R. v. Kaulback, 2018 NLCA 8

Her Majesty the Queen (appellant) v. Ian Kaulback (respondent) (17/19) Indexed As: R. v. Kaulback 2018 NLCA 8 2 C.A.N.L.R. 506 Court of Appeal of Newfoundland and Labrador Welsh, White and O’Brien JJ.A. February 7, 2018

Summary: Before the trial of Mr. Kaulback on charges of using a computer to lure, for a sexual purpose, a child whom he believed was under the age of 16, contrary to

section 172.1(1) (

b) of the Criminal Code could be held, the trial judge granted Mr. Kaulback’s application for a stay of proceedings on the basis that his right under

section 11 (

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time had been breached. The Crown appealed, arguing that the judge erred in his analysis of (1) the effect of two charges laid at different times; (2) the effect of re-electing choice of court; (3) the determination of the anticipated end of trial; and (4) the application of the transitional exceptional circumstance to the question of delay. Held: Appeal allowed, new trial ordered. Welsh J.A. (White and O’Brien JJ.A. concurring): One of the charges was laid 16 months after the other.

The trial judge erred in concluding that the charges should be assessed together without regard to when they were laid. The calculation of time for purposes of an analysis under

section 11 (

b) of the Charter commences when the charge is laid. Each charge must be considered on its own merits. In this case, the charges and the application under

section 11 (

b) of the Charter pre-dated release of the decision in R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631 which established that the presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable.

To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. Where a case was in the system before the decision in Jordan was released, the new framework applies.

However, there is a transitional exception that will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. At first Mr. Kaulback elected to have the one of the charges dealt with in Provincial Court, then re-elected to trial by judge alone in the Supreme Court, then re-elected again to be tried in Provincial Court on the day before the start of the preliminary inquiry.

The 30-month ceiling applies regardless of whether proceedings with a preliminary inquiry are eventually tried in the superior court or not. The delay was below that presumptive ceiling. The judge failed to account for two periods of delay waived by Mr. Kaulback. When these are assessed along with the 8 months the judge attributed to defence delay, the presumptive ceiling is not exceeded. At least a portion of the delay caused by the defence re-elections should be allocated as defence delay, further reducing the delay below the thirty-month presumptive ceiling.

The presumptive ceiling for the other charge, which proceeded in Provincial Court at all times, was 18 months. Despite agreement by

both counsel that three days was sufficient for trial, the trial judge did not accept that submission. The trial judge altered the estimatedtime to the end of trial from counsels’ position of three days to eight months. It is not possible on the appeal for this Court to reassess thisaspect of the delay and choose a different length of time. Whichever date is chosen, however, Mr. Kaulback’s right to be tried within areasonable time was not breached.

Even taking the latest estimate for the date on which the trial would end, when defence delay is subtracted from that date for the chargefor which the presumptive ceiling is 18 months, the delay is below the presumptive ceiling. There was also no basis to conclude, as the trial judge did, that the Crown delay in obtaining information from the United States wasoutrageous or extraordinary. That said, the Crown has responsibility to take steps to limit this type of institutional delay to the extentpossible. Because the delay in both cases fell below the presumptive ceiling, Mr.

Kaulback had the burden of establishing that he took meaningfulsteps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably shouldhave. This is not clear from the record. Because there was no basis on which to conclude that Mr. Kaulback’s

section 11(

b) rights were breached, the appeal was allowed andthe trials ordered to proceed without delay. Cases cited: R. v. Hunt, 2017 SCC 25, [2017] 1 S.C.R. 476 R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 R. v. Morin, (SCC), [1992] 1 S.C.R. 771 R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 R. v. S. (D.M.), 2016 NBCA 71 Counsel: Lloyd M. Strickland, for the appellant; Jason Edwards, for the respondent. This appeal was heard on November 8, 2017 before Welsh, White and O’Brien JJ.A.

The following judgment was delivered on February 7, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] On February 9, 2013 and July 9, 2014, Ian Kaulback was charged with using a computer to lure, for a sexual purpose, a childwhom he believed was under the age of 16, contrary to

section 172.1(1)(

b) of the Criminal Code. The charges involved differentcomplainants in different communities. Although the second charge was laid more than a year after the first, the offences were allegedto have taken place between December 1, 2012 and February 8, 2013. [2] Before the trial was held, the trial judge granted Mr. Kaulback’s application for a stay of proceedings for both charges on thebasis that his right under

section 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time had beenbreached. [3] At issue in the appeal are: consideration of the relevant legal principles regarding delay under

section 11(

b) of the Charter; thejudge’s failure to consider the two charges separately; determination of the anticipated length of trial; and the effect of re-electing trialfrom Provincial Court to the Supreme Court and back to Provincial Court. BACKGROUND

[ 4 ] The February 9, 2013 charge relates to allegations for the period between February 1 and 8, 2013, while the July 9, 2014 charge relates to the period between December 1, 2012 and February 1, 2013. In granting a stay of proceedings with respect to both charges, the Provincial Court judge summarized the facts in his decision dated February 17, 2017 ( 2017 NLPC 1713 A00133, 1714A00842): [2] The analysis of computers, a cell phone, external hard drives and other digital equipment and the generation of the appropriate report took 10 months.

The provision of necessary disclosure through the Mutual Legal Assistance Treaty took 18 months until at least August 8, 2014, overlapping the entire 10 months necessary for the computer and electronics analysis report. The police, on July 9, 2014 – 17 months after the beginning of the case – laid a second child luring charge between December 1, 2012 and February 1, 2013. Mr. Kaulback required a lot of time to secure legal counsel.

Most of the time from November 2014 to November 2015 related to his efforts to maintain Nick Avis as his counsel, and when that was not possible, he made application to the Legal Aid Commission, which eventually provided him with a lawyer. [3] The case has had a large number of appearances, but eventually the court set the case for trial for November 4, 5 and 6, 2015. The Defence, however, filed an application, on October 13, 2015, requesting an order granting a stay of proceedings because of a breach of Ian Kaulback’s right to a trial within a reasonable time in accordance with

section 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”). The total time from the date of his arrest to the end of the time scheduled for trial, on November 6, 2015, was 33 months.

We should keep in mind, however, that the calling of evidence and initial counsel submissions for the Charter trial delay application took until June 30, 2016 – a total of 41 months from the beginning of the cases – which is a better, and still conservative, estimate of time to end of trial date. [ 5 ] The judge concluded: [124] After hearing the evidence and considering the law on this Charter trial delay application, I am granting the Defence application and entering a stay of proceedings.

As I have stated earlier in this decision, I have concluded that a realistic, and still conservative, estimate of time to end of trial in this case is from February 9, 2013 to June 30, 2016 – 41 months. I attribute 8 months to Defence efforts to retain counsel, and the balance of 33 months to inherent, institutional and Crown delay.

Even if I am wrong in my conclusion about the estimated time to end of trial, I find there are circumstances that still warrant a stay of proceedings if the estimated time to end of trial is 33 months from February 9, 2013 to November 6, 2015, based on the guidance the Supreme Court of Canada provides in its recent Jordan and Williamson cases. ISSUES [ 6 ] For purposes of this appeal, at issue in the analysis under

section 11(

b) of the Charter are: (1) the effect of two charges laid at different times; (2) the effect of re-electing choice of court; (3) determination of the anticipated end of trial; and (4) application of the transitional exceptional circumstance to the question of delay. ANALYSIS [ 7 ]

Section 11(

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

b) to be tried within a reasonable time; Effect of Two Charges Laid at Different Times [ 8 ] Although the two charges against Mr. Kaulback were laid sixteen months apart, the trial judge did not deal separately with each for purposes of the

section 11 (

b) analysis. He explained: [16] The court must also address the issue that, even if Ian Kaulback is successful concerning the charge the R.C.M.P. laid against him on February 9, 2013, he is still facing a second charge that he committed a similar offence between December 1, 2012, and February 1, 2013, but the Royal Newfoundland Constabulary did not lay that charge until July 9, 2014. Crown and Defence counsel did not address this matter directly. Crown counsel, however, did argue that it was important for the R.C.M.P. to respond to the original complaint, make the arrest and lay the first charge.

It was not open to the police, in the Crown’s view, to wait for the forensic electronic analysis of the cell phone, computers, external hard drives and other electronic devices, and the Mutual Legal Assistance Treaty response concerning Facebook information to take their initial actions in this case. [17] Counsel, nevertheless, argued, or necessarily implied, that their respective arguments applied to both sets of charges without distinguishing the later ones as being subject to a different analysis.

On September 5, 2013, for example, I note that the Defence was still waiting for further disclosure and was anticipating new charges based on discussions with the Crown Attorney. Those charges did not come for another 10 months, namely on July 9, 2014, but that does not give the Crown the right to a fresh start date from which to measure trial delay . (Emphasis added.) [ 9 ] The trial judge erred in concluding that the charges should be assessed together without regard to when they were laid. The calculation of time for purposes of an analysis under

section 11(

b) of the Charter commences when the charge is laid, regardless of when the Crown may have been in a position to lay the charge ( R. v. Hunt , 2017 SCC 25 , [2017] 1 S.C.R. 476 ). That principle is consistent with the language of

section 11 (

b) which sets out protections afforded to any person “charged with an offence”. As applied to this appeal, each charge must be considered on its own merits for purposes of the

section 11 (

b) analysis. [ 10 ] That said, it is convenient first to address general principles that would apply to both charges. I begin with the analytical

approach set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Analytical Approach – the Jordan Decision [11] In this case, the charges and the application under

section 11(

b) of the Charter pre-dated release of the decision in Jordan, inwhich Moldaver, Karakatsanis and Brown JJ., for the majority, outlined an adjusted approach to the

section 11(

b) analysis: [46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is setat 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases goingto trial in the provincial court after a preliminary inquiry). [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delayis presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances.

If itcannot, the delay is unreasonable and a stay will follow. [Italics in original.] [48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable toexceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and(2) the case took markedly longer than it reasonably should have.

We expect stays beneath the ceiling to be rare, and limited to clearcases. [Italics in original.] [12] Delay that is waived or caused by the defence does not count in calculating whether the ceiling has been exceeded. Where thedelay exceeds the presumptive ceiling, the Crown has the burden of demonstrating exceptional circumstances as described in Jordan: [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonablyunavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So longas they meet this definition, they will be considered exceptional. … [Italics in original.] [13] Where a case was in the system before the decision in Jordan was released, the “new framework, including the presumptiveceiling, applies” (paragraph 95).

However, there is a transitional exception: [96] … This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken isjustified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive tothe manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against astandard of which they had no notice.

For example, prejudice and the seriousness of the offence often played a decisive role in whetherdelay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore informwhether the parties’ reliance on the previous state of the law was reasonable.

Of course, if the parties have had time following therelease of this decision to correct their behavior, and the system has had some time to adapt, the trial judge should take this into account. … [100] Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under theMorin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements ofthe case for cases currently in the system. [101] We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceilingwill be even more difficult to obtain for cases currently in the system. … [14] Prior to release of the Jordan decision, reliance was placed on the approach and factors set out in R. v.

Morin, (SCC), [1992] 1 S.C.R. 771. Sopinka J., for the majority, explained, at pages 787 to 788: … While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is toolong may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for the delay; and 4. prejudice to the accused. [15] In discussing the purpose of

section 11(b), Sopinka J. summarized, at pages 786 to 787: There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court

recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme is picked up in Askov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. … [ 16 ] Similarly, in R. v.

Godin , 2009 SCC 26 , [2009] 2 S.C.R. 3 , Cromwell J., for the Court, wrote: [18] The legal framework for the appeal was set out by the Court in Morin , at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

As Sopinka J. noted in Morin , at p. 787, “[t]he general approach … is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” (Emphasis added.) [ 17 ] Regarding prejudice to the accused, Cromwell J. explained: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin , at pp. 801-3. Effect of Re-election Regarding Choice of Court [ 18 ] On July 9, 2013, Mr. Kaulback elected to have the February 9, 2013 charge dealt with in Provincial Court.

On September 5, 2013, he re-elected to trial by judge alone in the Supreme Court. Several dates were set for a preliminary inquiry, with the last being November 19, 2014. However, on November 18, 2014, Mr. Kaulback again re-elected to be tried in Provincial Court. [ 19 ] Regarding re-election as to choice of trial court, in Jordan , the majority cautioned: [62] Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior court trial to a provincial court trial for legitimate reasons. To do so, the Crown’s consent must be obtained ( Criminal Code , R.S.C. 1985, c.

C-46, s. 561). Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as a condition of its consent. [ 20 ] That said, at paragraph 49, footnote 3, the majority in Jordan noted: While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case.

For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply. [ 21 ] In the slightly different scenario, where the accused re-elected to provincial court on the date set for the preliminary inquiry, in R. v.

S. (D.M.) , 2016 NBCA 71 , Quigg J.A., for the Court, was satisfied that the same result would obtain as if the preliminary inquiry had been held: [17] … This raises the question whether this case falls in the same category as those that actually proceeded with a preliminary inquiry, thus making the presumptive ceiling 30 months. In my view, when an accused makes an election and requires the Provincial Court to

schedule a preliminary inquiry, barring exceptional circumstances such as a very early re-election to be tried by a Provincial Court judge, the case should be treated as one that included a preliminary inquiry even if the preliminary inquiry is eventually waived. The parties appear to agree with this approach. Thus, the presumptive ceiling is 30 months. [ 22 ] Prior to the presumptive-ceiling analysis set out in Jordan , the Crown may not have considered it necessary to seek a waiver for the delay resulting from a re-election.

As set out above in Godin , at paragraph 18 , Cromwell J. emphasized the balancing of interests rather than a mathematical assessment of the allocation of monthly delays, unlike the approach taken in Jordan (paragraph 16 , above). [ 23 ] The issue of calculating delay may be further complicated where there were two re-elections and it is necessary to ascertain the extent and effect of the delay stemming from these. [ 24 ] In this case, Mr.

Kaulback states in his factum that he “acknowledges, as did counsel at trial, that the correct presumptive ceiling in this particular case is 30 months.” No explanation is provided for that position. The Crown, taking the same position, relies on the decision in R. v. S. (D.M.) , supra . Given the concession by both counsel, this issue was not fully argued in the appeal.

Further, in light of the potentially complex analysis engendered by the factual nature of the issue and the fact that the charge falls within the transitional period referenced in Jordan , in the circumstances, I would accept the application of the thirty-month presumptive ceiling for purposes of the February 9, 2013 charge. [ 25 ] Regarding the July 9, 2014 charge, I note that Mr. Kaulback elected trial in Provincial Court and did not make any re-election to the Supreme Court. Accordingly, the presumptive ceiling in respect of that charge is eighteen months. Determination of Anticipated End of Trial

[ 26 ] The trial judge did not accept the estimate by both counsel that the trial should be set for three days. Rather, he concluded: [20] A further issue here is whether it was realistic to assume that the likely date when the trial would have concluded was November 6, 2015. The court had set three days for the hearing of the Charter application. Those three days were originally set for trial, but was it realistic to assume that the trial would be over in three days?

The Happy Valley-Goose Bay docket is always extremely busy with cases double and triple booked with heavy use of court time for bail hearings, sentencing hearings and short appearances. [21] … As it happened, the three days set for trial in November 2015 were not sufficient even to complete the application concerning Charter delay, let alone a trial. It took until June 30, 2016, to hear all the evidence and counsel submissions, which brought the case to 41 months from its start.

This is a better measure, in my view, than the suggestion that the trial would take only three days to complete, namely November 4, 5 and 6, 2015. The Crown evidence during the Charter application was focused on the issue of delay, which is a very discrete question.

The trial will certainly involve the content of the computers, cell phone and external hard drives and will involve more witnesses, such as the complainants in addition to the analyst of the computer, the lead investigator and possibly other witnesses associated with the Mutual Legal Assistance Treaty (MLAT) process. [ 27 ] Counsel for the Crown submits that both counsel had agreed in July 2015 that three days would be sufficient for the trial on both charges.

Counsel further submits that counsel, rather than the judge, would be in the best position to estimate the length of trial since they would be determining the number of witnesses required, the presentation of evidence, and possible legal issues. On appeal, Mr. Kaulback submits that deference is due to the trial judge’s decision particularly since he is familiar with the court’s docket.

I would note that there is no indication that counsel at trial were unfamiliar with the manner in which the court docket was managed. [ 28 ] In estimating the anticipated end of trial, the judge made assumptions regarding the extent of evidence and the time required for the trial in the face of a contrary view expressed by both counsel. He measured the anticipated end of trial by reference to the date when submissions were made by counsel on the

section 11(

b) application. The rationale for the assumption that that would be a “better measure, in my view, than the suggestion that the trial would take only three days to complete” is unclear (trial judge’s decision, at paragraph 21, paragraph 26, above). [ 29 ] In fact, the testimony of witnesses for purposes of the

section 11(

b) application was heard on November 5 and 6, 2015, March 24, 2016 and May 20, 2016, with submissions by counsel on June 30th. Hearings set for November 4, 2015 and March 23, 2016, which would have facilitated an earlier completion of the matter, could not proceed because Mr. Kaulback failed to appear due to travel difficulties. [ 30 ] Much of the delay over the months was due to Mr. Kaulback’s attempt to obtain counsel. I would note that, on three separate occasions in 2015, February 16, May 15 and July 16, the trial had been set for three days.

Nonetheless, the trial judge altered the estimated time to the end of trial from counsels’ position of three days to eight months. When such a substantial difference was contemplated by the judge, counsel should have been given the opportunity to address the judge’s concerns. This failure in the context of a

section 11(

b) application amounted to error. [ 31 ] Given the factual nature of the issue, with Mr. Kaulback’s submission that June 30, 2016 is the appropriate estimated end of trial and the Crown’s submission that the appropriate date is November 6, 2015, it is not possible on the appeal for this Court to reassess this aspect of the delay and choose a different length of time. However, for the following reasons, for purposes of the appeal on the February 9, 2013 charge, I am satisfied that, whichever date is chosen, Mr. Kaulback’s right to be tried within a reasonable time was not breached.

Delay Regarding the July 9, 2014 Charge [ 32 ] As noted above, Mr. Kaulback elected trial in Provincial Court and made no re-election to the Supreme Court. Accordingly, the presumptive ceiling in respect of that charge is eighteen months. [ 33 ] However, even assuming the anticipated end of trial to be June 30, 2016, the delay would fall below the presumptive ceiling. That is, the delay from July 9, 2014 when the charge was laid to June 30, 2016 is approximately twenty-four months. Of this, the trial judge subtracted eight months, which he attributed to Mr.

Kaulback’s efforts from November 2014 to November 2015 to retain counsel. The resultant period of delay is sixteen months, which falls below the eighteen-month presumptive ceiling. The resulting onus on Mr. Kaulback, as discussed in Jordan , is dealt with below. Delay Regarding the February 9, 2013 Charge [ 34 ] The trial judge determined that the delay from February 9, 2013, the date the charge was laid, to June 30, 2016, the anticipated end of trial, was forty-one months.

For convenience, I repeat the judge’s conclusion: [124] … I attribute 8 months to Defence efforts to retain counsel, and the balance of 33 months to inherent, institutional and Crown delay. Even if I am wrong in my conclusion about the estimated time to end of trial, I find there are circumstances that still warrant a stay of proceedings if the estimated time to end of trial is 33 months from February 9, 2013 to November 6, 2015, based on the guidance the Supreme Court of Canada provides in its recent Jordan and Williamson cases.

There is no explanation of the circumstances the judge is referring to in his statement as to the alternative based on the guidance in Jordan and Williamson . [ 35 ] In reducing the delay from forty-one to thirty-three months, the judge took into account only eight months, which was a portion of the time during which Mr. Kaulback was attempting to retain counsel.

The judge wrote: [66] From November 18, 2014, onward, most of the delay related to efforts of Ian Kaulback to maintain Nick Avis as his counsel, or to apply for and receive the benefit of legal aid counsel, can only be classified as Defence delay with some of the time attributed to institutional delay. This theme runs through the court’s rescheduling the trial dates on three different occasions (May 13 to 15, July 22 to 24 and November 4 to 6, 2015). I ascribe four (4) months of this time to institutional delay and eight (8) months to Defence delay.

[ 36 ] The trial judge did not explain the basis on which he ascribed four months to institutional delay. That omission leaves this Court unable to ascertain the validity of that determination. While it may be inferred that the judge allowed for time necessary for Mr. Kaulback to make a successful application for legal aid and to permit counsel to prepare for trial, the Crown points out the significant period of time that passed while Mr. Kaulback dealt with his legal representation.

For the reasons that follow, further comment on this point is unnecessary given that, based on other considerations, the delay in this case falls below the presumptive ceiling. [ 37 ] Assuming a delay of forty-one months, a reduction of eight months attributed to defence delay results in a thirty-three month delay such that the presumptive ceiling of thirty months is exceeded by just three months. This is important because if the delay is less than thirty months, the onus falls on Mr.

Kaulback to demonstrate that the delay is unreasonable by establishing that he “took meaningful steps that demonstrate a sustained effort to expedite the proceedings” and that “the case took markedly longer than it reasonably should have” ( Jordan , at paragraph 48 ).

In addition, in Jordan , the majority commented that, where the delay is less than the presumptive ceiling, it was expected that a stay would “be rare, and limited to clear cases” and in transitional cases “will be even more difficult to obtain” in light of “the level of institutional delay tolerated under the previous approach” ( Jordan , at paragraphs 48 and 101 ). [ 38 ] I begin with two periods of delay waived by Mr. Kaulback. A waiver of a six-week delay between April 30th and mid-June 2013 is clear from a reading of the transcript of the April 30th hearing.

Similarly, relying on the July 9, 2013 transcript, there is sufficient information from which to conclude that the period of two months from July 9 to September 5, 2013 was waived by Mr. Kaulback for purposes of

section 11(

b) of the Charter . [ 39 ] As a result, the delay would amount to twenty-nine months and two weeks, which falls below the presumptive ceiling of thirty months. [ 40 ] Although, in the court appealed from, Crown counsel referred to these waived periods of delay in her submissions, the trial judge failed to address or take them into account in determining the length of delay.

Applying the analysis in Jordan , this resulted in error. [ 41 ] Before leaving the issue of the delay, I would add the following comments regarding the process used to obtain information from Facebook, particularly given the trial judge’s determination that the delay was “outrageous”. In fact, it is clear from the transcript of proceedings that the judge accepted that the delay was sixteen months, not the eighteen months referenced in his decision. To obtain the information from Facebook, the Crown was required to engage the assistance of Canada’s Mutual Legal Assistance Treaty with the United States.

The judge wrote: [86] The extraordinary amount of delay associated with the request for an administrative subpoena for Facebook IP addresses, e-mail addresses, aliases, and chat messages is the more troubling example of inadequate institutional resources.

It is simply not reasonable for the Defence to wait 18 months – a year and a half – for the necessary disclosure from Facebook that the Crown intended to rely on to demonstrate beyond a reasonable doubt that Ian Kaulback had committed this crime. [ 42 ] Counsel for the Crown had explained that the first information from Facebook had been received within thirteen months, but that the information did not contain the contents of the “chats” and that that information arrived three months later pursuant to a further request.

A police officer had explained that a request was sent from the Director of Public Prosecutions for the Province to the Department of Justice in Ottawa, from thence to the authorities in the United States having jurisdiction to require Facebook to provide the requested information. While the procedure was not explained in detail, including what action might have been taken to obtain the information more quickly, it was clear from the evidence that the only way to obtain the content of the chats between Mr.

Kaulback and the complainants was by means of a request to Facebook, which necessitated the involvement of the federal Department of Justice with the assistance of the relevant authorities in the United States.

Without explaining his reasons, or what extent of delay would be acceptable, the trial judge simply described the delay as “huge” or “outrageous”. [ 43 ] In response, Crown counsel explained that it was necessary to obtain the original material from Facebook to avoid allegations of tampering with or alteration of the messages, and that there was no way to proceed other than by means of the process available under the Treaty. [ 44 ] While the delay associated with obtaining the information from Facebook constitutes institutional delay, there is no basis on which to conclude that the sixteen months amounts to extraordinary delay requiring special treatment for purposes of the

section 11(

b) analysis, particularly since there were other valid reasons for institutional delays overlapping that period. That said, I would caution that the Crown has responsibility to take steps to limit institutional delay to the extent possible. Where it is necessary to seek assistance under the Mutual Legal Assistance Treaty, oversight of the process to ensure undue delay is avoided would be expected. [ 45 ] Finally, I note in passing that the judge did not consider factors such as the effect of Mr. Kaulback’s two re-elections, first to Supreme Court and then back to Provincial Court.

As discussed at paragraph 19 above, at least a portion of this time should be allocated as defence delay, further reducing the delay below the thirty-month presumptive ceiling. [ 46 ] In

summary, it is clear that the delay in respect of the February 9, 2013 charge fell below the presumptive ceiling of thirty months. As a result, the onus was on Mr. Kaulback to demonstrate that the delay was, nevertheless, in breach of his right under

section 11(

b) of the Charter . Mr. Kaulback’s Onus [ 47 ] For purposes of this portion of the analysis, both charges may be considered together. Because the delay in both cases fell below the presumptive ceiling, Mr. Kaulback had the burden of establishing that he “took meaningful steps that demonstrate a sustained effort to expedite the proceedings” and that “the case took markedly longer than it reasonably should have” ( Jordan , at paragraph 69 ).

Further, as stated in Jordan at paragraphs 69 and 101 , a stay in these circumstances would be “rare, and limited to clear cases”, and “even more difficult to obtain for cases currently in the system”. [ 48 ] It is clear from the record that the Crown consistently attempted to move the matter forward and that Mr. Kaulback, while not attempting to cause delay for an improper purpose, did not act so as to assist in expediting the proceedings. It cannot be said that Mr.

Kaulback discharged the onus set out in Jordan . [ 49 ] For example, on July 17, 2015, counsel for Mr. Kaulback applied for a postponement of the July 22 to 24 dates. This was opposed by Crown counsel who asked to “at least call the victim witnesses”. This was a reasonable request since legal aid counsel had initially been appointed for the limited purpose of cross-examining those witnesses. However, counsel for Mr. Kaulback, whose appointment had been extended to represent him during the trial as a whole, requested the postponement because he preferred to have everything heard at one time.

The next available consecutive three days were in November, which were reduced to two when Mr. Kaulback failed to take steps to ensure his appearance on the first day. [ 50 ] In the result, the delay having fallen below the presumptive ceiling, Mr. Kaulback failed to discharge the onus of establishing a breach of his right under

section 11(

b) of the Charter to be tried within a reasonable time with respect to either of the two charges.

SUMMARY AND DISPOSITION [ 51 ] In

summary,

(1) The trial judge erred (

a) by failing to consider each charge on its own merits for purposes of the

section 11(

b) analysis, and (

b) in his application of the Jordan analysis;

(2) The thirty-month presumptive ceiling applies to the February 9, 2013 charge;

(3) The eighteen-month presumptive ceiling applies to the July 9, 2014 charge;

(4) Applying the Jordan analysis, the delay in respect of both charges falls below the presumptive ceiling;

(5) The delay in respect of both charges having fallen below the presumptive ceiling, Mr. Kaulback failed to discharge the onus of establishing a breach of his right under

section 11(

b) of the Charter . [ 52 ] In the result, I would allow the appeal and order that trials proceed without delay on both charges. Appeal allowed, new trial ordered .