Her Majesty the Queen - v. -, 2016 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 137 Date: October 17, 2016 Information: 24546946 and 24522928 Location: La Loche _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Jamie Park Appearing: Lloyd Stang For the Crown Owen Griffiths For the Defendant Decision M. Martinez , J Introduction [ 1 ] On June 30, 2016, in the Northern Village of La Loche, the defendant applied for a judicial stay of proceedings under s. 24(2) of the Canadian Charter of Rights and Freedoms because he had not been tried within a reasonable time, contrary to s. 11(

b) of the Charter . [ 2 ] During the hearing, the defendant testified about the prejudice he had allegedly suffered because of the time it had taken for

his criminal charges to get to trial. I also heard lengthy and able argument from both the Crown and defence lawyers about inherentdelay, about whether the Crown or the defendant bore responsibility for other periods of delay, about whether the defendant suffered anyactual prejudice, and about whether it is in the public interest that the charges be tried on their merits, or whether the administration ofjustice might be brought into disrepute if I allowed Mr.

Park’s trials to proceed after such a lengthy delay. [3] I reserved my decision to consider the arguments, the law, and the evidence. [4] On July 8, 2016, the Supreme Court of Canada moved the goalposts with the release of its decision in R v Jordan, 2016 SCC27. [5] Consequently, I asked for, and received, supplementary written submissions from both counsel. [6] The following is my decision based on the new legal framework articulated by the Supreme Court of Canada in R v Jordan. Unreasonable Delay: The Law [7] Subsection 11(

b) of the Canadian Charter of Rights and Freedoms guarantees a defendant’s right to be tried within areasonable time. [8] Mr. Justice Cory, speaking for the majority of the Supreme Court in R v Askov, (SCC), [1990] 2 SCR 1199,described the individual and societal interests protected by s. 11(b): “I agree with the position taken by Lamer J. that s. 11(

b) explicitly focusses upon the individual interest of liberty and security of theperson. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justiceguaranteed by s. 7 of the Charter. There could be no greater frustration imaginable for innocent persons charged with an offence than tobe denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family.

It is a fundamental precept of ourcriminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level ofimportance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselvesagainst the charges they face and to have their name cleared and reputation re-established at the earliest possible time. Although the primary aim of s. 11(

b) is the protection of the individual's rights and the provision of fundamental justice for the accused,nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That community interest hasa dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt withaccording to the law. Second, those individuals on trial must be treated fairly and justly.

Speedy trials strengthen both those aspects ofthe community interest...” [at paras. 1219-1220] [9] He went on to delineate the benefits of speedy trials and the risks inherent in lengthy delays: “There are as well important practical benefits which flow from a quick resolution of the charges. There can be no doubt that memoriesfade with time. Witnesses are likely to be more reliable testifying to events in the immediate past as opposed to events that transpiredmany months or even years before the trial.

Not only is there an erosion of the witnesses' memory with the passage of time, but there isbound to be an erosion of the witnesses themselves. Witnesses are people; they are moved out of the country by their employer; or forreasons related to family or work they move from the east coast to the west coast; they become sick and unable to testify in court; theyare involved in debilitating accidents; they die and their testimony is forever lost. Witnesses too are concerned that their evidence betaken as quickly as possible. Testifying is often thought to be an ordeal.

It is something that weighs on the minds of witnesses and is asource of worry and frustration for them until they have given their testimony.”

[ Askov , supra, at para. 1220] [ 10 ] In August 2016, The Standing Senate Committee on Legal and Constitutional Affairs released its interim report on the problems posed by unreasonable criminal trial delays. The findings of its report echo much of what Justice Cory said more than 25 years ago. The Committee summarized what it learned from victims of crime as follows: “The Committee has learned a lot about the impact that lengthy criminal proceedings have on not only the efficiency of the justice system, but also on the people involved.

The witnesses we heard who presented the views of victims emphasized how stressful delays can be and how these can result in feelings of revictimization. 7 Every adjournment means that victims must endure further worry and anxiety as they await closure in matters that were likely among the most traumatic experiences of their lives. Every additional court appearance requires that they prepare to revisit the upsetting events surrounding the crime and to see the accused person in court once again.

They may have had to take time off work or travel long distances to get to the courthouse, usually incurring additional personal expenses in order to do so. The most significant impact on victims, as well as on the integrity of our justice system, occurs when a stay of proceedings is ordered by a judge due to a violation of

section 11(

b) of the Charter . This experience can be particularly devastating for victims. These emotional and financial costs may also be borne by witnesses.” [see Delaying Justice is Denying Justice: An Urgent Need To Address Lengthy Court Delays In Canada http://www.parl.gc.ca/content/sen/committee/421/LCJC/Reports/CourtDelaysStudyInterimReport_e.pdf ; at pp. 4-5] [ 11 ] As for the impact on accused persons, and the related bail/remand problem in Canada, the Committee observed that: “The stress of long trials on accused persons – who remain innocent until proven guilty – can also be significant.

Accused persons are not financially compensated for what might be a lengthy period of pre-trial incarceration. They may also have lost a job or accommodation, experienced damage to personal relationships while incarcerated, and spent a considerable amount of money on legal fees. If an accused person is found not guilty, they have likely endured many months of being stigmatized and perhaps even ostracized in their community and will have to rebuild their lives with their own resources.

Another grave concern for many witnesses and members of this Committee is that the remand population has increased three-fold over the last 35 years. Since 2004–05, the number of people held in remand has been larger than the number of offenders serving custodial sentences in a provincial or territorial correctional facility.

Being held on remand while awaiting trial is an option intended only to hold in custody those who pose a risk of not appearing for their trial dates or who pose a risk to society.” [ Delaying Justice , supra, at p. 5] [ 12 ] Finally, the Senate Committee said the following about how unreasonable delay affects the criminal justice system as a whole, and the public’s confidence in it: “Witnesses highlighted that another critical consequence of lengthy trials is the erosion in the confidence many Canadians have in the efficiency and fairness of the criminal justice system.

The phrase “justice delayed is justice denied” applies here. As the delay increases, the connection between the commission of an offence and its condemnation weakens. Swift, predictable justice, which many see as the most powerful deterrent of crime, diminishes when delays become too great.

Delays also have an impact on the quality and reliability of evidence since accused persons’ and witnesses’ memories will be less clear as time passes.” [ Delaying Justice , supra, at p. 6] [ 13 ] The majority’s decision in Jordan , delivered by Justices Moldaver, Karakatsanis and Brown, made similar comments about how unreasonable trial delay affects those directly involved, and about its effect on the criminal justice system as a whole: “…the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously.

As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is

served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trialoccurs. An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is anindicator of the health and proper functioning of the system itself.

The stakes are indisputably high.” [Jordan, paras. 2 and 3] [14] In the pre-Jordan era, the first step taken by judges when assessing the reasonableness of trial delay was to analyze thefollowing factors: 1. the length of the delay (from the date of the charge to trial), 2. waiver of time periods by the accused, 3. the reasons for periods of delay not waived by accused, including: (

a) the inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources [see Note below], and (

e) other reasons for delay, and 4. prejudice to the accused. [R v Morin, (SCC), [1992] 1 SCR 771, at pp. 787-788] [Note: In practice, the phrase “institutional resources” generally refers to the period of delay between the date when both the Crown andthe accused are ready to go trial and the first date on which the court can

schedule the trial. In the context of provincial court trials, suchinstitutional delay should not exceed 10 months; see Morin, at p. 799] [15] If, after assessing all of the foregoing factors, the judge found that the delay probably was unreasonable, he or she then wenton to balance the resulting prejudice experienced by the defendant against society’s interest in seeing the criminal charges resolved ontheir merits. In Jordan, the majority of the Supreme Court justices believe that this is where the Morin analysis most often went off therails. It is apparent that, in the majority’s opinion, the protections provided by s. 11(

b) were eroded over the years because too manyjudges allowed too many trials to proceed despite lengthy delays, simply because the accused person could not demonstrate that he orshe had suffered any prejudice over and above that which is part and parcel of facing criminal charges: “While this Court has always recognized the importance of the right to a trial within a reasonable time, in our view, developments sinceMorin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical

problems, contributing to a culture of delay and complacency towards it.” “…prejudice has, as this case demonstrates, become an important if not determinative factor. Long delays are considered “reasonable” if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused’s and the public’s interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured.

Delayed trials may also cause prejudice to the administration of justice.” [ Jordan , supra, at paras. 29 and 34] [ 16 ] For this reason, the prejudice suffered by the accused no longer is a factor judges must consider. Nor must we balance society’s interests against the interest of the defendant. [ 17 ] In Jordan , the Supreme Court of Canada clearly defined when a provincial court trial is deemed to have been unreasonably delayed.

If, after deducting any period of delay for which the defence is responsible, the delay between the date of the charge to the actual, or anticipated, end of trial exceeds 18 months, the delay is presumed to be unreasonable; see Jordan , supra, at paras. 46, 47, and 56 . Unless the Crown can show that exceptional circumstances exist that justify a delay of more than 18 months, the court must stay the proceedings: “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 the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow .” [ Jordan , supra, at para. 47 ; underlining added, italics in the original] Total Delay [ 18 ] I begin my assessment by calculating the total time between the charge dates and November 17, 2016, the date on which on which Mr. Park’s trials are scheduled to be heard.

There is no reason to expect his trials will not conclude on that day. [ 19 ] Information 24546946 [ Info 946 ], containing criminal drinking and driving charges, was sworn on February 23, 2015. Information 24522928 [ Info 928 ], pertaining to Mr. Park’s alleged failure to attend court, was sworn on June 1, 2015. [ 20 ] In the case of Info 946, the total time between the charge date and the anticipated end of the trial is 20 months and 26 days. In the case of Info 928, the total time between the charge date and trial is 17 months and 17 days.

On the face of it, the total delay in the case of Info 946 exceeds the presumptive ceiling. The delay in relation to Info 928 falls below the ceiling. For these reasons, different considerations apply to my assessment of the delay in respect to each Information. Information 24546946 History [ 21 ] Mr. Park’s first court appearance in relation to Info 946 was April 13, 2015. He requested an adjournment to May 11, 2015, in order to apply for a Legal Aid lawyer. [ 22 ] On May 11, 2015, Mr. Park still did not have a lawyer.

He told the presiding judge that he had attempted to call the Meadow Lake Legal Aid office on a couple of occasions and had left messages, but no one returned his calls. For this reason, he received a further adjournment to June 1, 2015.

[ 23 ] On June 1, 2015, Mr. Park did not come to court and a warrant issued for his arrest. [ 24 ] On June 29, 2015, Mr. Park appeared in court with a Legal Aid lawyer in tow. He entered “not guilty” pleas to the criminal charges on both of the Informations. The court scheduled his trials for November 19, 2015. [ 25 ] On November 19, 2015, Mr. Park was present but a key Crown witness – an R.C.M.P. officer – was not. The Crown asked to adjourn both of his trials. Defence counsel opposed the application. The court granted the Crown’s request and adjourned Mr.

Park’s trials to the next available trial date, which was May 12, 2016, but set them down as “preremptory” for trial. [ 26 ] On May 12, 2016, Mr. Park’s trials did not proceed because the court heard another trial first and there was not enough court time left to hear his trials. For this reason, Mr. Park’s trial was adjourned once more, this time to November 17, 2016.

Defence Delay [ 27 ] As I noted earlier, the total time between the charge date on Info 946 and the defendant’s third trial date is more than 18 months, but before I can be sure the delay exceeds the presumptive ceiling, I must deduct any delay for which Mr. Park is responsible. [ 28 ] Crown counsel submitted that Mr. Park bears responsibility for at least some of the delay between the charge date and the date of his first appearance. The reason being that he did not contact a lawyer during that period.

The Crown also argued that the defendant is responsible for all of the delay between his first appearance and the day on which he entered his pleas.

The reasons why the Crown says that the defendant is responsible this entire period of delay are because his initial attempts to contact the Meadow Lake Legal Aid office were half-hearted, and because he failed to appear in court on one occasion. [ 29 ] Defence counsel submits that the only period of delay I should attribute to the defendant is from June 1, 2015, the day he failed to appear in court, until June 29, 2015. [ 30 ] In Jordan , the Supreme Court noted only two kinds of delay for which a defendant is responsible and that I must deduct from the overall delay.

The first is any period of delay waived by the defendant; see Jordan , supra, at para. 61 . The second is delay solely caused by the defendant’s conduct. [ 31 ] The defendant did not waive any period of delay in this case. [ 32 ] Deliberate defence tactics intended to cause delay and the unavailability of defence counsel when both the court and the Crown are ready to proceed, are examples of as defence delay solely caused by the defendant: “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… As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.

The period of delay resulting from that unavailability will be attributed to the defence…” [ Jordan , at paras. 63 - 64]

[ 33 ] With the Supreme Court’s instructions in mind, I begin with the period between the date on which Mr. Park was charged and the date of his first appearance in court. My first observation is that Mr. Park had no control over the length of this period. The officer who laid the charges against him decided that. Second, although it makes eminent sense for a person to contact a lawyer soon after they are charged with a criminal offence, in my experience, in Meadow Lake’s circuit points, of which the Northern Village of La Loche is one, that does not happen very often.

Third, under the pre- Jordan regime, this period would have been classified as inherent delay – a neutral factor not counted against the defendant. Nothing in Jordan changes the characterization of this period.

As defence counsel noted in his brief, the Supreme Court of Canada’s 18 month presumptive ceiling takes into account expected periods of inherent delay: “As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin , as well as the inherent needs and the increased complexity of most cases.” [ Jordan , supra, at para. 83] [ 34 ] The next period of delay is between Mr. Park’s first and second court appearances. At his first appearance he stated that he intended to hire a Legal Aid lawyer.

In his second appearance, he said that he had attempted to contact the Meadow Lake Legal Aid office but was unsuccessful. As no one had returned his calls, he still did not have legal counsel. The Crown submits that Mr.

Park should have been more diligent in his attempts to connect with the Legal Aid office and, for this reason, I should attribute this period of delay to him. [ 35 ] Adjournments requested by defendants for legitimate reasons do not amount to defence delay that must be deducted from the total trial delay: “To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed.

In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.” [ Jordan , supra, at para. 65] [ 36 ] While Mr.

Park may have been able to call the Meadow Lake Legal Aid office more often, I am well aware of the many communication problems persons in remote northern communities face. Many do not have telephone land lines in their homes and do not own cell phones. I don’t know whether this was an issue for Mr. Park. What I do know is that accused persons regularly complain about the problems they have contacting the Meadow Lake Legal Aid office by telephone, and I often hear that their telephone calls are not returned. [ 37 ] Legitimate, albeit unsuccessful attempts, to hire a lawyer do not qualify as defence delay.

I am sure that, sometimes, accused persons may try to delay proceedings by saying they are trying to hire a lawyer when in reality they have not taken any steps to do so. However, I have no reason to believe that this is what Mr. Park was doing at this early stage in the proceedings. [ 38 ] For similar reasons, his request for a further adjournment to June 1, 2015, to contact Legal Aid, was for a legitimate reason.

Consequently, the only period which I attribute to defence delay is from the first day of June, the date on which he failed to appear in court, until June 29, 2015, the day on which he entered his pleas and scheduled his first trial date. [ 39 ] After deducting the 29 day period of defence delay, the remaining delay is 19 months and 29 days. As such, the delay is presumed to be unreasonable unless the Crown establishes that exceptional circumstances justify some of that delay.

Periods of delay attributable to exceptional circumstances also must be deducted from the total delay and this may leave the remaining delay below the presumptive ceiling. Exceptional Circumstances

[ 40 ] In Jordan , exceptional circumstances are described as circumstances that lie outside of the Crown’s control in that: • they are reasonably unforeseen or reasonably unavoidable, and • Crown counsel cannot reasonably remedy the resulting delays. [see Jordan , supra, at para. 69] [ 41 ] The Supreme Court went on to say that, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. The Crown concedes that there is nothing particularly complex about Mr. Park’s case.

This leaves two discrete events which might qualify as exceptional circumstances: • the unavailability of a Crown witness on the first trial date, and • lack of court time on the second trial date. [ 42 ] As I noted earlier, Mr. Park’s trial did not proceed on November 19, 2015, because a key Crown witness was not available.

Whether or not the unavailability of a Crown witness qualifies as an exceptional circumstance will depend on the reasons why the witness is not available, when the Crown knew the witness would not be available, and what, if anything, the Crown did, or could have done, to mitigate the resulting delay. In this case, the Crown admits that it does not have enough information to address these questions, and for this reason it does not rely on this witness’ unavailability as an exceptional circumstance justifying the resulting delay of Mr.

Park’s trial. [ 43 ] On his next trial date both the defendant and the Crown were ready to proceed, but the court ran out of time before his trial could be heard. [ 44 ] In Jordan , the Supreme Court recognized that sometimes the completion of an accused person’s trial will be delayed because their trial takes longer than was reasonably anticipated, and the resulting delay may amount to an exceptional circumstance: “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.” “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.” [ Jordan , supra, at paras. 73 and 74 ; italics added] [ 45 ] The Supreme Court’s comments about this kind of exceptional circumstance refers only to delay resulting from the accused person’s trial taking longer than expected, but the same reasoning applies if a defendant’s trial is delayed because a preceding trial takes longer to complete than was reasonably expected. [ 46 ] Crown counsel submits that the event that caused Mr.

Park’s trial on May 12, 2016, to be adjourned, qualifies as an exceptional circumstance. However, counsel does not suggest that the reason there was not enough time in the court’s day to hear Mr.

Park’s trial was because the preceding trial consumed more time than was reasonably expected. Rather, he submits that the cause was that more matters were scheduled for trial on May 12, 2016, than reasonably could have been completed on that day. [ 47 ] The overbooking of trial days in La Loche, and most other court points in the Provincial Court’s Meadow Lake circuit, is commonplace.

However, a circumstance need not be “rare or entirely uncommon” in order for it to qualify as an exceptional circumstance; see Jordan , supra, at para. 69 . [ 48 ] In the past, relying on what is known as the trial “fall through rate” – the fact that many trials often do not proceed when they are scheduled to proceed, for reasons such as Crown witnesses or the defendant don’t show up, or the Crown and defence resolve the case, or the Crown stays the charges – the judges in this jurisdiction routinely took a calculated risk and scheduled more trials into La Loche trial days than could possibly be completed if all of the accused persons, and the Crown, were ready for trial. [ 49 ] The local judges adopted this practice to ensure that, when the defence and the Crown were ready for trial, trial dates were available within eight months or less.

This was done in order to keep institutional delay within the Morin guidelines of eight to ten months. [ 50 ] On most La Loche trial days, this strategy worked. On May 12, 2016, it didn’t. [ 51 ] Crown counsel submitted that, as the Crown prosecutor does not control the court’s docket, the circumstance causing the second delay of Mr.

Park’s trial was outside of the prosecutor’s, and therefore, the Crown’s control. [ 52 ] The Crown, as it is referred to by the Supreme Court of Canada in Jordan , and as that term is generally recognized in the jurisprudence preceding Jordan , includes all of the players involved in the administration of the criminal justice system: government and its institutions – including the courts –, the police, Crown prosecutors, and judges.

In this context, while judges, not Crown counsel, control the court’s docket, the Crown, writ large, is responsible for delays resulting from overbooked trial dockets. [ 53 ] The key factor in the example described by the Supreme Court in Jordan is that an exceptional circumstance, outside of the Crown’s control, may exist when a trial takes longer to complete than was reasonably estimated despite good planning. Proper management of a trial docket necessarily involves input from the prosecutor and defence counsel about the amount of the court’s time they reasonably believe a trial, or other hearing, will consume.

Allocating appropriate time for a matter to be heard also must be informed by judicial experience. Experienced judges will have a sense of how long a trial may take depending on the nature of the charges, the number of witnesses the Crown expects to call, whether any Charter applications are anticipated, and many other factors. This is the sort of management that the justices of the Supreme Court expect.

Indeed, this is the kind of management the accused, the Crown, the witnesses, and the general public expect. [ 54 ] The court’s practice in La Loche of relying on the fall through rate to jam more trials into a day than could possibly be completed, has worked more often than not. However, the practice is not managing the court’s time and resources. It is gambling with that time and those resources. [ 55 ] Gambling with the court’s time serves no one.

Not the defendant; not Crown counsel, who must prepare for every matter the court schedules into a trial day; not the witnesses, who must take time take time away from work or family to attend court; and certainly not the public, who expect criminal cases to be tried on their merits, in a timely manner, and on the day the matter is scheduled to be heard. [ 56 ] For these reasons, the local judicial practice of overbooking trial days in La Loche is not an exceptional circumstance justifying the delay of Mr. Park’s trial.

Transitional Considerations [ 57 ] For cases like the one before me, that already were “in the system” before Jordan , a further, transitional, exceptional circumstance applies if “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”; see Jordan , supra, at para. 96 . The decision gives the following guidance about how I should assess this issue: “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.” [ Jordan , supra, at para. 96] [ 58 ] The Crown submits that, in this case, my contextual analysis of the transitional exceptional circumstance must take into account the following factors: 1) The fact that the total delay in this case does not exceed the presumptive ceiling by much; 2) The decision in Jordan was issued only about two months after Mr.

Park’s second trial date and during the time when I was considering his application to stay his charges for unreasonable delay under the Morin framework; 3) Following the release of Jordan , the prosecution, the defence bar, and the court need a reasonable amount of time to assess the “import and impact” of the decision and what, if anything, should be done vis-à-vis specific cases; and 4) The fact that the trial adjournment of May 12, 2016, occurred before the Supreme Court issued its decision in Jordan , and neither the defence, the Crown, nor the presiding judge could have known that Mr.

Park’s case was being adjourned to a new date that could potentially result in a total delay that might be beyond a previously non-existent presumptive ceiling. [ 59 ] The answer to the Crown’s first submission that the delay in Mr. Park’s case does not exceed the presumptive ceiling “by much” is found at para. 56 of Jordan : “[T]he presumptive ceiling…is not an aspirational target. Rather it is the point at which delay becomes presumptively unreasonable.” [ 60 ] Clearly, the presumptive ceiling is the presumptive ceiling. Full stop.

It doesn’t matter whether trial delay exceeds 18 months by a little, or by a lot. [ 61 ] As for the timing of the release of the Supreme Court’s decision, the simple answer is that from the date that the Court published its decision in Jordan , the 18 month presumptive ceiling became the law. This is the reason why the decision includes transitional guidelines for cases already before Canadian trial courts.

And, while I acknowledge that defence and Crown counsel need a reasonable amount of time to consider the implications of Jordan in respect to their specific cases, my consideration of the “import and impact” of Jordan begins with the case before me. [ 62 ] Finally, on May 12, 2016, although no one could have foreseen the emergence of a presumptive ceiling defining unreasonable delay, the question is whether the delay should be excused as an exceptional circumstance because the of the parties’ reasonable reliance on the law as it previously existed.

In the context of the Supreme Court of Canada’s comments about the pre-existing framework, and how it sometimes was applied, “reasonable reliance on the law as it previously existed” refers to whether a local culture had taken hold in which the defence bar and the Crown had grown accustomed to, and accepting of, lengthy trial delays. In my experience, no such culture exists in the La Loche circuit court – ironically, largely because the local judges kept trial delay well within acceptable limits by overbooking trial days. [ 63 ] Further, Mr.

Park, and his counsel, were not complacent about his right to a trial within a reasonable period. The defendant never waived his right to a speedy trial and he brought this application a relatively short time after his trial was adjourned for the second

time. [ 64 ] For these reasons, I find that there is no exceptional circumstance, transitional or otherwise, justifying the unreasonable delay of Mr. Park’s trial on Info 946. As such, the only remedy is to stay the proceedings on this Information. Information 24522928 [ 65 ] The single count on Info 928 alleges that Mr. Park failed to attend court on June 1, 2015, when he was required to do so and that he did not have a lawful excuse for missing his scheduled day in court.

Because the total delay in respect of Info 928, falls below the presumptive ceiling, the defendant bears the burden of convincing me that the delay is unreasonable. To do so, he must establish two things. First, that he took meaningful and sustained steps to expedite proceedings.

Second, that the case took markedly longer than it reasonably should have; see Jordan , supra, at para. 82 . [ 66 ] The Supreme Court defined “meaningful and sustained steps” as follows: “To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.

While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11 (

b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.” [ Jordan , supra, at para. 85] [ 67 ] At his first appearance on Info 928, Mr. Park entered his plea and scheduled his first trial date, which was the same date on which his criminal drinking and driving trial was to be heard.

When his first trial did not proceed as scheduled, he opposed the Crown’s request for an adjournment but did not ask for a trial date earlier than the date offered by the presiding judge. When the next trial date, May 12, 2016, came around, there is nothing on the record indicating, what, if anything, he did to urge the presiding judge to hear his trials before the trial that ultimately bumped his to November 17, 2016. Once again, when his trial did not proceed for the second time, the defendant did not ask whether the court was able to

schedule an earlier trial date. [ 68 ] Finally, it does not appear that, before bringing this application, the defendant warned the Crown that delay was becoming a problem. [ 69 ] On these facts, although he certainly did nothing to delay proceedings, I cannot say the defendant did anything to move them along in any sustained or meaningful way. [ 70 ] For these reasons, the defendant’s conduct does not satisfy the first criteria for a stay of proceedings where delay falls below the presumptive ceiling. As such, I dismiss his application in respect to Information 928. _____________________________ M. Martinez, J.