R. v. J.M, 2017 ONCJ 4

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.M ., 2017 ONCJ 4 DATE: January 10, 2017 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. J.M. Before Justice David M. Paciocco – Ottawa ON Reasons for Decision on J.M.’s

section 11(

b) Charter motion Released January 10, 2017 Ms. S. Schriek………………………………………………………………………………..…..for the Crown Mr. M. Ertel………………..………………………………………………………………………………..for J.M.

I. Overview [1] J.M., a youth, seeks a finding that his right to trial within a reasonable time has been violated, contrary to

section 11(

b) of theCharter. He asks that the charges against him be stayed. [2] When J.M.’s prosecution began, the application of

section 11(

b) was governed by “guidelines” identified in R. v. Morin (SCC), [1992] 1 S.C.R. 771. In simple terms, the “Morin regime” involved identifying the delay that the state is responsiblefor, and then determining whether the delay was sufficiently prejudicial to the interests protected by

section 11(

b) of the Charter toqualify as unreasonable, given the competing public interest in prosecuting the case on its merits. [3] On July 8, 2016, in R. v. Jordan 2016 SCC 27 , [2016] S.C.J. No. 27, the Supreme Court of Canada established a newway of testing unreasonable delay in the hope of simplifying the analysis, and encouraging counsel, courts, and legislators to do more tocurb trial delay, which continued to be a serious problem under the Morin regime. [4] R. v. Jordan, supra created a “presumptive ceiling” in provincial courts of 18 months delay. If the delay in a case exceeds thepresumptive ceiling, a breach of

section 11(

b) will be found unless the Crown can show that the delay was reasonable according toprinciples established in R. v. Jordan. If the delay is less than the “presumptive ceiling” the delay is presumed to be reasonable. A breachwill be found in such a case only if defence counsel can show that the presumptively reasonable delay has in fact been unreasonable,again, using the principles established in R. v. Jordan. [5] The Jordan Court held that the “Jordan regime” is to be used going forward, including in resolving cases already in the system,such as J.M.’s

section 11(

b) application. The Jordan Court recognized, however, that for cases already in the system it would be unfairand unduly damaging to the public interest to hold prosecutors to Jordan standards, when they had reasonably been relying on Morinregime standards to guide the progress of the case.

The Jordan Court therefore instructed courts dealing with “transition” cases to applydifferent principles than those that will be used in cases commencing after July 8, 2016. [6] J.M. urges that the presumptive ceiling of 18 months established in Jordan, supra has been exceeded in his case, and that the delaycannot be justified by the Crown, even when these transitional principles are considered. He argues that a stay of proceedings is required,but he does not rest there. [7] He contends, in the alternative, that even if the period of delay as it is computed according to law proves to be less than 18months, his

section 11(

b) rights have nonetheless been violated because, as a matter of principle, the presumptive ceiling should beshorter for the prosecution of young persons. J.M. was 13 when his prosecution began. He is now only 15. He argues, through hiscounsel, Mr. Ertel, that the presumptive ceiling for young persons should be 12 months, which he contends has been significantlyexceeded in this case. [8] I propose, in resolving this application, to use the Jordan framework as it has been summarized by the Ontario Court of Appeal inR. v. Coulter 2016 ONCA 704. Without saying so expressly, the decision in R. v.

Coulter, supra describes a three-stage inquiry. [9] The first stage is the initial step in calculating the delay for comparison to the presumptive ceiling. The judge begins byquantifying the “total delay, which is the period from the charge to the actual or anticipated end of the trial” and then “subtract[ing]defence delay from the total delay, which results in the net delay”” R. v. Coulter, supra at para 34-36. [10] This approach is in keeping with the basic constitutional principle that the Charter protects against improper state action.

If delayis “defence delay” it cannot ground a constitutional complaint. [11] The second stage involves calculating what the Court in R. v. Coulter, supra at para 38 called remaining delay. As the Jordanmajority explained, if delay occurs as a result of “exceptional circumstances” it is to be subtracted from the “net delay.” For example,should Crown counsel become unexpectedly ill, that period is not defence delay but it makes no sense to treat such delays as contributingto constitutional violations.

[ 12 ] The third stage of analysis involves determining whether the “remaining delay” that is ultimately identified is reasonable. As indicated, the principles to be applied depend upon whether the remaining delay exceeds the appropriate presumptive delay: R. v. Coulter , supra at paras 37-59 . [ 13 ] In this case, I cannot answer the third stage question of whether the delay exceeds the presumptive ceilings without first settling whether presumptive ceilings are indeed shorter when young persons are being prosecuted, as Mr.

Ertel, counsel for J.M., contends. [ 14 ] I will therefore proceed by (1) calculating the total delay, net delay, and then the remaining delay; (2) resolving what presumptive ceiling should apply and then using it to identify whether there has been a presumptive breach, and (3) determining whether the remaining delay is reasonable according to the relevant principles. II. The Delay a.

The “Total Delay” Calculation [ 15 ] As indicated, the Jordan framework begins with the examination of the “total delay,” being the time that has passed “from the charge to the actual or anticipated end of the trial”: Jordan , supra at para 46 . i. Two Separate Charge Dates [ 16 ] J.M.’s case presents an unusual complication.

He is being tried before me on a re-laid information involving two complainants, and the date of the initial charge differs for allegations involving the complainant J.J. and the complainant C.G. [ 17 ] Specifically, on April 15, 2015, J.M. was charged only with sexual offences involving J.J., who was three years old at the time of the alleged offences. C.G., another 3 year old who attended the in-home daycare where the offences against J.J. are alleged to have occurred, was going to be called only as a Crown witness.

As a result of further statements made by C.G., an additional charge was laid against J.M. involving C.G., on January 18, 2016. [ 18 ] As a result, the overall total delay in the prosecution of the J.J. allegations is 8 months longer than the total delay associated with the prosecution of the allegations involving C.G. [ 19 ] In my view, since J.M. was not under the stresses and strains of pending criminal accusation involving C.G. until January 18, 2016, it would be wrong to piggy-back the charge pertaining to her onto the longer delay involving the J.J. allegations.

I will therefore evaluate the two sets of charges independently for the purposes of this application. ii. The “Anticipated End of the Trial” [ 20 ] There is an important issue not expressly settled by R. v. Jordan , supra about what constitutes the “end of the trial” for the purpose of calculating “total delay.” The term “end of the trial,” is not a legal term of art. That phrase can be used to describe (1) the end of evidence and argument, or (2) the pronouncement of the verdict, or (3) the imposition of sentence if there has been a conviction. [ 21 ] It is clear from R. v.

Jordan , supra , however, that the “end of the trial” was not intended to refer to the first option, the “end of evidence and argument.” I say this because the Court commented, “[t]he trial … eventually concluded in February 2013 with [Mr. Jordan’s] conviction”: R. v. Jordan , supra at para 12 .

[22] Based on this alone, the “end of [J.M.’s] trial” has not yet been reached. Even though evidence and argument about guilt are over,I have not yet determined whether J.M. will be convicted. [23] This occurred because the

section 11(

b) application was filed mid-trial in response to a long delay between the five originallyscheduled trial dates in mid-April 2016, and the four scheduled trial continuation dates in October, 2016. I decided to complete the trialon those continuation dates before hearing the

section 11(

b) application, and then to resolve the

section 11(

b) application beforeadjudicating the case on its merits. To complete the record, I will set all this out in more detail. [24] Specifically, the continuation dates were required because, in the Ontario Court of Justice, a case that does not finish in thescheduled time does not simply continue until completed. If the scheduled period proves to be inadequate, the case is put back into thescheduling system and future continuation dates will be secured.

In this case, the five April dates set for the trial proved to be insufficientto complete the trial, requiring that a “continuation” be scheduled. [25] The long delay – 6 months - in securing continuation dates from October 24, 2016 to October 27, 2016, was caused byinstitutional limits on available court time, given the manner in which cases are scheduled. Trial judges are booked daily for manymonths in advance, with no gaps left in the

schedule to accommodate continuations. [26] When the

section 11(

b) motion was brought before me on October 24, 2016, the first continuation date, I postponed the motionuntil evidence and argument in the substantive case was completed. I did so out of concern that if the

section 11(

b) motion proceededfirst it could delay the substantive case, requiring a longer adjournment than if the

section 11(

b) motion was left unfinished.[1] Thesubstantive case therefore ended on October 26, 2016, and the

section 11(

b) motion used the balance of the scheduled continuation time. [27] Although the Crown had invited a decision on the merits to be delivered before or concurrently with the decision on the section11(

b) motion, I decided not to determine the trial on its merits until addressing the

section 11(

b) motion. I am persuaded that it would notbe fair to release a guilty verdict, if that is what deliberation achieved, where the trial in question may have been conducted in violationof the

section 11(

b) rights of the accused. In my view, where the constitutional validity of a trial is put in question by a Charterapplication, that application should be disposed of before a decision on the merits is released. I therefore suspended consideration ofwhether J.M. was guilty until after the

section 11(

b) motion is decided. [28] Since there has been no verdict yet, J.M’s trial has not ended based on the clear authority in R. v. Jordan, supra. The total delay Iuse during this motion must therefore be based on the “anticipated end of the trial.” iii. Is Potential Sentencing Delay to be Included in identifying the “Anticipated end of theTrial”? [29]

Section 11(

b) delay includes the period between conviction and sentence. That much is clear. In R. v. Jordan, supra, at footnote 2,the majority affirmed R. v. MacDougall (SCC), [1998] 3 S.C.R. 45 which applied

section 11(

b) to sentencing delay.While the Jordan majority cautioned that it had not yet decided how the “Jordan framework” would work in sentencing delay cases, theapplication of

section 11(

b) to sentencing delay cannot be questioned. [30] Where a case has proceeded to sentencing, the

section 11(

b) analysis must therefore include any sentencing delay, as it did in theOntario Court of Appeal decisions in R. v. Kidd 2016 ONCA 757 and R. v. Coulter 2016 ONCA 704.[2] [31] The Supreme Court of Canada did not address overtly in R. v. Jordan, supra, however, the distinct question of whether, in caseswhere the “anticipated end of the trial” is used to calculate total delay, the trial judge should include the potential delay in sentencing theaccused, should they be convicted.

If this is required, the trial judge calculating total delay will have to identify the anticipated date of averdict, assume a finding of guilt, and then add any anticipated sentencing delay that would occur upon conviction. [32] In my view, it would not be proper to proceed this way. In R. v. Williamson 2016 SCC 28 , [2016] S.C.J. No. 28, thecompanion case to R. v. Jordan, supra, the Supreme Court of Canada worked with the expected date of verdict in evaluating delay, eventhough Williamson was ultimately convicted and sentenced days later. The Ontario Court of Appeal approached the matter the same waywith Mr.

Kenny’s

section 11(

b) appeal in R. v. Manasseri 2016 ONCA 703 , [2016] O.J. No. 5004 (Ont. C.A.).

[ 33 ] These decisions do not settle the matter definitively, since neither case addressed this question directly. Still, policy and first principles support an approach in which the “anticipated end of the trial” is to be based on when a verdict is expected, rather than on the speculative assumption that a verdict of guilt may be rendered requiring further sentencing delay. [ 34 ] To be clear, I am not suggesting that sentencing delay should never factor into the delay examination.

As indicated, it must, so that dilatory conduct during sentencing proceedings, including dangerous offender proceedings, can be remedied. It is one thing to consider known sentencing delay in calculating remaining delay under

section 11(b). It is another thing, however, to include possible sentencing delay in the remaining delay calculation where a finding of guilt has not even been made. A sensible way of proceeding would be to disregard potential sentencing delay for

section 11(

b) applications arising before adjudication on the merits, such as this one, and to consider known sentencing delay when

section 11(

b) applications are brought or renewed after that delay has or is occurring. [ 35 ] There are several reasons why this should be so. [ 36 ] First, my task in quantifying total delay is to determine the “anticipated end of trial.” At this juncture, not having yet determined whether J.M. is guilty, I cannot anticipate that he will be sentenced. He could be, but whether he will be is speculation, not “anticipation.” [ 37 ] Second, unless and until I find that the Crown has proved him guilty beyond a reasonable doubt, J.M. is presumed to be innocent.

It is inconsistent with this presumption for me to estimate how long his sentencing would take and to include it in delay calculations. [ 38 ] Third, the “presumptive ceilings” identified in R. v. Jordan , supra , play a significant role. As explained, if the 18-month period is passed in the provincial court, the burden is reversed requiring the Crown to disprove unreasonable delay.

I doubt that the Supreme Court of Canada intended that this significant reverse onus should be triggered by delay that may never occur. [ 39 ] Indeed, in the Ontario Court of Justice, sentencing is almost invariably postponed following a conviction after trial where incarceration is being considered, unless the accused is a serious recidivist. Courts, mindful of their obligation to identify the degree of responsibility of the offender, and to identify the sentencing objectives that warrant emphasis, routinely order pre-sentence reports disclosing the background of the accused.

Those reports can take between two and three months to secure. If potential sentencing delay is included in quantifying “total delay,” in cases where incarceration is realistically possible, the de facto presumptive ceiling for achieving verdicts would be 15 or 16 months, not 18 months. [ 40 ] In order to estimate sentencing delay the trial judge would have to entertain submissions on the likely length of the sentencing hearing. This could require the disclosure of material about the past misconduct of the accused, including during trial, where a mid-trial

section 11(

b) application is being considered. As indicated, the prior record of the accused can influence whether a pre-sentence report will be required. The trial judge would even need to know whether the Crown is intending to bring a dangerous or long-term offender application after conviction, knowledge that invites an even more intense risk of prejudice. Of course, there are times when prejudicial information has to be disclosed in the course of a trial, and judges are trained to try cases on their merits.

Still, it is preferable to limit exposure to prejudicial information where it can be avoided. [ 41 ] Finally, adding anticipated sentencing delay in cases where no finding of guilt has been made seems pointless. If I were going to estimate sentencing delay, I would naturally do so on the assumption that sentencing would move along as expected. As a result, any material time I added to the total delay for sentencing should functionally be clawed back as reasonable delay at the next stage of analysis, as an inherent function of the added complexity of a case in which sentencing occurs.

Including an estimated, typical sentencing delay should not, therefore, change the outcome. [ 42 ] Technically, there are two ways to prevent sentencing delay that may never occur from distorting the analysis. First, potential sentencing delay could be quantified and added to the total delay, but then removed when identifying remaining delay. Second, potential sentencing delay can be omitted from the concept of “anticipated end of the trial.” The latter approach is simpler, and it is the approach I have chosen to take here. iv. Total Delay Calculated

[43] The total delay I will use therefore spans the date from the charge to the anticipated end of the trial for each set of charges, beingthe date on which I expect a verdict to be rendered. I selected the date of January 30, 2017 as the anticipated date for a verdict toaccommodate this calculation. I did so because argument on the

section 11(

b) application ended on December 9, 2016 and, given mypersonal schedule, I could not complete a

section 11(

b) decision before January 10, 2017. I recognized that if this application does notsucceed, I could need up to three more weeks to prepare a judgment on the merits, hence the January 30, 2017 date. [44] For the charges involving J.J. the total period of delay used in the

section 11(

b) application is from April 15, 2015, to January 30,2017. In the case of the charge involving C.G. the total period of delay is from January 18, 2016 to January 30, 2017. [45] How are these periods of delay best converted to the months-based formula used for the presumptive ceiling in R. v. Jordan,supra? I agree with Justice Band in R. v. Ashraf 2016 ONCJ 584 , [2016] O.J.

No. 5079 at para 58 that the proper way totranslate this total delay so that it can ultimately be compared to the months used in the presumptive ceiling is to “start at [the charge]date and count the number of months that have elapsed since….”[3] For the charges involving J.J. each month following April 15, 2015 in which the date of the 15th has passed will therefore count as a month for calculation purposes. In C.G.’s case, each month following January 18, 2016, in which the date of the 18th has passed will count as one month.

For each complainant, the remaining uncounted daysprior to the anticipated date of trial completion will be added to the total months calculated. [46] Using this formula the “total delay” in the charges involving J.J. is 21 months 15 days. The “total delay” in the charge involvingC.G is 12 months and 12 days. b. Net Delay i. The mode of Calculating “Net Delay” [47] As indicated, the “presumptive ceiling” is not measured against the “total delay”.

It is measured against the “net delay,” minusother time periods that Jordan principles require to be subtracted in achieving the “remaining delay.” For its part, “net delay” isidentified when subtracting “defence delay” from the “total delay.” [48] Mr. Ertel, for J.M., argues that the net delay in this case is the same as the total delay, as none of the delay should be attributableto the defence. [49] Ms. Schriek, for the Crown, disagrees.

In her factum she identified four periods of “defence delay,” and during her submissionsshe attributed still other delay to decisions made by the defence, which I will evaluate below. [50] The Jordan majority explained what would count as defence delay in R. v. Jordan, supra, at paras 61-65. Justice Moldaver, forthe majority, was clear that “[d]efence delay has two components.” The first is delay waived by the defence.

The second is “delay causedsolely by the conduct of the defence.” [51] Since there is no suggestion of defence waiver before me, the immediate question is whether there was any “delay caused solelyby the conduct of the defence.” [52] It is clear that when the Jordan majority was talking about “delay caused solely by the conduct of the defence” it meant delaycaused solely by the conduct of the defence. In R. v. Jordan the primary cause of delay was the inadequate estimate for the preliminaryinquiry. Since both the Crown and defence arrived at the estimate this was not considered to be defence delay.

The defence and theCrown shared responsibility for the delay, preventing it from being attributed to the defence, even though the defence obviouslyparticipated in an underestimation of trial time.[4] [53] Justice Moldaver provided further guidance. He divided “delay caused solely by the conduct of the defence” into two categories;(1) “deliberate and calculated defence tactics employed to delay the trial,” including frivolous applications and requests, and (2) delay

“directly” caused solely by the acts of the defence: Jordan , supra at paras 63-64 . [ 54 ] He identified the paradigm example of delay directly caused solely by the acts of the defence as periods of time during which “the court and the Crown are ready to proceed but the defence is not”: Jordan , supra at para 64 . [ 55 ] As I read the decision, however, he imposed an important gloss on that language.

He effectively distinguished between “pure defence delay,” which is subtracted to identify “net delay,” and “defence delay required to respond to the charges,” which is not. [ 56 ] I say this because Justice Moldaver made it clear that defence delay requested for legitimate preparation, and delay caused by legitimate defence applications or motions, is not to be deducted. Specifically, he said: “To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

For example, the defence must be allowed preparation time, even where the court and Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will not count against the defence. We have already accounted for procedural requirements in setting the ceiling”: R. v. Jordan , supra at para 65 . [ 57 ] Of similar assistance are Justice Moldaver’s comments on adjournments that “are part of the legitimate procedural requirements of the case,” particularly where there is no evidence that the Crown and court are otherwise ready to proceed: R. v.

Jordan , supra at para 122 . [5] [ 58 ] Indeed, in R. v. Williamson , supra , the companion case to R. v. Jordan , supra , the Court held that the defence was responsible for delay caused when defence counsel declined a scheduling date because of a family commitment.

Justice Moldaver commented, at para 22, however: “We agree with the Court of Appeal that this period … of delay is caused solely by the defence because it is a time where the court was available and ready to proceed but the defence was not, and the delay was not associated with legitimate defence preparation time .” (Emphasis added) [ 59 ] The implication of this comment is that, had the date been refused by defence counsel for required preparation time, it would not have been considered defence delay, even though the court was available to proceed. [ 60 ] Refraining from deducting “defence delay required to respond to the charges” from total delay makes sense, given basic constitutional law principles.

As indicated,

section 11(

b) is meant to respond to state-caused delay; delay required to respond to charges laid by the Crown is state-caused delay, inherent in the decision to prosecute, even where it is requested by the defence. [ 61 ] It is therefore evident that determinations of defence delay cannot be made simplistically. These guidelines naturally require the exercise of judgment to apply. Appropriately, the Jordan Court recognized that determinations of net delay are not an exact science.

They are left to the judgment of trial judges who “are uniquely positioned to gauge the legitimacy of defence actions”: Jordan , supra at para 65 . ii. The Net Delay in this Case [ 62 ] In its factum, the Crown identified four discrete periods of delay it styled as “defence delay.” All of them occurred before the charge relating to C.G. and are therefore irrelevant to the “net delay” applicable to the C.G. allegation. These claimed periods of defence delay relate solely to the charges involving J.J. I will examine each in turn as well as other periods of delay that were addressed in Crown submissions. 1.

The First Pretrial

[63] The first period of delay the Crown argues for was between May 28, 2015 and June 4, 2015. Ms. Schriek contends that May 28,2015 was available to the Crown and the court for the initial judicial pretrial but defence counsel had conflicting trial commitments,resulting in the June 4, 2015 judicial pretrial date. [64] In my view, a compelling case can be made that delay caused by the unavailability of defence counsel to accept short-notice datesbecause of other court commitments should not count as defence delay. Defence counsel has to

schedule appearances in administrativecourts in light of their commitments, and short-notice intake appearances are apt to require scheduling flexibility. As Justice Cromwellimplicitly recognized in R. v. Godin 2009 SCC 26, this is inherent in the prosecution of offences. [65] For this reason, Justice Botham, in R. v. Edan [2016] ONCJ 493, suggested that treating short delays caused by the unavailabilityof defence counsel as defence delays is contrary to the spirit of R. v. Jordan, supra, when read as a whole, particularly in light ofcomments about non-frivolous requests. [66] Similarly, in R. v.

Ashraf, supra, Justice Band accepted that R. v. Jordan, supra, implicitly overruled R. v. Godin, but he held thatdefence unavailability should not count as defence delay, at least in transitional cases. This is because prior to Jordan, supra, defencecounsel relied on R. v.

Godin in setting dates, including reliance on Justice Cromwell’s comments at para 23 that defence counsel neednot be in “a state of perpetual availability” when scheduling appearances, and that what is required is “reasonable availability andcooperation.” He therefore declined to count as defence delay a “20 day” pause that occurred when defence counsel declined a datebecause of unavailability. [67] While I do have sympathy with these kinds of approaches, in R. v.

Coulter, supra at para 73, exactly this circumstance resulted infinding one week of defence delay, since “the defence directly caused the delay as the court and the Crown were ready to proceed, butthe defence was not.”[6] I feel constrained to follow this authority. I am therefore finding that J.M. is responsible for this period ofdelay of one week arising from the unavailability of his counsel as a result of other trial commitments. 2. The Second Adjournment for Instructions [68] On June 4, 2015, a pretrial was held. A resolution proposal was made.

On June 9, 2015, the first appearance date following thatpretrial, defence counsel requested and was granted a two-week adjournment to get instructions from J.M. on that resolution proposal.During that two-week adjournment defence counsel managed to meet with the client, but did not manage to secure instructions. On June23, 2015, defence counsel therefore sought, and was granted, a second two-week adjournment to do so.

In the application before me, Ms.Schriek concedes that the first two-week adjournment was an inherent requirement of the case, but she argues that the second two-weekadjournment requested on June 23, 2015, was not. She urges that the period from June 23, 2015 to July 7, 2015 is delay caused solely bythe defence. [69] I disagree. This second two-week adjournment was not caused by concerns unrelated to the case, such as defence counsel’s othercourt commitments. The time was being used to get instructions on moving the case forward and was therefore “associated withlegitimate defence preparation time”: R. v.

Williamson 2016 SCC 28 , [2016] S.C.J. No. 28. [70] Moreover, there is no basis for finding that this second adjournment to complete instructions was frivolous. Certainly theAssistant Crown Attorney appearing on June 23, 2015, Ms. Thibault, did not consider it to be. She said in response to the adjournmentrequest “That is agreeable, Your Worship. The matter is moving along.” She no doubt recognized that Mr.

Ertel had met with the clientduring the first adjournment period, as was stated on the record, such that the initial adjournment had not been squandered. [71] Finally, a four-week period after a pretrial to secure instructions about how to move forward is not unreasonable in this case. Ameeting with the client had to be scheduled, information had to be shared, and the client required time to make a serious decision giventhe nature of the charges and the costs of a trial.

Indeed, J.M. is a youth and the decision was no doubt made in consultation with hisparents. [72] In my best judgment, this period was not imputable defence delay but rather time required for the preparation of the case.

3. The Second Pretrial [ 73 ] When the matter returned on July 7, 2015, instructions had been received from J.M. As a result, his counsel tried to set a trial date. This could not be done since a pink sheet setting out the trial estimate had not been obtained during the June 4, 2015 pretrial, as the focus of that pretrial had been on possible resolution, not arriving at a trial estimate. Since a pretrial judge must endorse the trial estimate before trial time can be set, the matter was put over for the next available pretrial date, which was three weeks later, on July 28, 2016. Ms.

Schriek contends that the defence should have secured that pink sheet on June 4, 2015, making this defence delay. [ 74 ] Once again, I disagree. It is the responsibility of all of the parties to secure a trial estimate during a pretrial. That estimate is based on the combined input of the Crown and the defence, and they are each responsible for ensuring a trial estimate is secured. [ 75 ] It is true that where settlement is being considered it is entirely possible to secure a trial estimate in case negotiations fall through.

The reality, however, is that setting dates on matters the parties believe are apt to settle complicates the scheduling process, as those dates become unavailable for scheduling cases likely to proceed, and if the matter does settle the dates have to be cancelled, complicating administration. The practice in judicial pretrials is to proceed as was done here. [ 76 ] The failure to move the case along by securing a pink sheet at the first pretrial is therefore a joint responsibility of all participants, including the Court.

This delay is not solely caused by the defence, and therefore does not qualify as defence delay. 4. Rejected trial dates [ 77 ] The Crown is also attempting to hold the defence responsible for six weeks of delay based on the failure of defence counsel to accept proposed trial dates prior to the April 12-15, 2016 trial dates. This request is based on the contention that J.M. turned down dates in February 2016. [ 78 ] I have already held that if dates that are available to the Crown and Court that are declined by defence counsel, other than for preparation purposes, this is defence delay.

A close reading of the transcript shows, however, that defence counsel was actually prepared to accept available trial dates on February 23, 24 and 26, 2016, with a later date in March to be set for submissions. It was Ms. Thibault - for the Crown - who ultimately declined those dates for the tactical reason that she did not want the evidence in the case to be interrupted. [ 79 ] This does not, however, end the matter. I agree with Justice Pringle in R. v.

Han 2016 ONCJ 648 that where the defence has rejected a date, the defence should not be responsible for the entire period of delay leading up to the next scheduled date, where the defence was available in the interim and the Crown or Court was not. The same holds true for the Crown.

If the Crown has rejected a date, and the Crown and the Court then offer later dates that the defence cannot accommodate, the Crown cannot be treated as responsible for the entire period of delay leading to the set date. [ 80 ] In this case, after the Crown rejected the dates commencing on February 23, 2016, it then offered trial dates on March 1, 2016, which J.M. could not accept because his counsel was unavailable.

It would not be fair, in these circumstances, to treat the entire six weeks as Crown delay because it declined the February dates. [ 81 ] To complicate matters, J.M. was available to proceed on all sitting days from March 22, 2016, to April 1, 2016, but the court declined those dates. It would not be fair, in these circumstances, to hold J.M. responsible for the delay until the first trial date of April 11, 2015, when J.M. was available to start the trial on March 22, 2016 but the Court was not. [ 82 ] In my view, responsibility for delay has to be apportioned according to availability.

J.M. is responsible, as a result of defence unavailability, for the three weeks of delay from March 1, 2016, when dates available to the Crown and court were declined, to March

22, 2016, when J.M. would have been available but the Court was not. The balance of delay is Crown delay. 5. Trial Estimates and Defence Tactics [ 83 ] The Crown did not ask overtly that I assign responsibility to the defence for the delay caused between April 15, 2016, and October 24, 2016, arising from the inadequate trial estimate. Indeed, the Crown fairly recognized that we have to proceed on the basis that the trial estimate was jointly arrived at by the defence and Crown, which, according to the principles in R. v. Jordan , supra , makes the parties jointly responsible for this delay. [ 84 ] Ms.

Schriek, for the Crown, was critical, however, of tactical decisions made by the defence that she argues prolonged the trial. She did not call those decisions frivolous, but that was the intimation. If that is so, delay arising from the inadequacy of the trial estimate caused by delay arising from frivolous decisions made by the defence would be ascribed to the defence. [ 85 ] I do not consider any of the impugned tactical decisions made by the defence to have been frivolous. [ 86 ] First, Mr. Ertel’s insistence that the

section 715.1 statements should not be admitted because they should be confined to statements “describing the acts complained of,” was not improper. I agree with Ms. Schriek that ultimately this defence objection did not result in the elimination of material evidence, but J.M. had a right to insist that

section 715.1 statements comply with statutory requirements. It would not be proper, in my view, to treat the insistence by the defence that the law is complied with as causing defence delay. [ 87 ] Nor did Mr. Ertel’s challenge to the probative value of forensic scientist James Currie’s evidence about the presence of semen on a child’s toy constitute defence delay. Mr. Ertel’s challenge was far from frivolous. He was entirely right in pointing out that Mr.

Currie’s opinion was not based on objectively verifiable information but rather on the trust he has in the subjective conclusions drawn by technician, Amanda Fowler, after Ms. Fowler judged the appearance of matter she viewed under a microscope to be human spermatozoa. This was not a case where a forensic witness formed an opinion of their own on data produced by a technician through experimentation. Ms. Fowler arrived at the relevant opinion and Mr. Currie simply adopted it for his testimony. Quite rightly, Ms. Fowler should have been the Crown witness on this point, not Mr.

Currie. [ 88 ] Moreover, the Crown’s response when Mr. Ertel raised this concern, of calling Det. Perry Biddiscombe to establish continuity and Ms. Fowler to explain her opinion, were tactical choices made by the Crown to answer the defence challenge. The Crown’s response to a cogent challenge cannot fairly be treated as defence delay. [ 89 ] The fact that Ms. Fowler had never been called as a witness before, or that no other defence lawyers have apparently objected to a forensic scientist offering facts based on the subjective opinion of a co-worker, has nothing to do with it.

This was not a frivolous or dilatory defence tactic. [ 90 ] The same is true of the insistence by Mr. Ertel that J.J.’s parents, who had already testified during the trial proper, should testify again during a Khan voir dire that the Crown chose to bring after J.J. failed to identify the toy said to have human sperm on it. [ 91 ] First, the Crown did not seek a ruling as to whether the trial evidence could be received directly into the voir dire . Instead it acceded to the challenge by recalling J.J.’s parents.

That being so, it cannot complain about the delay that ensued. [ 92 ] More importantly, recalling these witnesses during the voir dire was not pointless. It was not even clear during the voir dire what specific statement the Crown was targeting, and recalling J.J.’s parents was necessary to make the landscape clear. Moreover, new, relevant information emerged during that voir dire testimony. [ 93 ] The conduct of the defence furnishes no basis for finding that the continuation dates were required because of dilatory or frivolous defence tactics.

6. The “Net Delay” [ 94 ] I am therefore finding that there are four weeks, or 28 days, of defence delay relating to the charges involving J.J., consisting of one week caused when the defence declined the first available pretrial date, and three weeks caused by defence unavailability for offered trial dates. The “net delay” in the case of J.J. is therefore the total delay of 21 months 15 days minus 28 days, or 20 months 18 days. [ 95 ] Since there is no defence delay relating to the prosecution of the charge involving C.G., the net delay is 12 months and 12 days. c.

What is the “Remaining Delay” in this Case? [ 96 ] There have been no “discrete events” that have caused delay that must be subtracted from the net delay to determine “remaining delay,” as counseled in R. v. Coulter , supra . i. Delay caused by the

Section 11(

b) Application [ 97 ] The

section 11(

b) application in this case took 74 days to complete, from October 27, 2016 when evidence and argument commenced, until today, January 9, 2017, when I have been able to provide a ruling. [ 98 ] Although argument and evidence on the motion initially closed on October 27, 2016, on November 4, 2016 the Crown brought an application to reopen the

section 11(

b) hearing to present additional evidence – disposition rate statistics for youth cases in Ontario and Ottawa. That application was scheduled and heard, a decision was rendered permitting the reopening and admitting the evidence, and a date was set to permit the parties to respond to that additional evidence. That response occurred on December 9, 2016. When argument was completed that day, I scheduled January 9, 2017 for the release of my

section 11(

b) decision, as this was the first realistic opportunity I would have to complete adjudication on this motion given my schedule. [ 99 ] The instant question is whether the more than two months of delay caused by this motion should be included in the “remaining delay” for the purpose of determining the reasonableness of the delay. The Jordan decision would suggest that it must. [ 100 ] Specifically, in R. v. Jordan , supra , the Court did not remove from the total delay the time consumed by Mr. Jordan on his failed

section 11(

b) application. The Court accepted the 49.5-month calculation of the trial judge from charge, on December 18, 2008, to the end of the trial, and then removed four months of defence delay, some of it for a period that was waived, with the balance arising from the unavailability of defence counsel on a date proposed for closing submissions. The time taken on the mid-trial

section 11(

b) motion was not removed. [ 101 ] Moreover, the only relevant principle articulated by the Jordan Court was that, “[D]efence applications and requests that are not frivolous will … generally not count against the defence.” J.M.’s

section 11(

b) application is not a frivolous one. [ 102 ] In support of this outcome, a principled case can be made for including the

section 11(

b) period within the delay computation.

Section 11(

b) provides the mechanism of complaint for individuals experiencing delayed trials, and while they are waiting for a

section 11(

b) ruling accused persons remain subject to the stigma and consequences of being under charge. In addition, as was pointed out by Justice Botham in R. v. Edan [2016] O.J. No. 4279 (Ont. C.J.) ,

section 11(

b) motions are trial motions and hence part of the trial. [ 103 ] Still, there are competing considerations suggesting that perhaps the delay caused by a

section 11(

b) application should not be counted as part of the “remaining delay.” [ 104 ] First, it is my sense that there is something counter-intuitive in considering the delay that is inherent in challenging delay, to be part of the delay that is being challenged.

[105] Second,

section 11(

b) applications are complex and time-consuming and will remain so under the Jordan regime. Few section11(

b) applications invite

summary decision, and this will not change. As this case illustrates, they take time to schedule, present andargue, and most often they will require time for deliberation. If the delay involved in disposing of a

section 11(

b) application qualifies as“remaining delay,” then, in many cases, bringing an application close to but before the 18 month presumptive ceiling arrives will pushthe delay past 18 months. This will reverse the onus to the Crown to prove that the delay was reasonable. In effect, a defence motionbrought within the presumptive ceiling will extend the delay so that the application becomes one falling outside of the presumptiveceiling. [106] Given this, an option I find to be attractive would be to discount delay arising from a

section 11(

b) application, unless it is causedby the Crown. The

section 11(

b) delay could simply be removed when computing “remaining delay.” [107] In this case that would mean that the delay between October 27, 2016 and November 4, 2016, and from December 9, 2016 toJanuary 10, 2017, would be removed, as this 1 month and 8 days delay arose from the

section 11(

b) motion. The delay from November4, 2016 to December 9, 2016, would count in the remaining delay, as this 36 days delay was caused by the Crown’s failure to prepareitself in a timely manner for the

section 11(

b) motion, resulting in an application to reopen the motion and admit new evidence thatshould not have been necessary.[7] [108] As attractive as this approach may be, in the absence of other supporting authority, I feel bound by the Jordan example to includesection 11(

b) delay in the “remaining delay,” and I will do so. ii. “Remaining delay” calculation [109] The remaining delay in the prosecution of the J.J. allegations is therefore 20 months and 18 days, the same as the net delay. [110] The remaining delay in the prosecution of C.G., is therefore 12 months and 12 days, the same as the net delay. III. Comparing “Remaining Delay” to the Presumptive Ceilings a. Under Jordan Guidelines [111] Applying the “presumptive ceiling” in R. v. Jordan, supra, of 18 months, the delay occasioned in prosecuting the chargesinvolving J.J. is presumptively unconstitutional.

The delay in prosecuting the charge involving C.G. is presumptively constitutional. [112] In order to determine whether those delays are reasonable, however, it is necessary to settle whether the “presumptive ceiling” foryouthful offenders is lower than that expressed in R. v. Jordan, supra, as J.M. contends. b. Lower presumptive ceilings for youth cases? [113] R. v. Jordan, supra did not hold or even intimate that the presumptive ceilings for youth cases are lower. This does not, as theCrown contends, make Jordan an authority against that proposition.

Jordan was an adult case and there was no reason why the SupremeCourt of Canada would have tackled this question. The law on this issue is completely open and I am obliged to address this questionsince the matter is before me. [114] The key principle - that tolerable delay is less for youthful offenders than adult offenders - is well supported in the pre-JordanOntario Court of Appeal case law including R. v. M.(G.C.) (ON CA), [1991] O.J. No. 885 (Ont. C.A.); R. v. W.(C.)[1992] O.J. No. 3438 (Ont. C.A.); R. v. R.(T.), (ON CA), [2005] O.J. No. 2150 (Ont. C.A), and R. v. B.(L.), 2014O.J. No. 5128 (Ont. C.A).

Most significantly, Justice Osborne said in R. v. M.(G.C.) [1991] O.J. No. 885 at para 23 that:

“As a general proposition, youth court proceedings should proceed to a conclusion more quickly than those in the adult criminal justicesystem. Delay, which may be reasonable in the adult criminal justice system, may not be reasonable in the youth court.” [115] Sound reasons offered in support of this general proposition include recognition that:

(1) The “ability of a young person to appreciate the connection between behavior and its consequences is less developed than in adults”:R. v. M.(G.C.), supra at para 23; (2) “For young persons the effect of time may be distorted.”: R. v. M.(G.C.), supra at para 23; and (3) “If treatment is required and is to be made part of the … disposition process, it is best begun with as little delay as possible”: R. v. M.(G.C.), supra at para. 23 [116] These reasons, initially recognized as implicit under the Young Offenders Act, are now codified in the Youth Criminal Justice Act,section 3(1)(b).[8] This

section provides, in relevant part, that: 3(1)(

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminishedmoral blameworthiness or culpability and must emphasize the following: (iv) timely intervention that reinforces the link between the offending behavior and its consequences, and (

v) the promptness and speed with which young persons are responsible for enforcing this Act must act, given young persons’perception of time. [117] In spite of the accelerated and increased impact of delay on young persons, the same legal test was used under the Askov/Morinregime for both young persons and adults. As Justice Sopinka commented in the endorsement in R. v. D.(S.) (SCC),[1992] 2 S.C.R. 161 at para 2: “While the societal interest recognized in R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, affirmed in R. v.

Morin, requiresthat account be taken of the fact that charges against young offenders be proceeded with promptly, it is merely one of the factors to bebalanced with others in the manner set out in R. v. Morin.” [118] Similarly, in R. v. M.(G.C.), supra at para 23, Justice Osborne commented, “I don’t view young persons as being entitled to aspecial constitutional guarantee to trial within a reasonable time, which differs in substance from that available to adults.” [119] In R. v.

M.(G.C.), supra, Justice Osborne did, however, introduce an “administrative guideline” to promote the need to conductyouth court matters with particular dispatch. [120] Using federal data and circumstances then existing in Ontario, Justice Osborne said at para 45, “in general youth court casesshould be brought to trial within five to six months, after the neutral period required to retain and instruct counsel, obtain disclosure, etc.” [121] Although the R. v. M.(G.C.) Court developed this “five to six month plus intake period” guideline for youth before guidelines foradults were set in R. v.

Morin (SCC), [1992] 1 S.C.R. 771, in R. v. T.(R.), supra at para 34, Justice McPhersonrecognized post-Morin that, “[t[he leading cases, including M.(G.C.) are still good law and should be applied.” [122] In spite of their development, these administrative guidelines were not employed directly when assessing whether

section 11(

b) breaches had occurred. Instead, pre- Jordan courts put trust in case-by-case evaluations of prejudice to reflect the heightened prejudice that youth experience through trial delay, and to achieve lower levels of delay in youth cases, consistent with those administrative guidelines. As Justice Osborne commented in R. v. M.G(C.) in the pre- Morin era: From a conceptual standpoint, the basis of the need to try young persons with reasonable dispatch is best analyzed and understood if it is viewed as part of the consideration of prejudice, one of the four factors referred to in Askov ”: R. v.

M.(G.C.) , supra at para 24 , and see R. v. R.(D.R.) , 2011 NSCA 86 . [ 123 ] The approach remained the same after the Morin guidelines for adults were developed, as evidenced by the comments of Justice Beverage in R. v. R.(D.R.) , 2011 NSCA 86 , at para 13 : “The appropriate way to take into account the special circumstances of young persons is to acknowledge the potential for a heightened degree of prejudice to their liberty and security interests that may flow from delay.” [ 124 ] In my view, the pre- Jordan practice of relying on case-specific prejudice evaluations to achieve proper

section 11(

b) protection for young persons while otherwise applying the adult test for delay cannot continue. It is incompatible with the Jordan framework. This is because, while prejudice continues to play some role in transition cases, it plays no

part in the Jordan framework analysis. “Prejudice” has been rejected as an analytical factor because the Jordan majority recognized the use of prejudice to be “confusing, hard to prove, and highly subjective”: R. v. Jordan , supra at para 33 . [ 125 ] To be clear, prejudice remains a material concern under

section 11(b); after all the very purpose of the constitutional guarantee of the right to a trial within a reasonable time is to remedy prejudice to the liberty, security of the person, and fair trial rights of accused persons. The point is that the Jordan regime has opted to approach things differently: “[A]lthough prejudice will no longer play an explicit role in s.11(

b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter -protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin , “prejudice to the accused can be inferred from prolonged delay”: R. v. Jordan , supra at 54. [ 126 ] Even in transition cases where prejudice will continue to play an analytical role, prejudice analysis cannot reasonably be counted on to promote shorter delay in youth cases.

Relying on prejudice evaluation in this way gives a factor discredited in R. v. Jordan , supra too great a role to play. Moreover, the Jordan framework is to be used as the base analysis even in transition cases, and its presumptive ceilings were selected with adults in mind.

Prejudice analysis is but a gloss on that and can serve only as a woefully inadequate and short- lived way of protecting the principle that tolerable delay is less for youthful offenders than adult offenders. [ 127 ] Since case specific prejudice evaluation can no longer be counted on to protect the general proposition that youth court proceedings should proceed more quickly than those in the adult criminal justice system, only two possible outcomes remain. [ 128 ] The first solution would simply be to abandon the principle that youth cases should generally proceed more swiftly than adult cases, and to apply the Jordan regime indiscriminately to adult and youth cases.

In my view, this would be wrong. If

section 11(

b) is to achieve its purpose, constitutional standards for delay have to respond to the prejudice at stake, and the pre- Jordan case law has recognized, with good reason, that children generally experience accelerated and heightened prejudicial impact from delay. [ 129 ] The second possibility – the one I believe to be right in law – is to develop a lower presumptive ceiling for youth cases.

Given the analytical components of the Jordan framework, lowering the presumptive ceiling for youth cases is the only response that can integrate the principle that youth cases should generally proceed more swiftly than adult cases into the current legal test. [ 130 ] Recognizing lower presumptive ceilings for youth is also in keeping with Jordan principles, and the reasoning that supports those principles. [ 131 ] First, the Jordan Court explained that prejudice “informs the setting of the presumptive ceiling”: R. v. Jordan , supra at para 54 . It

follows that the accelerated and heightened prejudice generally experienced in youth cases should inform the presumptive ceilings set for young persons. [ 132 ] Then there is the recognition by the Jordan majority that “a presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time”: R. v. Jordan , supra at para 50 (emphasis added).

If presumptive ceilings are required to give meaningful direction to the state on its constitutional obligations, it follows that lower presumptive ceilings are required in order to give meaningful direction to the state on its constitutional obligation to promote lower periods of delay when young persons are being prosecuted. [ 133 ] It is important to appreciate that recognition of different presumptive ceilings for adult and youth cases does not violate the admonition in the pre- Jordan case law that “young persons [are not] entitled to a special constitutional guarantee to trial within a reasonable time, which differs in substance from that available to adults”: R. v.

M.(G.C.) , supra at para 23 . This comment was never understood to mean that periods of delay for young persons and adults have to be the same. The recognition of shorter administrative guidelines in the R. v. M.(G.C.) line of cases make this clear, as does the entire enterprise of trying to achieve shorter periods of delay by recognizing enhanced prejudice for young persons. [ 134 ] It is helpful, in my mind, to think of it this way. Charter jurisprudence has long recognized that equality of process does not always achieve equality of outcome.

This holds true when comparing the effects of delay in youth and adult cases. If the

section 11(

b) analysis tolerates the same length of delay for youth and adults, the result will be that young persons will receive less protection than adults, as young persons tend to experience the prejudice caused by delay more quickly and more intensely than adults do. Different presumptive ceilings within the same legal test established in R. v. Jordan , supra are therefore required to ensure that both groups experience the same constitutional guarantee. [ 135 ] In my view, legal principles coalesce to confirm that lower presumptive ceilings have to be developed in youth cases, under the Jordan framework. c.

How much lower? [ 136 ] Mr. Ertel has suggested that the “presumptive ceiling” for youthful offenders should be twelve months. No basis was offered in support of that number, although, as a matter of interest, in R. v. B.(S.) [1994] O.J. No. 3933 (Ont. C.J.) Justice Sheppard endorsed the proposition, at para 20, that: “[D]elays of a year or more prima facie offend the guideline, unless the Crown on clear evidence can provide a reasonable explanation or excuse for such delay, it should attract a remedy.” [ 137 ] In my view there is objective support for a twelve-month presumptive ceiling.

It can be found by employing the ratio between target delay for youths and adults in the pre- Jordan era. Assuming an intake period of two months, the guideline for tolerable delay in youth cases would be seven to eight months (the five to six months identified in R. v. M.(G.C.) , supra , plus an intake period of two months), but for adults it would be ten to twelve months (the eight to ten months identified in R. v. Morin , supra , plus the intake period of two months.).

In identifying a presumptive ceiling the higher numbers within the range should be used in the ratio calculation, namely eight months for youth and twelve months for adults. This is because delay that falls between the two numbers is within the guidelines and not presumptively problematic. On this basis, the pre- Jordan authority gave youth cases a guideline that is 66% of that for adult case, or 8 months (youth): 12 month (adults).

Applied to the Jordan presumptive ceiling for adults of 18 months, that same ratio would produce a presumptive ceiling of 12 months for young persons. [ 138 ] I am therefore inclined to the view that 12 months is, indeed, the appropriate presumptive ceiling for youth cases. Still, I am not in a position to make a firm decision that this is so. A credible case can also be made for a 15 month presumptive ceiling. This is because the question of a tolerable presumptive delay in youth cases is a functional one. As R. v.

Jordan , supra illustrates, the presumptive ceiling must be set in a way that allows for the effective prosecution of cases. It must therefore be calibrated in a way that allows for the wide range of factual and legal complexity that exists, even among cases that do not qualify as “particularly complex.” It must also accommodate the kinds of delay that are commonly encountered in an imperfectly funded, human system. [ 139 ] The presumptive ceiling must also respect the admonition in R. v.

R.(D.R.) , supra at para 12 that “speed cannot be emphasized to such an extent that procedural fairness to the state and young person is sacrificed.” As the Court commented in R. v. D.(R.C.) 2006

BCCA 211 , 2006 B.C.J. No. 947 at para 24 (B.C.C.A.), trying youthful offenders is not all about speed. [140] A 33% “gross down” to 12 months may, therefore, prove to be too aggressive. After all, there is no reason to believe that youthcases are any less complex, or any less prone to inherent delay.

While it is necessary to insist on more dispatch in youth cases, a 12month presumptive ceiling could potentially undermine the effective prosecution of cases, a possibility I cannot rule out on theincomplete state of evidence before me. [141] Meanwhile, the 15 month presumptive ceiling finds modest support in the reasoning applied in R. v. Jordan, supra. Before settlingon the 18 month presumptive ceiling for adults, the Jordan majority conducted a qualitative review of nearly every reported section11(

b) decision in the past 10 years, and many decisions from the trial courts, to identify the kinds of delays that were leading to stays ofproceedings: R. v. Jordan, supra at para. 106. I have done a less systematic canvas of youth cases that were stayed under

section 11(b),which suggests that by 15 months, stays of proceedings occur commonly. [142] Specifically, in less than a quarter of the more than 40 cases I reviewed was a stay granted for a delay of 12 months or less, andthere were many other cases with delays in that range where trials were not stayed. Stays at 15 months make up around half of thesuccessful applications.

Approximately one quarter of the cases I reviewed were stayed at between 15 and 18 months, and about aquarter of the cases exceeded the 18-month presumptive ceiling and are therefore not instructive. [143] Mindful that the data is dull - given that the decisions splayed over more than 20 years, included cases of every level ofcomplexity, and were rendered as legal standards evolved - this unsophisticated canvas of the case law arguably counsels against a 12month presumptive ceiling.

A presumptive ceiling should arguably not trigger, today, at a delay that is below the range in most caseswhere a stay of proceeding was found to be suitable, even bearing in mind the culture of complacency. Since half of the stays ofproceeding I identified occurred at 15 months or less, this number suggests itself. [144] What is clear is that nothing higher than 15 months could reasonably serve as an appropriate presumptive ceiling.

This is because,ex hypothesi, the presumptive ceiling must be less than 18 months if the tolerable delay for young persons is to be less than for adults,and anything less than a three month discount would be little more than a symbolic or paltry way to honour that principle. [145] In spite of my attraction to a 12 month presumptive ceiling for youth cases, I cannot, therefore, be confident on the record beforeme that this is the right presumptive ceiling. Fortunately, in this case the result will be the same whether a 12 month or 15 monthpresumptive ceiling is applied, so I need not purport to decide this issue.

IV. Was the delay in the J.J. charges unreasonable? a. Overview [146] The remaining delay on the charges against J.M. involving J.J. is 20 months and 18 days. It is therefore presumptivelyunreasonable, falling 5 months and 18 days beyond even a 15 month presumptive ceiling for youth cases.

The burden is therefore on theCrown to demonstrate that the delay on these charges has been reasonable. [147] The Crown can meet this burden either by showing the delay to have been reasonable applying the Jordan framework, or byrelying on transitional principles developed in the case to ensure that reasonable expectations are not defeated, and to prevent arecurrence of the Askov aftermath in which thousands of cases were stayed because of changes made in the

section 11(

b) analysis: R. v.Jordan, supra paras 94. I will begin by asking whether the delay in this case can be identified as “reasonable” using the Jordanframework. b. Is the delay justified under the Jordan framework? [148] In R. v. Jordan, supra, the Court made it clear that “the presence of exceptional circumstances is the only basis upon which theCrown can discharges its burden to justify a delay that exceeds the ceiling”: R. v. Jordan, supra at para 81. The Jordan majorityexplained that to justify a presumptively unreasonable delay the Crown must show:

“that the ‘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:” R. v. Jordan at para 69 . [ 149 ] Exceptional circumstances are generally of two kinds, (1) “discrete events” and (2) particularly complex cases. To be relevant, delays must emanate from those circumstances: R. v. Jordan , supra at para 69 . Put more simply, there is a causation requirement.

Since the inquiry is into delay, discrete events, or legal or factual complexity, are not material unless they are responsible for the problematic delay. [ 150 ] In this case, discrete events have already been addressed in identifying “remaining delay,” as instructed by R. v. Coulter , supra .

The remaining issue under the Jordan framework is whether the Crown has proved that enough of the delay was caused by exceptional circumstances, to demonstrate that the presumptively unreasonable delay in this case was in fact reasonable? [ 151 ] At first blush, this case may appear to have been a particularly complicated case. There were two extremely young complainants, with all that this entails, including applications for support persons, the admission of

section 715.1 statements, and the need for frequent breaks to keep the young complainants focused. This case also involved a similar fact evidence application and expert evidence, as well as a Khan application when, unexpectedly, J.J. was unable to identify the stuffed animal alleged by the Crown to be stained with spermatozoa. [ 152 ] Simply listing the features of the case in this way creates a misleading impression, however, of the kind of delay this prosecution required.

To be sure, sexual assault prosecutions do tend to take more time than most other charges because they entail the kind of motions that were brought here, and this case did ultimately require approximately six days of trial time to present and argue the merits of the allegation.

Beyond being a multi-day case because of the nature of the evidence and motions involved, however, this case did not have the kind of complexity that causes unusual delay, and it was not the complexity of the case that led to the case taking as long as it did. [ 153 ] This was not a case, for example, where the materials were so voluminous that inordinate preparation time was needed, delaying the trial. Nor was it a case where motions had to be scheduled before trial and adjudicated before the case could proceed. There was no delay incurred waiting for disclosure or forensic testing before dates could be set.

It is not a case that was delayed because of the need to serve notices or to draft complex documents and applications. There was no need to wait for judicial rulings on applications before the trial could proceed. All in-trial rulings were made promptly, without delaying the progress of the case. [ 154 ] Indeed, even the applications that did occur within the trial were not complicated. The application under

section 486.1 for a support person was modestly more protracted than usual to present because of the Crown’s tactical decision to attempt to use another witness to assist J.J., even though J.J.’s grandmother, a non-witness, was suitable and available. Similarly, the

section 715.1 application brought by the Crown, normally pro forma , invited a brief challenge because the interview exceeded the technical reach of the provision. These motions were argued expeditiously. [ 155 ] Nor did the similar fact evidence application add materially to the delay. The organization of the application did not prolong the intake period, or delay trial preparation. When presented, it took just over one hour of court time. This was a count-to-count application requiring no additional evidence beyond that needed to prove the charges, so its presentation did not prolong things.

The similar fact evidence decision was rendered without requiring an adjournment. [ 156 ] Expert evidence was also uncomplicated. James Currie’s evidence took one hour and forty minutes to complete. Amanda Fowler testified in one hour and twenty minutes.

Their evidence took less time than most civilian witnesses, and, as indicated, there were no delays caused while waiting for scientific testing or notice requirements linked to the expert evidence. [ 157 ] To be sure, securing evidence from two very young children, including the unexpected Khan application that arose after the testimony of J.J., complicated things, but the problematic delay in this case arose because a multi-day continuation proved to be necessary. This continuation was not caused by the particular complexity of the trial.

The need for a multi-day continuation was contributed to by a cramped trial estimate of five days, when ultimately it took six sittings days of trial time to complete, and by two other factors.

[ 158 ] First, significant time was lost during the original trial dates because of technical failures, amounting to approximately three hours of sitting time. A typical sitting day constitutes four and one-half to five hours of trial time, [9] so this delay mattered in a trial of modest length. It constituted more than 10% of the time initially set for trial. [ 159 ] I recognize that technical difficulties will ordinarily be the kind of unexpected circumstance that leads to delay for which the state cannot fairly be held responsible.

Most of the delay in this case was spent, however, waiting for a technician to arrive to fix the problem. This is not unusual. Technical assistance is often difficult to secure in Ottawa in a timely manner, and courts not uncommonly sit idle, waiting for help. [ 160 ] Appropriately, J.M. relied on this delay to support its

section 11(

b) application. The Crown led no evidence in response to suggest that delay in getting technical assistance in this case was inevitable because of extenuating circumstances. Indeed, no attempt was made to show that the technical support system in place was reasonable. [ 161 ] I know that the loss of this time was not the fault of the prosecuting Crown. Delay caused by a lack of technical support is nonetheless state caused delay. It is not unlike delay caused by the unavailability of interpreters, [10] or of courts or judges.

The time lost may have been outside the control of the prosecutor, but, on the evidence before me, it was not outside the control of the state. [ 162 ] Second, material delay was caused by problems with the state of readiness of the prosecutor’s case. [ 163 ] On April 11, 2016, close to an hour was lost because of late disclosure. The Crown called C.G.’s mother as a witness, but not before asking for a 15 minute long recess to complete a transcript of her evidence to facilitate its presentation. That recess lasted more than 45 minutes.

A further 10 minutes was lost at the end of the day as the result of early adjournment, as defence counsel needed to review the transcript before commencing cross-examination. [ 164 ] More significantly, the Crown case upon which the original trial estimate was based relied on forensic scientist James Currie to confirm the presence of spermatozoa on the stuffed toy animal. As indicated, during cross-examination defence counsel exposed clear, and in my view, obvious problems with James Currie offering probative evidence about this.

James Currie had no personal knowledge of the nature of the cells found on the toy, predicating his opinion, in part, on inconclusive chemical tests, but primarily on the trust he placed in the accuracy of the microscopic examination done by technician Amanda Fowler. He had no scientific way to confirm her opinion, and no objective criteria available to form a firm opinion of his own that human cells on the toy were sperm cell. He simply accepted and adopted Ms. Fowler’s bottom-line evaluation.

She was a witness the Crown should have called from the outset if it wanted a definitive finding that the stuffed toy had spermatozoa on it, but the Crown had no plan to do so. [ 165 ] The Crown responded to the defence challenge by delaying the close of its case and seeking additional evidence, including from Exhibit Officer Perry Biddiscombe and Ms. Fowler. This resulted in the loss of 30 minutes of Court time on April 14, 2016, when the Crown had no further evidence to call after James Currie completed his testimony and the defence challenge was laid bare.

The next day, April 15, 2016, close to a half-day of trial was lost when, shortly after the lunch recess, the Crown had no further evidence to call. The Crown was treading water so that it could arrange for Amanda Fowler to testify.

Had a continuation not already been required by this point, the Crown would have required an adjournment of the case to another day to accommodate this unplanned evidence. [ 166 ] To be sure, this delay arose from a tactical change in the Crown’s case, but the problem with the Crown case that this additional evidence was called to address cannot be said to have been reasonably unforeseen or reasonably unavoidable. [ 167 ] Lost-time due to a lack of technical support and revisions to the Crown case therefore contributed to more than half of the discrepancy between the initial trial estimate and the court time ultimately committed to the trial.

This is not a case, therefore, where a trial goes longer than expected after a good faith estimate, which ordinarily would qualify as an exceptional circumstance: R. v. Jordan , supra at para 73 . Had the Crown had a better understanding of the state of its case going in, and had the technical problems been addressed expeditiously, no more than a day would have been required for continuation.

Based on judicial experience, if only one day rather than a multi-day continuation was required, the continuation date would have been far earlier, particularly given the option available to the court of inviting written submissions, or meeting before the 10:00 – the start of the scheduled trial day - in the impending days to complete oral argument. [ 168 ] In these circumstances, I cannot find that the Crown has proved that exceptional circumstances outside of the control of the Crown are responsible for the problematic delay that occurred here.

The Crown has not rebutted the presumption of unreasonableness relating to

the prosecution of the charges involving J.J. c. Is the delay justified under the transitional principles? [169] Failure by the Crown to justify the delay under the Jordan regime does not end matters. The Jordan framework operates intransitional cases, such as this one, subject to “two qualifications.” First, the Crown can satisfy the Court that the time the case has takenis based on reasonable reliance on the law, as it previously existed. Second, the Crown can satisfy the Court that the jurisdiction isplagued by lengthy, persistent and notorious institutional delay: R. v. Jordan, supra at paras 95-97. i.

Has there been reasonable reliance on the law as it previously existed? [170] The Crown has not established reasonable reliance on the law, as it previously existed. [171] As a preliminary observation, it seems sensible that in order to demonstrate reasonably reliance on the law, the Crown must showthat it has complied with the law. In this case the Crown has failed to demonstrate that it has respected the law relating to the schedulingof youth cases, as it existed prior to R. v. Jordan, supra. [172] I have no concern with the scheduling of the initial April dates.

They would have been set from the “youth book” which containsmore proximate trial dates than are available in adult cases, consistent with the pre-Jordan principle that youth cases must generally bedealt with more promptly than adult case. [173] The concern is with the six-month delay to the continuation dates. I cannot take notice of a practice in this jurisdiction to scheduleyouth continuations with special urgency, relative to adult continuations or even relative to setting initial trial dates, and no evidence wasplaced before me that any effort was made to limit the delay in this case.

Similarly, there is no evidence that J.M. did anything to waivehis rights, or to undermine his entitlement to insist that delay be minimized. The Crown has therefore not demonstrated compliance withthe law, as it previously existed. [174] In spite of this I am loathe to resolve the reasonable reliance issue on this basis, and I will not do so. The crucial question iswhether the prosecution proceeded without unreasonable delay.

The proper way to resolve the reasonable reliance question for transitioncases is therefore to determine whether the case was proceeding without unreasonable delay, as contemplated by the previous law. If so,the Crown would have been entitled to expect that the case was progressing as it should. [175] In this case, however, the delay in the charges against J.M. relating to J.J. was not acceptable according to the pervious law. Itexceeds the Morin regime guidelines, even leaving aside that this is a youth case, and even disregarding the youth guidelines.

It does soin a way and to a degree that, in my view, prevents reasonable reliance by the Crown on the pre-existing law to justify the delay. [176] The Supreme Court of Canada summarized the Morin analysis in R. v. Godin (2009), 2009 SCC 26 , 245 C.C.C. (3d) 271at para 18: “Whether a delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by thedefence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s.11(

b) seeks toprotect.” [177] In effect, the total delay attributable to the state and the Crown that is not inherent in the case is isolated and then compared to theMorin guidelines of 8-10 months for a trial in the provincial court. Whether a stay of proceedings follows where a case exceeds theguidelines depends upon the prejudice that has been caused to the accused, balanced against the public interest in advancing theprosecution in light of the seriousness of the charge.

[ 178 ] As indicated, the length of the delay involving the J.J. charges is 21 months and 15 days. This period includes the time needed to resolve the

section 11(

b) application, as well as deliberation time in reaching a verdict should the

section 11(

b) application fail. It is not my sense that it was the practice of courts when applying the Morin framework to use the anticipated end of the trial, including the time needed to co

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