeal. A new trial was ordered on April 28, 2017. A second trial was set to commence on October 22, 2018, with 22 days being reserved for pre-trial applications. The trial is scheduled to proceed commencing January 14, 2019 in the Court of Queen’s Bench of Alberta with a jury. The second trial date was set on June 23, 2017.

A pre-trial conference was set for October 19, 2017. [ 3 ] During the June 23, 2017 court appearance, the Defence served notice of its intention to file a Charter application alleging a breach of the right to a trial within a reasonable time, as guaranteed by s 11(

b) of the Canadian Charter of Rights and Freedoms (“the Charter ”). The October 22, 2018 date was the earliest available block of 22 days in the Court’s

schedule at the time. [ 4 ] The Accused was arrested on January 16, 2012. He was in custody from the date of his arrest until he was ordered released by Eidsvik J at the conclusion of a review conducted pursuant to s 520 of the Criminal Code , on June 26, 2018. [ 5 ] On November 10, 2017, the Accused filed a Charter Notice alleging a breach of his right to be tried within a reasonable time, as guaranteed by. 11(

b) of the Canadian Charter of Rights and Freedoms . This application was heard by me on October 22, 2018, at the conclusion of which I reserved my decision. These are my reasons for decision. Facts [ 6 ] On November 27, 2010, at approximately 3:30 AM, Dexter Bain was behind the bar at Our Place Pub in Calgary, preparing drinks, when several masked individuals entered the pub through the back door. One of the masked assailants shot Bain twice in the back with a .22 calibre weapon.

Bain was killed as a result of this incident. [ 7 ] The Accused became a person of interest to the police as a result of CCTV recordings that captured him at a convenience store in close proximity to Our Place Pub shortly before the incident. In addition the Accused was subsequently linked by the police to a separate shooting involving his cousin that also involved a .22 calibre firearm. A “Mr. Big” undercover police operation targeting the Accused commenced in August 2011.

The principal evidence implicating the Accused in the murder of Dexter Bain flows from a series of statements he gave to undercover police officer during the course of the “Mr. Big” operation. [ 8 ] The procedural history relative to this matter is set out in an Agreed Statement of Facts filed as Exhibit #1 in this proceeding. The parties have agreed to the following facts:

a) It is alleged that on November 27, 2010, the Applicant murdered Dexter Bain.

b) On February 27, 2012, Information 120236229P1 was sworn, and the Applicant was formally charged with second-degree murder.

c) March 15, 2012 was the Applicant’s first appearance. A. Fay appeared on behalf of the Applicant’s counsel, Rebecca Snukal, to adjourn the matter to March 30, 2012 to obtain disclosure.

d) On March 30, 2012, K. Przepoirka appeared on behalf of the Applicant’s counsel and adjourned to April 13, 2012 to obtain disclosure.

e) On April 13, 2012, K. Przepoirka appeared on behalf of the Applicant’s counsel and adjourned to April 19, 2012 to obtain disclosure. Disclosure was initially supposed to be provided to the defence on April 10, 2012. It was noted on the record that the defence was eager to take next steps.

f) On April 19, 2012, K. Przepoirka appeared on behalf of the Applicant’s counsel, and adjourned the Applicant’s matter to April 26, 2012 due to an outstanding issue with disclosure.

g) On April 26, 2012, K. Przepoirka appeared on behalf of the Applicant’s counsel and the matter was adjourned to May 14, 2012 so that the Crown could determine whether they would request a preliminary inquiry.

h) On May 14, 2012, an adjournment to May 30, 2012 was requested on behalf of the Crown. A new Crown prosecutor had been assigned to the matter, and they required more time to familiarize themselves with the case.

i) On May 30, 2012, an adjournment to June 7, 2012 was requested on behalf of the Crown. The matter had once more been re- assigned to a new Crown, and the new Crown required additional time to determine whether they would be requesting a preliminary inquiry.

j) On June 7, 2012, R. Snukal appeared and adjourned the matter to June 14, 2012 for a pre-preliminary meeting. It was stated on the record that the defence was not requesting a preliminary inquiry, and that the preliminary inquiry was being held at the request of the

Crown.

k) On June 14, 2012, the pre-preliminary inquiry was held, and the matter was adjourned to June 18, 2012 to set a date for preliminary inquiry.

l) On June 18, 2012, R. Snukal appeared and adjourned the matter to June 20, 2012. The defence was unable to set a date for a preliminary inquiry for the Crown did not provide time estimates for the preliminary inquiry on PRISM. The defence had attempted to contact the Crown, but the assigned Crown was unavailable as he was in trial.

m) On June 20, 2012, R. Snukal appeared and scheduled at 3-day preliminary inquiry for December 17, 18, and 19, 2012. The anticipated length of the preliminary inquiry was based on the time estimates provided by the Crown.

n) Between December 17 and 18, 2012, the preliminary inquiry was held. The defence called no evidence during the preliminary inquiry, and consented to committal. The matter was adjourned to February 15, 2013 to be spoken to at the Court of Queen’s Bench.

o) On February 15, 2013, the matter was adjourned to March 8, 2013.

p) On March 8, 2013, R. Snukal appeared and set trial dates from May 12 to May 30, 2014. Delay was waived by the Applicant to accommodate for his counsel’s availability.

q) On May 15, 2014, the voir dire for the trial commenced, but did not conclude. At the direction of the Court, the trial was adjourned to September 22, 2014 to continue the voir dire .

r) On September 22, 2014, the voir dire continued, but was adjourned to October 6, 2014 because the R v Hart , 2014 SCC 52 decision was released. The presiding Justice required the adjournment to consider the potential impact of the Hart decision on the case at bar. October 6, 2014 was the first date that could be accommodated by the court.

s) Between October 6, 2014 and October 30, 2014, the voir dire concluded. On October 30, 2014, the matter was adjourned to December 23, 2014 to receive the decision on the voir dire .

t) On December 23, 2014, the decision for the voir dire was received. The trial was adjourned to February 17, 2015.

u) On February 17, 2015 the trial commenced. The Applicant was convicted on March 20, 2015.

v) The Notice of Appeal was filed on April 27, 2015, and Appeal Records were requested by counsel on June 10, 2015.

w) The Appeal Record was first prepared on August 28, 2015. Some dates were erroneously not included by Transcript Management. The Appeal Record was resubmitted and was released on November 9, 2015.

x) An extension to the filing deadline was obtained and provided. That extension was to April 26, 2016.

y) The appeal was heard on December 7, 2016.

z) On April 28, 2017, the Court of Appeal released its Judgment allowing the Appeal. aa) On June 23, 2017, the parties attended the Court of Queen’s bench to speak to the matter at the Applicant’s first appearance after committal for re-trial. Counsel for the Applicant scheduled a bail hearing for September 7, 2017, scheduled a pre-trial conference for October 19, 2017, scheduled a voir dire for October 22, 2018, and scheduled jury selection for January 8, 2019.

Note that on June 23, 2017, according to the court’s availability, the first available date for the Applicant’s voir dire was October 22, 2018. bb) On September 1, 2017, the parties attended and vacated the pre-trial conference on October 19, 2017, and set a new pre-trial conference date for November 2, 2017. cc) On November 2, 2017, the pre-trial conference was held for the Applicant’s re-trial.

The matter was adjourned to November 10, 2017 for the purpose of setting earlier trial dates. dd) On November 10, 2017, the court indicated that it was now willing to hear the Applicant’s matter any time after January 2, 2018, no matter what representations were previously made with respect to the court’s availability for trial. The court indicated that if the defence was not prepared to proceed to trial in January 2018, that the defence would need to waive Jordan between January 2018 and the beginning of trial.

In light of this new information, the matter was adjourned to November 24, 2017 for the defence to review availability for trial, and to seek further instruction from the Applicant. ee) On November 24, 2017, trial dates were set for January 14, 2019, and the defence was asked to waive Jordan for the period of time between January 2, 2018, and January 14, 2019. [ 9 ] It is common ground between the parties that the total delay from the swearing of the information until the anticipated conclusion of the second trial is a period of 82 months, broken down as follows: February 27, 2012 – March 20, 2015 (Date on which the information was sworn to the conclusion of the first trial) – 37 months; March 20, 2015 to April 28, 2017 (Date of conclusion of the first trial to date on which Court of Appeal ordered a new trial) - 25 months; April 28, 2017 – January 25, 2019 (Date on which Court of Appeal ordered a new trial to expected conclusion of second trial) – 20 months.

[ 10 ] As more fully described below, much of the delay associated with the first trial pre-dates the Supreme Court’s decision in Jordan . All of the delay associated with the second or current trial arises after the decision in Jordan was released on July 8, 2016. [ 11 ] While the parties agree on the total delay to be considered in this instance, they take different positions on how that delay is to be assessed, most particularly whether portions of this delay were waived by the actions of the Accused.

The Position of the Crown [ 12 ] The position of the Crown is that in the case of multiple trials, each trial period should be evaluated separately in accordance with the law that governed s 11(

b) assessment at the time. As such, the Crown says that the constitutional clock should be rewound to zero if and when a new trial is ordered as a result of appellate intervention. According to the Crown, to use any other method of calculation would render any retrial offside the presumptive ceilings set forth in Jordan . Applying this suggested approach, the Crown points to conduct on the part of the Accused in relation to both the first and the second trial that brings the total delay below the presumptive ceiling applicable to both trials. In the result, the Crown says that the Accused has failed to demonstrate any breach of his s 11(

b) rights. The Position of the Defence [ 13 ] The Defence contends that the total delay in this instance of 57 months and 22 days, a period that excludes appellate delay, is presumptively unreasonable. As such, the Defence says that the first trial exceeded the 30 month presumptive ceiling set out in Jordan by a period of 6 months and 22 days. In addition, the Defence maintains that the anticipated conclusion of the retrial, January 25, 2019, will exceed the 12 month guideline set out in R v Simon , 2017 ABQB 585 , by 8 months and 28 days.

Further, the Defence maintains that there are no exceptional circumstances or other factors that justify the overall delay in this instance and that the total delay in this instance justifies a stay of proceedings. The Law [ 14 ]

Section 11(

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

b) to be tried within a reasonable time. [ 15 ] In Jordan , the Supreme Court directed trial courts to adopt a new approach to the

interpretation and application of s 11(

b) of the Charter . Briefly stated, the Supreme Court in Jordan established a new framework for considering the reasonableness of pre-trial delay. In R v Cody , 2017 SCC 31 , the Court confirmed it earlier decision in Jordan and provided trial courts with additional guidance in the proper

interpretation and application of the presumptive ceilings established in Jordan . [ 16 ] The Court set two presumptive ceilings in Jordan . The first ceiling was set at 18 months for matters tried in provincial court. A second ceiling of 30 months was set for matters tried in superior courts. The Court directed that the delay to be considered is the total delay from the charge to the actual or anticipated end of the trial, less any defence delay. [ 17 ] Where the overall delay exceeds 30 months, the Crown may rebut the presumption of unreasonableness by demonstrating the existence of exceptional circumstances.

In situations where the total delay is less than 30 months, the onus is on the applicant to show that the delay is unreasonable.

As such, “the defence must establish that (1) it took meaningful steps that demonstrate a substantial effort to expedite proceeding; and (2) the case took markedly longer than it reasonably should have”: Jordan , at para. 48. [ 18 ] The proper approach to the analysis of delay relative to cases that were already in the system at the time the Jordan decision was released is set out in the decision of the Court of Appeal in R v Mamouni , 2017 ABCA 347 , quoting with approval from the decision of the Ontario Court of Appeal in R v Coulter , 2016 ONCA 704 , which set out a Jordan/Cody analytic framework.

Watson JA, for the majority in Mamouni , summarized the approach set out in Coulter in the following terms: Step 1: Calculate Net Delay

a) Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.

b) Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from: (

i) Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(

b) rights; (ii) Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available. Step 2: Determine the Presumptive Ceiling

a) For cases in Provincial courts, the Presumptive Ceiling is 18 months.

b) For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months. Step 3: Calculate Remaining Delay, if Necessary

a) If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were

a) reasonablyunforeseen or unavoidable, and

b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results inthe Remaining Delay.

b) If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events. Step 4: Remaining Delay Greater than Presumptive Ceiling

a) Where the Remaining Delay is greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.

b) The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in thatthe nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.

c) Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed. Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling

a) Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.

b) In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that: (

i) he made a sustained effort to expedite the proceedings; and (ii) the case took markedly longer than it reasonably should have. Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the PresumptiveCeiling in clear cases. Step 6: Transitional Cases where matters commenced prior to Jordan

a) Where charges were instituted pre-Jordan, the application of the above framework must be applied contextually and flexibly,taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, andwhich accepted institutional delay as a justification.

b) In Williamson, the Supreme Court suggested the relevant circumstances to consider in the contextual analysis including: (

i) the complexity of the case; (ii) the period of delay in excess of the guidelines set out by the Supreme Court in R v Morin, (SCC), [1992] 1 SCR771; (iii) efforts of each party to move the case along; and (iv) prejudice caused by the delay to the Accused. [19] The final step, as described by Watson JA in Mamouni, is for the trial judge to take a “last look” at the entire process tosatisfy himself/herself that the trial was conducted within a reasonable time under all of the circumstances arising in the particularmatter. [20] The issue of what delay is properly characterized as “defence delay” was addressed in Jordan and in the Supreme Court’ssubsequent decision in Cody.

Defence delay has two components: (1) delay that has been waived by the Defence; and (2) delay causedsolely by the conduct of the Defence: Jordan at paras 61 and 63. The issue of waiver has been extensively canvassed in the various casesdealing with s 11(b), including R v Askov, (SCC), [1990] 2 SCR 1199, and R v Morin, [1992] 1 SCR 721. In Jordan,the Court confirmed its earlier pronouncements in this regard. [21] In Cody, the Court described in some detail the concept of defence delay. I reproduce several passages from this decision: 28.

In broader terms, the second component is concerned with the defence conduct and is intended to prevent the defence frombenefiting from “its own delay causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conducthas “solely or directly” caused the delay (Jordan, para 66). 29. However, not all delay caused by defence conduct should be deducted under this component… For this reason, “defence actionslegitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65). 30.

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accusedperson; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan,the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolousapplications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, theresulting delay should also be deducted (Jordan, at para. 64).

These examples were, however, just that – examples. They are not stated inJordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as we made clear in Jordan, it remains“open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64). 31.

The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instancejudges are uniquely positioned to gauge” (Jordan, at para. 65)...While trial judges should take care not to second-guess steps taken bydefence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is

appropriate to do so... 33. As well, inaction may amount to defence conduct that is not legitimate (Jordan, at para. 113 and 121). Illegitimacy may extend toomissions as well as acts (see, for example, in another context, R v. Dixon, [1988] 1 SCR 44, at para. 37). Accused persons must bear inmind that a corollary of the

section 11(

b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonabledelay. Defence counsel are therefore expected to “actively advance[e] their client’s right to a trial within a reasonable time, collaboratewith Crown counsel when appropriate and… [u]se court time efficiently” (Jordan, at para 138)... 35. We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defencecounsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct.

Instead, thelegitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants – defence counsel included –must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the rightguaranteed by

section 11(

b) of the Charter. Appellate Delay Occasioned by Court-Ordered Re-Trials [22] The presumptive ceilings established in Jordan contemplate a single trial with or without a preliminary inquiry. The decisionsin both Jordan and Cody make no reference to the determination of an appropriate presumptive ceiling in situations where a matterinvolves more than one trial as a result of the direction of a court of appeal ordering a new trial. [23] The position of the Crown is that the Supreme Court’s decision in R v Potvin, (SCC), [1993] 2 SCR 880, isdeterminative as to the proper treatment of appellate delay in the assessment of delay for the purposes of s 11(

b) of the Charter. In thatinstance, the Supreme Court held that all of appellate delay, including appeals to the Supreme Court of Canada, whether instituted by theCrown or the Defence, are excluded from s 11(

b) analysis. The Crown also relies on the decision of the Court of Appeal in R v Barros,2014 ABCA 367. [24] In Potvin, the Supreme Court found that appellate delay does not factor into the calculation of delay when considering s.11(

b) of the Charter. The decision in Potvin was applied by the Court of Appeal in Barros, where the court confirmed that all appellatedelay, including delay associated with appeals to the Supreme Court, is excluded from any s 11(

b) analysis. The Court of Appeal wenton to consider the remaining delay, a period of approximately 4 years, in accordance with the Supreme Court’s framework set out in R vAskov, (SCC), [1990] 2 SCR 1199, and R v Morin, (SCC), [1992] 1 SCR 771. The Court of Appealultimately concluded that there was no breach of s 11(

b) of the Charter, allowed the Crown’s appeal, and directed a new trial. [25] The Defence concedes that appellate delay is to be deducted from the period of delay to be considered within the Jordanframework. I agree. As such, the period from March 20, 2015, until April 28, 2017, a period of slightly more than 25 months is to bededucted from the overall delay of 82 months, leaving a period of approximately 57 months for further analysis.

Establishing a Presumptive Ceiling in Case Involving Re-Trials [26] The question of how to apply the Jordan presumptive ceilings in cases involving retrials has been considered in a number ofdecisions, including Simon, R v Worme, 2018 ABQB, R v Crowchild, 2018 ABQB 368, R v Bowers, 2017 NSPC 21, and R v Richard,2017 MBQB 11. [27] The Applicant urges the Court to accept that the decision of Wilson J in Simon establishes that the 30 month presumptiveceiling in Jordan is invariably increased by a period of 12 months in cases involving retrials.

At various points in his written brief, theApplicant describes this 12 month period as a “guideline” or as the period of time “that should typically be permitted for a retrial”(Applicant’s Brief, paras 48, 54). In my view, this is not a proper

interpretation of the decision in Simon. [28] In Simon, Wilson J found that a retrial necessarily required some time to complete and that “the solution can only be toarbitrarily add some time to the 30 month presumptive ceiling when dealing with retrials” (at para 71) (emphasis added).

At para 74, heexplained the rationale for the addition of 12 months to the Jordan presumptive ceiling: The 12 month difference between the two ceilings would however seem to make some sense inasmuch as, all other things being equal,the trial is ready to re-proceed shortly after the mistrial declaration or retrial direction. [29] In my view, it is clear from a careful review of the reasons in Simon, that Wilson J did not intend to set a 12 month invariableaddition to the 30 month presumptive ceiling established in Jordon to all retrials.

At paras 76 and 77, he stated: Notwithstanding these conflicts and difficulties it would seem reasonable, albeit arbitrary, to work from the proposition that the oneweek scheduled jury retrial in this case could be expected to conclude by way of verdict no later than 12 months after a mistrialdeclaration or a retrial direction by the Court of Appeal I recognize that other retrial cases might require several months of trial time that would necessarily make the 12 month addition bothartificial and unattainable but surely that can’t be said for a one week jury retrial. [30] In Worme, deWit J, citing Simon, held that a period of nineteen months over and above the 30 month presumptive ceilingestablished in Jordan was reasonable in what he described as a serious, complex case involving a Hart voir dire and a four weekscheduled trial.

In discussing the issue of transitional exceptional circumstances, he also found (at para 103) that “The charge is seriousand there is no doubt that prejudice can be inferred”. [31] In finding no breach of s 11(

b) of the Charter, deWit J stated (at para 106):

…if there is an applicable and separate ceiling for the second trial which in this case is scheduled to last four weeks not including pre- trial applications, a qualitative assessment makes it clear that the overall complexity of this case justifies this total amount of time: Jordan at para 77. For instance in R v S [Simon], the court opined that 12 months would be reasonable for the re-trial of a one week jury trial.

As a result, I find that 19 months or less is reasonable with respect to the second trial. [ 32 ] Hall J reached a similar conclusion in R v Crowchild , 2018 ABQB 368 , a case involving a total delay of 90 months from the date of arrest to the anticipated conclusion of a third trial. In that instance, the Court of Appeal directed a new trial in two separate appeals The accused had been incarcerated since the date of her arrest. [ 33 ] In rejecting a defence application to stay the proceedings on the basis of an alleged breach of s 11(

b) of the Charter , Hall J held that the time required to get the matter to trial in the first instance was reasonable within the Morin framework. With respect to the time period between the first appeal and the conclusion of the second trial, Hall J found that this period was reasonable given that the parties had been guided by the framework set out in Morin . Finally, relying on the decision in Simon , Worme , and the Nova Scotia Provincial Court decision in Bowers , the Court concluded that the 13 month delay from the second appeal to the anticipated conclusion of the third trial was not unreasonable.

Part of this 13 months was characterized as institutional delay, but not to a level as amounting to unreasonable institutional delay. The Court specifically referred to the decision of Wilson J in Simon , noting (at para 29 ) “[H]e [Wilson J] noted that, in the case before him, the trial time required was only one week. For longer trials he suggested the time would need to be extended to accommodate the extra trial time.

He acknowledged his 12 months period for reasonableness was arbitrary”. [ 34 ] I agree with the rationale outlined in both Simon and Worme that the 30 months presumptive ceiling established in Jordan, must be extended in situations involving court ordered re-trials. To require that a re-trial directed by a court of appeal to be concluded within a period of 30 months would, in my view, effectively terminate all criminal cases as soon as the direction for a new trial was made.

While this specific issue was not before the Supreme Court in either Jordan or Cody , I am not prepared to find that this was the intended reach of the Court’s decision. Some additional period of time must be added to the established presumptive ceilings to accommodate the reality that not all trials are concluded in one trial. [ 35 ] I also agree with Wilson J’s rejection in Simon of the approach proposed in Richard , namely that any retrial should be fully excluded from Jordan scrutiny or analysis.

In my view, this is inconsistent with the underlying philosophy articulated in Jordan regarding the need to establish a time-specific analytic framework within which to assess trial delay. [ 36 ] The determination of what additional period of time should be added to the 30 month presumptive ceiling must, in my view, be case specific and guided by the principles and the overall approach set out in Jordan . I am unable to accept the contention made by the Accused in this instance that Simon sets a benchmark of 12 months for all cases involving retrials.

This is, I suggest, not what Wilson J intended in Simon when he described as “arbitrary” the 12 month additional time period of time he added to the 30 months presumptive ceiling in that particular instance. This was the approach adopted by deWit J in Worme , where he found that something more than 12 months was an appropriate addition to the 30 month presumptive ceiling in that instance given the complexity of the case and the length of time required for trial. In Worme , the court found that a period of up to an additional 19 months could be justified in those circumstances.

The First Trial [ 37 ] The first period of delay was 37 months, representing the period of time from when the information was sworn, February 27, 2012, until the conclusion of the first trial on March 20, 2015. I note that no allegation of unreasonable delay was raised prior to the completion of the first trial. The alleged breach of s 11(

b) of the Charter was raised in the Accused’s Charter Notice filed on November 10, 2017, a week after the pre-trial conference held on November 2, 2017. [ 38 ] All of the delay associated with the first trial pre-dates the Supreme Court’s decision in Jordan . While the parties agree on the total delay to be considered in this instance, they take different positions on how that delay is to be assessed, most particularly whether a portion of this delay was waived by the Accused. [ 39 ] The Crown says that a period of 14 months, from March 8, 2013, until May 12, 2014, was explicitly waived by the Defence.

As such, the Crown relies on the transcript of proceedings in CAC on March 8, 2013. According to the Crown, deducting this 14 month period reduces the overall delay of the first trial to 23 months, well below the Jordan presumptive ceiling. Alternatively, the Crown says that a period of delay of 37 months is justified as a transitional exception under the circumstances. [ 40 ] The Defence urges me to find that none of this period of delay should be attributed to the Accused.

Rather, the Defence says that the delay arose solely as a result of the Crown’s insistence in holding a preliminary inquiry when the Defence was prepared to waive the preliminary inquiry, consent to committal, and proceed directly to trial. According to the Defence, the eventual delay occasioned by the unavailability of defence counsel on account of her maternity leave could have been avoided through an earlier trial date when she would have been available.

The Crown’s insistence on a preliminary inquiry foreclosed such an earlier trial date and should be characterized as a contributing factor, if not the sole factor, giving rise to this fourteen month period of delay.

By way of response, the Crown suggests that, in the absence of actual evidence regarding possible earlier trial dates, this amounts to mere speculation on the part of the Defence. [ 41 ] The circumstances pertaining to the fixing of the first trial date are important to a proper understanding of the parties’ positions on this 14 month period of delay. [ 42 ] The Applicant’s preliminary inquiry was held on December 17 and 18, 2012, at the conclusion of which he was, with the consent of his counsel, committed to stand trial. He made his first appearance in the Court of Queen’s Bench on February 15, 2012.

The matter was further adjourned to March 8, 2013, at the request of the Defence. [ 43 ] The parties appeared before Wilson J on March 8, 2013 and set a three-week jury trial commencing on May 12, 2014. This

date was set at the request of the Accused’s long-standing counsel to accommodate her then planned period of maternity leave. Both the Accused and his counsel confirmed on the record that the option of obtaining new counsel so as to facilitate an earlier trial date had been considered and rejected by the Accused. [ 44 ] During the March 8, 2013 court appearance, the following exchanges took place: Ms Snukal Well, I’m going to ask for the matter to go into May 2014. He is in custody. He will remain in custody until then. I have canvassed with him over and over again the possibility of changing counsel.

He is adamant that he does not want to change counsel, and that’s his application, and I’m happy to help him when I come back from my maternity leave. I would be suggesting May 2014. The Court For trial. Ms Snukal For trial. ... The Court Okay. Please stand up. You’ve heard what your lawyer has had to say in terms of requesting that this matter go over for trial for a period of time. It will be some fourteen months – – The Accused Yes, Sir.

The Court I can tell you that would be the sort of situation that I would not tolerate because people were detained, whether it be by operation of law or by virtue of the fact that they’ve lost bail applications, so you have a right to have a trial done within a reasonable period of time, but that is your right, you’ve got a right to waive that. The Accused Yes, Sir.

The Court And I’ve heard what your lawyer has to say, and she pretty well makes it clear that the two of you have really canvassed this thing, and you know exactly what you’re doing, and she tells me that you are content to remain in custody for a further period of at least fourteen months before your trial commences. Is all of that correct? The Accused Yes, Sir, she’s – she’s offered me – she asked me if I wanted separate counsel. I - I refused. The Court Okay. The Accused I just think she’s the best representation for me. The Court Well, those are high praises indeed.

The end result, however, as praiseworthy as that is, that still means that you’re sitting in custody for another fourteen months before your trial starts. So my concern is do you willingly agree to remain in custody pending your trial in 14 months’ time? The Accused Yes, Sir. The Court Okay. I’m satisfied, in the circumstances, you’ve had this canvassed with him, he seems to agree with it, and just to confirm, it is your clear understanding, therefore, that your client waives any Askov application?

Ms Snukal Yes, any delay caused by my maternity leave you’re waiving Kyle? The Accused Yes. Ms. Snukal Yes? The Court Yes, the record indicates he nodded and said,” Yes”… [45] In Jordan, the Court described waiver in the following terms (at para 61): Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his orher rights, as well as the effect waiver will have on those rights.

However, as in the past, “[i]n considering the issue of ‘waiver’ in thecontext 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 periodsin the overall assessment of reasonableness” (R v Conway, (SCC), [1989] 1 SCR 1659 (SCC), per L’Heureux-Dube, at p1686). [46] On its face, this exchange between the Court, experienced criminal defence counsel, and the Accused would appear to amountto explicit waiver.

However, the position of the Applicant is that the special circumstances surrounding this situation, even if amountingto waiver, should not be characterized as defence delay. While I acknowledge the superficial logic of the Defence position in this regard,I do not believe that it can survive careful scrutiny. [47] Parties may, of course, mutually agree to forego the benefit of a preliminary inquiry. However, I am not persuaded that oneparty, whether the Crown or the Defence, can require or compel the other to forgo a preliminary inquiry.

The only exception to thisgeneral proposition would be that the Crown may require a matter to proceed directly to trial by preferring a Direct Indictment. This didnot, however, arise in this instance. Otherwise, there is no legal basis upon which the Crown may compel an individual charged with anindictable offence to forego a preliminary inquiry and agree to proceed directly to trial.

Moreover, no one would, in my view, seriouslycontend that an accused person’s refusal to agree to such an abbreviated process would lead to a finding of defence delay for the periodof time required to complete this stage of the process. Similarly, an accused person may not compel the Crown to forego a preliminaryinquiry where the Crown has requested one. [48] The applicable provision of the Criminal Code is s 536(4). By its terms, an unqualified right is accorded to both an accusedperson and the Crown to request a preliminary inquiry in specified circumstances. The

section provides: If an accused elects to be tried by a judge without a jury or a court composed of a judge and jury or does not elect when put to theelection or is deemed under paragraph 56(1)(

b) to have elected to be tried by a court composed of a judge and jury or is charged with anoffence listed in

section 469, the justice shall, subject to

section 577, on the request of the accused or the prosecutor made at the time orwithin the period fixed by the rules of court made under

section 482 or 482.1 or, if there are no such rules, by the justice, hold apreliminary inquiry into the charge (emphasis added). [49]

Section 577 deals with direct indictments and, as such, has no application to this matter. [50] As set out above, the Criminal Code accords parallel rights to the Crown and the Defence to request a preliminary inquiry. Inthis instance, the Crown requested a preliminary inquiry at the time of the Accused’s appearance in Provincial Court on June 7, 2012,when Mr. Schorn appeared as the assigned Crown and advised that the Crown was “insisting” on a preliminary inquiry. [51] This was the Accused’s seventh appearance in Provincial Court, the first having taken place on March 15, 2012.

A series ofadjournments followed to deal with the provision of extensive disclosure materials to the Defence. Further adjournments werenecessitated by the fact that three different Crown counsel were assigned conduct of the file and required time to familiarize themselveswith the matter. [52] On April 26, 2012, an agent appearing for Ms Snukal advised the court that counsel were in discussions as to whether or not apreliminary inquiry would be required. Subsequently, on May 30, 2012, this same agent informed the court that the Defence were notasking for a preliminary inquiry.

Finally, on June 20, 2012, a three-day preliminary inquiry was set for December 17-19, 2012, a pre-preliminary meeting having already taken place on June 14, 2012. Ms. Snukal appeared in person on that date and expressed no concernregarding the proposed dates or the fact that the Crown had requested a preliminary inquiry. [53] Based on my review of the various transcripts filed in this application, it is clear that the Crown exercised its right under s536(4) and requested a preliminary inquiry. A preliminary inquiry was duly scheduled and completed leading to the Accused’scommittal for trial.

All of this took place without objection or comment on the part of the Defence. [54] In essence, this branch of the Defence argument seeks a finding that the Crown’s request for a preliminary inquiry was notreasonable under the circumstances. At para 60 of his brief, the Accused contends that the Crown’s request for a preliminary inquirywas inconsistent with his rights under ss 7 and 11(

b) of the Charter. This position is articulated in the following terms: …in instances where an accused person is detained and deprived of his liberty pending trial, it is inappropriate for the Crown to force apreliminary inquiry upon him when he is prepared to commit to trial. It is an affront to the basic values enshrined in ss 7 and 11(

b) ofthe Charter that an accused person is obliged to languish in custody for the benefit of the Crown’s trial strategy.

[ 55 ] There is no record of these arguments having been raised with the court contemporaneously with the events in question. There is also no record of any challenge to s 536(4) of the Code as regards the Crown’s right to request a preliminary inquiry. Of course, on June 20, 2012, the date on which the preliminary inquiry was set, defence counsel’s future maternity leave was unknown.

Her future unavailability for trial on account of her personal circumstances was also unknown at the time. [ 56 ] As more fully described below, I share the Defence concern relative to the length of time that the Accused spent in custody on this charge prior to his release in June 2018. However, no bail application was made by the Accused until mid 2017, many months after the first trial was completed and an appeal had been resolved in his favour. Hollins J dismissed the Accused’s first application for judicial interim release on October 5, 2017.

As previously indicated, release was granted on June 26, 2018. [ 57 ] Even assuming that this court has jurisdiction to review the decision of the Crown to request a preliminary inquiry – an issue not fully argued in these proceedings – such a challenge would, in my view, require at least an allegation of bad faith or improper purpose. Beyond a general expression of concern about the reasonableness of the Crown requiring a preliminary inquiry in circumstances in which an accused person is prepared to waive the requirement for same, there is no suggestion of any bad faith or misconduct on the part of the Crown.

Rather, this argument seems to have been advanced somewhat as a shield in an attempt to offset, neutralize, or otherwise explain the 14 month period of delay subsequently occasioned as a result of the maternity leave of the Accused’s counsel.

In my view, there is no merit to this argument in light of the clear statutory right afforded to both the Crown and the Defence to request a preliminary inquiry. [ 58 ] The circumstance and events that can lead to delay in bringing a matter to trial are varied, potentially involving both institutional factors as well as circumstances that are unique to the key individuals associated with the matter. In this instance, the delay arose as a result of the fact that the Accused’s counsel was scheduled to go on maternity leave for a period of time that seemingly coincided with possible earlier trial dates.

As confirmed in the transcript of proceedings on March 8, 2013, the Accused agreed to wait for his counsel’s return to work following her maternity leave notwithstanding the fact that an earlier trial date with another counsel was an option. This was a choice that he made with full knowledge of the consequences to his rights to a trial within a reasonable time. I do not accept the Defence contention that the Accused was obligated to waive this period of delay.

I am satisfied that the Accused clearly waived his right to an earlier trial date and that this period of time is properly characterized as defence delay. [ 59 ] In considering this period of delay, it is important to bear in mind that the purpose of a

section 11(

b) analysis is not to find fault or to attribute blame to one party or the other. Rather, the purpose is to identify and understand the underlying causes of the delay in the process of determining the reasonableness of the overall delay. In Morin , in discussing delay caused by the conduct of the Crown, Sopinka J stated at para 46: “As with the conduct of the accused this factor does not serve to assign blame. The factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated”. What I take from this statement by the Supreme Court, as well as other similar statements in pre- Jordan unreasonable delay cases, is that s 11(

b) analysis is not intended to be a fault-finding exercise. [ 60 ] Having concluded that this period of time was waived by the Accused, I turn to consider the length of time that is to be deducted from the overall delay of 37 months in bringing the first trial to a conclusion. In both the written materials submitted by the parties and in their oral arguments before the Court, this period of time has consistently been described as 14 months.

In my view, this is not a correct calculation of the amount of time that should properly be attributed to defence delay. [ 61 ] There is, unfortunately, no evidence before me as to the typical or normal wait time in the Court of Queen’s Bench of Alberta for three-week jury trials at that particular point in time, March 2013. Likewise, the transcript from this court appearance on March 8, 2013, provides no information regarding any other dates having been canvassed or discussed.

The entire focus of the discussion was on defence counsel’s availability after May 2014, and apparent unavailability before that date. [ 62 ] The Defence contends that there is no evidence that either the Crown or the Court were prepared and able to proceed to trial prior to May 2014, and that the entire period of delay should not be attributable to the defence. While I agree, for the reasons that follow, that not all of this 14 months period should be attributed to defence delay, my conclusion is based on a different reason.

In my view, it can reasonably be inferred from a fair reading of the March 8, 2013 transcript that earlier trial dates were available. If earlier trial dates had not been available, there would have been no requirement for any discussion whatsoever about defence counsel’s earlier unavailability or, indeed, about waiver. [ 63 ] While I find that the Accused waived his Askov rights to accommodate his counsel’s unavailability due to her personal circumstances, I am not prepared to find that this entire 14 month period was waived by the Defence.

Some portion of this 14 month timeframe would, of course, have been required to accommodate the normal wait time associated with obtaining trial dates in the Court of Queen’s Bench. As will be self-evident, the trial could not possibly have commenced immediately and some period of time would have been required by counsel to prepare for trial. Some period of time would also have been required to accommodate this matter within the court’s existing trial schedule.

In the absence of evidence as to the Court’s earliest availability for a three week jury trial in March 2013, I find that eight months only of this fourteen month time period can fairly be attributed to delay caused by the Defence. Based on my experience in fixing trial dates in CAC, I am satisfied that an accelerated trial date could have been obtained with the leave of the Chief Justice so that the trial could have been accommodated within a six month window following the March 8, 2013 court appearance.

Given that the Accused was in custody on this charge, the matter was entitled to be accorded some priority. [ 64 ] Deducting 8 months for this period of delay leaves the total delay relative to the first trial at 29 months. This is below the presumptive ceiling of 30 months. Before turning to consider the Applicant’s contention that the delay was unreasonable even if the total delay in bringing the first matter to trial was less than 30 months, I will deal with the issue of whether exceptional circumstances existing in this instance that provide an alternative basis to reduce the delay of 37 months.

Exceptional Circumstances [ 65 ] If I am wrong in deducting 8 months on account of waiver, I am satisfied that exceptional circumstances existed in this case

that justify a reduction in the overall delay of 37 months. [ 66 ] In Jordan , the Court recognized that the existence of exceptional circumstances can rebut the presumption of unreasonableness in situations where the overall delay exceeds 30 months. The term “exceptional circumstances” was defined in Jordan (at para 69) as: 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 (emphasis in original). [ 67 ] On May 15, 2014, at the outset of the first trial, a voir dire commenced to consider a number of pre-trial applications brought by the Defence. First, the Defence sought leave to cross-examine three (later varied to two) affiants who had sworn informations in support of two search warrant applications and two wiretap authorizations.

In addition, the Accused alleged violates of ss 7 and 8 of the Charter and sought the exclusions of evidence obtained as a result of the issuance of the two search warrants and the two wiretap authorizations. Finally, the Defence challenged the two inculpatory statements provided by the Accused during the course of the multi- month Mr. Big operation.

The voir dire could not be completed and was adjourned at the direction of the court to September 22, 2014. [ 68 ] The voir dire continued on September 22, 2014, and was adjourned to October 6, 2014 as a result of the release of the Supreme Court of Canada’s decision in Hart . As set out in the Agreed Statement of Facts, the trial judge required the adjournment to consider the potential impact of the Hart decision on this matter.

In his Memorandum of Decision on the Voir Dire , [ R v Ledesma , 2014 ABQB 788 ], LoVecchio J stated that this adjournment to await the decision in Hart was taken with the agreement of counsel. The Supreme Court ultimately released its decision on July 31, 2014, but October 6, 2014 was the first date that could be accommodated by the Court. The voir dire continued between October 6, 2014 and October 30, 2014, at the conclusion of which the matter was adjourned to December 23, 2014 for decision. Following the LoVecchio J’s decision to allow the results of the Mr.

Big operation into evidence at trial, the trial was adjourned to February 17, 2015. The trial commenced on that date and the Applicant was convicted on March 20, 2015. [ 69 ] The voir dire to consider all of the pre-trial applications brought by the Defence consumed a total of 7.5 months consisting of 24 sitting days and including the time required by the trial judge to consider his decision. In the midst of the voir dire , the Supreme Court released its decision in Hart , a decision that significantly changed the law on the admissibility of confessions obtained during Mr. Big operations.

In my view, this change in the law mandated by the Hart decision represents an exceptional circumstance within the meaning of Jordan . [ 70 ] The significance of the change in the law represented by the Hart decision is best captured by the fact that the Supreme Court rendered previously admissible Mr. Big confessions presumptively inadmissible, subject only to the Crown demonstrating that the probative value of the confession outweighed the prejudicial effect. In addition, the Supreme Court created a new analytic framework within which Mr. Big operations are to be scrutinized.

The decision also provided clear direction to trial judges on the application of the doctrine of abuse of process to Mr. Big operations. Once the decision had been released, the trial judge was, of course, required to apply this new legal regime. Likewise, counsel were required to re-tool and to modify their respective strategies and approaches to the proposed introduction of this evidence.

All of this took additional time and increase the overall complexity of the proceedings. [ 71 ] Under all of the circumstances, I am satisfied that the change in the law brought about by the Hart decision was unforeseen, clearly unavoidable, and was not easily remedied once it occurred. I would simply add that in the current, second trial, virtually identical pre-trial applications were completed within the space of a period of time just short of three months – a period that includes the holiday break in December and January.

This period of delay is presumptively unreasonable. [ 72 ] I would deduct a period of five months from the overall delay to account for this exceptional circumstance. This results in an overall delay of 32 months, a period that exceeds the Jordan presumptive ceiling. Complex Trial Requiring an Inordinate Amount of Trial or Preparation Time [ 73 ] The Crown may rebut the presumption of unreasonableness by showing that the case was particularly complex, a second category of exceptional circumstances recognized in Jordan .

At para 77, the Court described complexity in the following terms: As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues , require an inordinate amount of trial or preparation time such that the delay is justified.

As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.

Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [ 74 ] In Cody , the Court explained, at para 64, that complexity “is an exceptional circumstance only where the case as a whole is particularly complex”.

In R v Pyrek , 2017 ONCA 476 , cited in R v Picard , 2017 ONCA 692 , the Court held (at para 30): “although this case was not sufficiently complex to meet the requirement of exceptional circumstances under Jordan , for transitional cases, moderate complexity bears on the reasonableness of the delay”. [ 75 ] The decision in Jordan addressed the fact that the new required approach to s 11(

b) analysis would affect cases that were

already in the system. As such, the Court provided guidance in terms of how to deal with these transitional cases. In R v Williamson , 2016 SCC 28 , the companion case to Jordan , the Court provided further guidance on how this new analytic framework might apply to cases already in the system. As previously indicated, in Mamouni , the Court of Appeal, referring to Williamson , explained this stage of the Jordan analytic framework. [ 76 ] The Crown has persuaded me that this case, viewed as a whole, is a complex case that justifies an overall period of delay of 32 months.

First, the case involves complicated legal issues, most notably the admissibility of the Mr. Big confessions. As previously noted, the decision in Hart , released during the course of the voir dire held at the outset of the first trial, fundamentally changed the proper approach to the receipt of this type of evidence. In short, the Mr. Big portion of the voir dire involved legal issues that were both novel and complicated. Other pre-trial applications involved challenges to the search warrants and wiretaps obtained by the police during the course of the investigation.

Leave was sought at this stage of the process to cross-examine the affiants on the affidavits filed in support of these warrants and wiretaps. The hearing of these pre-trial applications required almost 5 weeks of court time. A further three weeks of trial time was required following the trial judge’s decision to admit the results of the Mr. Big operation. The amount of disclosure involved was significant. [ 77 ] The circumstances in Worme are not dissimilar to those in the within matter and supports my conclusion that this case was complex. Worme was charged and convicted by a jury of first degree murder.

The Court of Appeal directed a new trial. The Supreme Court’s decision in Hart was released several weeks after the Court of Appeal’s decision, but before the Crown unsuccessfully sought leave to appeal to the Supreme Court. The case involved a Mr. Big operation requiring a lengthy Hart voir dire . [ 78 ] Justice deWit found that the overall delay from the institution of the proceedings to the end of the first trial was 44 months and 6 days, from which he deducted 7.5 months as having been waived by the defence.

Having set the delay at 36.5 months, he went on to determine whether or not the Crown had demonstrated the existence of exceptional circumstances so as to justify the delay exceeding the presumptive ceiling of 30 months. [ 79 ] While he found that there were no discrete exceptional circumstances, deWit J held that the overall complexity of the case justified a delay of 36.5 months. He cited the existence of voluminous disclosure, the fact that there were initially three co-accused, complicated legal issues, and that 25 days of trial time had been set, all supporting his conclusion that the case was complex.

Citing Jordan at para 77-78, he acknowledged that typical murder cases should not automatically be characterized as complex within the context of a Jordan analysis. This is an important point that obviously applies in this instance as well. [ 80 ] The court in Worme went on to determine, in the alternative, that the delay relating to the first trial could be justified as transitional exceptional circumstances, relying on the Court of Appeal’s decision in Mamouni , as well as the decisions of the Ontario Court of Appeal in Picard , and R v Manasseri , 2016 ONCA 703 .

In this regard, deWit J referred to Jordan (at para 96), wherein the Supreme Court directed that the period of delay in cases instituted before the release of the Jordan decision must be addressed “contextually” and “flexibly” and “based on the parties’ reasonable reliance on the law as it existed prior to the Jordan decision” ( Worme , at para 89).

After a thorough review of the relevant factors and the existing case law, deWit J concluded that the delay of 36.5 months to the conclusion of the first trial was justified under the transitional circumstance exception. [ 81 ] In light of my finding that this case was, overall, of sufficient complexity to justify an overall period of delay of 32 months, it is not necessary for me to go on to consider whether or not this overall delay could also be justified under the transitional exceptional circumstances exception defined in Jordan .

As stated at para 80 of Jordan : “Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required”. Assessment of Delay Falling Below the Presumptive Ceiling [ 82 ] Delay that is under the 30 month Jordan presumptive ceiling is presumed to be reasonable. However, an accused may challenge this presumption of reasonableness by showing (

a) she or he made a sustained effort to expedite the proceedings; and (

b) the case took markedly longer than it reasonably should have.

The Court in Jordan suggested, at para 86, that “[W]e expect stays beneath the ceiling to be granted only in clear cases”. [ 83 ] The Defence contends that even assuming that the overall delay falls below the Jordan presumptive ceiling relative to either the first or the second trial, that the Defence took all reasonable steps to advance this matter and, further, that the overall time to bring this matter to trial was markedly longer than should have been the case. [ 84 ] In Jordan , the Supreme Court recognized that the total delay from the date of the charge to the end of trial, less defence delay and delay attributed to discrete exceptional circumstances, may still be unreasonable even if falling below the applicable presumptive ceiling.

At para 48, the court explained: 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. [ 85 ] 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 of Jordan , the Court explained: “’Action or non-action by the accused which is inconsistent with a desire for a timely trial is something the court must consider’ ( 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. [ 86 ] 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 particular location in which the case arises. [ 87 ] In considering these two linked elements, the Court’s discussion in Jordan about transitional exceptional circumstances is relevant in cases that were in the system prior to the release of the decision.

At para 99, the Court stated: For these cases, the two criteria - defence initiative and whether the time the case has taken markedly exceeds what was reasonably required - must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision.

However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial ( Morin , at p. 802). [ 88 ] The Defence relies on its willingness to waive the preliminary inquiry as the principle indication of its effort to expedite the proceedings.

The Defence also says that it was prepared to shorten the time required for the voir dire relative to the second trial by admitting to what it describes as a “significant” amount of evidence by way of transcript. Finally, the Defence maintains that it did not waste time with needless adjournments or applications prior to trial. [ 89 ] I agree that the Accused’s offer to waive the preliminary inquiry amounts to a significant effort to try and expedite the proceedings. I would observe that this took place prior to the Jordan decision and, as such, falls into the time line when defence initiative was not required.

I also agree that offers to shorten the time required for the voir dire on the second trial is also consistent with an effort to shorten the proceedings. While some evidence on the voir dire was ultimately admitted through transcripts, this was related to a very few of what I would characterize as minor witnesses. I would also note that the Defence rejected the Crown’s suggestion that the entire voir dire proceed on the basis of the evidence taken during the first voir dire .

In the result, the second voir dire occupied virtually the same amount of time as the first one, a period of more than 20 days of court time. [ 90 ] While I accept the Defence suggestion that it did not bring any needless applications or adjournment requests prior to trial, I would respectfully suggest that this is not reflective of efforts to actually expedite the proceedings. Rather, I would suggest that there is a general expectation that counsel will not waste valuable court time through the filing of needless applications of questionable merit.

In my view, acting responsibly as counsel by not wasting time is not the same as demonstrating positive efforts to try and expedite proceedings. [ 91 ] The circumstances surrounding the selection of the date for the preliminary inquiry pre-date the release of the Jordan decision. Similarly, the events relating to the fixing of the first trial date also pre-date the release of Jordan . As such, the Defence was not required to demonstrate initiative in ensuring that the matter moved forward expeditiously.

I would observe, however, that the Defence has not identified any specific initiative that it took pre- Jordan , aside from the offer to waive the preliminary inquiry, that might assist in establishing that the case took markedly longer than it should have. [ 92 ] When the second trial date was set on June 23, 2017, the date selected was the earlier five week block of time available to hear the pre-trial applications. There is no evidence before me regarding any steps taken by the Accused to try and obtain earlier dates from the Court by writing to the then Acting Chief Justice.

Likewise, there is no evidence of the Defence bringing to the attention of the Crown the Accused’s concerns regarding the timeliness of the second trial date. [ 93 ] I also find that the Accused’s response to the Court’s November 2017 offer to advance the second trial date did not demonstrate a meaningful effort to expedite his trial. While I agree that it would not be reasonable to expect busy defence counsel to make themselves available on very short notice, the offer of an earlier trial date was for any date after January 2, 2018. The Crown confirmed that it would commit to an earlier trial date.

If defence counsel could not be ready for January 2, 2018, were they able to be ready in February, March, April, May or June? Could the voir dire have been heard during the summer thereby freeing up the existing October dates for any trial that might be required? Could other matters on defence counsels’ schedules have been shifted to other counsel or adjourned to another date so as to give priority to this matter? Based on the record before me, none of these options appear to have even been considered.

The offer of an earlier trial date was simply rejected at the time of the CAC appearance on November 24, 2017, with a request to confirm the original trial date of October 22, 2018. In my view, the circumstances called on everyone involved in this matter, including the Defence, to give this case the priority that it deserved through at least an exploration of the possibility of an innovative or creative response to finding an earlier trial date. Respectfully, this inaction was not consistent with a demonstrated effort to expedite these proceedings.

I would go further and suggest, again very respectfully, that this was a response that was reflective of the culture of complacency that lies at the heart of the Supreme Court’s decision in Jordan . [ 94 ] I commend the Defence for demonstrating a will to expedite the proceedings through the offer to waive the preliminary inquiry. As previously indicated, I agree that this initiative demonstrated a commitment to moving this matter forward expeditiously.

However, this one action is not sufficient to satisfy me that, overall, the Defence took meaningful and sustained efforts throughout to expedite these proceedings and get the case heard as quickly as possible. It follows that I am not persuaded that the Defence has discharged any burden resting upon it to demonstrate that the overall delay in relation to the first trial was unreasonable. [ 95 ] In light of my finding that the Defence has failed to establish the first branch of this two

part conjunctive requirement, it is not necessary for me to go on to consider whether this case took markedly longer than it reasonable should have taken. However, given the

compelling argument advanced by the Defence relative to the issue of prejudice, I propose to briefly deal with this issue. [ 96 ] The question of whether or not a case took markedly longer than it should have can only be addressed in context. This requires the examination of a number of factors, including the overall complexity of the case, local considerations relating to institutional delay, and an examination of the conduct of the Crown.

The fact that the Accused was in custody awaiting trial on this charge until June 26, 2018, and the resulting prejudice, is a significant component of the context of this case. [ 97 ] Earlier in these reasons, I concluded that this is a complex case that required more time to complete than a case of less complexity. While this proposition may be somewhat self-evident, case complexity is an important factor in the determination of whether or not a case took markedly longer than it should have.

The Court in Jordan described this in the following terms (at para 88): “[T]he reasonable time requirements of the case will increase proportionally to a case’s complexity. As Sopinka J. wrote in Morin : ‘All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins’ (pp. 791-92)”.

The specific factors supporting the conclusion that this is a complex case were discussed previously and need not be repeated. [ 98 ] Likewise, local circumstances relating to the availability of court time and, specifically, institutional delay, are also relevant to this inquiry.

In Jordan , the Court directed trial judges to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances” (at para 89). [ 99 ] Based on my experience as a trial judge in the judicial district of Calgary, as well as my experience dealing with complex matters in other parts of Alberta, I find that this case took somewhat longer than other similar cases to bring to trial.

This is largely explained by the fact that this matter involves a retrial and the personal circumstances relative to the Accused’s counsel led to some delay. While some time was lost as a result of the actions of the Crown, more fully set out below, I am satisfied that this case progressed through the system in a more or less typical fashion.

I would simply add that the shortage of Queen’s Bench judges in Alberta, and the resulting institutional delay during the relevant time period is well known and well documented in other decisions of this Court. [ 100 ] I accept the Defence suggestion that the actions of the Crown, particularly at the outset of these proceedings, had the effect of delaying the case to some extent. In particular, I note that a period of 3 months elapsed between the date of the first appearance and the fixing of a date for the preliminary inquiry.

My review of the relevant transcripts reveals that the Defence was ready to proceed, but lacked Crown disclosure. I also note that three different Crown counsel were assigned in relatively rapid succession to have conduct of this matter. These actions of the Crown led to some delay, but certainly not what could properly be characterized as significant delay. [ 101 ] The Crown’s decision to seek a preliminary inquiry in this instance was a step that resulted in delay. The circumstances surrounding this aspect of the case were discussed previously.

For the purposes of determining whether this case took markedly longer to complete than it should have, I am not prepared to find that the Crown’s reliance on a statutory right to request a preliminary inquiry, either viewed alone or in conjunction with other factors, warrants such a conclusion.

Under the circumstances, I am unable to accept the Defence suggestion that the Crown blatantly disregarded the Accused’s custodial status in making this request. [ 102 ] As stated by the Ontario Court of Appeal in R v Austin , 2009 ONCA 329 , at para 67 , “[t]he focus of the exercise under s 11(b), however, is on the impact of the delay on the accused and society, not on weighing the seriousness of the causes of the delay or attaching blame”. [ 103 ] The other relevant factor to consider in assessing whether this case took markedly longer than it should have is the prejudice suffered by the Accused as a result of his remand in custody following his arrest in July, 2012, until his release on June 26, 2018.

While a portion of this period flowed from his conviction and sentencing following his first trial, he spent a total of 4 years, 3 months and 8 days in remand in relation to this charge. [ 104 ] The Applicant filed an affidavit in support of his allegation that his right to be tried within a reasonable time has been violated in this instance. In his affidavit, the Applicant describes the circumstances of his detention at the Calgary Remand Centre, citing racism as a basis for an atmosphere of violence and hostility that has marked his time in custody.

He cites numerous physical attacks that have been visited upon him during his imprisonment, including two separate incidents when he was stabbed, once in the arm and once in the back. On another occasion, he sustained injuries to his face, teeth and wrist as a result of the actions of a security guard during the course of a prison riot in which he otherwise played no part.

The injuries he sustained in this incident are the subject of separate litigation in this Court. [ 105 ] The Applicant’s affidavit also reveals that he has spent prolonged periods of time in segregation or solitary confinement, lasting for periods of up to four months at a time. According to the Accused, these measures were taken in an effort to provide some degree of protection to him from what he describes as racist based violence.

He also refers to the fact that he has been moved a number of times to different institutions, again to provide him some degree of protection. [ 106 ] The Applicant attests to the fact that he has been denied the opportunity to engage in Aboriginal spiritual practices and has also been deprived of such basic comforts as clean clothing.

Finally, the Applicant describes his loss of connection to his friends and the life he previously knew as a result of his lengthy period of imprisonment in relation to these charges. [ 107 ] I accept the Defence contention that the Accused has suffered significant prejudice while awaiting trial in custody.

While some prejudice may be inferred from delay in bringing a matter to trial, particularly when an accused person is in custody, there is evidence before me of significant actual prejudice. [ 108 ] In advancing this argument, the Defence relies on the following passage from the decision in Morin , (at paras 26-28 ), as setting out the underlying purpose of s 11(

b) of the Charter : The primary purpose of s. 11(

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

The individual rights which the

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

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. [ 109 ] These interests must be balanced against the interests of society, described by the Court in Morin as encompassing society’s interest

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