2018 SKPC 026, 2018 SKPC 026

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 026 Date: April 13, 2018 Information: 90117206 and 90117003 Location: Buffalo River (Dillon) _____________________________________________________________________________ Her Majesty the Queen - and - Ritchie Noltcho Appearing: Heather Beyko For the Crown Blaine Beaven For the Defendant RULING ON CHARTER APPLICATIONS M. MARTINEZ , J Introduction [ 1 ] On March 16, 2018, I heard the defendant, Mr. Noltcho’s, applications for stays of proceedings on charges included in Informations 90117206 [ 206 ] and 90117003 [ 003 ].

The basis of both applications was that he had been deprived of his right to be tried within a reasonable time: Canadian Charter of Rights and Freedoms , s 11(b). [ 2 ] In this decision I outline the analytical frameworks relevant to Mr. Noltcho’s

applications, I address an issue that is relevant to both of them, and, finally, I deal with each application separately. The Analytical Framework [ 3 ] In R v Jordan, 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], the Supreme Court of Canada laid out the modern methodology for assessing whether an individual’s trial has been delayed unreasonably.

The Court reaffirmed the analytical framework in R v Cody 2017 SCC 31 , [2017] 1 SCR 659. [ 4 ] The following is a helpful step-by-step guide to the Jordan framework taken from R v Coulter , 2016 ONCA 704 , 340 CCC (3d) 429 : [34] Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ). If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “ Transitional Cases ”) ( Jordan , para. 96 ). [ 5 ] For cases tried in the Provincial Court, the presumptive ceiling is 18 months: Jordan at para 46.

What Does a Month Mean in the Context of Unreasonable Trial Delay? [ 6 ] Before turning to the specifics of his client’s two applications, Mr. Beaven asked me to answer what seems like a simple question: What is a month? [ 7 ] Specifically, Mr. Beaven wonders whether a month means the period of time between corresponding dates in successive months – essentially, a calendar month – or whether it means a period of 30 days – the average length of a calendar month? He submits that the answer to his question has real consequences in applications for judicial stays of proceedings because of unreasonable trial delay.

[ 8 ] Information 003 is a prime example of the problem identified by defence counsel. For the purpose of this example, I will assume that there is no defence delay in relation to Information 003. [ 9 ] Mr. Noltcho was charged on November 21, 2016. His trial is slated for hearing on May 16, 2018. [ 10 ] If the word “month” means the period between a date in a calendar month and the corresponding date in the next calendar month, the total delay is 17 months and 25 days.

In that case, the delay is just below the presumptive ceiling, and the defendant bears the burden of convincing me that his trial has been delayed too long. On the other hand, if a month means 30 days, the delay is just slightly more than the 18 month presumptive ceiling [541 days/30 = 18.033 months], and I must stay the defendant’s charges unless Crown counsel persuades me that exceptional circumstances justify the delay. [ 11 ] The word “month” is defined in the Gage Canadian Dictionary as “the period of time from any day of one month to the corresponding day of the next month”.

A similar definition appears in the Concise Oxford Dictionary : “a period of time between the same dates in successive calendar months”. The latter definition also is used in the online version of the Oxford Dictionary . [ 12 ] In the context of calculating the period from the date of a criminal charge to the date of adjudication, the above

definitions apply. If the Supreme Court justices had intended the word “month” to mean something other than its plain, or dictionary, meaning when measuring the time between two dates, they would have said so. [ 13 ] In addition, I note that in Jordan and Cody the justices of the Supreme Court do not parse time periods into months and an exact number of days short of one month. Invariably, the justices round time periods to the nearest half month. I will apply this principle throughout the remainder of my decision. Information 206 The Sequence of Events [ 14 ] Mr. Noltcho was charged on June 26, 2016.

He was arrested on July 3, 2016. He appeared in court on July 4, 2016, and was released from custody. His charges were adjourned to August 17, 2016, so that he could hire a lawyer. [ 15 ] On August 17, 2016, the defendant appeared in court with Mr. R. Lee Douglas, a lawyer from the Meadow Lake Legal Aid office. The complainant, Rachel Billette, also was present in court that day. The presiding judge read the charges to Mr. Noltcho and the complainant said to the judge: “That didn’t happen”. [ 16 ] At first, Mr. Douglas said that he could not represent Mr.

Noltcho because he also represented the complainant on her own criminal charges. Later the same day, Mr. Douglas changed his mind after Ms. Billette pled guilty to her charges and was sentenced. Consequently, the judge accepted the defendant’s “not guilty” pleas and scheduled his charges for trial on January 4, 2017. [ 17 ] Before the defendant’s trial got underway on January 4, 2017, Mr. Douglas announced that he could not represent Mr. Noltcho because he had a conflict of interest: namely, that the complainant, Ms. Billette, was a long-time

client of the Meadow Lake Legal Aid office. [ 18 ] The complainant was present and the Crown was ready to proceed. Mr. Noltcho wanted his trial to proceed without defence counsel. The presiding judge told him that he could not do so and adjourned the matter to February 1, 2017, so that the Meadow Legal Aid office could appoint counsel from outside of its office to represent the defendant [ conflict counsel ]. [ 19 ] Legal Aid had not assigned conflict counsel by February 1, 2017, and Mr. Noltcho’s case was adjourned to March 15, 2017.

On the adjourned date, Legal Aid still had not assigned conflict counsel for the defendant. By his next court appearance, on April 5, 2017, the situation was remedied and Mr. Beaven became counsel of record. As he had not yet spoken to his client, Mr. Beaven requested a further adjournment to May 17, 2017. On the latter date the Court scheduled the defendant’s next trial for December 6, 2017. [ 20 ] On December 6, 2017, the complainant was not present as the Crown had not subpoenaed her. The Crown applied for an adjournment of the trial. The defendant opposed the Crown’s application and Mr.

Beaven put on record that delay was becoming an issue as more than 17 months had passed since his client had been charged. Ultimately, the Court granted the Crown’s adjournment request. [ 21 ] On December 20, 2017, the charges were set down for trial on June 20, 2018. [ 22 ] At this juncture, it is important to note that, in support of his client’s application, Mr. Beaven filed Mr. Douglas’ affidavit, sworn March 7, 2018. It contains troubling facts that are relevant to this application. [ 23 ] Despite how events unfolded in Dillon on August 17, 2016, Mr. Douglas avers that he identified Mr.

Noltcho as a conflict for the Meadow Lake Legal Aid office on that day, and that he marked the outside of the file folder accordingly. His note included the fact that lawyers from the Meadow Lake Legal Office had represented Ms. Billette nine times in the past. He says that he immediately gave the file to his then Legal Director, Ms. Karen Srodulski, for her to assign conflict counsel for Mr. Noltcho. [ 24 ] Mr. Douglas says that he reviewed Mr. Noltcho’s file on November 24, 2016, and saw that conflict counsel had not been assigned yet.

For this reason, he drafted a memo to the file reiterating that conflict counsel was required. [ 25 ] Finally, Mr. Douglas describes the following in paragraph 5 of his affidavit: On March 9, 2017, I added a further memo to the file in which I indicate that the file had been identified as a conflict back in August of 2016, and it had not been sent out by Karen Srodulski, and that I suspected she finally decided to deem it a conflict on December 15 th , 2017, as indicated by the writing on the front of the file that had been covered up with liquid paper, and that I scratched off to reveal: “Conflict!

Rachel Billette KTS Dec 15/16.” KTS are Karen Srodulski’s initials. My belief is that this was covered up to hide the fact that she did nothing with the file for approximately 5 months. Total Delay [ 26 ] Information 206 alleges that on or about June 26, 2016, Mr. Noltcho:

• assaulted Rachel Billette contrary to s. 266 of the Criminal Code , RSC 1985, c C-46 [the Code ], • assaulted Ms. Billette with a weapon, namely a chair, contrary to s. 267 (

a) of the Code , and • unlawfully confined her contrary to s. 279(2) of the Code . [ 27 ] Information 206 was sworn on June 27, 2016. Mr. Noltcho’s trial is scheduled to be heard on June 20, 2018. His trial is expected to conclude that day. The total delay between when Information 206 was sworn and the July 2018 trial date is 23 months and 25 days. Applying the Supreme Court of Canada’s rounding principle, the total delay is approximately 24 months. Defence Delay [ 28 ] There are two kinds of defence delay. The first is any delay waived by the defendant.

The second is delay caused solely by the defendant’s conduct. Reasonable steps taken by the defence are not counted as delay caused by the defendant: Jordan at para 65 . [ 29 ] Less than two months elapsed from when Mr. Noltcho was charged and when he entered his pleas and set his first trial date. [ 30 ] When Mr. Douglas announced that he could not represent Mr.

Noltcho on his trial date, the defendant was prepared to continue without legal counsel. [ 31 ] Within a little more than one month after conflict counsel appeared on record for him, the Court set his charges down for trial a second time. [ 32 ] The defendant did not waive any delay. In addition, the defendant took reasonable steps to move things along as expeditiously as he could, given that the judge who presided over his first trial did not allow him to represent himself, and given that he was not assigned conflict counsel within a reasonable time.

After being appointed as conflict counsel for the defendant, Mr. Beaven needed an adjournment in order to speak to his new client and confirm his instructions. This was an appropriate and reasonable step for him to take. For these reasons, there is no defence delay to deduct from the total delay.

Exceptional Circumstances [ 33 ] The Crown submits exceptional circumstances justify the inordinate delay in this case. [ 34 ] Exceptional circumstances are circumstances that are outside of the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the resulting delay: Jordan at para 69 .

[35] Exceptional circumstances can take two forms: either discrete events or particularly complex cases: Jordan at para 71. [36] There is nothing complex about Mr. Noltcho’s case. What the Crown submits is that all of the delay between January 4, 2017, the first trial date, and December 6, 2017, the date of Mr. Noltcho’s second trial, resulted from anunforeseen discrete event outside of the Crown’s control. That discrete event is the Meadow Lake Legal Aid office’s Legal Director notobtaining conflict counsel for Mr.

Noltcho in a timely manner. [37] If I agree with Crown counsel, the delay caused by this exceptional circumstance is approximately 11 months, which would reduce the net delay to 13 months, well below the 18 month presumptive ceiling. [38] Mr. Beaven submits that during the relevant period in this case, the management problems in the Meadow Lake Legal Aid office were well-known to the lawyers in the Meadow Lake Crown Prosecutions office. Forthis reason the delay caused by the Legal Aid office’s failure to find conflict counsel for Mr. Noltcho within a reasonable time wasforeseeable. Mr.

Beaven also submits that the problem was avoidable. He argues that Crown counsel could have taken steps to mitigatethe delay but did not do so. He submits, for example, that because Mr. Noltcho’s charges arose in the context of a domestic relationship,Crown counsel could have asked the Court to allow the defendant to represent himself and to order that counsel to cross-examine thecomplainant be appointed. Mr.

Beaven submits that had Crown counsel taken such action, the delay in this case would have beenreduced. [39] One problem with the defendant’s argument is that, while Meadow Lake Crown counsel may well have been aware of the management problems in the local Legal Aid office, it was not until the trial date of January 4, 2017,that Crown counsel, and the Court, learned that Mr. Douglas was not able to represent Mr. Noltcho. Further, absent any communicationfrom Mr.

Douglas, Crown counsel could not have known that he had asked his manager to assign conflict counsel, that conflict counselhad not been assigned, or that Mr. Noltcho’s trial would not proceed as scheduled. [40] For these reasons, the delay caused by conflict counsel not being assigned to represent the defendant on his first trial date was a discrete event which the Crown could not have foreseen or avoided. The remaining question iswhether I should deduct from the total delay the entire period between the defendant’s first and second trial dates because of thisexceptional circumstance.

For the following reasons, I am not prepared to do so. [41] The defendant’s trial could have proceeded on the first trial date if the presiding judge had allowed him to represent himself. Had the judge done so, Crown counsel may have asked him for an order, under s. 486.3(3) of theCriminal Code, appointing counsel to cross-examine the complaint. In my experience it is probable that a lawyer would have acceptedthe Court’s appointment within less time than it took to appoint conflict counsel in this case. [42] However, an order under s. 486.3(3) is discretionary.

Before granting an order appointing counsel to cross-examine a witness, a judge must be “of the opinion that the order would allow the giving of a full and candid accountfrom the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice”. An applicationunder s. 486.3(3) requires that the Crown provide an evidentiary basis for why it is necessary that the witness be cross-examined bysomeone other than the defendant: R v Tehrankari (2008), 246 CCC (3d) 70, at paras 19 and 20 (ONSC).

For thisreason, it’s anybody’s guess what may or may not have happened if Crown counsel had applied for an order appointing counsel to cross-examine the complainant. [43] What we do know is that, when Mr. Douglas announced that he could not represent Mr. Noltcho, the presiding judge denied the defendant his right to represent himself, and Crown counsel accepted the judge’s ruling withoutcomment. Consequently, the Crown must shoulder some of the blame for the ensuing delay.

[ 44 ] In support of its argument, the Crown relied on R v Pastuch , 2017 SKQB 211 [ Pastuch ]. The relevant portion of Mr. Justice Elson’s decision in Pastuch provides clear guidance about the period of delay I should deduct for the exceptional circumstances in Mr. Noltcho’s case. [ 45 ] The relevant facts in Pastuch are: • Ms.

Pastuch operated a financial planning business. • She faced charges of fraud, theft, and money laundering, arising from her alleged misappropriation of client funds over a seven- year period. • At first, she was represented by private counsel, but ultimately, she could not afford to pay her lawyer. • She then applied for, and was accepted by, Legal Aid Saskatchewan. • In short order, it became apparent to her Legal Aid staff lawyer that her case was too complex and too time-consuming for him to handle on his own. • The staff lawyer told his superiors that Ms.

Pastuch needed outside counsel. • It took more than six months for his superiors to do anything about it. • What they eventually did was to deny her Legal Aid representation so that she could apply for court-appointed counsel. [ 46 ] In Pastuch , Mr. Justice Elson found that the period between when the Legal Aid staff lawyer advised his superiors that the accused needed outside counsel and the date of the accused’s first appearance in Provincial Court after the Court had authorized her to retain court-appointed counsel, was a discrete event over which the Crown had no control.

He went on to deduct that 6.5 month period from the net delay in her case: Pastuch at para 75 . [ 47 ] This entire period of discrete event delay in Pastuch occurred entirely on the Court’s record, before the accused entered her elections and pleas. Conversely, in the case before me, the exceptional circumstance of conflict counsel not being assigned for the defendant in time for his first trial did not become known to the Crown, or to the Court, until the date of trial. By applying Mr.

Justice Elson’s reasoning in Pastuch to the facts of this case, I find that the period of delay for exceptional circumstances in began on January 4, 2017, Mr. Noltcho’s first trial date, and ended on April 5, 2017, the date on which Mr. Beaven went on record as his lawyer. This is a period of about three months. [ 48 ] Deducting three months from the 24 month total delay, leaves a remaining delay of 21 months. As the remaining delay is above the 18 month presumptive ceiling, I direct a stay of proceedings in respect to Information 206. Information 303 The Sequence of Events

[ 49 ] The defendant was arrested and charged on November 22, 2016. The Court ordered his release the next day on a $1,000.00 cash recognizance, and adjourned his charges to January 4, 2017 – the date of his first trial on Information 206. [ 50 ] On January 4, 2017, Mr. Douglas appeared with Mr. Noltcho and informed the Court that the Meadow Lake Legal Aid office was not able to represent the defendant and that he would be assigned conflict counsel. On April 5, 2017, after several intervening court appearances, Mr. Beaven went on record as Mr.

Noltcho’s lawyer. [ 51 ] On May 17, 2017, the defendant entered his “not guilty” pleas and set these charges for trial on December 6, 2017. Crown counsel informed the Court that it might apply for an RCMP witness to testify by closed-circuit television [ CCTV ]. For this reason, the Court adjourned Information 003 to October 4, 2017, to be spoken to. [ 52 ] On October 4, 2017, the Crown applied for the lead investigating officer to testify by CCTV from Newfoundland. Mr. Beaven informed the Court that he was considering his position on the Crown’s application and was awaiting relevant disclosure from the Crown.

For this reason the Crown’s application was adjourned to October 18, 2017. [ 53 ] By October 18, 2017, Mr. Beaven still had not received the disclosure he had requested. For this reason, the Crown’s application was adjourned again to November 15, 2017. [ 54 ] On November 15, 2017, Mr. Beaven informed the Court that he had received part of the disclosure he had requested, but could not decide whether he would agree to the Crown’s application without the disclosure that remained outstanding.

Crown counsel informed the Court that the lead investigating officer was not available for the trial on December 6, 2017, in any event. He also said that the Crown needed to assign a specially trained prosecutor to this case and this had not been done yet (I understand that a specially trained prosecutor no longer is required). [ 55 ] Mr. Noltcho was not present in court on November 15, 2017. Without his client’s instructions, Mr. Beaven could not consent to the adjournment of his trial.

For this reason, the Court did not cancel or adjourn the trial. [ 56 ] On December 6, 2017, the Crown renewed its application to adjourn the trial. Mr. Beaven opposed the Crown’s application. He put on record that he still had not received the remaining disclosure he needed in order to decide whether to oppose or to consent to the Crown’s application for the lead investigator to testify by CCTV. [ 57 ] The Court granted the Crown’s adjournment application and scheduled the next trial date for May 16, 2018. Mr.

Beaven put on record that his client would be applying for a stay of proceedings because of unreasonable trial delay. Analytical Framework For Delay Falling Below the Presumptive Ceiling [ 58 ] As I noted in paragraph 11 of my decision, the total delay in bringing Information 003 to trial on May 16, 2018, is just under the presumptive 18 month ceiling. For this reason, the defendant bears the burden of convincing me that the delay is unreasonable. In order to do so, the defence must establish that: 1) it took meaningful steps that demonstrate a sustained effort to expedite matters, and

2) the case took markedly longer than it reasonably should have. [ Jordan at para 82] [ 59 ] In order to show that it took “meaningful steps that demonstrate a sustained effort to expedite matters”, the defence must demonstrate something more than simply saying it wanted an early trial date: Jordan at para 85 … 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. [ 60 ] In order to satisfy the second criterion – that the case took markedly longer than it reasonably should have – the defence must persuade the Court that the time it has taken for the case to come to trial exceeds the reasonable time requirements of the case in light of its complexity, local considerations, and whether the Crown took reasonable steps to expedite proceedings: Jordan at para 87 . [ 61 ] Before I can address the defendant’s arguments, I must ascertain the remaining delay in this case because it makes no difference whether the total delay of a case begins above or below the presumptive ceiling, the delay that matters is the delay that remains after deducting any defence delay, and any delay due to exceptional circumstances, from the total delay. [ 62 ] I find that the defendant did not cause any of the delay in this case.

As I did in relation to Information 206, I will deduct the three month discrete event delay caused by the Meadow Lake Legal Aid Legal Director’s foot- dragging in relation to assigning conflict counsel for the defendant. As a result, the remaining delay is 15 months. Defence Efforts to Expedite the Case [ 63 ] The defendant argued that he did everything within his power to expedite his case. I agree. His sustained efforts to move the case along include the following: • Within a short period after Mr. Beaven came on board, Mr.

Noltcho entered his pleas and set his case down for trial. • When the Court granted the Crown’s request to adjourn the first trial, the defendant accepted the next available trial date and put on record that unreasonable delay was an issue. • The defendant brought this application two months in advance of his next trial date. • Defence counsel repeatedly requested Crown disclosure relevant to the testimony of the lead investigator, and relevant to the Crown’s application for him to testify from a remote location, which disclosure had not been provided in its entirety as of March 16, 2018, the date of this application.

Has This Case Taken Markedly Longer to Get to Trial Than It Should Have?

[ 64 ] The final question is whether 15 months markedly exceeds the time requirements of this case. [ 65 ] The first factor I must take into account is the complexity of the case. [ 66 ] Information 003 charges that on November 21, 2016, the defendant: 1) operated a motor vehicle when his ability to do so was impaired by a drug, 2) refused to undergo a drug impairment evaluation, and 3) breached the conditions of his undertaking by smoking cannabis marijuana and by having direct contact with Rachel Billette. [ 67 ] In light of the nature of the charges Mr.

Noltcho faces, and in light of the fact that the Crown expects to call only three witnesses at his trial, this case is not complex. [ 68 ] The next factor I must consider is whether there is anything about local conditions that justify a 15 month delay of Mr. Noltcho’s case. [ 69 ] The Provincial Court sits in Dillon twice every month. Each sitting includes docket and trial matters. For these reasons, even uncomplicated cases tend to take longer to get to trial in Dillon than is the norm in many other Provincial Court locations.

That longer timeline may be from six to 10 months, but not 15 months. [ 70 ] The final factor I must take into account is whether the Crown did its part to ensure Mr. Noltcho’s case proceeded expeditiously: Jordan at para 90 Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded.

As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection. [ 71 ] One of the Supreme Court of Canada’s purposes in Jordan was to deal with the culture of complacency that had evolved over the years – among judges, prosecutors, and defence counsel alike – in respect to an accused person’s right to a speedy trial: Jordan at paras 4, 29, and 40 .

For this reason, even in cases where delay falls under the presumptive ceiling, Crown counsel are expected to have been diligent and proactive: Jordan at para 112 In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive, preventative problem solving. From the Crown’s perspective, the framework clarifies the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time.

Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused

the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary . [emphasis added] [ 72 ] In the case before me, the Crown had almost seven months notice of Mr. Noltcho’s December 6, 2017, trial.

Two months before trial, the Crown brought its application for its primary witness to testify by CCTV. Defence counsel put on record that he had requested disclosure relevant to the Crown’s application but had not yet received it. Two weeks later, defence counsel had not received the disclosure he needed. [ 73 ] One month after that, on November 15, 2017, which was only three weeks before the upcoming trial date, the Crown still had not given defence counsel the disclosure he had requested.

In addition, the status of the Crown’s application for testimony by CCTV became somewhat academic in relation to the December 2017 trial because the prosecutor informed the Court that the Crown’s primary witness was not available to testify on the scheduled trial date. [ 74 ] By the time of the December 6, 2017 trial, the Crown had not fully responded to the defendant’s disclosure request, nor had it done so more than three months later, when I heard this application. [ 75 ] In my opinion, the foregoing facts do not demonstrate that the Crown was either diligent or proactive in bringing this case to trial.

Conclusion [ 76 ] While stays under the presumptive ceiling will be few and far between [ Jordan at para 48], trial judges are to take a “bird’s eye view” when deciding whether a case falling under the 18 month ceiling has taken an unreasonable length of time to get to trial: Jordan at para 91 Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin , to determine whether each step was reasonably required.

Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge . [citations in original deleted] [ 77 ] Taking into account all of the relevant factors, the delay of 15 months in this case markedly exceeds the amount of time reasonably required to take the case to trial. Consequently, I direct a stay of proceedings in respect to all counts in Information 003. __________________________

M. Martinez, J.