R. v. Pearce; R. v. Howe, 2021 NSCA 37

Nova Scotia Court of Appeal Citation: R. v. Pearce; R. v. Howe , 2021 NSCA 37 Date: 20210428 Docket: CAC 482444 and CAC 482839 Registry: Halifax Between: David John Pearce Appellant v. Her Majesty the Queen Respondent And Duayne James Howe and Patrick Michael James Appellant v. Her Majesty the Queen Respondent Restriction on Publication:

Section 486.5 of the Criminal Code Judge: The Honourable Justice Anne S. Derrick Appeal Heard: January 26, 2021, in Halifax, Nova Scotia Subject: s. 11(

b) Delay; Standard of Review; Application of R. v. Jordan , 2016 SCC 27 . Trial fairness. Admissibility of criminal records. Admissibility of expert evidence; Fresh evidence. Commission of offence for a criminal organization, s. 467.12 of the Criminal Code .

Summary: In 2012, Duayne Howe, Patrick James and David Pearce were members of the Bacchus Motorcycle Club (“BMC”). Their interactions with RM, who wanted to start a recreational motorcycle club, led to them being charged criminally with a number of serious offences alleged to have occurred between January 1 and September 15, 2012. The preliminary inquiry and trial took many months to complete.

At trial there were evidentiary disputes concerning: production to the Crown of a statement taken from RM by a defence investigator; the admissibility of the Appellants’ criminal records during the Crown’s case-in-chief; whether the Crown’s “outlaw motorcycle club” expert, Detective Sergeant Leonard Isnor, was qualified to give expert opinion evidence about the BMC; and whether the BMC was a criminal organization as defined in the Criminal Code . Messrs. Howe, James and Pearce also sought to have their charges stayed on the basis of delay.

The Appellants were convicted of all the charges: extortion, threats to cause serious bodily harm to RM or his family, intimidation and engaging in threatening conduct toward RM as well as offences under s. 467.12 of the Criminal Code , establishing the offences had been committed for the benefit of, at the direction or, or in association with a criminal organization, the Bacchus Motorcycle Club.

Issues:

(1) Should the trial judge have applied R. v. Jordan in his analysis of the s. 11(

b) delayapplication? If so, should this Court apply Jordan to determine if a stay of proceedings is warranteddue to delay?

(2) Did the trial judge err by ordering production by the Appellants to the Crown of a statementgiven by RM to a private investigator the Appellants retained prior to trial?

(3) Did the trial judge err by admitting the criminal records of the Appellants into evidence duringthe Crown’s case-in-chief?

(4) Did the trial judge err in finding D/Sgt. Isnor was an impartial expert and qualifying him togive opinion evidence? And, in relation to this issue, should the fresh evidence tendered by theAppellants be admitted?

(5) Did the trial judge err in relying on D/Sgt. Isnor’s opinion evidence to determine the BMC wasa criminal organization? Result: Appeals dismissed per reasons for judgment of Derrick, J.A.; Bryson and Scanlan, JJA., concurring. Issue #1 – The trial judge should have done a Jordan analysis as the case was still “in the system”when his decision on the Appellants’ delay application was under reserve. The Jordan analysisundertaken on appeal determined that the total delay was 68 months, 34 of which were attributable todefence conduct.

The net delay of 34 months was 4 months over the Jordan ceiling of 30 months for asuperior court trial. The presumption of unreasonable delay was rebutted by the complexity of thecase. There was no violation of the Appellants’ s. 11(

b) rights. Issue #2 – The trial judge’s order that RM’s statement to the private investigator was to be provided tothe Crown was consistent with ensuring trial fairness. The circumstances which led to the order forproduction of the statement were fact specific. The defence decided to put portions of the statement toRM in cross-examination with a view to contradicting his trial testimony. Having done so, trial fairnessrequired production of the full statement to the Crown.

Issue #3 – The trial judge situated his analysis of the criminal record evidence in the context of thecharges against the Appellants as members of the Bacchus Motorcycle Club. He noted they werecharged with committing certain offences “for the benefit of, at the direction of, or in association with,a criminal organization”. He correctly determined the criminal record evidence was potentiallyrelevant to the criminal organization charges and that its probative value outweighed any prejudicialeffect. Issue #4 – The fresh evidence – the transcript of D/Sgt.

Isnor’s testimony as a complainant at thepreliminary inquiry of a member of the Hells Angels Motorcycle Club – failed the second and fourthrequirements of Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759. It did not bear on adecisive or potentially decisive issue in the trial and it could not have affected the result. There was nomerit to the Appellants’ claim that D/Sgt. Isnor was biased and should not have been qualified to giveexpert opinion evidence. The record established that D/Sgt. Isnor understood his duty to assist thecourt as a fair, unbiased and objective expert witness.

Issue #5 – The trial judge was correct in his articulation and application of the law for qualifyingexpert evidence and affording it weight. D/Sgt. Isnor was highly qualified to provide opinion evidenceon which the trial judge relied in concluding the Bacchus Motorcycle Club was a criminalorganization. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full courtjudgment consists of 65 pages.

Nova Scotia Court of Appeal Citation: R. v. Pearce ; R. v. Howe , 2021 NSCA 37 Date: 20210428 Docket: CAC 482444 and CAC 482839 Registry: Halifax Between: David John Pearce Appellant v. Her Majesty the Queen Respondent And Duayne James Howe and Patrick Michael James Appellants v. Her Majesty the Queen Respondent Restriction on Publication: pursuant to s. 486.5(1) of the Criminal Code of Canada Judges: Bryson, Scanlan and Derrick, JJ.A.

Appeal Heard: January 26, 2021, in Halifax, Nova Scotia Held: Appeals dismissed as per reasons for judgment of Derrick, J.A.; Bryson and Scanlan, JJ.A., concurring Counsel: Peter D. Planetta, for the appellant David John Pearce Leonard Hochberg, for the appellants Duayne James Howe and Patrick Michael James Glenn A. Hubbard, for the respondent Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Reasons for judgment: Introduction [ 1 ] In 2012, Duayne Howe, Patrick James and David Pearce were members of the Bacchus Motorcycle Club (“BMC”).

Their interactions with RM, who wanted to start a recreational motorcycle club, led to them being charged criminally with a number of serious offences alleged to have occurred between January 1 and September 15, 2012. The preliminary inquiry and trial took many months to complete.

At trial there were evidentiary disputes concerning: production to the Crown of a statement taken from RM by a defence investigator; the admissibility of the Appellants’ criminal records during the Crown’s case-in-chief; whether the Crown’s “outlaw motorcycle club” expert, Detective Sergeant Leonard Isnor, was qualified to give expert opinion evidence about the BMC; and whether the BMC was a criminal organization as defined in the Criminal Code . Messrs. Howe, James and Pearce also sought to have their charges stayed on the basis of delay.

[ 2 ] The trial, conducted by Justice Peter Rosinski, concluded with convictions against each of the accused on all eight counts in the Indictment. [ 3 ] The guilty verdicts against Messrs. Howe, James and Pearce were rendered on June 22, 2018. Four of the offences fell under s. 467.12 of the Criminal Code , establishing they had been committed for the benefit of, at the direction of, or in association with a criminal organization, the BMC.

These were the offences of extortion contrary to s. 346 of the Criminal Code ; uttering threats, contrary to s. 264.1 of the Criminal Code ; intimidation contrary to s. 423(1) of the Criminal Code ; and criminal harassment contrary to s. 264(2) of the Criminal Code . [ 4 ] Convictions for these four offences required the trial judge to have been satisfied beyond a reasonable doubt that the BMC was a criminal organization. That finding is being challenged in this appeal. [ 5 ] Messrs.

Howe, James and Pearce were also convicted of extortion of RM, contrary to s. 346 of the Criminal Code ; threats to RM to cause serious bodily harm to him or his family, contrary to s. 264.1 of the Criminal Code ; intimidation of RM for the purpose of compelling him to abstain from starting a motorcycle club and participating in motorcycle events, contrary to s. 423(1) of the Criminal Code ; and engaging in threatening conduct toward RM, causing him to fear for his safety or the safety of his family, contrary to s. 264(2) of the Criminal Code . [ 6 ] In the course of the trial, in addition to his decision on the merits ( R. v.

Howe , 2018 NSSC 156 ), the trial judge rendered decisions on the evidentiary issues I mentioned above: production to the Crown of the statement obtained from RM by the defence investigator ( R. v. Howe , 2016 NSSC 328 ); the admissibility of the Appellants’ criminal records ( R. v. Howe , 2017 NSSC 210 ); and the admissibility of D/Sgt. Isnor’s opinion evidence about the BMC ( R. v. Howe , 2017 NSSC 213 ). The trial judge also decided a mid-trial application for a stay due to s. 11(

b) delay ( R. v. Howe , 2016 NSSC 184 ). Each of these issues, and the determination by the trial judge that the BMC is a criminal organization, will be dealt with in these reasons. [ 7 ] Messrs. Howe and James filed a Notice of Appeal dated November 29, 2018. Mr. Pearce’s Notice of Appeal had been filed as a prisoner’s appeal on November 15, 2018. It was later agreed there would be a common appeal for all three Appellants dealing with the same issues. Mr. Pearce accepted the issues as stated by Messrs.

Howe and James as the issues in his appeal. [ 8 ] The Appellants also filed a motion for the admission of fresh evidence. The fresh evidence relates to the trial judge’s decision to admit the opinion evidence of D/Sgt. Isnor. The Appellants say that D/Sgt. Isnor was biased and should not have been qualified as an expert. Three witnesses testified on the fresh evidence motion: Mr. Howe, and trial counsel for Mr. James (Trevor McGuigan) and Mr. Pearce (Patrick MacEwen). As is the practice in this Court, the fresh evidence was admitted provisionally to be considered along with the appeal.

I will discuss the nature of the evidence in due course. [ 9 ] As for the facts, I do not intend to review them in detail as the trial judge did so comprehensively in his decision on the merits. I will include in these reasons the facts required to address each ground of appeal and the basis for the fresh evidence motion. Under each ground of appeal I will also address the positions of the parties and the applicable standard of review. [ 10 ] I would not admit the fresh evidence.

As I later explain, it was not relevant to a decisive issue and would have had no impact on the outcome of the trial, requirements the Appellants had to meet for a successful fresh evidence motion. I have further concluded the trial judge did not fall into error in his evidentiary rulings, his determination that D/Sgt. Isnor’s evidence should be admitted and given weight, and his finding that the BMC is a criminal organization. I would dismiss the appeals. A

Summary of the Essential Facts [ 11 ] In 2012, RM lived in the Halifax Regional Municipality and was a motorcycle enthusiast. He wanted to start a club for other enthusiasts like himself. He was interested in having a three-piece patch [1] for members to wear on the back of their jackets. He sought out Patrick James, whom he understood was a representative of the BMC, the dominant motorcycle club in Nova Scotia. Mr. James was the Sergeant-at-Arms for the BMC. [ 12 ] Mr. James was emphatic that RM’s approach was not acceptable.

RM was told the BMC would decide when a locally-grown motorcycle club had earned the right to wear a three-piece patch. Mr. James told him that purporting to be a full-fledged motorcycle club with a three-piece patch was disrespectful and would not be tolerated. [ 13 ] Significant problems arose for RM when, notwithstanding Mr. James’ warning, he pursued the patronage of a motorcycle club based in Montreal known as the “Brotherhood”.

In the trial judge’s recitation of the developments, RM was approved by the Brotherhood “to incorporate the elements of their three-piece patch all in one patch, for his intended local chapter” (Conviction Decision, at para. 9). RM and two members of his fledging club flew to Montreal to visit members of the Brotherhood and formally receive the new patches. [ 14 ] What happened next, which led to the Appellants being charged, is described in the Crown’s factum: 4. Patrick James was a member of the BMC in Halifax at this time. Mr. James was known as the Sergeant-at-Arms of the club. It was one of Mr.

James’ duties to monitor local activity and keep an eye out for any potential threat to the BMC. Once he learned of R.M.’s desire to create a Halifax

chapter of the Brotherhood, Mr. James took action. 5. When R.M. returned from Montreal, Mr. James showed up uninvited to R.M.’s place of work. Mr. James was wearing his BMC colours and regalia. Mr. James made it clear to R.M. that the BMC would not tolerate R.M. opening a new

chapter of the Brotherhood Motorcycle Club in Halifax. Mr. James intimidated R.M. into denouncing his prior conduct, going so far as to require the Brotherhood members in Montreal to publicly declare that no Brotherhood

chapter would be opening in Nova Scotia. 6. Mr. James then required R.M. to cut up the Brotherhood patch he had brought back with him to Halifax and send photographs of the destroyed patch to Mr. James as confirmation. R.M. complied.

7. Believing the matter had been dealt with, R.M., along with his wife, later attended a local charitable function for motorcycle enthusiasts in Sackville, NS. R.M. was soon confronted by the Appellants, each wearing their BMC colours. 8. In front of the entire gathering, the Appellants proceeded to posture, threaten and intimidate R.M.. R.M. was told that he should not have attended the gathering.

R.M. was told that he had disrespected the BMC and that if he showed his face at such a function in the future, or was seen to be riding a motorcycle ever again, it would be at his peril. [ 15 ] RM and his wife fled the scene. RM contacted the police. Search warrants were executed and shortly afterwards, the Appellants were charged. [ 16 ] The trial judge found beyond a reasonable doubt that at the Bikers Down charity event on September 14, 2012: [43] …both Mr. Howe and Mr.

Pearce threatened RM with serious bodily harm; engaged in threatening conduct causing RM to reasonably fear for his safety; and intimidated and extorted RM to abstain from participating in motorcycle events and from riding his motorcycle thereafter. [ 17 ] Mr. James’ interactions with RM had occurred during the period of January to August 2012 when RM had attempted to organize a three-piece patch motorcycle club. The trial judge was satisfied beyond a reasonable doubt that: [160] …Mr. James intentionally and purposefully caused RM to give up on: a. His plan of having a three-piece patch MC of his own design; b.

His efforts to bring a three-piece patch Brotherhood MC

chapter to Halifax County; c. Continuing the plan he had successfully put in place in order to have a one-piece patch Brotherhood MC

chapter in Halifax County; and …But for Mr. James’s harassing, threatening, intimidating and extortive conduct towards him, RM would have followed through on his plans. The Issues [ 18 ] The appeals proceeded on the basis of the issues as stated in the Howe and James’ Factum: 1) Did the Trial Judge err in dismissing the s. 11(

b) application without considering or applying R. v.

Jordan ? 2) Did the Trial Judge err by ordering that the defence provide reciprocal disclosure to the Crown (a statement provided by a Crown witness to a defence Private Investigator?) 3) Did the Trial Judge err by admitting the criminal records of the appellants? 4) Should the motion to adduce fresh evidence be granted? 5) If the fresh evidence is admitted, did the Trial Judge err in finding that Detective Staff Sergeant Isnor was qualified to give expert evidence? 6) Did the Trial Judge err in concluding that the Bacchus Motorcycle Club was a criminal organization? [ 19 ] I will re-state the issues as follows: 1) Should the trial judge have applied R. v.

Jordan in his analysis of the s. 11(

b) delay application? If so, should this Court apply Jordan to determine if a stay of proceedings is warranted due to delay? 2) Did the trial judge err by ordering production by the Appellants to the Crown of a statement given by RM to a private investigator the Appellants retained prior to trial? 3) Did the trial judge err by admitting the criminal records of the Appellants into evidence during the Crown’s case-in-chief? 4) Did the trial judge err in finding D/Sgt. Isnor was an impartial expert and qualifying him to give opinion evidence? 5) Did the trial judge err in relying on D/Sgt.

Isnor’s opinion evidence to determine the BMC was a criminal organization? [ 20 ] The fresh evidence issue will be addressed in the context of Issue #4 – whether D/Sgt. Isnor should have been qualified to give opinion evidence. Issue #1 - Should the trial judge have applied R. v. Jordan in his analysis of the s. 11(

b) delay application? If so, should this Court apply Jordan to determine if a stay of proceedings is warranted due to delay? Background [ 21 ] The bookends of the prosecution against the Appellants are September 12, 2012 and May 7, 2018. As I explain, the 68 months

between those dates is the timeframe in which the s.11(

b) issues in this appeal will be examined. The following broadly explains thetimeframe. [22] An original set of Informations laid on September 12, 2012 were replaced on January 3, 2013 with a single joint Informationnaming all three accused. They were committed to trial following a preliminary inquiry that began in December 2013 and concluded inJuly 2015. A joint Indictment was filed and the trial was originally scheduled for May 19 to June 3, 2016. Pre-trial motions were to beheard over 10 days from April 4 to 14, 2016.

The trial ultimately did not proceed according to the intended timetable. [23] At the Appellants’ request, the pre-trial motions were moved to the May 19 to June 3, 2016 trial dates. The s. 11(

b) applicationalleging unreasonable delay was heard on May 19, 2016. It was the first of the pre-trial motions. [24] The trial judge reserved his decision on the delay application. Before he rendered it on July 20, 2016, the Supreme Court ofCanada released R. v. Jordan, 2016 SCC 27. [25] The trial judge acknowledged in an endnote to his decision (R. v. Howe, 2016 NSSC 184) (“Delay Decision”) that Jordan was as. 11(

b) game-changer. However, he concluded he should assess the defence application on the basis of the law as it had existed beforeJordan was decided: The proper analytical framework has been significantly revised by the July 8, 2016 release of R. v. Jordan, 2016 SCC 27. I havereviewed this decision and concluded that given the parties’ reliance on the pre-existing jurisprudence in their conduct, and in their legalpositions to this court, it is in the interests of justice to apply the Morin principles [R. v. Morin, (SCC), [1992] 1 SCR771], including the spirit of R. v.

Vassell, 2016 SCC 26. [26] It was the heading in the trial judge’s reasons “How to conduct the legal analysis in such cases” that he endnoted with thereference to Jordan. He made no further mention of Jordan and sought no input from Crown or defence counsel on the new paradigm fordelay applications. [27] The trial judge dismissed the delay application using the pre-Jordan analysis laid out in R. v. Morin, (SCC),[1992] 1 S.C.R. 771.

Under Morin he assessed inherent delay, institutional delay and Crown and defence delay and examined the issueof delay-related prejudice caused to the Appellants. [28] The trial proceeded through 2016 and 2017 with the evidence concluding in December 2017. Final submissions were made onMay 7, 2018. This marks the end of the trial for the purposes of a s. 11(

b) analysis under Jordan (R. v. K.G.K., 2020 SCC 7, at para. 3). The Position of the Parties [29] The Appellants asked this Court to conduct a Jordan analysis and determine whether the delay in their case was reasonable.The Appellants say the trial judge should have asked the parties for submissions on Jordan and then applied Jordan in his delay analysis.The Crown should have been required to justify the reasonableness of the delay which exceeded the presumptive limit established byJordan.

The burden should not have been on the Appellants under Morin to demonstrate the delay was unreasonable. [30] In the Crown’s submission, the trial judge was correct to have done his analysis under the Morin principles and correct in hisanalysis. And, even if the trial judge should have done a Jordan analysis, taking defence conduct into account, the delay was justified. Should the Trial Judge Have Applied Jordan? [31] The trial judge should have applied Jordan, not Morin in assessing the delay application. The parties should have been invitedto make submissions on the new framework.

In a Jordan analysis, this case qualifies as a transitional case, a case that was “in thesystem” when Jordan was decided. Is this Court required to Undertake a Jordan Analysis of the Delay in this Case? [32] Upon the release of Jordan, the trial judge should have assessed the delay to that point according to the new framework ofanalysis laid out by the Supreme Court of Canada. Jordan requires this Court to now determine if there was unreasonable delay in thiscase. I need to determine the net delay and whether it exceeded the presumptive ceiling, which in the case of a Supreme Court trial is 30months.

Delay that exceeds the ceiling can be justified on the basis of exceptional circumstances, that is, discrete events or thecomplexity of the case. Why is a Jordan Analysis Required in this Appeal? [33] Jordan directed that its framework for analyzing s. 11(

b) delay was to apply to cases that were “in the system” prior to July 8,2016, when the decision was released (Jordan, at para. 95). A case is “in the system” for the purposes of Jordan once the charges arelaid. [34] Cases remain “in the system” until available routes of appeal have been exhausted. Appellate courts must decide s. 11(

b) delaygrounds of appeal in accordance with Jordan even where the delay application was decided before Jordan’s release (R. v. Baron, 2017ONCA 772, at para. 38; R. v. Gopie, 2017 ONCA 728, at para. 110; R. v. Reinbrecht, 2019 BCCA 28, at para. 6). [35] The trial judge recognized in his endnote mentioning the Jordan decision that the parties relied on pre-existing jurisprudence inhow they conducted the proceedings.

It was for this reason he decided “in the interests of justice to apply the Morin principles”.However, in a Jordan analysis the trial judge would have been able to take the parties’ reliance on Morin into account, particularly inconsidering the “transitional case” exception provided for by Jordan. [36] This preferred approach was taken by other courts with s. 11(

b) delay decisions under reserve when Jordan was released. In R.

v. Kennedy , 2016 ONSC 4654 , the accused’s application for a judicial stay on the basis of alleged delay was heard on June 30, 2016. The trial judge reserved his decision. Following the release of Jordan , he sought the parties’ submissions on the impact of the decision. Applying a Jordan analysis, he ultimately dismissed the application. Other examples are: R. v. Mastronardi , 2016 BCSC 1289 , at paras. 88-99 ; R. v. Lam , 2016 ABQB 489 , at para. 3 . [ 37 ] Jordan became the law while the trial judge had his decision on the Appellants’ delay motion under reserve. Jordan mandated a very different approach.

He was bound to apply it. We must now do so. [ 38 ] I will now discuss: the Jordan framework and principles relevant to this appeal and the standard of review for this appeal which I apply in analyzing the delay examined by the trial judge for the s. 11(

b) application and the delay that followed his dismissal of the application. The Jordan Framework [ 39 ] For the purposes of this appeal, the following steps in the Jordan analysis are relevant: • A determination of the total length of time between the charge and the anticipated or actual end of trial. • An assessment of whether portions of the total delay were waived or caused solely by the defence. Any such portions are subtracted from the total delay. A waiver by the defence can be explicit or implicit but in either case, it must be informed, clear and unequivocal ( Jordan , at para. 61 ; R. v.

Cody , 2017 SCC 31 , at para. 27 ). • If the net delay exceeds the applicable presumptive ceiling – in this case, 30 months – the Crown must justify the delay by showing there were exceptional circumstances. Exceptional circumstances include discrete, unforeseen events, or general case complexity. [ 40 ] Jordan explained how the majority of the Court came to decide on 30 months as the presumptive ceiling for a trial in superior court.

Inherent time requirements of the case and the increased complexity of cases since Morin were amongst the factors taken into account ( Jordan , at para. 53 ). [ 41 ] Delay will be counted against the defence where its conduct directly caused the delay or was employed deliberately to create delay, such as frivolous applications or requests ( Jordan , at para. 63 ). Delay caused by the defence not being available when the court and the Crown are ready to proceed will also go on to the defence-delay side of the ledger ( Jordan , at para. 64 ).

Allowance is to be made for defence preparation and actions “legitimately taken to respond to the charges” as this accords with an accused person’s right to make full answer and defence ( Jordan , at para. 65 ). [ 42 ] The Supreme Court of Canada in Cody recognized there is a “potential tension between the right to make full answer and defence and the right to be tried within a reasonable time – and the need to balance both…” (at para. 34). Actions taken by defence in the course of the trial will be scrutinized on a s. 11(

b) application to determine whether they were legitimately taken to respond to the charges or designed to delay. Furthermore, defence actions that exhibit “marked inefficiency or marked indifference toward delay” may well be counted against the defence in a s. 11(

b) analysis ( Cody , at para. 32 ). [ 43 ] Defence counsel have a responsibility to safeguard their client’s s. 11(

b) rights by “actively advancing their right to a trial within a reasonable time, collaborating with the Crown when appropriate, and using court time efficiently” ( R. v. Potter , 2020 NSCA 9 , at para. 271 , citing Cody , at para. 33 and Jordan , at para. 138 ). [ 44 ] Not only defence but all participants in the criminal justice system have been directed by Jordan to coordinate efforts to achieve “reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives” (at para. 5).

Trial judges as well as counsel have an obligation to conduct the proceedings efficiently and proactively in order to ensure unreasonable delay is avoided. [ 45 ] Exceptional circumstances that the Crown could not reasonably foresee, avoid or mitigate will reduce the total delay. The trial judge is best suited to determine whether circumstances are “exceptional” and within which category they fall: discrete events and particularly complex cases ( Jordan , at paras. 69 and 71 ).

Jordan recognized that “more complex cases will often be those involving serious charges, such as…organized crime, and gang-related activity” (at para. 81). [ 46 ] As I mentioned earlier, this was a transitional case. Where the net delay exceeds the presumptive ceiling, the Crown may be able to demonstrate that the delay was justified due to the parties’ reasonable reliance on the state of the law pre- Jordan ( Jordan , at para. 96 ).

This is where the parties’ reliance on Morin is taken into account. [ 47 ] The transitional exceptional circumstance will apply if the delay exceeds the 30-month presumptive ceiling and the Crown has been unable to justify the delay on the basis of discrete events or complexity ( Cody , at para. 68 , citing Jordan , at para. 96 ).

The Crown is required to satisfy the court that the delay involved was occasioned by “the parties’ reasonable reliance on the law as it previously existed” ( Jordan , at para. 96 ). [ 48 ] Jordan held the transitional exceptional circumstance assessment must be contextualized, “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…” (at para. 96). [ 49 ] In Cody , the Supreme Court of Canada again addressed the considerations that apply where the transitional exceptional circumstance is in play: [71] When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released.

For aspects of the case that pre-dated Jordan , the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice…

[72] In this case, the entire proceedings at trial pre-dated the release of Jordan . The Crown must therefore show that the 36.5 months of net delay was justified in light of its reliance on the previous state of the law under Morin . [ 50 ] For transitional cases, Jordan does not operate to “automatically transform what would previously have been considered a reasonable delay into an unreasonable one” (at para.102). Determining whether the delay was reasonable will be informed by the circumstances in which the delay occurred. In this case, the delay occurred both before and after Jordan reframed the analysis for s. 11(

b) determinations. [ 51 ] I pause here to focus on the factors I have found apply in this case. As I will explain, I have concluded the net delay exceeded the presumptive ceiling of 30 months. The defence conduct did not seek to deliberately create delay. Throughout the 68 months there was however a lack of defence effort to advance the Appellants’ s. 11(

b) rights. Delay was given only lip service by the defence. Defence conduct did not change following the release of Jordan . No discernable adjustments were made by defence post- Jordan in relation to the Appellants’ s. 11(

b) rights. This contrasted with the efforts by the trial judge and the Crown to achieve greater efficiencies and reduce delay. As I explain, I find the net delay to have been justified on the basis of the complexity of the case and discrete events outside the Crown’s control. A finding of complexity rebuts the presumption of unreasonable delay and makes it unnecessary to address the transitional case exception. [ 52 ] I will now discuss the standard of review and then examine the proceedings during the period assessed by the trial judge in his s. 11(

b) delay decision, and following that, to the trial’s conclusion. I have applied Jordan in determining that the delay in this case did not amount to a violation of the Appellants’ s. 11(

b) rights. [55] Standard of Review [ 53 ] The standard of review for s. 11(

b) appeals is a three-step process as this Court has stated previously: palpable and overriding error for findings of fact and the categorization or attribution of delay, and correctness for the allocation or characterization of the delay and the ultimate determination of whether the delay was unreasonable and warrants a judicial stay. Deference is owed to a trial judge’s assessment of responsibility for the delay because it involves findings of fact. [ 54 ] Appellate courts must show deference to a trial judge’s underlying findings of fact and to the judge’s determination of the legitimacy of defence conduct.

Those decisions are “by no means an exact science” and “first instance judges are uniquely positioned to gauge” whether the defence actions were legitimately taken to respond to the charges ( Jordan , at para. 65 ; Cody , at paras. 31-32 ). [ 55 ] Trial judges dealing with s. 11(

b) applications will be required to make underlying findings of fact and/or draw inferences from facts in determining what happened in the course of the case. Trial judges must also determine what caused the delay – was the defence conduct legitimate and not frivolous, was the case complex, had the parties reasonably relied on the law as it was before Jordan . As this Court noted in R. v. Brown , 2018 NSCA 62 , at para. 46 , and R. v.

Ellis , 2020 NSCA 78 , at para. 80 , the trial judge’s categorization of the delay – the finding of who or what caused the delay – is entitled to deference, subject to palpable and overriding error. [ 56 ] A trial judge’s allocation of the delay under the Jordan framework, also referred to as the characterization of the delay, which includes calculating the total delay, subtracting the delay assessed against the defence, and then comparing the net delay to the applicable Jordan ceiling, is subject to a standard of correctness.

Also subject to a standard of correctness is the judge’s ultimate determination of whether the delay was unreasonable and violated s. 11(b). [ 57 ] The above accords with the Supreme Court of Canada’s recent statement in R. v. Yusuf , 2021 SCC 2 , that the Ontario Court of Appeal, in the decision being appealed from (cited as R. v. Pauls , 2020 ONCA 220 ), had “applied the appropriate standard of review. In Pauls , the standard of review was described: [40] …Deference is owed to a trial judge's underlying findings of fact.

Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness (cites omitted). [ 58 ] Inconsistent terminology has led to some confusion about what various courts have meant in discussing the standard of review for s. 11(

b) appeals. This has been true for our Court. Where other appellate courts (e.g.

Ontario and British Columbia) have used “characterization” to refer to the allocation of the delay, in this Court’s recent decision in Ellis , “characterization” was used as a synonym for “categorization”. “Categorization” is a term that has been used by this and other appellate courts at the first step of the Jordan analysis, the attribution of the delay – who caused it and why. [ 59 ] Recognizing the potential for confusion, we believe these terms should be distinguished in the steps on the Jordan analytical ladder: categorization or attribution refer to what a trial judge does when they decide, based on the facts before them, who caused the delay and why it was caused.

These determinations are subject to a deferential standard of review. Characterization or allocation refer to what a judge does when they determine who should “wear” the delay and what constitutes the net delay. This is assessed on a correctness standard. [ 60 ] The terminology issue was recently addressed by the British Columbia Court of Appeal in R. v. Virk , 2021 BCCA 58 .

Virk provides a helpful explanation of the use of attribution or categorization (standard of review – palpable and overriding error) and allocation or characterization (standard of review – correctness): [13] …When a judge determines what caused a delay or whether steps were taken with the intention of delaying proceedings and was thus illegitimate, the judge is making a finding of fact or drawing an inference. This attribution of responsibility is therefore owed deference on appeal. Allocation is distinct from attribution.

Allocation involves the application of legal principles to the facts found concerning the cause of delay, in order to categorize the period of delay within the Jordan or Morin framework. Attribution (deciding who or what caused a delay) will often effectively determine allocation (under Jordan whether that delay will be deducted), but that is not always so. They are distinct steps, and different standards of review apply to each step. [14] The distinction between attribution and allocation can be demonstrated by way of example. If a judge were to find that defence

counsel caused a period of delay by not being available to set trial dates when both the Crown and court were, that is a finding of fact to which deference is owed. But if the judge were, at that point, to decide that the resulting delay should not be allocated to defence delay because defence counsel cannot be expected always to be available, that would be an error of law.

There is an established principle that such delay is to be allocated to defence delay: Jordan at para. 64 . [ 61 ] Virk points out that its own court has used “characterization” in discussing whether defence conduct was legitimate or not, a determination that is owed deference. That determination should be more properly termed a “categorization” exercise. The interchangeable usage of these terms has made the process of reading Jordan decisions more challenging.

Indeed, even in Virk ’s very clear explanation there is a description of step two of the Jordan analysis as follows: “[a]llocation of periods of delay - categorizing periods of delay as either defence delay or as an exceptional circumstance” (at para. 23). As I have explained, categorization is the terminology to be used in the analysis of a trial judge’s attribution of responsibility for the delay, a determination that is owed deference. [ 62 ] Virk notes, “Reasons for judgment must be read in light of the issues before the court in a particular case” (at para. 12).

For example, the live issue before this Court in Ellis was the trial judge’s attribution of responsibility, i.e., who or what had caused the delay. The factual determinations by the trial judge in that case were accorded deference ( Ellis , at paras. 103-105 ). [ 63 ] When conducting a Jordan analysis, this Court will be endeavouring to use consistent terminology as described above for each component of the Jordan three-step analytical process. As stated in Virk : “Different standards of review apply depending on the particular component of the assessment being challenged” (at para. 20).

In this case, the lens through which the delay will be examined, that is, the standard of review to be applied, will depend on the live issues that are before us. Assessing the Delay – The Period Examined by the Trial Judge, September 20, 2012 to December 8, 2016 [ 64 ] The first court appearance was on September 20, 2012. Trial dates were set for Messrs. Howe and Pearce in Provincial Court for December 2013. The Appellants knew additional charges were pending, including the criminal organization charges. [ 65 ] The replacement Information laid on January 3, 2013 contained the criminal organization charges.

On January 7, 2013, at the Appellants’ first appearance on the new Information, the defence was looking for a “significant amount of disclosure”. The trial judge noted the nature of the disclosure was not identified by defence counsel. He said it appeared defence counsel had received “initial disclosure” as counsel for the Crown told the court “it is my understanding that we’ll be getting a letter from defence counsel with respect to any kind of outstanding things that they believe that weren’t sent” (Delay Decision, at para. 22). [ 66 ] On April 29, 2013, Messrs.

Howe, James and Pearce returned to Provincial Court on the replacement Information, and elected to have a trial before a Supreme Court judge without a jury. They requested a preliminary inquiry which was scheduled for the December 2013 dates that had been reserved for the Howe and Pearce trial. [ 67 ] The trial judge found the January 7 to April 29, 2013 period to be “inherent delay”.

Under Morin , inherent delay is neutral in the delay analysis as “there are inherent requirements…common to almost all cases” ( Morin , at para. 42 ). [ 68 ] The trial judge embarked on his assessment of the May to December 2013 period by characterizing the case as “extraordinary…in terms of the time required for it to be processed by our courts” (Delay Decision, at para. 27). [ 69 ] As for the setting of the preliminary inquiry dates, the trial judge found the defence made no inquiry about whether earlier dates were available. He inferred they were “content with those dates” (Delay Decision, at para. 29).

That was a reasonable inference based on the record. [ 70 ] The trial judge noted the Appellants’ counsel were primarily criminal defence lawyers, “and as experienced counsel, are in high demand”.

He was satisfied they would have had “numerous previous professional and private obligations between May 2013 and December 2013” making it difficult for them to all be available “for five consecutive days at the same time much before September 2013” (Delay Decision, at para. 30). [ 71 ] The trial judge made a finding of waiver by the Appellants: [34] I am satisfied that Crown counsel did not have material scheduling issues comparable to those of the defendants' counsels.

The real constraints on getting earlier days lie with either the court or defence counsel. [35] Based on the evidence available to me I conclude that the defendants were not merely acquiescing to the inevitable on December 10, 2012 or April 29, 2013. While the parties appeared to have thought five days would be sufficient, there was no request to hear the matter in segments (for example two days in succession and perhaps three days in succession on a later date) and so obtain earlier start dates.

Neither were there such inquiries made on April 29, 2013. [36] I recognize that the Crown bears the burden of establishing waiver by the defendants. Some measure of waiver by the defendants is appropriately inferred here. I infer that they waived four months of delay [May - August 2013, inclusive]. [ 72 ] These determinations are entitled to deference. [ 73 ] The next events were on September 17 and October 23, 2013, when the judge conducting the preliminary inquiry held focus hearings in her Chambers. [ 74 ] There was a further focus hearing on November 6, 2013. The trial judge noted Mr.

Howe’s counsel presented the Crown with a statement of issues and witnesses: “all civilian witnesses relied upon by the Crown for the purpose of committal and any and all expert witnesses relied on by the Crown” (Delay Decision, at para. 39). The Appellants had indicated committal was in issue on all counts, except for Mr. James on the s. 264.1 charge.

[ 75 ] The Crown had previously given notice it would conduct a “paper” preliminary inquiry under s. 540(7) of the Criminal Code by providing the evidence of six named Crown witnesses through their police statements. Mr. Howe’s counsel indicated on behalf of the defence that he would be seeking an order pursuant to s. 540(9) of the Code to cross-examine the six Crown witnesses (Delay Decision, at paras. 41 and 42). [ 76 ] The preliminary inquiry proceeded on the scheduled dates, December 10, 11, 12, 16 and 17, 2013. RM was the Crown’s first witness.

He was a reluctant witness who professed to have limited recall of the critical events. He refused to adopt portions of his statement to police. The Crown was obliged to make a Khelawon application ( R. v. Khelawon , 2006 SCC 57 ) to have the statement admitted for the truth of its contents.

This voir dire consumed the time that had been set aside for the preliminary inquiry. [ 77 ] The Khelawon application created delay that was outside the Crown’s control. [ 78 ] Allowing time for written submissions from counsel, the preliminary inquiry judge set March 26, 2014 for her decision on the Crown’s Khelawon application. A further five days were scheduled for the continuation of the preliminary inquiry – July 14, 15, 16, 17 and 18, 2014.

The trial judge found that: “The availability of the court and counsel between December 18, 2013 and July 14, 2014, were not the subject of discussion in open court on December 17, 2013” (Delay Decision, at para. 47). [ 79 ] This is correct. On December 17, 2013, when court opened, the preliminary inquiry judge indicated she had received word that a further five days would need to be scheduled. At the end of the day, counsel for Mr. Pearce noted the court had dates open from July 14 through 18, 2014. He indicated defence counsel were “all available on those days which is pretty rare”.

He also suggested another focus hearing, advising he was “likely to file an amended Statement of Issues and Witnesses just to clarify exactly who we hope to hear from”. [ 80 ] The March 26 date for the preliminary inquiry judge’s decision on the Khelawon voir dire proved to be unfeasible. She re- scheduled her decision to May 29, 2014, still well ahead of the July dates for the continuation of the preliminary inquiry. She allowed the Crown’s Khelawon application and admitted RM’s police statement. [ 81 ] The preliminary inquiry started up again on July 14.

On July 16 and 17, unforeseen problems arose in relation to several witnesses. The trial judge noted that on July 17, 2014, the Appellants indicated a consensus that more time would be needed. Mr. Howe’s counsel was unavailable for dates in October the preliminary judge had been able to find. He confirmed that three dates in November were fine – November 19, 20 and 21. [ 82 ] The preliminary inquiry proceeded on July 17 with evidence from S/Sgt. MacQueen. In the course of cross-examination, counsel for Mr. Pearce, joined by counsel for Mr. Howe and Mr.

James, made a disclosure request seeking notes and reports S/Sgt. MacQueen had prepared. The Crown observed that the defence had had S/Sgt. MacQueen’s “can-say” statement for seven months. No disclosure request had been made until this point. The Crown did not object to obtaining and vetting the sought-after disclosure. [ 83 ] Counsel for Mr. Pearce requested the disclosure be provided for review in advance of him concluding his cross-examination. The Crown asked that the disclosure request be put in writing to ensure what was being sought was properly identified. Mr.

Pearce’s counsel undertook to do so. [ 84 ] S/Sgt. MacQueen was excused, his cross-examination to be continued when the preliminary inquiry resumed in November. The parties discussed the remaining evidence to be called at the preliminary inquiry. The Crown indicated a willingness to try and book time prior to November for the evidence of two witnesses by video-link.

These were witnesses who were to have testified on July 16 until it was discovered that video-conferencing facilities were unavailable at their end. [ 85 ] The parties appeared before the preliminary inquiry judge on October 1 and 24, 2014 to discuss developments since July. The video-link witnesses were not required. On October 24, the judge was advised that November 19 could not be put to use: S/Sgt. MacQueen was returning from a family vacation on that date which had been booked prior to the November continuation dates being set. The Crown had not been aware of his unavailability.

Although the Crown was prepared to have their expert, D/Sgt. Isnor, start testifying on November 19, the defence wanted to complete S/Sgt. MacQueen’s evidence first because, “a large portion of the expert’s opinion comes from information which he has gathered from Sergeant MacQueen”. [ 86 ] Defence counsel made the choice not to proceed with any portion of D/Sgt. Isnor’s evidence despite the opportunity to do so and use the available dates. [ 87 ] At the October 24 focus hearing, counsel for Mr.

Pearce raised a concern about delay, saying: “…at this point in time, you know, we’re balancing a number of things here and delay is obviously very real issue here” [ sic ]. However, he had just acknowledged his failure to follow through on putting into writing the request for the disclosure from S/Sgt. MacQueen: “I was to follow-up with my friend and I have to admit I was less than diligent about that but I did speak to him yesterday and it appears that they’re still moving forward with gathering the documents that we had asked for during the course of the cross-examination [of S/Sgt.

MacQueen on July 17, 2014]”. [ 88 ] The preliminary inquiry resumed on November 19, 2014, but was quickly off the rails. S/Sgt. MacQueen’s cross-examination was to have continued on November 20, 2014. The disclosure requested by defence had been provided on November 17. Counsel for the Appellants explained to the court there had not been sufficient time to review it. They asked for an adjournment, describing the request as made reluctantly given the preliminary inquiry had been “dragging on… for an eternity”. [ 89 ] The Crown explained the disclosure had been “quite difficult to obtain”.

It involved reviewing material from other Provinces and required significant vetting. Crown counsel noted the letter from defence counsel “crystallizing their request…never came”. He told the court some of the disclosure had “very, very limited relevancy” to the investigation, but was provided to defence “in a spirit of co- operation”. It was his submission the preliminary inquiry could continue as scheduled with S/Sgt.

MacQueen being called at the end of the week to afford defence counsel time to review the disclosure. [ 90 ] The preliminary inquiry judge placed the onus on the defence to determine how the hearing should proceed. She said she was

“looking to the Defence counsel…to really move this matter”. She was “getting really concerned about the delay here for sure”. [ 91 ] Defence counsel were not amenable to continuing S/Sgt. MacQueen’s cross-examination at the end of the week. Taking account of the defence concerns about having time to review the disclosure, the judge reluctantly adjourned the preliminary inquiry. The Crown was available for recently freed-up dates in the court’s docket.

The defence was not. [ 92 ] The preliminary inquiry was adjourned to three days at the end of January 2015, the next available dates in the court’s docket. [ 93 ] The trial judge reviewed the significance of the defence’s disclosure request and the delay created from July to November, 2014. He found: [58] The defendants did not receive the materials until November 17, 2014, because the defendants did not formalize their request, or follow-up by giving the Crown any notice of the precise nature and extent of the disclosure they were seeking.

The materials were not handily available, straightforward or easily discerned. Nevertheless, the Crown made good faith efforts to collect what it understood might be of interest to the defendants. Having done so, does not amount to a tacit acknowledgement that the Crown failed in its disclosure obligations…(cites omitted) [ 94 ] The trial judge concluded the delay was the result of defence conduct: [62] These four months of delay arose because of a vague and not diligently pursued defence request for incidental materials.

I find the earlier lack of disclosure of those materials was not capable of constituting a breach of the defendant's right of full answer and defence. This delay is attributable to the defence or considered waived by the defence. [ 95 ] The trial judge also considered the delay of the preliminary inquiry from November to January.

He concluded that too was due to defence conduct: [65] Even for this period under review, it is important to recall that the preliminary inquiry was adjourned on July 17, 2014 to November 19, 2014, to allow the defendants to particularize their request and receive further incidental disclosure. Until October 23, 2014, they had not followed up in any fashion with the Crown.

That lack of follow-up directly caused them to be unprepared for the November 19-21, 2014 resumption of the preliminary inquiry, and their perceived need to adjourn the hearing further to January 26, 27, and 28, 2015. [66] The actions or inactions of the defendants caused the delay of the preliminary inquiry from November 19, 2014 to January 26, 2015. These two months are properly characterized as defence delay or waiver. [ 96 ] The preliminary inquiry proceeded on January 26 and 28, 2015. The further cross-examination of S/Sgt. MacQueen by defence counsel took a half-hour (Delay Decision, at para. 68).

The preliminary inquiry was adjourned on January 27 because of a snowstorm. As a result it was necessary to conclude the inquiry on March 27. [ 97 ] The evidence for the preliminary inquiry had taken 12 days. The defence reiterated it was contesting committal to trial. Crown counsel indicated his preference for oral argument stating his belief that “we’d be able to set an earlier date” than would be possible if time was set aside for the preparation of written submissions. The judge noted that Mr. Pearce’s counsel wanted to proceed on the basis of briefs.

The court preferred that as well so dates were set for this purpose: the end of April for the Crown brief and the end of May for the defence. [ 98 ] The judge scheduled June 23, 2015 for her decision on committal. [ 99 ] The late filing of briefs from counsel led to the judge re-scheduling her decision by approximately three weeks to July 13, 2015 when she committed all the Appellants to trial. They appeared in the Nova Scotia Supreme Court on August 6, 2015. There was a pre- trial conference on August 31, 2015.

On September 10, 2015, dates were set for pre-trial motions – April 4 to 14, 2016, and for trial – May 19 to June 3, 2016, to be heard by the same judge. Defence indicated these dates were fine. [ 100 ] The trial judge held that in September 2015 defence counsel were unlikely to have been available sooner than February 2016 for the pre-trial motions and April 2016 for the trial. He attributed 3 months to institutional delay, that is delay that occurs when “the parties are ready for trial but the system cannot accommodate them” ( Morin , at para. 47 ).

I note, however, that on September 10, 2015, defence counsel spoke to the court clerk and identified the April pre-trial motion dates and the May/June trial dates as suitable. None of the defence counsel indicated any dissatisfaction with those dates. There is no indication in the record of defence concerns about delay at that point. [ 101 ] At the August 31, 2015 pre-trial conference the Appellants advised they would be making a motion for a judicial stay of proceedings based on alleged violations of sections 7 and 11(

b) of the Charter . [ 102 ] The delay motion did not proceed on April 4, the first day on which pre-trial applications were to be heard. In his Delay Decision the trial judge explained why: [81] The defendants knew by September 10, 2015, that the hearing was to start in April 2016.

They advised the court on February 25, 2016 that the preliminary inquiry transcripts had not yet been completed; and on March 4, 2016 that the "outstanding transcripts will be available the week of March 21, 2016." [82] On April 1, 2016, the defendants filed the transcripts for the preliminary inquiry dates: May 29, 2014 – July 13, 2015; yet though they were in receipt of those transcripts for December 10-17, 2013, they did not file those with the court until May 19, 2016. [83] As a result of the defendants' late filing of relevant transcripts, the pretrial motions could not be heard as scheduled.

On April 4, 2016, the court adjourned the pretrial motions to the times set aside for trial: May 19 – June 3, 2016.

[ 103 ] The trial judge concluded the resulting delay was due to defence conduct. [ 104 ] With the pre-trial motions moved to the scheduled trial dates, new dates for trial had to be found. Crown counsel did not consent to adjourning the trial and indicated his availability for any time in 2016 except September and October. The trial judge reviewed what defence counsel advised was their availability and concluded they would not have been available “until November – December 2016, in any event” which is when the adjourned trial would be proceeding (Delay Decision, para. 88). In fact, counsel for Mr.

Howe was unavailable for the first three weeks of November. New trial dates were set for November 21 to December 8, 2016. [ 105 ] The trial judge found the delay between when the trial was supposed to proceed – May 19 to June 3, 2016 – and the new dates of November 21 to December 8, 2016, was due to defence conduct: [89] It is because of the actions/inactions of the defendants that the necessary transcriptions were not ready for the originally scheduled pretrial motions.

Thus the actions of the defendants caused the delay of the trial from May 19 – June 3 to November 21 – December 8, 2016. [ 106 ] As I indicated earlier, on July 20, 2016 the trial judge dismissed the Appellants’ s. 11(

b) delay motion. No subsequent motion for delay was ever brought. The trial proceeded on the merits in November 2016, concluding on May 7, 2018. [ 107 ] The trial judge assessed delay over the period of September 20, 2012 to December 8, 2016, the presumed conclusion of the trial. He found there were nine months of delay that could be attributed to the Crown or institutional factors (Delay Decision, at paras. 91 and 92). He noted this was “well within the 18 months’ “guideline” mentioned in Morin …(paras. 27-29 )”.

The guideline he was referring to was the allowable 18 months under Morin for institutional delay for a superior court trial. [ 108 ] The trial judge rejected defence submissions that there was an additional 18 months of institutional delay on top of the 9 months he had identified. After assessing the issue of prejudice, he was satisfied that even a 27-month delay did not violate the Appellants’ s.11(

b) rights: [111] Even if I accepted that there is here a total period of institutional delay of 27 months, I find that the impact of any inferred/actual prejudice to be immaterial to my conclusion whether there is an unreasonable delay here which violates s. 11(

b) of the Charter . [ 109 ] The trial judge made findings of fact about defence conduct for the period of September 20, 2012 to December 8, 2016, a total of 50.5 months from when the Appellants were first charged to the anticipated conclusion of the trial. He attributed 26 months of this delay to defence conduct including: waiver, unavailability for available dates, an unmeritorious defence disclosure request (that brought S/Sgt.

MacQueen’s preliminary inquiry evidence to a standstill and was found by the trial judge to relate to “incidental materials” not meaningfully connected to making full answer and defence), inaction (failure to particularize the disclosure request in a timely fashion), and laches (the failure to have the preliminary inquiry transcripts ready in time for the scheduled s. 11(

b) application). His underlying findings of fact and his attribution of responsibility for that delay is entitled to deference. I have found no palpable and overriding error to justify appellate interference. [ 110 ] I also find no error in the trial judge’s Morin analysis. The trial judge found this case did not warrant a stay under Morin . I find he made no error in coming to that conclusion. [ 111 ] I am also satisfied, applying a Jordan analysis, that the trial judge’s findings of fact in relation to the 26 months’ delay are entitled to deference. His allocation of this delay to the defence was correct.

The 24.5 months of net delay was under the Jordan presumptive ceiling. Assessing the Delay – The Period from July 21, 2016 to May 7, 2018 [ 112 ] The next period of delay to be examined is the delay that occurred after the trial judge’s s. 11(

b) decision. I will not be revisiting the trial judge’s assessment of the delay during the period of July 21 to December 8, 2016 which he took into account. He found the defence was not ready for the s. 11(

b) application scheduled to proceed on April 4, 2016. This required the trial to be adjourned to dates in November/December when defence counsel were next available. The trial judge’s factual findings attract deference and his allocation of this period as defence delay was correct. [ 113 ] My purpose in describing what happened after the trial judge’s decision on July 20, 2016 is to show the continued pattern of defence conduct. There was no concerted effort to expedite the trial.

This was in contrast to Crown counsel, who offered to be available for earlier dates and proceed more promptly with oral as opposed to written submissions. [ 114 ] After the trial judge rendered his decision on the Appellant’s s. 11(

b) delay motion on July 20, 2016, the trial was adjourned until November 2016. It proceeded on 11 dates in 2016: November 21, 22, 23, 24, 25, 28, 29 and December 2, 5, 7, 8. The trial continued for 10 days in July and August 2017: July 10, 11, 12, 13, 14, 31 and August 1, 2, 3, and 4.

It concluded following evidence on December 4, 5, 6, and 7. [ 115 ] A review of the record reveals the reasons for the trial stretching over 17 months from when the trial judge had anticipated it would conclude to May 7, 2018 when it did. [ 116 ] By November 29, 2016 it was apparent to the trial judge the trial was not going to finish in December. Mr. Pearce’s counsel was not available for a proposed continuation date of December 16. He had a full day trial for a client in custody. In any event, additional dates were going to be necessary.

The trial judge directed counsel for both Crown and defence to provide by December 7 a copy of all their available dates between December 16, 2016 and May 30, 2017. He intended to compare the information with the court calendar to find additional dates. [ 117 ] On December 8, there was an evidentiary issue to be navigated. A Khelawon voir dire had been conducted in relation to RM’s police statement. The trial judge needed to make a decision on the admissibility of the statement for the truth of its contents. Defence

counsel asked to provide written submissions and wanted a transcript of RM’s testimony in the voir dire . Crown counsel expressed concern about the time involved in obtaining a transcript and filing submissions and offered to make oral submissions “today or, quite frankly, any time that the court wishes, you know, to hear the matter”. Pointing to defence counsel having previously filed briefs on the issue, presumably referring to the preliminary inquiry, the Crown said: I’m prepared to deal with it. I’m concerned about the timeframe we’re under.

I would like to have this matter proceed as quickly as possible and, to that extent, I’m certainly prepared to deal with this as quickly as possible… [ 118 ] The trial judge decided all concerned – the court and counsel – would benefit from a transcript “given the nature of the argument and the importance of the issue regarding the statement of [RM]”. The preparation of the transcript was estimated to take four to eight weeks.

The discussion that followed led to a consensus by counsel that an additional eight days would likely be necessary to complete the trial, taking into account the potential for defence evidence. [ 119 ] The December 8 “available dates” discussion between the trial judge and counsel led to the scheduling of several clusters of future trial dates. Although the Crown and D/Sgt. Isnor were available in January 2017, defence counsel together could offer very few dates before the end of June. Mr. Pearce’s counsel in particular had a

schedule congested with other trials. A collective examination of the available options led to reserving April 7, 2017 and dates in June (June 12-16), July (July 10-14), and July 31-August 4, 2017 to continue the trial. Counsel for Mr. Pearce was not certain another trial scheduled for the June dates would resolve, but he noted those dates offered by the trial judge in the event it did. [ 120 ] After December 8, 2016, the trial was next scheduled to continue on April 7, 2017. Counsel appeared in court to advise that Air Canada had cancelled Mr. Pearce’s flight from Alberta where he was working.

The rescheduled flight was not going to get him to Halifax until April 8. This unforeseen event left no alternative but to adjourn the trial to the July dates. [ 121 ] The trial proceeded on July 10 to 14. D/Sgt. Isnor, the Crown’s final witness, began testifying on July 31 in a contested qualifications voir dire . The voir dire concluded by mid-afternoon on August 1 with submissions. The trial judge indicated he would deliver his decision at 2 p.m. the following day. [ 122 ] On August 2, the trial judge gave a bottom-line decision qualifying D/Sgt. Isnor as the Crown had requested. Although D/Sgt.

Isnor’s direct examination commenced promptly, by the end of the day it was apparent his evidence would not conclude in the remaining two days reserved for the trial. Crown counsel indicated that concluding the trial was a priority. He was “prepared to move almost everything in my

schedule in terms of accommodating the hearing of this matter”. Counsel for Mr. Pearce, speaking on behalf of defence counsel, proposed returning the next day, August 3, to discuss dates as this would afford time for defence counsel to compare their calendars and identify their collective availability. [ 123 ] In response to counsel for Mr. Pearce asking if the court was looking to

schedule four consecutive days, the trial judge said although not strictly necessary, it was probably more efficient. Mr. Pearce’s counsel agreed. [ 124 ] On August 3, counsel for Mr. Pearce advised that defence counsel were all “fairly busy” and indicated the first available “block” of four days for completing the trial was the week of December 4, 2017. December 4-7 were set to continue the trial. [ 125 ] On August 4, there was discussion about finding additional dates beyond December. Counsel for Mr. Howe indicated he was available for four days in the week of January 15, 2018. Crown counsel was also available.

The trial judge was not available due to a scheduled jury trial. Counsel for Messrs. James and Pearce did not advise about their availability. The conversation turned to when defence counsel could be available after January. The week of May 7, 2018 was identified as their earliest availability. [ 126 ] Mr. Pearce’s counsel expressed concerns about reserving the additional dates in May. He said this would preclude him from using the dates for another matter: “And I do have to keep other people’s Jordan rights in mind as well”.

He suggested the need for these further dates be revisited when the trial continued in December. He also expressed optimism that D/Sgt. Isnor would be finished during the dates in December. [ 127 ] D/Sgt. Isnor’s testimony was completed on December 7, 2017. The Crown closed its case. Defence evidence consisted of one witness called by counsel for Mr. Howe. None of the Appellants testified. This concluded the evidence portion of the trial. [ 128 ] The discussion that followed led to May 7, 2018 being set for final submissions.

The trial judge asked for written submissions in advance, saying they would be of great assistance. Defence counsel requested a transcript of D/Sgt. Isnor’s evidence. Crown counsel said concluding the case was “a priority”; he was prepared to make oral argument the next day. In the alternative, describing deadlines as “very motivating”, he proposed two weeks to turn around submissions. He indicated he would make himself available sooner than the May 7 date, “for any earlier date that was offered in relation to the matter”. [ 129 ] The trial judge decided final submissions would proceed on May 7.

He declined to order the transcript requested by defence and set brief filing dates for March and April. Crown counsel reiterated his willingness to make final oral argument “tomorrow or in May, whatever suits the court”. Defence counsel made no objection to the filing of written submissions or the May 7 date. Net Delay Analysis [ 130 ] As I will explain, by the time the trial concluded on May 7, 2018, an additional 17 months later than the trial judge had expected, the delay was well above the Jordan ceiling of 30 months. I am satisfied, however, that there was no violation of the Appellants’ s. 11(

b) rights despite the very long time this case took to complete. [ 131 ] As I indicated earlier in these reasons, the total delay clocks up at 68 months. The trial judge’s factual findings underpinning his determination that 26 months was attributable to defence conduct are entitled to deference. That leaves 42 months of delay to be assessed now.

[132] Of that 42 months, I find eight months’ delay should be attributed to the defence for unavailability between December 9, 2016and July 10, 2017 and again, between August 4 and December 4, 2017. [133] For that first period, I find that four of the seven months of delay should be assessed as defence delay. For the second period, thefull four months counts against the defence.

I find the defence implicitly waived the delay from August 4 to December 4, 2017 byproposing the trial proceed for the week of December 4 as defence counsel indicated they were “fairly busy” until then. [134] The 7 month delay from December 9, 2016 to July 10, 2017 should not all be attributed to the defence. [135] The continuation of the trial on July 10, 2017 following its adjournment on December 8, 2016 came about as a consequence ofdefence counsel, having consulted their calendars, indicating their availability for the July dates. This was more than simply agreeing totrial dates which was viewed in R. v.

Askov, (SCC), [1990] S.C.J. No. 106, as potentially sufficient, by itself, toconstitute waiver (at para. 65). It was more than “mere acquiescence in the inevitable” (Morin, at para. 38). There was no request bydefence for the earliest dates the court could offer. The trial timetable was being driven by what defence counsel decided they couldaccommodate within their busy calendars. [136] Despite what I find to be implicit waiver by the defence, I am of the view that only four months of the delay between December9, 2016 and July 10, 2017 should be attributed to them.

It was the trial judge’s decision to order transcripts of the Khelawon voir dire andaccept written submissions on the admissibility of RM’s police statement. Taking into account the time that was estimated for thepreparation of the transcripts, an outer limit of two months, and allowing an additional month for the preparation of briefs, I am notcounting three months of that period as defence delay. [137] I acknowledge there was a discrete event during the December 9, 2016 to July 10, 2017 period. On April 7, 2017, a trialcontinuation day, Mr. Pearce’s flight was cancelled by Air Canada and the day was lost.

This was an unexpected and unavoidable event.It was also inconsequential given that a single day would not have advanced the trial to any meaningful extent. [138] The eight months of delay I have attributed to the defence involved implicit waiver of the Appellants’ s. 11(

b) rights. The defenceproposed dates to continue the trial that took account of the other demands on their time. This was consistent with the approach taken bythe defence throughout the trial. The defence approach never evolved to "actively advancing their clients' right to a trial within areasonable time..." (Jordan, at para. 138). It was an approach that contributed to delay and has implications for the Jordan analysis. [139] The Appellants were represented by busy defence counsel. They were obviously in high demand and conducted this case whiledischarging their obligations to other clients.

This did not neutralize their responsibilities in this case under the new Jordan framework.There was time after Jordan was released for defence counsel to have corrected the approach they had been taking. They did not do so.They were well aware of Jordan – as Mr. Pearce’s counsel noted on August 4, 2017, he had to keep other clients’ “Jordan rights inmind” when reserving additional dates in 2018. [140] Not only was there was no fresh delay application made on behalf of the Appellants after Jordan was handed down, the defencedid not make s.11(

b) rights a priority at any point during the proceedings. There were occasional, tepid concerns expressed about delay,but never any indication of urgency or concerted effort to expedite the proceedings. [141] The Crown brought more momentum to the pace of the trial. Crown counsel opposed adjournments, pressed for earlier dates,offered to be available sooner, and at various junctures, argued in favour of making oral rather than written submissions. [142] Delays in this case were not caused by the trial judge or the unavailability of the court. The judge tackled each evidentiary issuewith unstinting efficiency.

The issues typically arose in the midst of a witness’ testimony. The trial judge responded with consistentdiligence. He was remarkably prompt in rendering his decisions, often as a bottom-line so the evidence could proceed without beingdelayed. Through his concerted efforts, the trial did not lose ground or momentum waiting for rulings that were required before awitness’ evidence could continue.

The Net Delay of 34 Months is Justified by the Complexity of the Case [143] Taking the eight months I am allocating as defence delay into account, the net delay in this case was 34 months, four months overthe Jordan ceiling. (To recap: the total delay was 68 months. The trial judge allocated 26 months as defence delay. I have allocated afurther eight months as defence delay. The net delay is therefore 34 months.) Exceeding the 30 month ceiling triggers the presumptionthe delay was unreasonable. The complexity of a case can rebut that presumption.

I find it does in this case. [144] That this case was complex is indisputable. Everyone recognized it was. Counsel for Mr. Howe on August 2, 2017 said “…it’salready a long complicated case” during a discussion concerning whether D/Sgt.

Isnor’s report was to be marked as an exhibit. (The trialjudge upheld a defence objection and ruled the report was to be used only as an aide memoire.) Complexity is why the trial judgeordered transcripts of the Khelawon voir dire and agreed with defence counsels’ request for written briefs for final submissions. [145] The case also falls within the class Jordan identified as most likely to be complex: cases involving serious charges such as thoseapplicable in organized crime prosecutions (Jordan, at para. 81).

As with many such cases, here there were multiple accused andcounsel. [146] In addition to unexpected evidentiary issues, for example, RM resiling from his police statement which then required the Crownto make a Khelawon application, numerous other voir dires had to be conducted. Expert evidence was required for the criminalorganization charges, not previously prosecuted in Nova Scotia. [147] The Crown’s conduct of the case is a relevant factor in assessing whether complexity rebuts delay that exceeds the presumptiveceiling (Jordan, at para. 79).

The record indicates the prosecution was conducted in an organized and efficient manner. As I have noted,Crown counsel proposed ways to minimize the delay. To the extent the Crown could control the case and move it forward, it did.

[ 148 ] I am satisfied the complexity of this case rebuts the presumption that the 34 months of delay was unreasonable. Conclusion [ 149 ] Of the delays that stretched the case over 68 months, starting in 2012 and finishing in 2018, 34 months lie at the feet of the defence. The net delay of 34 months is justified on the basis of the complexity of the case. As I have found the presumption against unreasonable delay is rebutted on the basis of complexity, there is no need for me to examine the “transitional exceptional circumstance” ( Cody , at para. 67 ). [ 150 ] I would give no effect to this ground of appeal.

There was no violation of the Appellants’ rights under s. 11(b). Issue #2 – Did the trial judge err by ordering production by the Appellants to the Crown of a statement given by RM to a private investigator the Appellants retained prior to trial? Background [ 151 ] This ground of appeal relates to an evidentiary issue that arose during the cross-examination of RM by Mr. Howe’s trial counsel, Patrick Atherton. In the course of his cross-examination, Mr. Atherton produced a statement RM had given on December 5, 2013 to Mr. Mott, a private investigator retained by the defendants. [ 152 ] Mr.

Atherton put it to RM that he had previously testified about the Bikers Down event (an obvious reference to the fact that RM had testified at the preliminary inquiry) and also given at least two statements. RM acknowledged he had done so. RM had given a lengthy statement to police on September 16, 2012. He told Mr. Atherton he had been trying to be truthful when he spoke to the private investigator. Mr. Atherton then started to cross-examine RM on what Mr. Howe had said to him at the event. [ 153 ] Mr. Atherton’s questioning eventually led to an objection by the Crown.

The following excerpt sets out the context in which this occurred: Atherton: Okay. I’m going to suggest to you, sir, that when Mr. Howe approaches you, he just – he asks you could he have a word with you or something like – to that effect? RM: Yes. Atherton: And that initially there’s just you and him there together? RM: Ah, no, it was him and, um, David was there. Atherton: Okay. And they told – he told you that you weren’t welcome there? RM: Correct. Atherton: And then he raised his voice and said, “You just need to get out of here”? RM: Ah, yes, but with more direct language, yeah.

Atherton: What was the language, “Get the fuck out of here,” or something like that? RM: Yes. Yes. Atherton: Okay. And that [ sic ] you said, “Look, I want to, you know, make my donation and chat to my friends a bit.” RM: Yes. Atherton: And he told you, “You need to go”? RM: Yes. Atherton : And he raised his voice… RM: Correct. Atherton: …so that other people could look at him? RM: Correct. Atherton: And then you said, “I didn’t mean to disrespect you,” anything like that? RM: Correct. Atherton: I’m going to suggest to you, he never said to you that he was going to beat the shit out of you, correct?

RM: Ah, I can’t sa

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