R. v. Middleton et al Date:, 2017 BCPC 67

Citation: R. v. Middleton et al Date: 20170119 2017 BCPC 67 File No: 236670-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. LENNIE RAYMOND MIDDLETON JERMAINE SHAWN MIDDLETON RULING ON

SECTION 11(

B) APPLICATION EXCERPTS FROM PROCEEDINGS OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: B. McCabe Counsel for Lennie Middleton : G. Botting

(Agent for V. Hartney, Counsel for J. Middleton) Place of Hearing: Vancouver, B.C. Dates of Hearing: January 19, 2017 Date of Judgment: January 19, 2017 INTRODUCTION [1] THE COURT: At first blush, seeking to have proceedings judicially stayed may appear to be trying to escape justice by a legaltechnicality. [2] However, the importance of being tried within a reasonable time was succinctly captured in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. 27, where at paragraph 1 Justice Moldaver, Karakatsanis and Brown stated: Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance.

Section 11(

b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to betried within a reasonable time". [3] Against the above, this court is asked to consider if Lennie Middleton and Jermaine Middleton's right to be tried within areasonable time was breached. OVERVIEW [4] On October 14, 2014, Lennie Middleton, Jermaine Middleton and Jason Hnatyshyn were arrested and charged with a series ofoffences related to a break and enter, assault, unlawful confinement and robbery. [5] After their arrest, all parties were held in custody.

Eventually Jason Hnatyshyn was released on bail. [6] Jermaine Middleton remained in custody until April 2016, when he was released on strict conditions of bail. [7] Lennie Middleton has remained in custody throughout. [8] The trial of the accused was scheduled to start on January 5, 2016 and continue for four weeks. The trial commenced asscheduled, but failed to complete within the allotted time period. [9] Thereafter a continuation date was scheduled for November 2016.

Prior to the continuation, Jason Hnatyshyn pleaded guiltyand was sentenced. [10] The continuation commenced on November 9, 2016, and before the completion of the trial, the court issued rulings with respectto alleged breaches of the accused's Charter rights pursuant to ss. 8, 9 and 10(

b) of the Charter. [11] The trial completed and the accused were convicted on December 20, 2016. [12] On December 22, 23 and January 10, the court received submissions regarding the alleged breach of the accused's right to betried within a reasonable time. EVIDENCE a. The Fixing of the January 2016 Trial Dates [13] The accused were arrested on October 14, 2014.

Thereafter there were several appearances wherein issues related to bail,disclosure and arraignment occurred. [14] Of note, is Lennie Middleton dismissed his lawyer on December 5, 2014, and new counsel was not retained until January 5,2015. [15] On January 20, 2014, the parties, except counsel for Jermaine Middleton, appeared at a pretrial conference before Judge Galati. At that time, counsel for Lennie Middleton and the Crown expressed that the trial would take two weeks.

Counsel for Jason Hnatyshynadvised she intended to challenge the forensic evidence, and therefore felt four weeks was a more appropriate estimate. [16] Based on these representations, Judge Galati directed that four weeks be scheduled for trial, and that counsel find mutuallyagreeable dates before obtaining trial dates from the Judicial Case Manager. [17] Counsel then attempted to identify trial dates that were agreeable to all.

In this regard, I am satisfied counsel for JermaineMiddleton was available on the following dates: March 2 to 24; June, entire month; July 1 to 10; August through to December inclusive. [18] An email sent by Lennie Middleton's counsel, Mr. Gill, satisfies me that he was available in June, October and November. [19] I am also satisfied that the Judicial Case Manager identified November as being the first available date. Despite this, the

November date was not selected because the Crown and counsel for Jason Hnatyshyn were not available. In this regard, the Crown hada month-long trial scheduled for November, and counsel for Jason Hnatyshyn was not available until January 2016. As such, and inorder to accommodate all calendars, the trial was scheduled to occur between January 5, 2016 and January 29, 2016. [20] On February 12, 2015, the parties appeared before Judge Galati for the purpose of confirming the trial dates. At that time,counsel for Jermaine Middleton expressed concerns regarding the lateness of the trial.

She indicated she had available dates prior toJanuary 2016, and that her client was suffering prejudice, given he was in custody. [21] Lennie Middleton appeared without counsel and expressed concerns with the lateness of the trial, and he suggested severance. [22] As for his lack of counsel, it appears the lateness of the trial dates may have caused Lennie Middleton to dismiss his counsel. [23] The proposed trial dates were confirmed by Judge Galati who reminded Lennie Middleton he needed to keep the confirmeddates in mind when he retained new counsel. [24] The matter was adjourned to the trial date with an interim appearance for Lennie Middleton so he could confirm he had retainednew counsel. [25] Around February 19th, 2015, Mr.

Heller was retained to represent Lennie Middleton, and upon this occurring, Mr. Hellerexpressed to the Crown his concern over the lateness of the trial. The Crown responded by informing Mr. Heller how the dates had beenselected. b. Events Related to the Trial [26] Around mid-November, counsel for Jermaine Middleton began preparing for trial. She wrote to the Crown seeking furtherdisclosure, however the Crown, who was in trial, could not respond until November 30th, 2015.

Thereafter there was some delay ingetting the material requested, however at no time did counsel ever make a pre-trial application based on disclosure issues. [27] On December 21, 2015, counsel for Jermaine Middleton emailed the Crown requesting further disclosure and advising that shewould be alleging her client's Charter rights were violated. [28] The Crown responded to the email wherein he acknowledged receiving Charter notice and asked for a list of officers that wouldbe necessary for the Charter application. [29] Then, and three days before the start of trial, counsel for Jermaine Middleton sent to the Crown formal Charter notice.

In thisregard, she set out the alleged breaches, the remedies sought, and the details related to the breaches. [30] On the first day of trial, counsel for Lennie Middleton advised the court and the Crown that he would be joining JermaineMiddleton in his Charter challenge. [31] The trial commenced with a Charter voir dire where it was agreed by counsel that the admissible evidence heard on the voirdire would not have to be recalled and could form part of the trial evidence. [32] The voir dire did not proceed smoothly and was time-consuming.

There were times that the court had to stand down sodisclosure inquiries could be made and for new disclosure to be reviewed. [33] Further, some of the evidence heard on the Charter voir dire required additional police witnesses. [34] One of the additional police witnesses was Sergeant Trklja; this was because some of the disclosure received made it apparentthat he likely had evidence related to the alleged Charter breaches. [35] Once it was apparent that Sergeant Trklja would be testifying, time had to be taken away from the hearing so that a recusalapplication could be made, argued and ruled on. [36] Court time was also lost for other reasons.

The matter had to be stood down on occasion so that the court could renderdecisions in other proceedings. There was the odd occasion where counsel was unavailable for a portion of the scheduled sitting time,and there was the odd time where late prisoner transport delayed the start of court. [37] Finally and significantly, on January 22, 2016 Lennie Middleton dismissed his counsel, this necessitated an adjournment andresulted in five days of trial being lost. [38] In sum, the matter had started with 16 full days scheduled for hearing. Of those days, evidence was only received on nine.

Ofthose nine days, there were occasions where the entire court day was not devoted to the hearing and the instant matter. [39] Given the matter did not complete as scheduled, counsel attended the office of the Judicial Case Manager for the purpose ofobtaining continuation dates. The first date offered by the Judicial Case Manager was November 9, 2016. [40] On July 8, 2016, the Supreme Court of Canada released their decision in R. v. Jordan, 2016 SCC 27 , [2016] S.C.J.

No.27. [41] Upon considering the matter, and upon having time where I was available, I directed all counsel to appear before me onOctober 31, 2016. [42] On October 31, 2016, I expressed concerns regarding the delay and undertook efforts to assist in seeking admissions andstreamlining the remainder of the voir dire and trial.

[ 43 ] As a result, admissions were made and the witness list was shortened. These efforts did not result in the continuation starting before November 9, 2016, but they did assist in ensuring the matter would be completed in the allotted time. [ 44 ] The continuation commenced on November 9, 2016, and a Charter ruling related to search, arrest and access to counsel was made.

Evidence was then heard over several days, and on December 20, 2016, Lennie Middleton and Jermaine Middleton were convicted. [ 45 ] After conviction, counsel for Lennie Middleton applied for a judicial stay on the basis of a s. 7 Charter violation, followed by both counsel arguing a violation of their clients' rights pursuant to s. 11(

b) of the Charter . ANALYSIS [ 46 ] The Supreme Court of Canada recently revisited the issue of delay and established a modern approach to the process of determining if a delay is unreasonable and held that the following approach must be taken. First, the overall delay must be calculated. Second, the court must deduct from the overall delay any delay waived by the defence or solely caused by the defence. If, after deduction, for waiver or conduct, the net delay exceeds 18 months, then and for Provincial Court, the delay is presumptively unreasonable.

The Crown can rebut this presumption by demonstrating the delay was caused by exceptional circumstances. Finally, and for those cases that were in the system prior to the decision in Jordan , the Crown can rely on transitional exceptional circumstances. a. Total Delay [ 47 ] The total delay is the period of time from the charge to the actual or anticipated end of the trial, less any defence delay.

Jordan at paragraph 47 . [ 48 ] In the instant matter, the Middletons were charged on October 15th, 2014, and they were convicted of all charges on December 20th, 2016. [ 49 ] Accordingly, I find the delay from the date of charge until the end of trial to have been 26 months. [ 50 ] As for defence delay, this can be found via two pathways. The first is by the defence waiving delay. In such cases, waiver can be implicit or explicit; however it must be clear and unequivocal.

Jordan at paragraph 61 . [ 51 ] A second pathway to defence delay are those situations where the delay is solely caused by the conduct of the defence. In this regard, the court in Jordan stated at paragraph 63 : The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" ( Askov , at pp. 1227-28).

Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay.

Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous. [ 52 ] In the instant matter, the Crown argues the conduct of the defence caused the delay. [ 53 ] With respect to Lennie Middleton, the Crown points to the dismissal of three lawyers and his last minute participation in their Charter argument. [ 54 ] As for Jermaine Middleton, the Crown argues the late Charter notice caused delay, and relies on R. v.

Curry , 2016 BCSC 1435 . [ 55 ] Counsel for Lennie Middleton responds that the change of counsel had little impact and was not the sole cause for delay. [ 56 ] As for the lateness of the Charter notice, counsel for Lennie Middleton and Jermaine Middleton argue the facts of the case (warrantless search) made it obvious that there was going to be a Charter challenge. [ 57 ] In considering the Crown's argument regarding the dismissal of counsel, I note Lennie Middleton dismissed his first counsel on December 5, 2015.

Thereafter, there were various appearances, December 9, 11, 18, 29 and January 5. [ 58 ] It appears these appearances were for a variety of reasons, including, having the files for all of the accused in court on the same day, ensuring Lennie Middleton had an opportunity to retain counsel, and to provide an opportunity for all counsel to attend together at the arraignment hearing. [ 59 ] By December 29, 2014, Mr.

Gill had been retained and he appeared in court. [ 60 ] With respect to any delay that may have been occasioned by Lennie Middleton dismissing his first counsel, I find no evidence to support the conclusion that the dismissal was done to delay matters. In fact, I note, despite being in custody, and there being intervening holidays, that Lennie Middleton had new counsel within three weeks.

In my view, and when looking at the context, this was entirely reasonable and demonstrates a diligent effort. [ 61 ] Further, given the evidence presented, I am not satisfied all parties were ready to pretrial conference the matter prior to December 29. As such, it cannot be said that Lennie Middleton's actions were the sole cause for delay. [ 62 ] With respect to Lennie Middleton dismissing his second counsel, there is no evidence that this was a delay tactic.

In fact, the evidence satisfies me he was unhappy with how long off the trial dates were scheduled, and for whatever reason, he felt his counsel had some role to play in the lateness of these dates. [ 63 ] In any event, new counsel, Mr. Heller, was retained and his appearance on the file had no impact on the scheduled start date.

[ 64 ] Accordingly, it cannot be said that the dismissal of Mr. Gill created a delay. [ 65 ] As for the dismissal of Mr. Heller, this occurred on January 22, 2016. My view is the dismissal of Mr. Heller was not a delay tactic. Rather this occurred because Lennie Middleton most likely lost confidence in Mr. Heller. This was not because of anything Mr. Heller did or did not do. Rather, it likely occurred because counsel for Mr. Hnatyshyn made comments to the court, suggesting she had uncovered valuable evidence, and that the evidence was easily located, and all counsel had to do was put in minimal effort.

The inference to be taken from her comments was that the other counsel were not serving their clients. Almost immediately after these counsel's comments, Mr. Heller was dismissed. In the circumstances, such action by Mr. Lennie Middleton, albeit not recommended, are understandable. [ 66 ] I also find the dismissal of Mr. Heller was not the sole cause of the delay from January to November. I acknowledge when Mr. Heller was dismissed, five days were lost.

However, as the events unfolded, it became clear that more than four days were required to complete the trial, and therefore the matter would have required an adjournment in any event. [ 67 ] Moreover, given that counsel for Mr. Hnatyshyn was not participating beyond January, the trial had to stop in order to give Mr.

Hnatyshyn an opportunity to get new counsel. [ 68 ] As for the delay between January 22, 2016 and the fixing of a new date, January 29, 2016, this period was consumed with getting two new counsel retained, finding a date when all parties could appear before the court, and finding time when the court was available. [ 69 ] In the circumstances, I cannot conclude that the delay was solely caused by the accused. [ 70 ] With respect to the lateness of the Charter notice, I strongly discourage what occurred in the instant case.

The reasons for timely notice are obvious and well entrenched in the law. [ 71 ] I also reject counsel's suggestion that the Crown should have anticipated a Charter challenge. To accept such a suggestion would require the Crown to have information in control of the defence. This information would include matters related to standing, the accused's perspective in relation to the alleged breaches, and the decided trial strategy.

Further, such an approach would require the Crown to always notify extra witnesses, those being the witnesses required for the Charter challenge. [ 72 ] It must be remembered that the onus in a Charter challenge, even in the case of prima facie unreasonable search, rests with the defence. [ 73 ] Despite these comments, I do not find the timing of the Charter notice and the subsequent voir dire as being the sole cause or significantly contributing to the delay that occurred. [ 74 ] I acknowledge extra witnesses were called for the voir dire ; however, I note the Crown agreed to proceed in the face of the late notice.

Had there been concern over the timing of the notice, or the anticipated impact on the trial estimate, I would have expected this to have been raised with the court. [ 75 ] I also note time-saving steps were taken, and in this regard, counsel for Lennie Middleton and Jermaine Middleton agreed that the admissible evidence on the voir dire could form the evidence at the trial, thus avoiding the necessity to rehear evidence. [ 76 ] In my view, the facts in the instant case are distinguishable from Curry .

In Curry , the applications that were imposed overtop of the scheduled trial dates were applications to cross-examine an affiant as well as applications for source materials. [ 77 ] As such, the evidence heard on the applications could not be applied to the trial. In contrast, evidence heard in the instant matter was applied to the trial. [ 78 ] Based on the above, I find the total delay to be 26 months, and I do not subtract any time on the basis of the conduct of the defence. [ 79 ] Accordingly, the delay is presumptively unreasonable. b.

Exceptional Circumstances [ 80 ] Presumptively unreasonable delay may be rebutted if the Crown can demonstrate exceptional circumstances. The components of exceptional circumstances, and the impact on the delay is discussed in Jordan at paragraph 69 to 77 : Exceptional Circumstances 69 Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. 70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful -- rather, just that it took reasonable steps in an attempt to avoid the delay. 71 It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of adjudicating a s. 11 (

b) application. Ultimately, the determination of whether circumstances are "exceptional" will depend on the trial

judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. 72 Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify.

Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition. 73 Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. 74 Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. 75 The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted. 76 If the remaining delay falls below the ceiling, the accused may still demonstrate in clear cases that the delay is unreasonable as outlined below.

If, however, the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered. 77 As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.

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

Proceeding jointly against multiple accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [ 81 ] The Crown does not argue this case was complex. Rather, the Crown argues exceptional circumstances occurred which had the cumulative impact of creating much of the delay. [ 82 ] In support, the Crown points to the dismissal of Mr.

Heller, the requirements to stand down for disclosure, the recusal application and the lengthy cross-examinations of being events that were outside the Crown's control. [ 83 ] I agree with the Crown that unavoidable and discrete events may have contributed to the delay in this case. [ 84 ] I also acknowledge that the Crown did make efforts to seek admissions from counsel. [ 85 ] Despite this, there is no evidence from which I can conclude that Crown efforts were undertaken to avoid the matter being prolonged, or that the system was notified such that steps could be taken to have ameliorated the delay. [ 86 ] I appreciate that November was the first date offered, however there is no evidence to support a finding that steps were taken to address this delay. [ 87 ] As such, and as per Jordan , there is no evidence that reasonable steps were taken to avoid the length of delay that occurred. [ 88 ] As such, the Crown has failed to rebut the presumption. c.

Cases Already in the System [ 89 ] The finding of presumptively unreasonable delay, combined with the charges being brought against the accused before the decision in Jordan , requires this court to consider if transitional exceptional circumstances apply. [ 90 ] With respect to transitional exceptional circumstances, the court in Jordan stated at paragraphs 92 to 99 : Applying the New Framework to Cases Already in the System 92 When this Court released its decision in Askov, tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change in the law.

Such swift and drastic consequences risk undermining the integrity of the administration of justice. 93 We recognize that this new framework is a departure from the law that was applied to s. 11 (

b) applications in the past. A judicial change in the law is presumed to operate retroactively and apply to past conduct (citation given). Slightly more relaxed rules apply to judicial changes to the

interpretation of constitutional provisions. Transition periods, suspended declarations of invalidity, and purely

prospective remedies are part of the discretionary remedial framework of our constitutional law (citations given). 94 Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one beingthat it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, thisnew framework creates incentives for both the Crown and the defence to expedite criminal cases. However, in jurisdictions whereprolonged delays are the norm, it will take time for these incentives to shift the culture.

As well, the administration of justice cannottolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensurethat the post-Askov situation is not repeated. 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 werebrought prior to the release of this decision.

This transitional exceptional circumstance will apply when the Crown satisfies the court thatthe time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires acontextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviourcannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence oftenplayed a decisive role in whether delay was unreasonable under the previous framework.

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

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

This transitional exceptionalcircumstance recognizes that change takes time, and institutional delay -- even if it is significant -- will not automatically result in a stayof 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 thisnew 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 delaymight 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 ... [91] From these comments I am mindful of the cautionary words with respect to the en masse judicial stays as was experienced inthe result of Askov and that a contextual analysis is required. [92] I am also mindful that despite these cautions judicial stays can be entered for mistakes or missteps, and in this regard Iemphasize it may not always be mistakes or missteps by the Crown.

It can also be mistakes or shortcomings of the justice system. [93] In my view, and although this is a close case, the transitional exceptional circumstances do not apply. [94] My conclusion is based on various factors. I have considered the law prior to the release of the Jordan decision. Specifically Ihave considered Morin, (SCC), [1992] 1 S.C.R. 771, and I observe the delay in the instant matter exceeds the Moringuidelines of eight to 10 months. [95] I acknowledge these are simply guidelines.

I also acknowledge that operating institutional delay at the time of setting an in-custody 16-day trial was approximately 10 months. [96] I observe the accused did not consent to the delay.

In fact, Lennie Middleton and Jermaine Middleton expressed concerns aboutthe delay. [97] It appears such concerns were not considered in setting the January 2016 dates, and the concerns were forgotten when theNovember 2016 dates were set. [98] As for prejudice, counsel agrees unrelated matters contributed to Lennie Middleton's custodial status, and therefore his libertycannot be said to have been significantly impacted. [99] Despite this, there is some impact and as permitted by the authorities, I do draw some prejudice based on the stress associatedwith the delay in these proceedings. [100] As for Jermaine Middleton, he was in custody until April 2016, and thereafter on very restricted bail conditions which includedcurfew and electronic monitoring.

As such, he has suffered prejudice by virtue of the restrictions on his liberty, and he has also sufferedprolonged stress experienced while this matter was before the courts. [101] In considering this matter, I observe the number of the accused added some complexity and contributed to some of the difficultyin scheduling the matter.

Despite this, I am concerned by the system's inability to respond, and concerned by the lack of action withrespect to efforts being undertaken to get earlier dates. [102] As for the seriousness of the charges, I note the court's comments in Williamson, 2016 SCC 28 , 2016 S.C.C. 28, whereat paragraph 35 the court stated: In this regard, we note that s. 11(

b) guarantees the right "to be tried within a reasonable time". It does not admit of gradients of

reasonableness where the charges are serious. For example, it does not guarantee the right to be tried within "somewhat longer" than a reasonable time, or within a time that is "excessive but not so long as to be clearly unreasonable" when the charges are serious (Cromwell J., at paras. 43, 80). Delay is either unreasonable, or it is not. As a result, our point of departure with our colleague is on what we consider reasonable.

In short, we have a different perspective on a subject -- subjective at hand. [ 103 ] I appreciate that my decision regarding delay follows a finding of guilt; however, I decided to proceed and give my decision on the trial as I wanted to avoid any further delays by not finishing the case, further I felt that it was important for the accused and the public to receive a timely decision. CONCLUSION [ 104 ] In conclusion, I find Lennie Middleton and Jermaine Middleton's right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter was breached, and therefore I direct a judicial stay of proceedings. [ 105 ] Given the outcome I decline to issue a decision on the s. 7 argument. (RULING CONCLUDED)