R. v. HMTQ et al. Date:, 2017 BCPC 371

Citation: R. v. HMTQ et al. Date: 20171030 2017 BCPC 371 File No: 25268-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the MINISTRY OF FORESTS, LANDS & NATURAL RESOURCE OPERATIONS and the MINISTRY OF TRANSPORTATION AND INFRASTRUCTURE, EXECUTIVE FLIGHT CENTRE FUEL SERVICES LTD. and DANNY LASANTE RULING ON APPLICATION OF THE HONOURABLE JUDGE L. MROZINSKI (Judicial Stay of Proceedings Application) Counsel for the Crown: J. Cliffe, Q.C., A. M. Switzer Counsel for the Defendant HMTQ: J. Maxwell, A.

Davies Counsel for the Defendant Executive Flight Centre: E.C. Archer, S. Rodgers Counsel for the Defendant Danny Lasante: A. Hepner, Q.C.

Place of Hearing: Nelson , B.C. Date of Hearing: September 25, 2017 Date of Judgment: October 30, 2017 I. Introduction [ 1 ] Executive Flight Centre Fuel Services (hereafter “Executive”) is one of three co-defendants charged with eight counts of unlawfully depositing or permitting waste or a deleterious substance to be deposited into Lemon Creek contrary to various sections of the Fisheries Act , RSC 1985, ch.

F-14 and the Environmental Management Act , SBC 2003, ch. 53. [ 2 ] These charges arise as a consequence of a spill of close to 30,000 gallons of aviation fuel into Lemon Creek on July 26, 2013, from a fuel tanker truck driven by the defendant, Mr. Danny Lasante. Mr. Lasante was, at the material time, an employee of Executive, which had contracted with the Provincial defendants to deliver the aviation fuel to helicopters stationed at the Lemon Creek gravel pit.

The province was utilizing the helicopters to fight forest fires in the area. [ 3 ] In this application, Executive seeks an order staying the charges against it on the grounds that its s. 11(

b) Charter right to a trial within a reasonable time has been breached. At issue in this application is a dispute over the time that must be counted from the date charges were laid against Executive to the time the trial is reasonably likely to conclude. The Province, which originally joined Executive in this application, no longer seeks this relief. II. Background [ 4 ] Executive submits that the delay in this case from the date charges were laid against it to the date the trial will conclude is 38 months. I note, parenthetically, that this was the time period when this application was brought.

This trial is now not scheduled to conclude until February 2018, at the earliest, making the time period slightly longer. However, for the most part, I will decide this application as if the delay period asserted by Executive is 38 months in length. [ 5 ] Executive relies on the reasons of the Supreme Court of Canada in R. v. Jordan , [2016] S.C.R. 631, as authority for the proposition that a delay from the date of charge to the end of trial, including the giving of a decision, is presumptively unreasonable in Provincial Court if the time period exceeds 18 months.

In such a case, the Crown bears the onus of proving the delay resulted from exceptional circumstances which it could not have foreseen or over which it had no control. Even still, the Crown must show it took all reasonable, available steps to avoid and address the problem before the delay exceeded the ceiling. [ 6 ] The Crown submits that the time from charge to the conclusion of trial in this case (at least at the time of the application) does not exceed the Jordan guidelines. Rather, the Crown calculates the material time to be 16 months, two months under the presumptive ceiling.

Alternatively, the Crown submits that any additional time must be attributed to exceptional circumstances. III. The Private Prosecution [ 7 ] The dispute between the parties concerning the time that may or may not count toward delay in this case is rooted in the fact that both Executive and Her Majesty the Queen in Right of the Province of British Columbia (“HMTQ”) were first subject to charges arising out of the spill in an Information laid by a private prosecutor, Ms.

Marilyn Burgoon, on September 29, 2014. [ 8 ] In a subsequent pre-enquete hearing on December 12, 2014, Judge McKimm issued a summons against both the Provincial defendant and Executive. Thereafter followed a number of appearances in the Provincial Court attended by counsel for Ms. Burgoon, counsel for the Province, and counsel for Executive. From time to time, counsel for the Public Prosecution Service of Canada (“PPSC”), Mr. Gerhart, attended, including at the pre-enquete hearing. Though in attendance, there is no dispute that the PPSC was not a party to the proceedings initiated by Ms. Burgoon.

It is, however, clear on the record that the private prosecution was delayed as a function of the fact that the parties, particularly Ms. Burgoon, expected the PPSC to take over the prosecution. [ 9 ] Trial dates were eventually set in the private prosecution, despite the parties’ views that it would be taken over by the PPSC. Those dates were set for two weeks from April 18 to 28, 2015. On January 25, 2016, as expected, Mr.

Gerhart, on behalf of the PPSC, entered a stay of proceedings of the private prosecution and the trial dates were then cancelled. [ 10 ] On July 22, 2016, the Crown swore a new Information adding Mr. Lasante as a defendant; clarifying which representative Ministries of the Province were defendants; and expanding on the charges laid by Ms. Burgoon. Still, the substance of the case did not change.

As outlined by Judge McKimm in his reasons for issuing process, the prosecuting Crown’s theory of the case is that all parties “knew or ought to have known that tanker trucks containing enormous quantities of fuel were being misdirected.” [ 11 ] The trial on this new Information is set for five weeks and the Crown expects to call some fifty witnesses. IV. The Issues [ 12 ] Executive’s submission that the delay in this case from charge to trial measures 38 months, and, thus, a breach of its right to a trial within a reasonable time rests on its submission that the Charter applies to private prosecutions.

The Crown submits it does not and that questions concerning fairness to the accused in private prosecutions are addressed under common law rules. Even still, if the Charter does apply, the Crown submits that the delay in this case is due to an exceptional circumstance; that circumstance being the private prosecution. As such, it is submitted that the time taken up by the private prosecution should not count toward any delay. [ 13 ] Bearing this background in mind, I turn to the first question, which is whether the Charter applies to private prosecutions such

that the defendant in such a prosecution enjoys a s. 11(

b) right to trial within a reasonable time. V. Does the Charter Apply to Private Prosecutions? [14] This issue involves a consideration as to whether prosecutions commenced by private individuals pursuant to s. 504 of theCriminal Code attract Charter protection for those persons subject to the prosecution.

The question arises, as I have noted, because theCrown takes the position that private prosecutions, even though commenced pursuant to s. 504 of the Criminal Code, and invoking, inthis case, violations of both provincial and federal legislation, are fundamentally akin to litigation between private parties. [15] In support of its position, the Crown referred, in oral submissions, to R.W.D.S.U. v. Dolphin Delivery, (SCC),[1986] 2 S.C.R. 573.

Dolphin Delivery is the first and perhaps seminal case at the Supreme Court of Canada level to consider theapplicability of the Charter, and it is, I find, a useful case with which to start my consideration of this first issue. [16] The issue Dolphin Delivery of particular interest in the application before me is the question whether a common law rulerendering secondary picketing (in the context of a trade union dispute) tortious and subject to injunctive restraint, constitutes anunjustifiable infringement of the Charter s. 2(

b) right to exercise freedom of expression. [17] The majority held at paragraph 41 of Dolphin Delivery that as the dispute was between two private parties, the litigation inwhich Dolphin Delivery sought an order for injunctive relief did not invoke the Charter. In other words, a private party could getinjunctive relief through the court’s restraining what is otherwise a constitutionally protected right of speech of another private party. [18] I have found Dolphin Delivery particularly useful in determining this application because of its general discussion on theapplicability of the Charter.

I find the ratio of the case entirely distinguishable. [19] The starting point for any discussion of the applicability of the Charter must begin with a consideration of s. 32 which providesas follows: 32.

(1) This Charter applies (

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relatingto the Yukon Territory and Northwest Territories; and (

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. [20] The discussion in Dolphin Delivery concerning whether the Charter applies to private litigation begins at paragraph 26 of thereasons and concludes at paragraph 41. In between, the Court quotes from a number of academic sources in which the reach of theCharter is considered.

There is not, as the court concludes, universal agreement on the applicability of the Charter, but the court didaccept certain general observations such as those set out in a passage from work by Professor Hogg, reproduced at paragraph 28 asfollows: The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between privatepersons and private persons. Private action is therefore excluded from the application of the Charter.

Such actions as an employerrestricting an employee’s freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on thebasis of race in his selection of tenants, cannot be breaches of the Charter, because in no case is there any action by the Parliament orgovernment of Canada or by the Legislature or government of a province.

In cases where private action results in a restriction of a civilliberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract lawor property law, or under some other branch of the law governing relations between private persons; but there will be no breach of theCharter. [emphasis added] [21] Citing this and other similar academic observations, the court found it was satisfied the Charter did not apply to privatelitigation. [22] The court then turned to consider those matters to which the Charter did apply.

Citing s. 32, the court held, at paragraph 34,that the Charter applied to “. . . the legislative, executive and administrative branches of government . . . whether or not their action isinvoked in public or private litigation.” It held that: Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority. Such action may also depend, however, on the common law, as in the case of the prerogative.

To the extent that it relies on statutoryauthority which constitutes or results in an infringement of a guaranteed right or freedom, the Charter will apply and it will beunconstitutional. [emphasis added] [23] While acknowledging the danger of any attempt to pinpoint the element of government intervention that would suffice to permitreliance on the Charter by private litigants in private litigation, the majority adopted the following observations of Professor Hogg atparagraph 38: . . . the Charter would apply to a private person exercising the power of arrest that is granted to "any one" by the Criminal Code, and toa private railway company exercising the power to make by-laws (and impose penalties for their breach) that is granted to a "railwaycompany" by the Railway Act; all action taken in exercise of a statutory power is covered by the Charter by virtue of the references to"Parliament" and "legislature" in s. 32.

The Charter would also apply to the action of a commercial corporation that was an agent of theCrown, by virtue of the reference to "government" in s. 32. [24] The court concluded at paragraph 39 that though the list of instances where the Charter can be invoked in cases involvingprivate parties is not exhaustive, “where such reliance of or reliance upon governmental action is present and where one private party

invokes it or relies on it to produce an infringement of the Charter rights of another, the Charter will be applicable.” [25] There is no question in this case that the defendant, Executive, does enjoy a s. 11(

b) right to a trial within a reasonable time. The only question at this juncture is whether, in the context of a private prosecution, there is a sufficient element of governmental actionto enable Executive to invoke the Charter. VI. The Role of the Private Prosecutor [26] I have found it useful in this regard to consider the role of the private prosecutor not in this case specifically, but as a generalmatter. The Crown spoke of the role and history of private prosecutions briefly in its submissions and referred to both Gouriet v.

Unionof Post Office Workers, [1978] AC 435, at 477, and the decision of Marshall J. in McHale v. Ontario (Attorney General), [2009] O.J. No.5734. I found the latter case to be particularly useful. [27] At issue in McHale was whether a Justice of the Peace had jurisdiction, on application by the Crown, to withdraw three privateInformations before a s. 507.1 pre-enquete hearing. In determining the Justice did lack the jurisdiction to do so, Justice Marshallreviewed a number of authorities and learned articles concerning the history and purpose of private prosecutions.

As the Crownsubmitted in this application, private prosecutions play an important oversight role in ensuring that public officials, including police, arenot immune from prosecution.

Quoting from the 1986 Working Paper 52, published by the Law Reform Commission of Canada, thecourt in McHale noted that: The power of private prosecutions is undoubtedly right and necessary in that it enables the citizen to bring even the police orGovernment officials before the criminal courts, where the government itself is unwilling to make the first move. [28] The Paper points out that "control of the charging process is of crucial importance." [29] I note, as the court in McHale does at paragraph 37, a quote from Bradley, et al. and the Queen, (ON CA),[1975] O.J.

No. 2374 (C.A.), at paragraph 27, that: The Attorney General, and his agent, the Crown Attorney, represent the Sovereign in the prosecution of crimes. The role of the privateprosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney General… [30] Another case in which the application of the Charter has been considered in the context of actions by otherwise private partiesis Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624.

The issue of applicability of theCharter in Eldridge, of most interest here, was whether it applied to a decision by hospitals in British Columbia not to provide signlanguage interpreters for the deaf as part of publicly funded medical services. [31] That issue arose in Eldridge in regard to hospitals in particular, as the Supreme Court of Canada had held in Stoffman v.Vancouver General Hospital, (SCC), [1990] 3 S.C.R. 483, that the Charter did not apply to the provision of publichealthcare offered by the Vancouver General Hospital, because healthcare was not “the kind of function which qualifies as a governmentfunction.” [32] At paragraph 48 of Eldridge, the court distinguished Stoffman on the grounds that it involved a question of the constitutionalvalidity of the hospital’s retirement policy.

In Eldridge, the issue was the actual provision of healthcare services pursuant to the HospitalInsurance Act; the Act being an articulation of government policy. The court added, at paragraph 51, that: Unlike Stoffman, then, in the present case there is a "direct and . . . precisely-defined connection" between a specific government policyand the hospital's impugned conduct. The alleged discrimination -- the failure to provide sign language

interpretation -- is intimatelyconnected to the medical service delivery system instituted by the legislation. [33] This ruling flows from the court’s comments earlier in its reasons at paragraph 21, where it held that: . . . There is no doubt, however, that the Charter also applies to action taken under statutory authority. The rationale for this rule flowsinexorably from the logical structure of s. 32.

As Professor Hogg explains in his Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at pp. 34-8.3 and 34-9: Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislaturecan itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter.

Thus, thelimitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply toregulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validityon statutory authority. [34] Eldridge was followed in Blencoe v.

British Columbia (Human Rights Commission), 2000 SCC 44 , [2000] 2 S.C.R.307, a case involving the question whether the Human Rights Commission, a body entirely independent of government and exercising aquasi-judicial function, could be subject to the Charter. [35] At issue in Blencoe was whether Mr. Blencoe’s s. 7 right to liberty and security of the person were violated by the State-causeddelay in the human rights proceedings against him. The significant question in Blencoe for the purposes of this application was whetherthe Charter applied to the delay.

It was phrased by the Commission, at least, as involving the question whether the Commission (andthe Human Rights Tribunal) were “agents of the government” for the purposes of s. 32 of the Charter. [36] The court held, commencing at paragraph 33 of the decision, that the mere fact the Commission (it declined to opine on theTribunal) was independent of government was of no moment. Rather, the question was whether the requisite element of governmentaction was present.

The court held at paragraph 35 of Blencoe that “bodies exercising statutory authority are bound by the Charter eventhough they may be independent from government.” As a creature of statute, the Commission was one such body bound by the Charter.

[37] These authorities demonstrate, in my view that the Charter can apply to the actions of otherwise non-State actors, or privateindividuals, when those actors or persons are carrying out a government function or policy, generally under the authority of statute. [38] I accept, as was noted earlier, that not all statutorily empowered actors carry out government functions. Corporations,universities and even hospitals, though creatures of statute, can still exercise functions which are purely private and thus not subject toCharter scrutiny.

However, as the Court in Dolphin Delivery notes at paragraph 38, quoting from Professor Hogg, “. . . the Charterwould apply to a private person exercising the power of arrest that is granted to "any one" by the Criminal Code.” [39] I find that a prosecution by a private prosecutor, enabled only by s. 504 of the Criminal Code, must similarly be subject to theCharter. The private prosecutor has a role parallel to that of the Attorney General. [40] Private prosecutions are authorized pursuant to s. 504 of the Criminal Code to provide oversight of the Crown’s own AttorneyGeneral.

As the Crown put it in oral submissions, as one example, the purpose of a private prosecution is to ensure prosecution of policewhere the Crown declines to do so. It is inconceivable that in such a situation a police officer could rely on his or her Charter protectiononly if the Crown prosecuted but not if the same alleged offence were prosecuted by a private prosecutor. [41] Private prosecutors and prosecutions are entirely enabled by statute. In this instance, the private prosecutor sought convictionsfor breaches of federal legislation; namely, the Fisheries Act.

While the Fisheries Act may not qualify as a government program, it iscertainly an instrument of government in furtherance of a government legislative agenda. The office of the private prosecutor itself is anexpression of government policy. There is, in my view, an ample connection to government action in the context of this privateprosecution to engage the Charter. [42] The Crown relies on the reasons of Justice Green in Podolsky v. Cadillac Fairview Corp., [2012] O.J. No. 4027, for theproposition that the Charter does not apply to private prosecutions.

Podolsky concerns an application for production of records broughtby the defendant, Yonge Corporate Centre (“YYC”), in the context of a private prosecution. [43] Prior to the prosecution, YYC had apparently been engaged in a cooperative relationship with members of a volunteer group,Fatal Light Awareness Program (“FLAP”), which utilized YYC’s facilities to monitor and record bird strikes against the reflective glasswalls of several of YYC’s office buildings.

At some point, FLAP shared its data with the group known as Ecojustice, the group backingthe private prosecution brought by Liat Podolsky. [44] YYC claimed that FLAP’s documentary record violated its right against unreasonable search and seizure.

Justice Green ruledagainst that submission, holding (at paragraph 25) that FLAP is “not part of government, nor an agent of the State.” He added that “noris Ecojustice, the effective prosecutor, a government agent, delegate or employee, nor is it charged with the performance of any functionreserved to government.” The Crown relies on this case as authority for the proposition that the Charter does not apply to privateprosecutions. [45] With respect, I cannot agree with what is an obiter comment by Justice Green in Podolsky v. Cadillac Fairview.

It is, I find,clear that FLAP was carrying out no government function when, in its private capacity and with the cooperation of YYC, it collected dataon bird strikes.

It is, I find, not clear and does not follow from this that the private prosecutor in the case was equally engaged in a purelyprivate action. [46] To paraphrase from Blencoe, in my respectful view the question is not whether the private prosecutor is an agent of the State;rather, the question is whether there is a sufficient element of government action present regardless of whether the private actor is or isnot an agent of the State. [47] I am convinced by the authorities canvassed above that the Charter must apply to private prosecutions. These are, in my view,processes empowered by the State.

The State cannot avoid its Charter obligations, including its obligation to ensure an accused’s rightto a trial within a reasonable time, by statutorily enabling private actors to commence criminal or regulatory prosecutions. [48] For these reasons, I find the Charter does apply to private prosecutions and that the time taken up by the private prosecutionagainst Executive, if not determined to fall under the exception rule in Jordan, forms part of the total time it has taken to have this matterto complete from charge to trial. VII.

The Stay Period [49] Executive also argues that the six month period from the Crown’s stay of proceedings on January 25, 2016, to the date theCrown filed its Information on July 22, 2016, must also count toward delay in this case. In support of this submission, Executive relieson R. v. Milani, 2014 ONCA 536, and R v.

Lanteigne, 2010 NBCA 91, where, at paragraph 13, the court sites numerous cases in whichCanadian courts have treated the time between a stay imposed by the Crown and the recommencement of the proceeding under s. 579 ofthe Code “as attributable to the Crown for [the] purposes of assessing whether there has been an infringement of an accused’s s. 11(b)right.” [50] At issue in Milani was whether the trial judge erred in including in the period of delay for the purposes of a stay application a24-year period between the time the Crown first stayed charges against Mr. Milani and the time he was recharged.

In the circumstancesof that case, the Court of Appeal held that the trial judge erred in including the stay period. Following R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594, and R. v. Morin, (SCC), [1992] S.C.J. No. 25, the court accepted that, as a general rule,“delays occurring in the pre-charge period, including in the investigatory or pre-charge stage, are not subject to analysis under s. 11(b).” [51] The court noted also that s. 11(

b) protects against delay until the trial is concluded because while the case is pending, theaccused remains subject to the stress and anxiety of uncertainty. It added at paragraph 28, that the “stigma of being an accused endswhen the saga of a trial is at an end and when the decision is rendered.” [52] While accepting, as a general rule, that s. 11(

b) does not apply in the pre-charge period, the court in Milani did note the

following exceptions at paras. 48 and 49: [48] There are circumstances in which unilateral state action may control whether or not charges are withdrawn or re-laid. In such circumstances, where the formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a new information laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(

b) analysis. In such circumstances, the person, although not formally charged during the "gap" period, remains subject to the judicial process, and his s. 11(

b) interests will continue to be affected by the knowledge or expectation that further charges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurred in R. v. Antoine . [49] For all of these reasons, I would interpret s. 11(

b) as being engaged during any period that an accused person is in fact subject to charges, or when a person no longer actively charged remains subject to the very real prospect of new charges . [ Emphasis added ] [ 53 ] The Crown in this application submits that these cases are distinguishable as in every instance the stay by the Crown was a stay of a prosecution commenced by the Crown. Mr. Cliffe submits that in a case where the Crown has stayed a private prosecution there is no basis for the addition of this time in the s. 11(

b) calculation, because s. 11(

b) does not apply in any event. [ 54 ] I have found that s. 11(

b) of the Charter does apply to private prosecutions. The time counts against the State for the purposes of assessing whether an accused has been denied his or her s. 11(

b) right to trial in a reasonable time. Assuming, as Mr. Cliffe has argued, that the State only stays these prosecutions for sound reasons, I see no reason to distinguish the effect of the stay of a private prosecution from that initiated by the Attorney General. In most cases, the stay period will not count as the general rule provides, though there might be an exception. [ 55 ] Executive argues that this case is such an exception given the “on the record” comments by Crown Counsel at the time of entering the stay of proceedings on January 25, 2016.

At that time, Crown advised the court it was staying the proceedings to allow an ongoing investigation to complete; that the Crown expected the investigation to complete soon; and that upon completion of the investigation, counsel anticipated the submission of a report to Crown Counsel to his office for review for charge approval. [ 56 ] Given Crown’s admission at the pre-enquete hearing, as reflected at paragraph 17 of Judge McKimm’s reasons for issuing the summons, that there was evidence of a prima facie case against Executive, there is little doubt that Executive would have been labouring under the very real prospect of new charges.

Those did not come for yet another six months. [ 57 ] In the circumstances, I find I agree with Executive that the period of time between the entering of the stay and the re-laying of the charges in July of 2016 should be considered for the purposes of determining whether Executive’s s. 11(

b) rights have been infringed. I would add only that I found no basis to attribute any of this time period to a defence delay. [ 58 ] As I will discuss shortly, I accept that the private prosecution qualifies as an exceptional circumstance in this case such that some or all of the time the prosecution was extant should be excluded from the time calculated for the delay.

I am, nonetheless, satisfied that the time period for the calculation of time from charge to trial should include the six month period from the date the Crown stayed the private prosecution to the date it re-laid charges against Executive, as well as others. This gives a period of 24 months. [ 59 ] Even without determining whether some period of the private prosecution should count against the State, I find the relevant time period in this case to date, in respect of the charges against Executive, exceeds the Jordan ceiling of 18 months. VIII.

Exceptional Circumstances [ 60 ] As the court in Jordan writes at paragraph 68, any delay that exceeds the ceiling is presumptively unreasonable.

It then falls to the Crown to demonstrate that the delay is caused by exceptional circumstances; that is, “circumstances that lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from these circumstances once they arise.” Circumstances that meet this definition are exceptional. [ 61 ] Even still, as the court writes at paragraph 70 of Jordan : It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty.

It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means.

The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [ 62 ] The Crown, as I have noted earlier, submit the delay in this case arises out of the exceptional circumstance that this matter was commenced by a private prosecution.

I accept that private prosecutions are unavoidable by the Crown in the sense that their commencement, at least, is intended to be unavoidable. [ 63 ] I accept also, as was submitted by the Crown in this application, that once a private prosecution is commenced the Crown needs good reason to stay the prosecution, to take it over or to take no steps and allow the prosecution to proceed. In McHale , it was held that the Crown should intercede in a private prosecution where justice toward the accused seems to demand such a step.

Other than that consideration, there are myriad reasons why the Crown might or might not stay a private prosecution. I accept it must be done on a principled basis and that such a decision would take time. As Executive points out, it took the Crown 16 months from the date of the first charge to decide whether to intervene. [ 64 ] In this instance, the record reflects that the Crown stayed the private prosecution to enable the investigation to complete. On the record, Crown indicated it thought the investigation would complete quickly and that charges would be recommended.

Still, no charges were laid until July 22, 2016, some six months after the stay and 22 months after the first charges were laid. [ 65 ] Once the charges were re-laid, the Crown did not make its first disclosure of documents until October 5, 2016. Its second round

of disclosure occurred on January 9, 2017, the day before a scheduled appearance by all the parties in this court. The Crown concedes it took an additional three months to respond to Executive’s February 24th request for additional disclosure, and, as I have noted in separate reasons dealing with the application for an adjournment by Mr.

Lasante and Executive, documents that almost certainly should have been provided in October 2016 were provided in September 2017, on the eve of trial. [ 66 ] Even accepting that the Crown could not control the commencement of the private prosecution and that time was necessary to formulate reasons for the steps it ultimately took in regard to that prosecution, it must still show it took reasonable steps to avoid the present circumstances. [ 67 ] On the face of it, I cannot see that any steps were taken to mitigate the delay caused in this case by the commencement of the private prosecution.

I have already alluded to the desultory disclosure of documents. To that I would add that Crown was asked several times whether it proposed an agreed statement of facts. Each time the response was that without agreement among counsel it would be a waste of Crown’s time. [ 68 ] As I understand the reasons in Jordan , the Crown need not show any steps taken to address delay were successful only that steps were taken. In this instance, having taken the matter over, the Crown has firstly caused the first trial dates to collapse.

It has expanded the nature of the trial such that the original two week estimate is now five weeks and the Crown proposes to call 50 witnesses. None of this demonstrates any effort to streamline the process in recognition of the fact that Executive has been the subject of these charges one way or another since September 2014. [ 69 ] Crown’s position is that the time for delay does not commence until the re-laying of charges on July 22, 2016, and for that reason no steps were taken to address the time period eaten up by the private prosecution, the stay, and the period up to the laying of the charges.

However, even after the laying of the charges in July 2016, matters have not moved expeditiously such that we are now not going to conclude this trial before the Jordan ceiling is exceeded. [ 70 ] Accepting that the private prosecution in this case was a matter the Crown could not avoid or easily control, I have found that the period from the stay of proceedings to the laying of the new charges on July 22, 2016, should count towards delay in this case. In regard to this latter time period, there is no evidence the Crown took any steps at this time to mitigate delay.

There is also little or no evidence the Crown took any steps to move this matter along expeditiously once it re-laid charges, though it had, as I will discuss further below, ample time to adjust to Jordan . [ 71 ] Though there are exceptional circumstances in this case, they do not entirely justify the length of time Executive has been either subject to charges or the real prospect of charges. While the private prosecution may constitute an exceptional circumstance, the remainder of the time is well within the control of the Crown.

The delay in this case is presumptively unreasonable and the Crown has not rebutted that presumption on the grounds of exceptional circumstances. IX. Transitional Exception [ 72 ] Where the presumption of unreasonableness is not rebutted on the basis of complexity or otherwise exceptional circumstances, it is open to the court to consider whether the transitional exceptional circumstance may justify a presumptively unreasonable delay. As noted at paragraph 69 of R. v.

Cody , 2017 SCC 31 , a court must be satisfied that in the context of the case before it, the delay is justified on the grounds the parties relied on the law as it previously existed. For aspects of the case in the pre- Jordan phase, the court must consider the Morin framework to determine whether the delay was unreasonable.

For the post- Jordan aspect “the focus should . . . be on the extent to which the parties and the courts had sufficient time to adapt”. (See Cody at paragraph 7 .) [ 73 ] Looking at the case in its entirety, Executive argues that the Crown cannot rebut the presumption of unreasonable delay based on the transitional exception in the pre- Jordan phase as it not only failed to prevent delay, it directly contributed to the delay, first, by delaying the arraignment process while it determined whether it would intervene somehow in the private prosecution; second, by staying the private prosecution only in January 25, 2016, and causing the cancellation of the April trial dates; third, by waiting another six months to re-lay charges; and finally, by failing to meet its minimal disclosure requirements before January 2017.

Thereafter, the Crown accepts its responsibility for a further three-month delay, having failed to respond to Executive’s letter for further and better disclosure, dated February 24, 2017, until late May. [ 74 ] The question at this stage of the Jordan analysis is essentially whether the Crown has shown it cannot be faulted for failing to take further steps to move the matter along in the pre- Jordan phase, because it understood its actions to be reasonable in light of the law as it existed. [ 75 ] In that regard, courts considering this aspect of the Jordan analysis are asked to consider pre- Jordan delay in the context of the Morin framework.

It is, I find, difficult to filter the pre- Jordan period that I find must count towards delay in this case through Morin . This is the so-called stay period which the Crown clearly considers to fall outside the time that counts in any way towards delay.

Crown did not move matters along during this time period bearing Morin in mind because of its view that, in law, Morin did not apply. [ 76 ] While this part of the analysis in Jordan is not strictly or easily applicable to the pre- Jordan period, Executive nonetheless suffered the delay and, I find, suffered prejudice of the kind described in Morin . [ 77 ] Charges were re-laid in this case after Jordan was issued, though not long after. At this juncture, the case from the date of the new charges to the time this trial will conclude is at least 16 months and in reality will exceed the Jordan ceiling in any event.

Still, proceeding as if we are dealing only with a 16 month period during which Jordan applies, there was ample time for the parties to adapt. Regrettably, I see no evidence of an attempt to do so by the Crown. [ 78 ] As the Crown concedes, this is not a case of any complexity, though it may be unwieldy. Having taken it over from the private prosecutor, the Crown’s case has lengthened in trial time and in the sheer number of witnesses. Still, there has been no discernible movement on the part of the Crown to expedite matters.

I accept that that may largely be a function of the fact the Crown’s view is that private prosecutions and the stay form no part of the time for delay.

X. Conclusion [ 79 ] The Jordan ceiling is well exceeded in this case as regards the right of Executive to a trial within a reasonable time. The Crown has not, in my view, rebutted the presumption of unreasonableness in all of the circumstances. [ 80 ] For these reasons, I have concluded that the proceeding against Executive Flight Centre Fuel Services must be stayed. [RULING CONCLUDED]