2019 QCCA 1865, 2019 QCCA 1865

A.E. c. R. 2019 QCCA 1865 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006379-174 (540-01-058600-134) DATE: November 4, 2019 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A. A. E. APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT THE PUBLICATION BAN RENDERED ON APRIL 8, 2016 BY THE HONOURABLE JUSTICE JEAN-JACQUES GAGNÉ IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (s. 486.4 Cr.C . ) [ 1 ] The Appellant, A.

E., appeals from the judgment rendered on April 8, 2016 by the Court of Quebec, Criminal and Penal Division, District of Laval (Honourable Judge Jean-Jacques Gagné), finding him guilty of various counts of sexual assault. The grounds of appeal are limited to the judgment of October 6, 2015, that dismissed his motion for a stay of proceedings alleging unreasonable delay pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”). [ 2 ] For the reasons of Schrager, J.A., with which Dufresne and Roy, JJ.A. concur, THE COURT: [ 3 ] DISMISSES the appeal. JACQUES DUFRESNE, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A. Mtre Maxime Hébert Lafontaine LATOUR DORVAL AVOCATS For the Appellant Mtre Brenda Toucado DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: September 26, 2019

REASONS OF SCHRAGER, J.A. [ 4 ] The Appellant, A. E., appeals from the judgment rendered on April 8, 2016 by the Court of Quebec, Criminal and Penal Division, District of Laval (Honourable Judge Jean-Jacques Gagné), [1] finding him guilty of various counts of sexual assault. [2] The grounds of appeal are limited to the judgment of October 6, 2015, that dismissed his motion for a stay of proceedings alleging unreasonable delay pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms [3] (the “ Charter ”). [4] [ 5 ] This appeal concerns the application of the Jordan [5] framework to facts that entirely precede it, where the delay falls below the presumptive ceiling. [ 6 ] The Appellant was arrested on January 9, 2013, in connection with charges of sexual assault and invitation to sexual touching regarding his stepdaughter, which occurred between 1996 and 2010. He was released under a promise to appear. [ 7 ] The information was sworn on February 15, 2013 and the Appellant appeared without counsel on March 6, 2013.

The Respondent requested that the evidence (the complainant’s videotaped declaration) not be handed over to the accused. The judge presiding over the docket agreed, and the Appellant was invited to communicate with a lawyer. The matter was postponed to May 15, 2013, for case management. [ 8 ] On May 15, 2013, the Appellant asked for more time to engage counsel. The matter was rescheduled to June 18. [ 9 ] A legal aid lawyer appeared as the Appellant’s counsel on June 18, 2013.

He received disclosure of the evidence, and the matter was postponed to September 30 for case management, at which time the Appellant elected trial by judge and jury and requested that a preliminary inquiry be held. It was set for March 10, 2014, at the parties’ request. Only the complainant was called to testify. [ 10 ] Immediately following the completion of the preliminary inquiry that lasted approximately 30 to 45 minutes, the Appellant was ordered to stand trial on all counts of the sexual offences, in addition to one count of assault with a weapon.

He re-opted for trial by judge alone, and a trial date was set for October 22, 2014. [ 11 ] On October 15, 2014, the Respondent submitted a request for postponement of the trial due to the unexpected departure of the assigned attorney for a leave of absence related to an adoption. The Appellant did not contest the request. The matter was adjourned pro forma to October 22, on which date it was set down for trial on April 28, 2015, for a duration of four hours. [ 12 ] On the date set for trial, both parties were ready to proceed.

The case, however, was postponed because the judge presiding the hearing did not feel sufficiently at ease to hear a sexual assault trial in English. The judge also stated a possible overloading of the docket due to another trial being continued that day. The Appellant’s attorney declined the date suggested by the Respondent (July 27), due to his vacation. There is no indication whether an English-speaking judge was available on that date. The trial was finally set for one day on September 1, 2015. [ 13 ] On June 29, 2015, the Appellant filed a motion for a stay of proceedings pursuant to

section 11(

b) of the Charter , alleging unreasonable delay. The motion was heard on September 1, 2015, and the case was adjourned to October 6 for a decision. [ 14 ] On that date, the motion judge dismissed the motion for a stay of proceedings, and a one-day trial was set for November 19, 2015. [ 15 ] In any event, the one-day estimate for the trial was slightly inaccurate.

More time was required to complete the proof, such that the case was continued to February 15 and 16, 2016. [ 16 ] The trial judge rendered his verdict on April 8, 2016, concluding that he was convinced beyond a reasonable doubt by the evidence, except concerning the sexual assaults that allegedly occurred when the complainant was an adult. He found the Appellant guilty on four counts and granted a conditional stay of proceedings on a fifth count of sexual assault. [6] I.

JUDGMENT UNDER APPEAL [ 17 ] The motion judge determined that the global delay was approximately 30 and a half months, commencing from the charge (when the information was sworn) on February 15, 2013, to the anticipated end of the trial on September 1, 2015. [7] He concluded there had been no global or partial waiver of any delay. [8] [ 18 ] He divided this period into the various categories set out in R. v. Askov , [9] R. v. Morin [10] and R. v.

Godin : [11] [28] The delay of 7 months and a half between the submission of the information sheet (February 15, 2013) and September 30, 2013, is inherent to the proceedings engaged. The various steps within that delay were taken with reasonable diligence. [29] The delay of 5 months and a half, between September 30, 2013, and March 10, 2014 (date of the preliminary inquiry), is a delay which arises from an action on the part of the accused. Opting for a preliminary inquiry (which delays the date of the trial) entails an institutional delay. Without blaming Mr.

E., the exercise of his right to have a preliminary inquiry (the order to stand trial was not contested) generated delays for which he cannot legitimately complain to ask for a stay of proceedings.

[30] The delay of 7 months and a half, between the summons to trial and the first date scheduled for the trial (October 22, 2014) is an institutional delay. [31] The delay of 6 months between October 22, 2014, and April 28, 2015, stems directly from actions by the Crown and cannot be imputable to the accused. Furthermore, the fact that the accused did not object to that request for a postponement is a factor to be considered. [32] The delay of 4 months, between April 28, 2015, and September 1 st 2015, is an institutional or systemic delay.

Whether the file was postponed because the presiding judge did not feel “at ease” holding a trial in English or whether it was postponed due to an overloading of the docket, in both cases it seems obvious to me that it is an institutional delay. [12] and characterized the reasons for the total delay as: − 7 months and a half as inherent; − 5 months and a half imputable to the accused; − 6 months imputable to the Prosecution with a tacit consent from the accused; − 11 months as an institutional or systemic delay. [13] [ 19 ] The motion judge then observed that a stay of proceedings was a remedy reserved for exceptional circumstances, and that the burden to demonstrate the apparent unreasonableness of the delay rested on the accused.

He noted that in the present case, the delay appeared significant, and that the total institutional delay slightly exceeded 17 months, “the acceptable delay” proposed by the Supreme Court. [14] [ 20 ] He then considered the issue of prejudice, noting that the Appellant was not detained, and the only condition of release was the prohibition against communicating with the complainant.

He found no prejudice to the Appellant’s right to a full defence; since the events for which he was charged occurred between 1996 and 2010, the delay waiting for his trial would have little impact on his memory. [15] [ 21 ] Finally, the judge evaluated the other aspect of the prejudice the Appellant claimed to be sustaining: the fact that a Youth Court judge forbade him from having contact with his 13-year-old son while the criminal file was pending.

Based on the Appellant’s testimony, the testimony of his son’s mother and the reading of the Youth Court decision filed in support of the motion, the judge reasoned that the prohibition of contact with the Appellant’s minor son was linked to the nature of the charges (sexual offences against a child) and not to the length of the delay. [16] [ 22 ] The motion judge balanced all of the factors and concluded that the Appellant’s

section 11(

b) Charter right had not been infringed, due primarily to the fact that he did not suffer significant prejudice and that societal interests of hearing the trial on its merits militated in favour of dismissing the motion for a stay of proceedings. [17] II.

ISSUES [ 23 ] The Appellant submits that the judge erred in law in dismissing his motion for a stay of proceedings and raises the following issues: - Did the motion judge err in law in characterizing the delays? - Did the motion judge err in law in deciding the question of delay based on the Appellant’s burden of proof? - Did the motion judge err in law in imposing on the Appellant a burden of persuasion of prejudice? - Did the motion judge err in law in concluding that society’s interest in a trial on the merits and the seriousness of the offences weigh in favour of dismissing the motion for a stay of proceedings, and that such remedy is reserved for exceptional circumstances? [ 24 ] The judgment under appeal was rendered under the Morin framework. [18] The Appellant contends that the motion judge erred in applying the principles set out in Morin and Askov . [19] [ 25 ] The Appellant argues that the global delay, taking into account the actual end of the trial, is of 36 months.

There are no deductible delays attributable to the defence or to exceptional circumstances and therefore the presumptive ceiling established in Jordan has been exceeded. Thus, the Respondent must rebut the presumption that the delay is unreasonable.

According to the Appellant, the transitional exceptional circumstance does not justify the delay; the present case is not of moderate complexity, and the parties have not reasonably relied on the law as it previously existed, given that the 36-month delay largely exceeds the Morin guidelines. [ 26 ] The Appellant asserts that the basis for the judge’s decision to dismiss his motion is vitiated by errors of law which have affected his conclusions as to the length of the delay, the reasons behind it, the burden of proof and the objectives protected by

section 11(

b) of the Charter . As such, the Appellant contends that the motion judge has mischaracterized the delays surrounding evidence disclosure and the preliminary inquiry; wrongly imposed a burden on the Appellant to prove a specific and real prejudice; wrongly considered the seriousness of the offence and societal interests and failed to properly weigh the delays not attributable to the defence in deciding the motion.

[ 27 ] The Appellant does not advance an alternative argument that the delay, if found to be below the 30-month ceiling, is nonetheless unreasonable. III. DISCUSSION [ 28 ] As stated above, this appeal concerns the application of the Jordan [20] framework to facts that entirely preceded it. Indeed, the Appellant was convicted on April 8, 2016, three months before Jordan was delivered.

However, by reason of the present appeal, the case is “in the system”, such that Jordan applies. [21] [ 29 ] The characterization of periods of delay, and the decision as to whether there has been unreasonable delay, is subject to a correctness standard, but the trial judge’s findings of fact underlying this characterization are entitled to deference where they are relevant to the analysis required by Jordan . [22] [ 30 ] The judge errs in stating that a stay of proceedings is a remedy reserved for exceptional circumstances.

It is the only remedy applicable where the presumptive ceiling has been exceeded and not adequately justified. As well, the Supreme Court did not declare that 17 months of institutional delay was “acceptable”, but rather articulated guidelines so that a lesser delay might not, in some cases, be acceptable. [23] These errors do not, however, affect the outcome, as indicated below.

Total Delay [ 31 ] Under the Jordan framework, the delay is calculated from the charge to the actual or anticipated end of the trial. [24] The overall delay from February 15, 2013 (the date the information was sworn) to February 16, 2016 (the actual conclusion of the trial) is of 36 months and one day (1096 days). This exceeds the 30-month presumptive ceiling for a trial preceded by a preliminary inquiry. However, the motion for a stay of proceedings was heard on September 1, 2015, the day fixed for what was anticipated to be a one day trial.

As such, reckoning the total delay to the anticipated end of the trial would be 30 months and 14 days (or 928 days). There was no subsequent application for a stay of proceedings and, as an appeal court, we are tasked with the review of the lower court’s decision based as it is on the application and the facts before it.

Delay Attributable to the Defence [ 32 ] Defence delay may result from delay waived by the defence. “Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal.” [25] I see no basis on which to interfere with the trial judge’s finding that there has been no global or partial waiver in the present file. [26] [ 33 ] The Respondent, however, would attribute to the Appellant a delay of 7 months and 15 days (227 days), between February 15, 2013 and September 30, 2013, surrounding the disclosure of evidence.

It is contended that, in order to protect victims, particularly minors, the videotaped declaration of a complainant in a sexual assault case should not be disclosed to an accused who represents himself. The Respondent argues that such practice has been recognized in some judgments of the Superior Court. [27] The Respondent would thus characterize the delay it took for the Appellant to find counsel and be ready for case management as defence delay. [ 34 ] In R. v.

Stinchcombe , [28] the Supreme Court recognized that the prosecutor exercises discretion, reviewable by the trial judge, with respect to the timing, extent and manner of evidence disclosure.

The Crown’s obligation to disclose the evidence in its possession to the accused does not mean that no residual privacy interest exists in the contents of the file. [29] Indeed, the courts have determined that this discretion can be exercised to protect the privacy interest of the complainant, particularly in cases where the accused is charged with sexual assault. [30] The accused’s right to access information necessary to make full answer and defence will, however, with few exceptions, outweigh any competing privacy interest.

Nonetheless, the Supreme Court has specified that [t]he privacy of the victim and any other witnesses must yield to preparing a full answer and defence. But it need not yield any further. The Committee considers that, provided the making of full answer and defence is not impaired, it is desirable to permit limitations on the use of disclosure materials that recognize the privacy interests of victims and witnesses. [31] [ 35 ] In one decision, this Court acknowledged the need to accommodate the right to disclosure short of receiving actual copies of the evidence. It wrote as follows in R. v. Mercier : 42.

Suivant les circonstances de chaque affaire, la consultation de la preuve et, le cas échéant, la transmission de copies représenteront la manière formelle de satisfaire à l'obligation de divulgation. Il arrivera, toutefois, que l'ampleur et la sophistication du matériel formant l'objet de la communication de la preuve ne pourront raisonnablement permettre une transmission, par reproduction, à la défense.

En ces cas, des moyens raisonnables, s'insérant dans une obligation d'accommodement, devront permettre à la défense la consultation et l'utilisation optimale du matériel assujetti à l'obligation de communication du ministère public.

Dans d'autres cas, plus rares, la norme du caractère raisonnable jointe à l'obligation d'accommodement pourra même commander qu'une ordonnance ou un engagement (“trust condition and undertakingsˮ) vienne assortir la communication de la preuve afin de s'assurer qu'elle ne soit pas l'objet, par la défense, d'une dissimination [sic] vexatoire et attentatoire à la vie privée (ex: infractions à caractère sexuel) ( R. vs Vokey inédit le 11 mai 1992 Newfoundland.

S.C.; R. vs Smith (inédit, le 17 janvier 1994, Saskatchewan Court of Queen's Bench). [32] [Emphasis in the original] [ 36 ] In the present case, the Appellant was told on March 6, 2013, by both the Respondent and the presiding judge that he could not be given the evidence against him without being represented by an attorney. Even if the Respondent was not wrong to refuse to remit a copy of the videotaped statement, the question does not need to be fully resolved on this appeal.

Indeed, in the circumstances of this case, the Respondent had an obligation to provide the Appellant with adequate information to exercise his constitutional rights and access the

evidence. This flows from the prosecution’s obligation to inform an unrepresented accused of his right to disclosure. [33] Thus, the Respondent fails to establish that all delays incurred relating to evidence disclosure should be attributed to the defence for the time it took the Appellant to find counsel. [ 37 ] Nonetheless, on May 15, 2013, the Appellant did clearly express his desire to be represented and asked for more time to engage counsel. The matter was rescheduled to June 18.

The delay of one month and 3 days (34 days), between May 15, 2013 and June 18, 2013, can be considered as defence delay, since both the Crown and the court were ready to proceed with evidence disclosure and case management. [34] [ 38 ] On June 18, 2013, the defence attorney requested that the matter be postponed to September 30, 2013, to allow for a review of the evidence.

Preparation time and legitimate actions taken to respond to the charges fall outside the ambit of defence delay. [35] [ 39 ] Finally, the delay between July 27, 2016 and September 1, 2016 (one month and 5 days, or 36 days) cannot be attributed to the defence, despite that the Appellant’s counsel was not available, as there is no indication whether the court, and particularly, an English- speaking judge, was available on that date. [ 40 ] The net delay is therefore 29 months and 11 days (894 days); the presumption does not arise.

Exceptional Circumstances [ 41 ] Even though the aforementioned analysis concludes in a total delay below the presumptive ceiling, the facts and issues raised merit a discussion of exceptional circumstances. The prosecution may rebut the presumption that a delay is unreasonable by demonstrating that exceptional circumstances justify the delay. Exceptional circumstances are defined as follows: [ 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. [36] [Emphasis in the original] [ 42 ] The determination of what constitutes an exceptional circumstance for the purposes of adjudicating a

section 11(

b) Charter application will depend on the trial judge’s common sense and experience. Exceptional circumstances vary, but will generally fall into two categories: discrete events and particularly complex cases. [37] In any event, the Crown must have taken reasonable measures to limit the delay, to the extent possible. [38] [ 43 ] The case at bar is not a particularly complex one. [39] [ 44 ] Although not pleaded as such by the Respondent, it appears that a discrete exceptional event disrupted the proceedings.

A discrete exceptional event is one “that disturb[s] the normal course of the matter and which no one, understood here as the prosecution and the justice system, could do anything to prevent”, [40] and “[o]nce such an event has occurred, however, the prosecution and the justice system are expected to act to resolve the problem by giving priority to the affected cases.” [41] [ 45 ] “Like defence delay, discrete events result in quantitative deductions of particular periods of time.

The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system”. [42] [ 46 ] In the present case, the unexpected and sudden departure of the Crown attorney for a leave of absence related to an adoption is a discrete event, and the delay of 6 months and 13 days (188 days), between October 22, 2014 and April 28, 2015, should be deducted. [ 47 ] I am cognizant that it is not in all circumstances that the delay caused by the absence of a prosecutor or a significant witness due to maternity leave can be subtracted. [43] These are generally questions of fact to be resolved by trial judges on a case-by-case basis. [44] In the present case, it appears that the delay caused by the maternity leave related to the adoption of a child was reasonably unforeseen or unavoidable and that the prosecutor could not reasonably remedy it. [45] Indeed, the Respondent’s motion for postponement mentions the unexpected departure of its attorney for a leave of absence related to an adoption, and the attorney informed the court that she had to leave “in a rush”, hence the short notice request.

Due to the nature of the charges and in the interest of the complainant, the Respondent requested a postponement in order for the new attorney to familiarize himself or herself with the file and meet with the complainant. [ 48 ] As such, the situation arising as a result of the adoption was outside of the Crown’s control as being reasonably unforeseeable and reasonably unavoidable, and because it was a situation that could not be reasonably remedied given the late stage at which the circumstance arose (practically on the eve of the trial), it falls in the discrete event category.

The judge does not refer to the notion of “discrete events”, but he did not have the benefit of Jordan . [46] [ 49 ] Arising as it did, one or two weeks before trial, it happened at a stage where the problems created by the discrete event could not reasonably be remedied by the Respondent. Evidently, “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system.ˮ [47] In this regard, it should be noted that the date set for trial was maintained pro forma in order to reschedule the trial.

The justice system and the prosecutor thus acted to limit the delay caused by this event.

[ 50 ] Nevertheless, the judge ruled that the 6-month delay “stem[ed] directly from actions by the Crown and cannot be imputable to the accused” who did not formally object to the postponement. The failure to consider the leave of absence of Crown counsel as a discrete exceptional event raises a question of law opening the door to appellate review. [ 51 ] In

summary, after accounting for this discrete event, the remaining delay in this case is 22 months and 27 days (706 days). It is far from being presumptively unreasonable. Can the delay, however, still be considered unreasonable? [48] Remaining Delay Falling Below the Presumptive Ceiling [ 52 ] It falls on the defence to establish that, despite having taken meaningful steps and despite the Appellant’s sustained efforts to expedite the proceedings, the delay was markedly longer than it reasonably should have been. Absent both of these two factors, the

section 11(

b) Charter application must fail. [49] “Stays beneath the presumptive ceiling should be granted only in clear cases.” [50] [ 53 ] While Jordan has a retrospective application, the Supreme Court recognizes that for transitional cases in which the remaining delay falls below the ceiling, the framework must be applied flexibly and contextually, with sensitivity to the parties’ reliance on the previous state of the law. [51] [ 54 ] Accordingly, in a transitional case such as the one at bar, the defence need not demonstrate that it took the initiative to expedite matters for the period of delay preceding the Jordan decision, since defence initiative was not expressly required by the Morin framework.

It would be unfair indeed to judge the defence’s conduct against standards of which it had no notice. The Supreme Court, however, specifies that in borderline cases, any defence initiative during that time would be of assistance in showing that the delay markedly exceeds what was reasonably required.

A trial judge must also consider action or inaction by the accused that may be inconsistent with a desire for a speedy trial, as was the case under Morin . [52] Nonetheless, in taking into account inaction by the Appellant, the Court must be careful not to subvert the principle that there is no legal obligation on his part to assert the right to be tried within a reasonable time.

Inaction may, however, be relevant in assessing the degree of prejudice, if any, he has suffered as a result of delay. [53] [ 55 ] The Supreme Court explains further that for transitional cases, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case.

The Court notes “that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.” [54] [ 56 ] The Appellant submits that the following factors are relevant to a consideration of the transitional period: (1) he acted expeditiously, diligently and always wished to obtain a speedy trial; (2) the motion judge mischaracterized the delays; (3) he experienced a specific and real prejudice that the judge failed to take into account; (4) the judge erred in weighing the impact of delays not attributable to the defence; and (5) the judge wrongly considered the seriousness of the offence and societal interests in deciding the motion. [ 57 ] Again, however, the defence (here, the Appellant) “must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

Absent these two factors, the

section 11 (

b) application must fail.” [55] Defence initiative [ 58 ] In the present case, the trial judge found no evidence of defence efforts to expedite proceedings. In fact, the proceedings reveal that the Appellant did not communicate his concern prior to filing his

section 11(

b) Charter motion for a stay of proceedings. He was, however, present at every court appearance, and ready for trial both times that it was postponed. [ 59 ] The motion judge noted and took into consideration that the Appellant did not object to the Crown’s request for a postponement. [56] Defence counsel explained this decision, saying he understood that the presiding judge would have granted the motion. The Appellant did not renounce the delay, but acquiesced to it as inevitable.

He did, though, suggest scheduling a pro forma hearing on January 20, 2015, to set a new date for trial, which would have occasioned a three-month delay. The original trial date, October 22, 2014, was maintained for that purpose.

Moreover, the judge noted in relation to the second postponement of the trial on April 28, 2015, that he “[had] not been informed about whether there [were] any attempts [made] to transfer the file to another courtroom.” [57] A reading of the transcript suggests none were made. [ 60 ] Further, it is worth noting that the Appellant’s diligence in securing legal aid might have been more significant in the overall assessment had the record disclosed that such assistance had been initially sought prior to the scheduled appearance in court on May 15, 2013. [58] Without questioning defence counsel’s good faith, the only information on file is his assertion that the Appellant had previously made an appointment with Legal Aid for the next day.

Reasonable time requirements of the case [ 61 ] As mentioned, the motion judge’s conclusion on the reasonableness of the institutional delay under the Morin framework is a component of the reasonable time requirements of the case, and stays below the ceiling for cases pending when Jordan was written are exceptional. [59] [ 62 ] The motion judge found that, although the institutional delay of approximately 17 months was lengthy, it was not unreasonable. This conclusion is not erroneous, particularly given the Appellant’s failure to raise the non-disclosure of the evidence until June 2013.

Moreover, given the circumstances and the nature of the charges, no blame can be cast on Crown counsel for the delayed disclosure.

[ 63 ] The judge did not err in characterizing the period between February 15, 2013 and September 30, 2013 as an inherent delay.

Even though a case is not complicated and the steps carried out not complex, the length of time necessary will be influenced by local practices and conditions. [60] The District of Laval was known to be among the worst places in Canada for delays in criminal matters. [61] [ 64 ] The Appellant also submits that the judge erred in attributing the entire delay surrounding the preliminary inquiry to the defence. [ 65 ] As the Honourable Martin Vauclair, J.A., wrote in Rice : [62] [ translation ] [I]t would be shocking if the preliminary inquiry stage itself could be entirely attributed to the defence and thus deducted.

This is not only a legitimate stage of proceedings provided for in the Criminal Code , but it also affects which ceiling is presumed to be reasonable. Special circumstances would have to exist to oblige the defence to carry this delay.

The motion judge did not exclude the notion that such situations may occur, but I am of the view that they will be rare. [ 66 ] The motion judge noted that delays attributed to the defence arise from all actions voluntarily taken by the accused which may have caused delays, irrespective of the motives behind them. [63] Measured against case law prior to Jordan , this assertion would be correct. [64] It has been recognized by the jurisprudence that the accused must take responsibility for the effect of any decisions relating to preliminary procedures and strategy.

In some instances, opting to have a preliminary inquiry has been considered an action by the accused generating delays, [65] and has been attributed to the defence. [66] However, such an approach no longer obtains. An accused’s option for a preliminary inquiry, causes the presumptive ceiling to jump from 18 to 30 months.

The relevant inquiry here is whether the case, having taken less than the presumptive ceiling, nonetheless, took “markedly longer than it reasonably should have.” [67] [ 67 ] In characterizing the delay of 5 months and 10 days (161 days), between September 30, 2013 and March 10, 2014, as defence delay, the judge considered: the fact that the order to stand trial was not contested; the fact that only the complainant was called to testify; the fact that the preliminary inquiry lasted around 30 to 45 minutes; and the length of the delay it generated. [68] Deference is due to the expertise and experience of the trial judge who closely followed the progress of the case. [69] Even if I were to isolate this specific delay, and without it being determinative, I note that this portion of the delay fits well within the Morin analysis, which provided for 8 to 10 months of institutional delays before a provincial court.

Moreover, the Appellant does not convince me that the preliminary inquiry could have been held markedly sooner or, in other words, that a case of this nature did not follow the typical steps to get to trial in light of the relevant local and systemic circumstances. [ 68 ] In the context of a case decided prior to Jordan , the Appellant does not demonstrate a reviewable error on the issue of characterization of the delays. In any event, when applying the two criteria contextually, one must be sensitive to the parties' reliance on the previous state of the law.

Thus, the Appellant does not show that the case took markedly longer than it reasonably should have (referring particularly to the institutional delays of approximately 17 months). The total delay is not unreasonable. Prejudice [ 69 ] Given the foregoing conclusion that the total delay falls below the presumptive ceiling and the accused’s failure to establish that the case nevertheless took markedly longer than it should have, it is not necessary under a Jordan analysis to consider the issue of whether the judge erroneously imposed on the Appellant a burden of persuasion that the delays caused him prejudice.

Delays Not Attributable to the Defence [ 70 ] The Appellant claims that the motion judge failed to properly weigh the impact of delays not attributable to the defence in deciding the motion. Again, given my conclusion that the delays did not markedly exceed what was reasonably required to bring the matter to a completed trial, this question need not be addressed.

Gravity of the Offence and Societal Interests [ 71 ] The judge concluded his analysis by referring to the “teaching of the Supreme Court” regarding the competing interests of society (in trying the accused) and the accused (to have that trial within a reasonable time). [70] [ 72 ] Unlike the Appellant, I fail to see a reviewable error in this remark, which echoes dicta of the Supreme Court [71] and simply describes the competing interests at play in such cases.

I do not read the judge as saying that given the nature of the charges (sexual offences against a child) the consideration of the delays to bring the matter to trial should be more favourable to the prosecution. That would be an error. The failure to afford the accused a trial within a reasonable time leads to a stay of proceedings irrespective of the gravity of the crime charged. [ 73 ] I would add that I do not understand the judge’s remark as an omission to apply section 24(1) of the Charter .

The judgment as a whole does that, albeit the conclusion was not favourable to the Appellant’s position. *** [ 74 ] Under the circumstances, given the calculation of the delays by the judge, it is not necessary to deal with the transitional exceptional circumstances. I repeat that I am cognizant that this is not a case that was “in the system” [72] when Jordan was issued. However, given the appeal, the case is still “in the system”, such that the principles established in Jordan apply. [ 75 ] To the extent that the presumptive ceiling of Jordan had been exceeded, the application of the transitional exceptional

circumstances would have caused me not to intervene. The judge’s analysis of the parties’ behaviour against the background of the then applicable procedural framework requires appellate deference. [ 76 ] For all the foregoing reasons, I propose that the appeal be dismissed. MARK SCHRAGER, J.A.