2018 NLSC 44, 2018 NLSC 44

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R.. v. R.T. , 2018 NLSC 44 Date : March 2, 2018 Docket : 201204G0115 Her Majesty The Queen v. R.T. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Corrected Judgment: The text of the original judgment was corrected on March 5, 2018 and a description of the correction is appended.

Before: Justice George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: January 29, 2018 Date of Oral Judgment: March 2, 2018

Summary:

Subsequent to his conviction on certain charges, the Applicant brought an application seeking a stay of proceedings because of analleged breach of his rights under

section 11(

b) of the Charter. The trial of the Applicant concluded six years, six months and nine daysafter the charges were laid. The Court dismissed the application on the basis that most of the delay was the fault of the Applicant andconstituted Defence delay. When the Defence delay was deducted, the total delay was significantly less than the presumptive Jordanceiling of 30 months. Appearances: Lori St. Croix Appearing on behalf of Her Majesty The Queen Jamie Luscombe Appearing on behalf of R.T. Authorities Cited: CASES CONSIDERED: R. v. Jordan, 2016 SCC 27; R. v. Cody, 2017 SCC 31; and R. v. Morin, (SCC), [1992] 1S.C.R. 771. STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to theCanada Act 1982 (UK), 1982, c. 11. REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] The Applicant, R.T., was convicted by this Court on November 9, 2017 of the following offences: Count No. 2 On or about April 20th, 2011, A.D., at or near the town of Fleur De Lys in the province of Newfoundland and Labrador did for a sexualpurpose touch the Complainant, a person under the age of sixteen years, directly with a part of his body, contrary to

Section 151 of theCriminal Code. Count No. 3 On or about April 20th, 2011, A.D., at or near the town of Fleur De Lys in the province of Newfoundland and Labrador did while beingbound by a probation order made by Judge Catherine Allen-Westby on January 5th, 2011, fail without reasonable excuse to comply withsuch an order contrary to

Section 733.1(1) of the Criminal Code. [2] The Applicant was charged with the offences in question on April 30, 2011, thus the time period between the laying of thecharges and the end of his trial was six years, six months and nine days. [3] Prior to his trial, which was held on October 18 and 19, 2017, the Applicant had indicated to the Court that he intended tobring an application under

section 11(

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 beingSchedule B to the Canada Act 1982 (UK), 1982, c. 11, seeking a stay of proceedings on the basis of a denial of his right to be triedwithin a reasonable time. He had sought a postponement of his trial to allow him to bring the application; however, I refused thepostponement request without prejudicing his right to bring the application subsequent to his trial. His initial application was filed onNovember 9, 2017 and an amended application subsequently filed on November 30, 2017.

legal test –

section 11(B) [ 4 ]

Section 11(

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

b) to be tried within a reasonable time; [ 5 ] The leading authority on the

interpretation of

section 11(

b) is the Supreme Court of Canada decision in R. v. Jordan , 2016 SCC 27 . In that case, the Supreme Court of Canada mandated a new approach for dealing with applications under

section 11(b). The new approach included the adoption of strict time frames for the conclusion of trials in both Provincial Courts and Supreme Courts. For trials in Provincial Courts, this time frame is 18 months and for trials in Supreme Courts the time frame is 30 months. The majority in Jordan said that delay beyond these time frames is presumed to be unreasonable and thereby contrary to

section 11(b). The time frames are to be measured generally speaking from the laying of the charge to the conclusion or anticipated conclusion of the trial. [ 6 ] The effect of this new approach is to shift the burden to the Crown to justify delays beyond the 18 or 30 month thresholds other than those delays caused by or clearly waived by the Defence. If after taking into account Defence delay, the time to trial conclusion (either actual or anticipated) is beyond 18 or 30 months, as the case may be, the

section 11(

b) application is to be granted and a stay entered unless the Crown can establish that exceptional circumstances beyond its control, which were reasonably unforeseen or unavoidable, not reasonably remediated, or arising from the complexity of the case, had caused the time to trial conclusion to go beyond the 18 or 30 month time limit. [ 7 ] The new approach also provided for the possibility that there could be a breach of

section 11(

b) even if the threshold time limits were not exceeded.

In such situations, the obligation is on the Defence to show that it had made sustained efforts to expedite the proceedings and that the case took markedly longer than it reasonably should have taken. [ 8 ] In Jordan , the Supreme Court of Canada also made it clear that the new approach or framework, as they called it, applied to all cases, including those already ongoing at the time the decision was released subject to two qualifications which the Court discussed at paragraphs 95 - 100 as follows: 95 The new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications. 96 First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision.

This transitional exceptional circumstance 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. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. 97 Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need [page674] time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov .

This transitional exceptional circumstance recognizes that change takes time, and institutional delay - even if it is significant - will not automatically result in a stay of proceedings. 98 On the other hand, the s. 11(

b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework.

Section 11(

b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual.

We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. 99 The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria - defence initiative and whether the time the case has taken markedly exceeds what was reasonably required - must also be applied contextually, sensitive to the parties' reliance on the previous state of the law.

Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence

initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. However, in close cases, any defence initiative during that time [page675] would assist the defence in showing that the delay markedly exceeds what was reasonably required.

The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial ( Morin , at p. 802). 100 Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system. [ 9 ] Less than 12 months after the release of Jordan , the Supreme Court of Canada issued another decision, R. v. Cody , 2017 SCC 31 , dealing with

section 11(

b) in a case originating in this jurisdiction. Cody confirmed the 18 and 30 month presumptive ceiling and also dealt with two other aspects of Jordan , namely what constituted Defence delay and what qualified as exceptional circumstances. [ 10 ] The Court clarified what was intended to be covered by delay caused by the conduct of the Defence. At paragraphs 28 – 31 of Cody , the Supreme Court of Canada stated: 28 In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" ( Jordan , at para. 113 ).

It applies to any situation where the defence conduct has "solely or directly" caused the delay ( Jordan , at para. 66 ). 29 However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case ( Jordan , at para. 65 ; see also paras. 53 and 83).

For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted ( Jordan , at para. 65 ). 30 The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

As we said in Jordan , the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" ( Jordan , at para. 63 ). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted ( Jordan , at para. 64 ). These examples were, however, just that -- examples. They were not stated in Jordan , nor should they be taken now, as exhaustively defining deductible defence delay.

Again, as was made clear in Jordan , it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64). 31 The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" ( Jordan , at para. 65 ). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto.

While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [ 11 ] As for the issue of exceptional circumstances, the Court noted its description of this term in Jordan and went on to indicate that exceptional circumstances generally fall into two categories: discrete events and particularly complex cases.

The Court also recognized transitional considerations as a third form of exceptional circumstances for cases already in the system when Jordan was decided. [ 12 ] In terms of discrete events, the Court merely affirmed its description of same from Jordan . As for particularly complex cases, the Court said at paragraph 64: 64 Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay.

Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable ( Jordan , at para. 80 ). 2 A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time" ( Jordan , at para. 77 (emphasis deleted)).

When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge ( Jordan , at para. 79 ). [ 13 ] Finally, in terms of transitional exceptional circumstances, the Court essentially reaffirmed Jordan . At paragraphs 67 – 71, the Court said: 67 The new framework in Jordan applies to cases already in the system ( Jordan , at para. 95 ).

However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan ( Jordan , at para. 96 ). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.

68 Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes "the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice" and that "change takes time" ( Jordan , at paras. 96-97 ). The Crown may rely on the transitional exceptional circumstance if it can show that "the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed" ( Jordan , at para. 96 ).

Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin . 69 To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released.

In this regard, the exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed ( Jordan , at para. 96 ). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan.

The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due "sensitiv[ity] to the manner in which the previous framework was applied" ( Jordan , at paras. 96 and 98 ). Under the Morin framework, prejudice and seriousness of the offence "often played a decisive role in whether delay was unreasonable" ( Jordan , at para. 96 ).

Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well ( Jordan , at para. 97 ; Morin , at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable ( Jordan , at para. 96 ). 70 It is important to clarify one aspect of these considerations. This Court's decision in R. v.

Williamson , 2016 SCC 28 , [2016] 1 S.C.R. 741 , should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown's indifference (paras. 26-29).

Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties' general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances. 71 When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released.

For aspects of the case that pre-dated Jordan , the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt ( Jordan , at para. 96 ). application of the jordan test [ 14 ] The first step in applying the framework mandated in Jordan is to calculate the total delay from the laying of charges to the conclusion of the trial.

I previously noted that the period in this case was six years, six months and nine days well beyond the 30 month presumptive ceiling for a trial in this Court. [ 15 ] The next step in the process is to assess what periods of time constitute Defence delay. These are to be deducted from the total delay. I think it is useful to outline at this point the history of how this matter made its way through the Provincial Court of Newfoundland and Labrador and this Court: Date Action Taken Delay From Previous Court Appearance (# of Days) Total Delay (# of Days) April 30, 2011 Applicant arrested.

Initial appearance in Provincial Court and matter adjourned to May 2, 2011 for a bail hearing May 2, 2011 Applicant released on a Recognizance. Mattered adjourned to June 22, 2011 for election and plea. 2 2 June 22, 2011 Applicant not present but has his girlfriend appear on his behalf. Duty counsel also appears. Court advised that Applicant is fishing and that his request was for matter to be set over until the end of the fishing season. Court also advised that Applicant trying to obtain a lawyer.

Court states the Applicant is going to have to take some active steps to deal with the matter and adjourns it to July 12, 2011. 51 53

July 12, 2011 Lawyer, Robbie Ash, appears on behalf of Applicant but advises he has not yet been retained and he has not been able to meet with the Applicant because he is out fishing. Matter adjourned to July 19, 2011 to allow time for Mr. Ash to be retained. 20 73 July 19, 2011 Mr. Ash appears and confirms he is representing the Applicant and will be requesting disclosure. Court offers August 31, 2011 as next appearance date; however, Mr. Ash is not available. Matter adjourned to September 7, 2011. Crown reserves making election until next appearance. 7 80 September 7, 2011 Crown elects Indictable. Mr.

Ash requests matter be set over so he can discuss options with Applicant. Mr. Ash advises he is not available to appear again until October 18, 2011. Matter is adjourned to October 26, 2011. 50 130 October 26, 2011 Mr. Ash appears and advises the Court he does not have instructions from his client on his election. He also raises the issue of a DNA warrant to obtain a sample of the Applicant’s DNA he understands is going to be applied for. He requests a further adjournment which is consented to by the Crown. Matter adjourned to November 21, 2011. 49 179 November 21, 2011 Mr.

Ash appears on behalf of the Applicant and advises he has had difficulty contacting Applicant and does not have instructions. He requests a further adjournment which is granted and matter adjourned to November 29, 2011. 26 205 November 29, 2011 Appearance at Provincial Court. Applicant elected trial by Supreme Court Judge with a preliminary inquiry. Mr. Ash advises he is not in a position to set a date for the preliminary inquiry; however, the Court proceeds to

schedule it for January 6, 2012 in Baie Verte, NL. 8 213 January 6, 2012 Appearance at Provincial Court in Baie Verte for preliminary inquiry. Mr. Ash advised the Court that his client was not present due to a delay in his flights and that he would not be present until near the end of the day. Court decides it would not make sense to commence the preliminary inquiry late in the day when there would not be enough time to complete it and therefore adjourns it until March 30, 2012 for a preliminary inquiry at the Provincial Court in Baie Verte. 38 251 Date Action Taken Delay From Previous Court Appearance (# of Days) Total Delay (# of Days)

March 30, 2012 Appearance at Provincial Court in Baie Verte for preliminary inquiry. Mr. Ash advised the Court that the Marine Atlantic ferry was rescheduled while the Applicant was en route which caused him to miss the ferry by 30 minutes. Therefore, the Applicant was not present for the preliminary inquiry. Ms. Dwyer sought a Warrant of Arrest for the Applicant. PCJ Gorman did not issue the arrest warrant but scheduled the matter for an appearance at the Provincial Court in Corner Brook on April 2, 2012 at 9:15 a.m. for status. 83 334 April 2, 2012 Appearance at Provincial Court in Corner Brook. Mr.

Ash advised that he had spoken to his client and that his client was on his way to the Court but was running late. A Warrant of Arrest was issued by PCJ Gorman at the request of the Crown. Court commented on the non-attendances by the Applicant. The Warrant for Arrest was executed later that day when the Applicant turned himself in and the Applicant was brought before the Court. The Crown opposed his release and a bail hearing was scheduled for April 3, 2012. 3 337 April 3, 2012 Appearance at Provincial Court for bail hearing.

Matter adjourned until April 4, 2012 for decision. 1 338 April 4, 2012 Appearance at Provincial Court for decision on bail hearing. Applicant released on a Recognizance and matter scheduled for a preliminary inquiry on April 16, 2012. The bail hearing Judge commented that the Applicant’s cavalier approach to appearing in court was of great concern. 1 339 April 16, 2012 Appearance at Provincial Court for the preliminary inquiry. Committal ordered. 12 351 September 10, 2012 Appearance at arraignment court. Mr. Ash indicates that there is some outstanding disclosure.

Matter adjourned to October 1, 2012. 147 498 October 1, 2012 Appearance at arraignment court. Mr. Ash indicates that he has not received the requested disclosure so he is not prepared to

schedule a pre-trial conference. Ms. Simms indicates that the Crown Attorney’s Office is in the process of getting the disclosure but it was not yet received. Seaborn, J. offers a return date of November but Mr. Ash requests a December date to allow time to review the requested disclosure. Matter adjourned to December 6, 2012. 21 519 December 6, 2012 Appearance at arraignment court. Mr. Fox for the Crown indicates that there is an ongoing matter and requests that the matter be adjourned until January 2013 to allow further discussions 66 585 Date Action Taken Delay From Previous Court Appearance (# of Days) Total Delay (# of Days)

January 14, 2013 Appearance at arraignment court. Mr. Fox indicates that there is an issue with disclosure but that it will be provided before February 4, 2013. Mr. Ash indicates that he may need some time to review the disclosure. Seaborn, J. sets matter to March 4, 2013 and indicates that he hopes to have matter proceed at that time. 39 624 March 1, 2013 Focus Meeting Report filed with the Court. 46 670 March 4, 2013 Pre-trial conference scheduled for March 27, 2013. Mr. Ash indicates that there is a “small” amount of disclosure information he is still waiting for.

Matter to be called in arraignment court on April 1, 2013. 3 673 March 27, 2013 Pre-trial conference held. 23 696 April 1, 2013 Trial scheduled for September 30, 2013 – October 7, 2013. 5 701 September 30, 2013 Trial scheduled to commence but the Applicant was not present. Court advised by Mr. Ash that Applicant in custody in Alberta. Matter scheduled for October 7, 2013 to reschedule trial. 182 883 October 7, 2013 Appearance at arraignment court to reschedule trial. Mr.

Ash indicates that Applicant will likely be in custody in Alberta until May 2014 and that he is unavailable for a six day trial until March 2014. Trial rescheduled for March 10 - 17, 2014. 7 890 March 3, 2014 Appearance at Supreme Court for application to be removed as counsel of record by Mr. Ash. Application granted with condition that Mr. Ash attempt to contact Applicant to advise that he has been removed. Mr.

Ash advised the Court of his difficulties in locating and communicating with the Applicant and also told the Court that the Applicant had been advised of his trial dates. 147 1,037 March 10, 2014 Appearance at Supreme Court for trial. Applicant not present. Warrant of Arrest issued. 7 1,044 September 12, 2016 Matter called in arraignment court as a result of Crown filing a Request to Appear at arraignment court. Applicant was not present and Crown was not able to verify he had been served with the Request. Ms.

Dwyer for the Crown indicated that the Applicant was arrested in another province and is not sure if he was aware of this date. Matter adjourned to October 3, 2016 to re- serve or prove service. 890 1,934 October 3, 2016 Appearance at arraignment court. Applicant not present but Crown not able to prove he had been given notice to appear.

Matter was adjourned to November 7, 2016. 21 1,955 November 7, 2016 Matter not called because of correspondence received from the Crown asking that matter be removed from the arraignment list because of lack of proof of service on Applicant 35 1,990 Date Action Taken Delay From Previous Court Appearance (# of Days) Total Delay (# of Days)

March 6, 2017 Appearance at arraignment court. Applicant appears by video from Alberta where he is in custody and advises that he will be seeking counsel. Ms. St. Croix asks for the earliest possible trial dates for a two-day trial and to give Applicant time to retain counsel. Furey, J. schedules dates for three-day trial of October 18 - 20, 2017 and matter scheduled for arraignment court on April 3, 2017 at 1:30 p.m. to determine status of counsel. 119 2,109 April 3, 2017 Appearance at arraignment court. Applicant appears from Alberta where he is in custody and advises he has not yet retained counsel.

Trial dates confirmed and matter also scheduled for June 5, 2017 at 1:45 p.m. for status of counsel. 28 2,137 June 5, 2017 Appearance at arraignment court. Applicant not present but new counsel, Mr. Luscombe, appears and advises the Court that he will be solicitor of record and is currently available for the trial dates scheduled but is unsure whether there will be any pre-trial applications at this time. He further advises that he did not yet have disclosure but was aware he would have to request it from the Applicant’s former counsel.

McGrath, J. orders that an updated Pre-Trial Conference Report be filed and another pre-trial conference occur. Ms. St. Croix suggests a pre-trial conference date of September 2017. Matter scheduled for a pre-trial conference for September 13, 2017. 63 2,200 September 13, 2017 Pre-trial conference held. Trial confirmed for October 18, 19 and 20, 2017. Matter set for September 15, 2017 before Knickle, J. to continue pre-trial conference. Mr. Luscombe raises the possibility that he may file a

section 11(

b) application. 100 2,300 September 15, 2017 Pre-trial conference with Knickle, J. Crown raise issues with Knickle, J.’s involvement in this file when she was employed by Public Prosecutions. Knickle, J. tells parties she will recuse herself for trial, but can continue with the pre-trial conference. Mr. Luscombe tells Court that he cannot have the 11(

b) application filed before October 2, 2017. Court says it is not prepared to change/vary the trial dates. Crown says it is prepared to proceed. Adjourned to October 18, 2017 for trial. 2 2,302 October 13, 2017 Application by the Applicant to postpone trial to allow the filing and hearing of pre- trial applications. Application for postponement denied. 28 2,330 October 16, 2017 Applicant transferred from custodial facility in Alberta to this province for trial pursuant to order of this court. Applicant brought to court and consents to remand until October 18, 2017. 3 2,333 Date Action Taken Delay From Previous Court Appearance (# of Days) Total Delay (# of Days)

October 18, 2017 Appearance at Supreme Court for trial and application by Applicant for disclosure of records related to proposed

section 11(

b) application. 2 2,335 October 19, 2017 Trial concluded. Adjourned to November 9, 2017 for decision on trial. 1 2,336 November 9, 2017 Appearance at Supreme Court for decision on trial. Applicant convicted of offences of sexual interference and breach of probation. 21 2,357 Date Action Taken Delay From Previous Court Appearance (# of Days) Total Delay (# of Days) [ 16 ] As noted in Jordan , there are two types of Defence delay – one being waiver and the second being Defence conduct. In this case, there were no explicit or implicit waivers by the Applicant.

In terms of Defence conduct, what must be examined is any delay caused by the actions or inaction of the Defence. As mandated in Jordan , where Defence conduct has solely or directly caused the delay, such periods of delay are to be deducted from the total delay. This would ordinarily require an examination of each period of delay to determine whether it should be characterized as delay due to Defence conduct. However, a detailed examination of each period of delay is not required in this case as will become apparent later in my judgment.

Instead, the application can be decided by an examination of the period of delay from April 3, 2014 to trial conclusion on November 9, 2017. [ 17 ] In this case, a significant amount of delay was caused by the Applicant’s failure to appear in court on a number of occasions. As noted in the chart set forth earlier, the Applicant failed to appear in court as required on the following dates: a. June 22, 2011 – Provincial Court; b. January 6, 2012 – Provincial Court; c. March 30, 2012 – Provincial Court; d. April 2, 2012 – Provincial Court; e. September 30, 2013 – Supreme Court; and f.

March 10, 2014 – Supreme Court. [ 18 ] Counsel for the Applicant characterized the delay resulting from the Applicant’s failure to appear in Provincial Court for his preliminary inquiry on January 6, 2012 and March 30, 2012 as delay due to exceptional circumstances. While such a characterization has the same effect as delay due to Defence conduct, I do not agree with the manner of characterization of this delay by counsel for the Applicant. Instead, the proper characterization is delay due to Defence conduct.

The delay was caused by the Applicant’s failure to appear in court as required, firstly because his flight was allegedly late and secondly because he allegedly missed a ferry. This does not amount to delay due to exceptional circumstances. Instead, in my view, it meets the test as set forth in Jordan and Cody for delay caused by the conduct of the Defence. [ 19 ] Counsel for the Applicant makes the same argument in respect of the delay resulting from the failure of the Applicant to appear in this Court on two occasions for his trial, namely September 30, 2013 and March 10, 2014.

He argues it should be characterized as delay due to exceptional circumstances based on the fact the Applicant was in custody in Alberta. I note that information filed by the Applicant regarding the dates he was incarcerated in Alberta indicated that he was in custody in Alberta on September 30, 2013 but was not in custody on March 10, 2014. In any event, even if he was in custody, that does not meet the definition of delay due to exceptional circumstances.

Instead, it is properly characterized as delay due to the conduct of the Defence. [ 20 ] In terms of the delay resulting from the failure of the Applicant to appear in this Court for his trial, counsel for the Applicant contends that the characterization of the delay changed on April 3, 2014 so that it was no longer delay due to exceptional circumstances.

On April 3, 2014, the R.C.M.P. sent an e-mail to the Crown advising that the Applicant was in custody in Alberta and inquiring whether the R.C.M.P. should have him brought back to this jurisdiction or wait until the Applicant had dealt with his matters in Alberta. Thus, the Crown was aware of the whereabouts of the Applicant on April 3, 2014. Counsel for the Applicant argued that knowledge of the whereabouts of the Applicant on the part of the Crown meant that the delay from that point onward should not be deducted from the total delay.

He argued that the Crown had an obligation to take reasonable steps to mitigate delay and that it did not do so. Implicit in the argument of counsel for the Applicant is that the Crown ought to have gone and arrested the Applicant and brought him back to this jurisdiction for his trial well before it did. [ 21 ] In any event, up to April 3, 2014, the Defence concedes 287 days of delay due to what it characterizes as exceptional circumstances.

This is made up of the delays in completion of the preliminary inquiry and delays as a result of the Applicant’s failure to attend for trial up to the point the Crown became aware of the whereabouts of the Applicant. The Defence also concedes 15 days of delay due to Defence conduct covering the periods August 31, 2011 to September 7, 2011 and November 21, 2011 to November 29, 2011. Thus, in total the Defence concedes that 302 days should be deducted from the total delay up to April 3, 2014.

The result is that the delay up to this point in time for purposes of determination of whether the application should be granted was 2 years and 36 days which is well below the presumptive ceiling from Jordan . [ 22 ] As previously noted, I do not agree with the characterization of the delay resulting from the Applicant’s failure to attend court

for his preliminary inquiry or trial as delay due to exceptional circumstances. The proper characterization is delay due to Defenceconduct; however, the result in terms of calculation of total delay is the same. Both delay as a result of Defence conduct and exceptionalcircumstances get deducted from total delay.

I would note that I also do not agree that only 15 days of delay in the remaining periodbetween when the charges were laid and the trial was first scheduled to commence was due to Defence conduct; however, anexamination of this period and a determination of the proper characterization of the delay for each period of time contained therein willnot be necessary as will be seen later in my judgment. [23] I will now move to an examination of how the delay from April 3, 2014 onward should be characterized.

I do not agree that inthis case the delay from April 3, 2014 cannot be characterized as either Defence delay or exceptional circumstances as argued by counselfor the Applicant. In fact, it is my view that the delay from September 30, 2013, the date the Applicant’s original trial in this Court wasscheduled to commence, until October 18, 2017, the date it actually commenced, is properly characterized as Defence delay. In myassessment, it is the Applicant’s own fault that his trial occurred over six years after the charges were originally laid.

The Applicanttwice failed to show up for his scheduled preliminary inquiry in Provincial Court and twice failed to show up for his scheduled trial inthis Court. Further, after failing to show up for his trial, he did very little to address the outstanding charges.

The manner in which theApplicant dealt with these charges from the beginning, including his failure to attend court on the occasions noted and the minisculesteps he took to deal with the charges after missing his trial dates, is not the conduct of a person who was interested in having his trialheld within a reasonable time. [24] I note that the Supreme Court of Canada in Jordan at paragraph 21 confirmed its earlier statement in R. v. Morin, (SCC), [1992] 1 S.C.R. 771 that

section 11(

b) was not intended to be a sword to frustrate the ends of justice. [25] Further, at paragraph 60 of Jordan, the Supreme Court of Canada said: 60 Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual oranticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowedto benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: "The purpose of s. 11(

b) is to expedite trials and minimizeprejudice and not to avoid trials on the merits" (p. 802). [Emphasis added] [26] Those comments by the Supreme Court of Canada apply squarely to the facts of this case in my view. The Applicant should notbe allowed to benefit from his own delay causing conduct. [27] While the Crown had the lawful authority and means to apprehend the Applicant and bring him back to this jurisdiction fortrial, the Crown was not obliged to do so. Instead, the obligation was on the Applicant to attend court for his trial.

The fact the Crowncould have acted sooner to apprehend the Applicant and cause him to be brought back to this jurisdiction for trial does not in my viewequate to the Crown failing to take reasonable steps to mitigate delay. [28] The result of my finding that the delay from September 30, 2013 until October 18, 2017 is properly characterized as Defencedelay is that this period of time is to be deducted from the total delay.

This means that even if there were no other delays attributable tothe Defence or exceptional circumstances, the time from the laying of charges to the date the originally scheduled trial was to conclude(October 7, 2013) would have been 890 days, or stated differently 2 years, 5 months and 8 days. This period of delay is slightly below thepresumptive Jordan ceiling of 30 months.

In addition, there was other delay which the Defence conceded was due to exceptionalcircumstances and which I found was properly characterized as Defence delay, namely the period of 100 days from January 6, 2012 toApril 16, 2012, due to the Applicant’s non-appearance for two scheduled preliminary inquiries. Further, there was another period of 15days which was referred to earlier and which the Defence conceded was Defence delay. These two periods of delay totaling 115 daysbring the total delay further under the 30 month presumptive Jordan ceiling.

Given my finding that the total delay after deducting theDefence delay, which I have found existed for the periods referenced, is well below the 30 month presumptive ceiling, I see no need tofurther analyze the remaining periods of delay up to September 30, 2013 which have not been addressed herein. [29] As a result, it is my determination that if not for delay attributable to the Defence, the trial of the charges against the Applicantwould have been completed in a time frame well below the presumptive Jordan ceiling.

I note this is not a case where the Defence hastried to show that it made sustained efforts to expedite the proceedings and that a time frame less than the presumptive Jordan ceilingshould apply. [30] In the circumstances, the Applicant has failed to establish that his

section 11(

b) Charter rights were breached and as a result hisapplication is dismissed. _____________________________ George L. Murphy Justice

APPENDIX 1. In paragraph 1, the complainant’s name was removed and replaced with the Complainant