R. v. Longaphy, 2017 NSPC 67

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Longaphy , 2017 NSPC 67 Date: 2017-11-21 Docket: 2668787, 2668788, 2668789, 2668790 Registry: Dartmouth Between: Her Majesty the Queen v. Christopher Longaphy

Section 11(

B) Charter - Decision - Unreasonable Delay Judge: The Honourable Judge Theodore Tax, Heard: September 25, 2017; October 16, 2017; November 14, 2017, in Dartmouth, Nova Scotia Decision: November 21, 2017 Charge:

Section 267(a), 267(b), 266 & 264.1(1)(

a) of the Criminal Code . Counsel: Eric Taylor, for the Public Prosecution of Nova Scotia Jonathan Hughes, for the Defence By the Court: [ 1 ] Mr. Christopher Longaphy was originally charged in an Information sworn on February 22, 2012, with three offences, namely, an assault of Tristan Guibault by using or threatening to use a weapon, to wit a baseball bat, contrary to

section 267 (

a) of the Criminal Code , an unlawful assault of James Beaver contrary to

section 266 of the Criminal Code and knowingly uttering threats to cause death or bodily harm to Mr. Beaver contrary to

section 264.1(1) (

a) of the Criminal Code . The offences were alleged to have occurred on or about January 20, 2012 at or near Sackville, Nova Scotia. The Crown proceeded by way of

summary conviction. [ 2 ] Mr. Longaphy was served with a summons to appear in the Provincial Court in Dartmouth on that Information on April 18, 2012. On his fourth appearance in court, Mr. Lyle Howe confirmed that he was Defence Counsel for Mr. Longaphy and the first trial date was set for June 26, 2013. However, the trial was adjourned on June 20, 2013 and rescheduled to start on June 9, 2014. On that trial date, the trial was, once again, adjourned and rescheduled to start on September 3, 2015.

The Court granted a short adjournment and the trial actually commenced on October 7, 2015. [ 3 ] When the first trial date was confirmed by counsel, they estimated that the trial would require two hours of court time. On June 20, 2013, six days before the first scheduled trial date, the trial was adjourned and rescheduled to start on June 9, 2014.

Counsel advised the Court that one-half day of trial time would be required, since the Crown stated that they would now be disclosing additional medical evidence and that a Medical Doctor might be called as a witness. [ 4 ] The second date scheduled for the start of the trial on June 9, 2014, was postponed on that date, due to the fact that Mr. Howe had recently been suspended from the practice of law in Nova Scotia by the Nova Scotia Barrister’s Society. The Receiver for the Barrister’s Society informed the Court that they were required to review Mr. Howe’s files and that it would take some time before Mr.

Longaphy’s file could be forwarded to another lawyer. [ 5 ] On September 3, 2015, which was the third scheduled date for the start of this trial, the Court granted an adjournment request made essentially by both sides and rescheduled the trial for approximately one month later.

Finally, on October 7, 2015, which was the fourth date scheduled to start of this half-day trial, the Crown called its first witness, but he was only able to complete his direct examination. [ 6 ] Following that first day of evidence, the Court scheduled additional half days for trial evidence on December 2, 2015, June 20, 2016 and June 28, 2016. Trial evidence was heard on each of those dates, but the Crown Attorney was not able to call his final witness, the investigating police officer.

In addition, since Defence Counsel had planned to call three witnesses during the trial, an additional full day was scheduled for trial continuation on December 9, 2016.

[ 7 ] However, on November 3, 2016, the Receiver for the Barrister’s Society requested an adjournment of the December 9, 2016 trial continuation date on behalf of Mr. Longaphy, because Mr. Howe had been suspended for the second time from the practice of law in Nova Scotia. The Receiver advised the Court that Mr. Howe had recently been suspended and that it would take some time to review the file and forward it to another counsel. As a result, the December 9, 2016 trial date was adjourned and the Court rescheduled an additional full day for the trial continuation on April 7, 2017.

Status dates were scheduled for Mr. Longaphy to advise the Court whether he had retained counsel who would be available on that trial continuation date. [ 8 ] On April 7, 2017, Mr. Longaphy appeared with counsel and the Crown called its last witness and closed its case. Defence Counsel indicated that there would be witnesses called by the defence, but Defence Counsel advised the Court that he would be filing a

section 11(

b) Charter application. In those circumstances, it was agreed that April 7, 2017 would be considered as the date upon which the trial would have concluded and that the Court would determine the Charter application before hearing any witnesses called by the defence. [ 9 ] Therefore, for the purposes of the

section 11(

b) Charter application, the prosecution of Mr. Longaphy commenced on February 22, 2012 when the “original” Information was sworn. The parties have agreed that the anticipated end of the trial would have been April 7, 2017 and that this represents a total period of approximately sixty one and a half (61.5) months that this matter has been before the court. [ 10 ] The parties have based their submissions with respect to the issue of whether Mr. Longaphy has been tried within a “reasonable time” on the cases of R. v. Jordan , 2016 SCC 27 which was decided on July 8, 2016, R v.

Williamson , 2016 SCC 28 , also decided on July 8, 2016 and R. v. Cody , 2017 SCC 31 decided on June 16, 2017. It is obvious that the large majority of the time scheduled for trial and ultimately used for the hearing of trial evidence occurred well before the Supreme Court of Canada released its Jordan decision. [ 11 ] Defence Counsel submits that only four months of the “total delay” has been explicitly waived by Mr. Longaphy due to Mr. Howe’s second suspension from the practice of law. Mr.

Howe’s first suspension would probably qualify as “exceptional circumstance,” but the delay caused by his suspension only contributed a month and a half of delay until the new trial date was scheduled.

Defence Counsel submits that even if the Court was to deduct some delay due to the parties’ underestimation of time required for trial, the total “net” delay would still be double or triple the “presumptive ceiling” established by the Supreme Court of Canada in Jordan for a trial in the Provincial Court. [ 12 ] For his part, the Crown Attorney notes that the large majority of the time for which the “original” and “replacement” Informations have been before the Court, were years before the Supreme Court of Canada released the decision in Jordan .

The Crown Attorney submits that the Court should attribute some defence delay in the initial time taken to retain counsel after Mr. Longaphy was arrested and charged with the offences before the court as well as the delay waived by Mr. Longaphy to retain new counsel for the April 7, 2017 trial continuation. The Crown Attorney also submits that the first trial adjournment should also be considered primarily as defence delay and most, if not all of the eleven and a half (11.5) months needed to

schedule the second date for the start of the trial, should be attributed to the Defence. [ 13 ] Therefore, while the Crown Attorney acknowledges that the total “net” delay would probably remain above the presumptive ceiling established by the Supreme Court of Canada for a trial in the Provincial Court, this trial, while not being particularly complex, has had several discrete and exceptional circumstances which have had a significant impact on the progress of the trial.

Moreover, the Crown Attorney submits that those discrete and exceptional circumstances were not ones which could be reasonably foreseen or reasonably remedied by the Crown or the Court in short order and they should also be deducted from the total “net” delay. The Crown Attorney submits that Mr.

Howe’s first and second suspensions from the practice of law in Nova Scotia during this trial, qualify as discrete and exceptional circumstances. [ 14 ] The Crown Attorney also submitted that there were other “discrete events” which contributed to delay which could not be reasonably foreseen or corrected in short order by the Crown.

Moreover, despite the good-faith efforts by both sides in estimating the time required for trial, there is no question that the parties significantly underestimated the time required, which obviously had an impact on the dates scheduled for trial. [ 15 ] In the final analysis, it is the position of the Crown that when the exceptional circumstances and other discrete events are subtracted from the total “net” delay, the amount of time that this matter has been before the Court for trial is below the presumptive ceiling and therefore, the

section 11(

b) Charter application should be dismissed. In the alternative, if the Court does not entirely agree with the position of the Crown respect to the calculation of the total “net” delay, then, the Crown Attorney submits that this is a “transitional case” and when the Court conducts its analysis under the previous framework for

section 11(

b) Charter applications, the charges before the Court are serious, there was a significant period of institutional delay in the Dartmouth Provincial Court while this matter was before the court and Mr. Longaphy has suffered little, if any, prejudice since he was released on a summons to appear in court and has not been under restrictive release conditions. Therefore, the Crown Attorney submits that this application should be dismissed. FACTUAL BACKGROUND: [ 16 ] On March 9, 2012, Mr.

Longaphy was served with a summons dated February 23, 2012 which required him to attend at the Dartmouth Provincial Court on April 18, 2012. The “original” Information which charged Mr. Longaphy with three offences had been sworn before a Justice of the Peace on February 22, 2012. [ 17 ] On April 18, 2012, Mr. Longaphy made his first appearance in court on the “original” Information. On that date, he was assisted by the Legal Aid Duty Counsel and advised the Court that he would be retaining counsel. Mr.

Longaphy asked for an adjournment to June 25, 2012 to retain counsel and he added that he thought it would give him sufficient time to hire a lawyer. [ 18 ] Mr. Longaphy appeared in court on June 25, 2012 with Mr. Lyle Howe, but Mr. Howe stated that he was present for “today only” which was an indication to the Court that he had not yet been formally retained by Mr. Longaphy. Mr. Howe advised the Court that he would be contacting the Crown Attorney to obtain disclosure. The confirmation of counsel and plea were adjourned to July 30, 2012.

[ 19 ] On July 30, 2012, Mr. Howe did not state that he was representing Mr. Longaphy for that day only, but advised the Court that there may be some outstanding disclosure and that he would have some further discussions with the Crown Attorney regarding “materials.” As a result, he asked the presiding Judge to adjourn the matter for plea until September 7, 2012. [ 20 ] On September 7, 2012, the Crown Attorney confirmed that they were proceeding by way of

summary conviction and Mr. Howe indicated he was the solicitor of record and entered a not guilty plea for his client. Counsel advised the Court that the estimated time required for trial would be two (2) hours. There was no discussion on the record of possible trial dates, since the practice at that time, was for the counsel to discuss trial dates with the Clerk of the Court off the record and then confirm the one convenient date for both sides on the record.

The first trial date was set for June 26, 2013, approximately nine and a half (9.5) months later, and in response to the Court’s inquiry as to whether that date was “convenient to both sides,” the Crown Attorney indicated that it was and Mr. Howe confirmed that the date was “fine with defence.” [ 21 ] On April 10, 2013, the Court received a copy of a letter dated that same date from the Howe Law office signed by another individual for Mr. Howe. The letter advised the Dartmouth Provincial Court that the trial of the three offences alleged against Mr.

Longaphy was scheduled to be heard on June 26, 2013 at 1:30 PM and that “we are requesting that the matter be brought forward on the docket for April 16, 2013 in Dartmouth Provincial Court at 1:30 PM for adjournment.” The letter went on to note that “This is a very time sensitive issue” and asked the Court to “confirm this adjournment request date by 4:30 PM today.” [ 22 ] The fax coversheet also dated April 10, 2013 from Howe Law was addressed to the Dartmouth Provincial Court and the Dartmouth Provincial Crown with the handwritten message on the fax coversheet stating: “Re: Christopher Longaphy Adjournment Request” and underneath that, were written the words “very urgent!!” [ 23 ] As a result of Mr.

Howe’s request, the Court scheduled and docketed his adjournment request on April 16, 2013 at 1:30 PM in courtroom number three at the Dartmouth Provincial Court. When the matter was called for hearing by the Court shortly after 1:30 PM and again shortly after 4:00 PM, the Crown Attorney, Ms. Janine Kidd was present, but Mr. Howe was not present, nor was there any representative from his office present to speak to the adjournment request. Ms. Kidd advised the Court that she had not seen Mr. Howe that afternoon. In addition, the Crown Attorney said that she had not heard from Mr.

Howe or anyone from his office to explain why Mr. Howe was not able to attend on the date and time that he had specifically requested six days earlier. [ 24 ] Since neither the Court nor the Crown Attorney had received any communications to explain Mr. Howe’s absence and there was no one present from his office to speak to the adjournment request, the Court noted that it was Mr. Howe’s application and that no one had spoken in support of his application to adjourn the trial date.

Therefore, the Court confirmed that the trial date [of June 26, 2013] stands. [ 25 ] On June 20, 2013, just six days before the first scheduled date for this trial Ms. McCarthy appeared for Mr. Howe and made a request to adjourn the trial. Ms. McCarthy advised the Court that this was a defence request to adjourn the trial as both she and Mr. Howe had “conflicts” on the June 26, 2013 trial date. [ 26 ] After Ms. McCarthy made the request to adjourn the trial, the Crown Attorney [Ms. Kidd] informed the Court that they had recently been advised that Mr.

Guibault suffered more serious injuries than they originally believed, during the incident on January 20, 2012. Based upon the availability of that medical information, the Crown Attorney said that it was likely that a “replacement” Information would be filed with an additional charge of assault causing bodily harm contrary to

section 267 (

b) of the Criminal Code . [ 27 ] Since the Crown Attorney did not have those medical records, she said that disclosure of that information would take some time as releases would have to be signed to obtain the medical records from the hospital and the lead investigator was on paternity leave. For that reason, the Crown Attorney advised the Court that she would consent to the defence request to adjourn the trial. [ 28 ] Once again, no dates were canvassed on the record with counsel to

schedule the second date to commence the trial. However, the Crown Attorney now estimated that the time required for trial would be one-half day, with the possibility of medical evidence being called. Since it was not clear to the Court who would be the solicitor of record for the trial, Ms. McCarthy advised the Court that the new date could be set according to her schedule.

When the Court asked the parties to advise to whom this adjournment request should be attributed, the Crown Attorney advised the court that it could be “attributed as a joint request.” [ 29 ] Shortly thereafter, the Court confirmed a half day for trial on June 9, 2014, with the defence “consent” to that date. At the same time, the Court also scheduled a status date for August 20, 2013 to ascertain whether the medical information had been obtained by the Crown Attorney and disclosed to Defence Counsel. [ 30 ] On August 20, 2013, the Crown Attorney [Ms.

Kidd] advised the Court that she was still waiting for the medical records and that she may need to get a consent signed by Mr. Guibault. The Crown Attorney and Ms. McCarthy, who indicated she was appearing for Mr. Howe, agreed to return to court on October 28, 2013 as the next status date. [ 31 ] During the October 28, 2013 status date, Ms. McCarthy, who was appearing for Mr. Howe, advised the Court that she had not yet received the medical documents from the Crown Attorney.

The Court noted that the trial date had already been set and that this status date did not have any impact on the trial date, as there was still several months to resolve any outstanding issues before the start of the trial on June 9, 2014. A further status date was established for December 3, 2013. [ 32 ] On December 3, 2013, the Crown Attorney [Ms. Kidd] confirmed that a “replacement” Information had been sworn on November 13, 2013 and that Information added a fourth charge of assault causing bodily harm to Mr. Tristan Guibault contrary to

section 267 (

b) of the Criminal Code . Ms. McCarthy was present as Defence Counsel on this status date. The Crown Attorney also confirmed that they had forwarded the medical records of Mr. Guibault to Defence Counsel. The Crown Attorney withdrew the “original” Information, but all of the endorsements and the release conditions were carried over to the “replacement” Information. [ 33 ] Since the “replacement” Information had been sworn on November 13, 2013 and added a fourth charge with the other three charges being the same as the ones contained in the “original” Information sworn on February 22, 2012 in relation to an incident on

January 20, 2012, the Crown Attorney advised the Court that they would be proceeding by indictment, given the dates involved, unless they received Defence Counsel’s consent to proceed by way of

summary conviction. [ 34 ] Ms. McCarthy confirmed that the defence consented to the Crown proceeding by way of

summary conviction and she also confirmed that Mr. Howe would be the trial counsel. Both counsel advised the Court that the prior estimate one half day of trial time being required for the trial, was still an accurate estimation. The Court also confirmed that Defence Counsel was still available for half- day scheduled for trial on June 9, 2014. Ms. McCarthy confirmed: “yes, that’s still fine.” [ 35 ] However, the trial did not proceed on that second scheduled trial date of June 9, 2014. A representative of the Receiver [Mr. Ian McIsaac], who was appointed by the Nova Scotia Barrister’s Society to take over Mr.

Howe’s files, appeared on June 9, 2014 and advised the Court that Mr. Lyle Howe had recently been suspended from the practice of law in Nova Scotia. The Receiver advised the Court that they were required to review Mr. Howe’s files, before they could be forwarded to another lawyer. Moreover, the Receiver was not in a position to represent Mr. Longaphy in this trial matter. The Crown Attorney did not oppose the Receiver’s application to adjourn the start of the trial. [ 36 ] Furthermore, on June 9, 2014, the Crown Attorney [Ms.

Kidd] confirmed that both complainants were in court, the police officer was in court and she had the emergency room doctor on standby. Although the Court Appearance Record confirmed that Mr. Longaphy was present in court when the Receiver made the request to adjourn the trial date, there was no indication whether any of the other proposed defence witnesses were present. [ 37 ] As a result of Mr. Howe’s suspension from practicing law in Nova Scotia in early-June, 2014, the Court scheduled a hearing to set a trial date on August 6, 2014. In that way, the Court provided Mr.

Longaphy with two months to retain a new lawyer and then the third date for the commencement of the trial could be scheduled with that lawyer’s availability being considered. [ 38 ] On August 6, 2014, Ms. McCarthy appeared for Mr. Longaphy and said that she had his file and would be representing him. The Crown Attorney stated that they were still estimating that the trial would take one-half day of court time. Once again, no possible dates for the start of the trial were canvassed with counsel on the record.

The third date for the trial was established as September 3, 2015. [ 39 ] After scheduling the trial date, the Court asked counsel whether there was a need to

schedule a pre-trial conference. Ms. McCarthy noted that September [2015] was a long way away and that there was a potential that the defence “may need a video conference for a defence witness, but we’ll address that when it gets a little closer to the trial date.” Since neither counsel had indicated that there was a need for a pre-trial conference of this half-day trial, no conference was scheduled. [ 40 ] On September 3, 2015, the Crown Attorney [Ms.

Quigley] stated that she had a “little dilemma” because it was brought to her attention, the previous day, that the investigating police officer had not received his subpoena. The Crown Attorney advised the Court that the two youthful complainants were in court, but the police officer was “a very material” witness.

The Crown Attorney also noted that she believed “there is now consent that the Medical Doctor would not have to testify.” The Crown Attorney was prepared to start the trial, since the two complainants and the doctor were available, but added that it was her “preference” to call the investigating officer as the first witness, since it would likely have an impact on the questions to be addressed with the complainants. [ 41 ] At that point, the Crown Attorney noted that she believed there would be trial time available in the court on September 18 and September 25, 2015, and therefore, she was requesting a short adjournment of the trial.

The Court asked Defence Counsel to indicate her position with respect to the Crown Attorney’s request. Ms. McCarthy indicated that her client’s preference was to have the trial proceed that day and noted that the “file does have a bit of history,” but she also said that Mr. Longaphy recognized the reality that it was unlikely that the Crown’s evidence would be completed that day. [ 42 ] Ms. McCarthy also advised the Court that Mr. Longaphy was concerned that if the Crown’s evidence was not completed on that date due, to the absence of the police officer, another date would have to secured.

Since there would be defence evidence, Mr.

Longaphy was not sure whether a defence witness who was present that day, would be available on another date. [ 43 ] The Court reminded the parties that the trial had only been scheduled for a half-day and that given the number of witnesses which the parties anticipated calling, “the half day [for trial] was probably an underestimate, based upon what I’m hearing now.” Based upon the positions provided by counsel, the Court advised the parties that they could start the trial at noon on September 3, 2015 or, as a result of the recent resolution of another matter, they could have a full day for trial on either September 18 or September 24, 2015.

Ms. McCarthy said that she was not available on either of those two alternate dates. Following that, the Court offered a half day for the start of the trial on October 7, 2015 at 1:30 PM. Ms. McCarthy confirmed that she was available at that time. [ 44 ] The Crown Attorney stated that she would speak with Defence Counsel to try and reach an agreement to reduce a number of factual issues as well as the necessity for evidence as to the extent of the injuries suffered by Mr. Guibault.

Defence Counsel noted that there would probably be issues of self-defense and causation, but if the trial started on time, she thought that the half-day of trial time “should be fine.” Ms. McCarthy also noted that several admissions could be made and that the defence would not be contesting the jurisdiction or Mr.

Longaphy’s identity and that the trial would come down to the Court’s conclusion with respect to the facts involved in this incident. [ 45 ] Although the Court noted that it was “not ideal” to adjourn the trial on September 3, 2015 due to its “long history,” the Court also observed that the new date scheduled for the start of the trial on October 7, 2015 was only a few weeks away and if there were a few agreements to narrow factual issues, that would also focus the legal issues.

The Court asked the parties to check with their witnesses to ensure that everyone was available on October 7, 2015 at 1:30 PM and when everyone’s availability was confirmed, the trial was adjourned to October 7, 2015.

The Crown Attorney asked the Court to direct the two youthful complainants to return to court on that date, but Defence Counsel did not ask Court to direct anyone to return on October 7, 2015. [ 46 ] Once October 7, 2015 was confirmed as the new date to start the trial, the Court asked the parties whether they had reached an agreement with respect to whether the Medical Doctor would be required to testify. The Crown Attorney said that she would write to

Defence Counsel, but she believed that there had been an indication that it would not be necessary for the doctor to testify in court. The Court reminded the Crown Attorney that if there was no agreement, then the doctor would be expected to be present in court to testify. [ 47 ] On October 7, 2015, Mr. Eric Taylor appeared for the Crown and Mr. Howe appeared with Mr. Longaphy. Mr. Howe stated that he was “stepping on the record” as solicitor for Mr. Longaphy and he was “ready to proceed.” Mr.

Howe’s suspension from the practice of law in Nova Scotia had recently been lifted by the Nova Scotia Barrister’s Society. Mr. Howe indicated that he was now the solicitor of record and not Ms. McCarthy, but agreed that a letter could have been sent to the Court to indicate that she would no longer be the solicitor of record. Mr. Longaphy confirmed that Mr. Howe would be his trial counsel. [ 48 ] Prior to the commencement of the trial, the Court asked the parties if there were any preliminary motions to address. The Crown Attorney stated that, on the previous date, Ms.

McCarthy had agreed to issues relating to the medical evidence, the identification of Mr. Longaphy and the jurisdiction. The Crown Attorney wanted to know whether those agreements made by Ms. McCarthy, on the record, when she was the solicitor of record, transferred over Mr. Howe since he had now confirmed he would be the solicitor of record. [ 49 ] The Court also noted that on September 3, 2015, Ms. McCarthy had agreed to the narrowing of some factual issues, possible video link evidence and some legal issues. The Court questioned Mr. Howe as to whether he had received any instructions from Ms.

McCarthy regarding previous agreements or discussions on possible agreements. Mr. Howe advised the Court that Ms. McCarthy “did not leave me any notes related to agreements.” Mr. Howe added that he preferred to hear from the two civilian witnesses and then he would talk to the Crown Attorney about the medical evidence and whether the Crown was planning to qualify the doctor as an expert in order to give opinion evidence. [ 50 ] The Crown Attorney confirmed that Ms. Quigley had written a letter to Ms.

McCarthy on September 3, 2015 which included the following statement which was read into the record on October 7, 2015: “I confirm we have an agreement on the following facts to expedite the trial process.” Following that, Mr. Howe asked the Court to grant a short recess so he could speak with Mr. Longaphy and advise the Court of their position on these matters. [ 51 ] Just before taking that recess, the Crown Attorney advised the Court that Const. Smith was still in Newfoundland and had not been subpoenaed, but the two youthful complainants were in court and he would be able to start the trial with them.

Given the remote location where Const. Smith was now stationed with the RCMP, the Crown Attorney mentioned that he would make an application to have the police officer testify by video link, but he did not know if Defence Counsel would oppose that application. [ 52 ] At that point, court recessed for about twenty five minutes to allow Mr. Howe to consult with Mr. Longaphy. When court resumed, Mr. Howe stated that the defence was only prepared to agree on the date and jurisdiction of the alleged offences.

He added that there was no agreement on the identity issue or on the medical evidence, the Crown would be calling the emergency room doctor and that there would probably be a need for a voir dire to qualify her as an expert to provide opinion evidence. [ 53 ] Given those developments, the Court asked the clerk to check for possible trial continuation dates before the first witness was called and noted that “it sounds like we need a day” for the trial continuation. The Court asked the Crown Attorney and Mr. Howe whether that was an accurate assessment and Mr.

Howe replied: “I was thinking a half day.” The Crown Attorney observed that the amount of time required for the trial continuation would depend upon the number of witnesses heard on October 7, 2015. [ 54 ] Since it had taken a significant amount of time to address those preliminary issues, the Court expressed the view that there was not enough time left in the day to call all of the Crown’s evidence. The Court also noted that another day would be needed for the evidence of Const. Smith. [ 55 ] In terms of scheduling a trial continuation date, the Court noted that Mr.

Howe’s availability for a trial continuation had been limited due to other commitments at that time. In response, Mr. Howe stated that: “now I have slightly better availability” but it depended on the dates offered by the Court. The Court asked Mr. Howe to indicate a series of dates when he was not available, since a large block of time had just opened up in the court and several dates would be available between November 2015 and February, 2016. Mr.

Howe advised the Court that he was available the week of November 16, 2015 and December 21, 2015, but January is “a tough month for me and the start of February [2016] was also “tough” but the end of February was “available.” [ 56 ] Based on Mr. Howe’s availability, the Court offered December 2, 2015 at 1:30 PM as a trial continuation date for a half-day. The Crown Attorney and Defence Counsel confirmed their availability on that date and Dr. McVey also confirmed her availability on that date.

Since it had already become obvious that there would not be enough time to complete the Crown’s case on October 7, 2015, Dr. McVey was excused as a witness for that day. [ 57 ] Once those preliminary matters were clarified by the Court, the Crown Attorney called his first witness, Mr. Tristan Guibault.

However, due to the amount of time that it had taken to resolve those preliminary matters, the Crown Attorney was only able to finish his direct examination of the witness before the court adjourned for the day. [ 58 ] During the afternoon of December 2, 2015, which was a half-day scheduled by the Court for the trial continuation, Mr. Howe conducted and completed a lengthy cross examination of Mr. Tristan Guibault. The cross examination of Mr. Guibault utilized almost all of the time for the trial continuation that afternoon. [ 59 ] Once Mr.

Guibault was excused as a witness, the Court noted that there were still two witnesses outside the courtroom – the second youthful complainant, Mr. James Beaver and the emergency room doctor, Dr. McVey. The Crown Attorney also advised the Court that he would be calling Const. Smith and that he was planning to do so by video link. The parties indicated that their direct examination and cross examination of Mr. Beaver would be about the same length as that of Mr. Guibault, so the Court estimated that one-half day of trial time would be needed for his evidence. Mr.

Howe agreed with that assessment. [ 60 ] The Court asked the Crown Attorney to estimate the length of his direct examination of Const. Smith and he indicated that “it would not be very long.” As for Dr. McVey’s testimony, the Crown Attorney estimated that it might require between forty-five to sixty minutes of court time. Mr. Howe stated that he did not anticipate “much of a cross examination for the expert.” The Court asked counsel

whether they could reach an agreement on accepting the qualifications of Dr. McVey as an expert, but if not, the Court would hold a Mohan voir dire . Mr. Howe stated that he “did not think the voir dire would be contentious” and the Crown Attorney confirmed that he had already given the appropriate notice to the defence with respect to expert evidence. [ 61 ] At the end of the proceedings on December 2, 2015, the Court also scheduled additional half-days for the trial continuation on June 20, 2016 and on June 28, 2016.

Dates had been offered for the trial continuation on March 14 and March 29, 2016, however, the Crown Attorney advised the Court that on March 14, 2016, he would be out of the country on a previously planned vacation during the Spring school break. The Crown Attorney also indicated that he was not available on March 29, 2016 due to other court commitments. As a result, the Court confirmed the two trial continuation dates on June 20, and June 28, 2016. [ 62 ] After the Court confirmed the additional trial time in June 2016 to complete the testimony of the Crown’s three remaining witnesses, the Court asked Mr.

Howe to indicate, on an upcoming status date, whether he was “strongly contemplating defence evidence.” If so, the Court stated that additional trial continuation dates could be scheduled during the January 2016 “status date,” rather than waiting until the June 2016 to “lock in” some additional trial time for defence evidence and submissions. Mr. Howe replied: “Yes, Your Honour, that’s fine.” [ 63 ] Before concluding the proceedings on December 2, 2015, the Court also scheduled a status date on January 22, 2016 to determine the issues of whether Const.

Smith was available and would testify by video link, a Mohan voir dire would be required for the Medical Doctor’s qualifications or whether the doctor would have to be called at all. [ 64 ] During the January 22, 2016 status date, Mr. Howe confirmed that “we’re not going to be contesting the qualifications” of Dr. McVey. With respect to the Crown’s application for the police officer to testify by video link, Mr. Howe stated that he had “no opposition” and although it was not ideal, he recognized that there was inconvenience and expense involved. In those circumstances, the Court granted an order for Const.

Smith to testify by video link. When asked by the Court if there were any issues to address from the defence side, Mr. Howe advised the Court that he did not have any to raise and he did not ask the Court to

schedule any additional trial time for defence evidence. [ 65 ] On June 20, 2016, a third half-day which was scheduled for the hearing of evidence, was utilized for the direct examination and the majority of Mr. Beaver’s cross examination by Defence Counsel. At the outset of the proceedings that day, the Crown Attorney confirmed that, on June 28, 2016, he planned to call Const. Smith as a witness by a video link and Dr. McVey, as it was anticipated that Mr. Beaver’s testimony would take most, if not all, of the time available on June 20, 2016. [ 66 ] On June 20, 2016, the Court also noted that Mr.

Howe was involved in a lengthy hearing before a panel convened by the Nova Scotia Barrister’s Society and that he had made an application to subpoena the presiding Judge and several other Judges of the Dartmouth Provincial Court as witnesses in that proceeding. Until the hearing panel rendered its decision on issuing subpoenas to the judges, in addition to the obvious impact of that hearing on Mr. Howe’s availability for the scheduling of court dates, there was a possibility that the presiding Judge would have to recuse himself for the trial continuation since Mr. Howe was the solicitor of record.

However, the Court confirmed that those Judges had been recently advised that the hearing panel dismissed Mr. Howe’s request to issue subpoenas, so recusal was no longer an issue, but the impact on Mr. Howe’s availability in court remained a live issue as the Bar Society hearing continued for several days. [ 67 ] Prior to calling Mr. Beaver as a witness, the Court also confirmed that, during the status hearing on January 22, 2016, Mr. Howe had indicated that he did not intend to contest Dr. McVey’s qualifications to provide expert opinion evidence. Mr.

Howe confirmed his position by advising the Court: “that’s correct.” [ 68 ] During the afternoon of June 20, 2016, the Crown Attorney’s direct examination of Mr. Beaver was completed within an one hour and then Mr. Howe commenced his cross examination around 3:40 PM. After noting that it was past 4:30 PM, Mr. Howe advised the Court that he still had an “fair amount of cross examination.” The Court reminded him that the Crown Attorney planned to call Const. Smith and Dr. McVey on June 28, 2016, and asked Mr. Howe whether he could complete his cross examination of Mr. Beaver in the next twenty minutes or so. Mr.

Howe said that it would be “hard to gauge” the length of the cross examination given the questions that he wished to ask. He also added that he would “really rather not” continue that afternoon due to other previously planned commitments. Since it was unlikely that Mr. Howe’s cross examination of Mr.

Beaver would be completed that day, the Court confirmed that it would continue on June 28, 2016. [ 69 ] Prior to adjourning for the day, the Court also advised the parties that a trial scheduled for the morning of June 28, 2016 would probably not be proceeding due to the illness of the Defence Counsel who was a member of Mr. Howe’s firm. As a result, the Court confirmed that, if the other trial did proceed on June 28, 2016, Mr. Longaphy’s trial continuation would start at 12:30 PM. However, the Court suggested and the parties agreed that Mr. Beaver would be available at 9:30 AM, with Dr.

McVey on standby for that morning to ensure that her testimony was concluded prior to 1:30 PM, which was the time previously arranged for the video link evidence of Const. Smith. [ 70 ] On June 28, 2016, which was the fourth day scheduled for trial continuation, Mr. Howe continued his cross examination of Mr. Beaver at about 10:30 AM and concluded about forty-five minutes later. Mr.

Howe mentioned that a defence witness from Winnipeg was outside the courtroom and since it was unlikely that the Crown would close its case that day, given the expense involved in bringing that person to Halifax, he would need to make a formal application for a court order to hear the evidence by video link. [ 71 ] In addition, Mr. Howe noted that the Crown still had two witnesses to be called and that he had anticipated that the completion of Mr. Beaver’s cross examination would take most of the morning and that he would have the lunch break to prepare for Dr. McVey’s evidence.

The Court observed that it was approximately 11:20 AM, there was time available before the noon hour break and confirmed that the Crown Attorney had previously disclosed the notes of Dr. McVey, her curriculum vitae and had issued a notice that they intended to introduce expert evidence. [ 72 ] Mr. Howe stated that he believed there were admissions and previous discussions on the record in terms of the injuries sustained by Mr. Guibault. The Crown Attorney added that he believed that Defence Counsel was not objecting Dr. McVey’s

qualifications or her level of expertise and Mr. Howe confirmed that his “only contention was how the injuries were caused.” [ 73 ] The Court had already indicated that time was available and that the direct examination of Dr. McVey should commence in the morning. However, it was not clear whether Defence Counsel was consenting to the areas of expertise for Dr. McVey to provide opinion evidence or whether there was a need for a Mohan voir dire to qualify her as an expert. The Crown Attorney believed that there was an agreement with respect to the qualifications of Dr. McVey and Mr.

Howe confirmed that there was no contest with respect to her qualifications to speak about the injuries of Mr. Guibault, but opinions relating to the “cause of the injuries was still contentious.” In those circumstances, the Court stated that the parties would have to conduct a Mohan voir dire to determine if Dr. McVey would be qualified as an expert in order to provide opinion evidence [ 74 ] Mr. Howe advised the court that he had not “recently” seen the list of the areas for which the Crown Attorney was seeking to qualify Dr. McVey as an expert.

The Crown Attorney said that there were three areas and the Court reiterated that if there was no agreement, then a voir dire would be required. Mr. Howe stated that the defence was only contesting Dr. McVey’s qualifications to provide opinion evidence on the third area requested by the Crown. [ 75 ] Since there was no agreement with respect to whether the medical evidence would be admitted without the necessity of calling Dr. McVey or her qualifications to provide expert opinion evidence, the voir dire proceeded.

Immediately following the voir dire , at about 12:25 PM on June 28, 2016, the Court held that she would be allowed to give opinion evidence on the three areas sought by the Crown Attorney. Since she had already been sworn as a witness, the trial was adjourned until 1:30 PM for the trial evidence of Dr. Jennifer McVey. [ 76 ] During the afternoon of June 28, 2016, the parties conducted the direct examination and cross examination of Dr. McVey. Dr. McVey was excused as a witness around 4:15 PM and at that time, Court noted that a hearing to set further trial dates would probably be necessary.

It would be important to know Const. Smith’s availability, since it was not possible to conduct his video link evidence at that time. The Crown Attorney confirmed that Const. Smith would be his last witness and he estimated that the direct examination would take between forty-five to sixty minutes and if the cross examination was of equal length, then the Crown required about two hours of trial time. [ 77 ] Thereafter, Mr. Howe advised the Court that there would be defence evidence and that he planned to apply for some of that evidence to be heard by video link.

The Court suggested that it could be arranged following Const. Smith’s testimony if one day was scheduled for the trial continuation, however, Defence Counsel stated that he wanted to “set that evidence on its own.” [ 78 ] Although no other dates were discussed on the record with respect to the parties’ availability, the Court confirmed that a full day had been scheduled for the trial continuation of this matter on December 9, 2016. It was anticipated that, on this fifth day scheduled for the trial continuation, the Crown would close its case after Const. Smith’s testimony by video link.

Thereafter, Defence Counsel would have the balance of the day to call defence evidence, including the possibility of a witness testifying by video link if a timely application was made by the defence. [ 79 ] Following the comments made by Mr. Howe, the Court questioned whether the defence was asking for one or two days to be scheduled for defence evidence. Mr. Howe did not advise the Court as to the amount of time that he would require for defence evidence, but he indicated that he would be back in court on July 11, 2016 to address these points.

However, the Court had not scheduled a status date for this trial for July 11, 2016, Mr. Howe did not advise the Court that he required any additional time for defence evidence and he never made an application for video link evidence to be heard from a defence witness. [ 80 ] On November 3, 2016, approximately one month before the fifth day which was scheduled by the Court for the hearing of trial evidence, the Receiver for the law practice Mr. Lyle Howe, who was appointed by the Nova Scotia Barrister’s Society, appeared in court to advise that Mr.

Howe had been suspended from practicing law in Nova Scotia for the second time during this trial. Once again, the Receiver advised the Court that Mr. Howe’s files would have to be reviewed, before they could be turned over to another lawyer. [ 81 ] Mr. Longaphy was present in court when the Receiver for the Barrister’s Society advised the Court that they were taking over all of Mr. Howe’s files and that it would take time to review them, before they could be released to another lawyer. In those circumstances, the Receiver waived any delay caused by the suspension of Mr.

Howe as it was recognized that it would take some time for Mr. Longaphy to retain another lawyer. Mr. Longaphy confirmed that he did not wish to have Ms. McCarthy assume conduct of his matter, even though she had previously represented him and he advised the Court that he would be looking for another private lawyer to represent him. [ 82 ] Given the information provided by Mr. Longaphy and the Receiver for the Nova Scotia Barrister’s Society, the Court scheduled a fifth full day for the hearing of trial evidence on April 7, 2017. It was anticipated that the video link evidence of Const.

Smith would be heard first on that date and the balance of the day would be available for the hearing of defence evidence. The Receiver confirmed that Mr. Longaphy waived the delay between the previously scheduled trial continuation date of December 9, 2016 to April 7, 2017. [ 83 ] However, since it was not clear whether Mr. Longaphy would have a new lawyer retained who would be available and able to proceed with the trial continuation on April 7, 2017, the Court scheduled a status date on January 30, 2017.

In addition, since the Receiver had indicated that a new lawyer could not rely upon the notes contained in Mr. Howe’s file, the Court ordered transcripts of the trial testimony to reduce Mr. Longaphy’s financial burden in order to assist him in making the arrangements to retain a new lawyer. [ 84 ] On January 30, 2017, Mr. Longaphy appeared in court on the status date and he advised the Court that he had approached several lawyers, but he had not been able to retain anyone. He also advised the Court that he expected to receive the transcripts that day.

As a result, a further status date was set for March 10, 2017. [ 85 ] On March 10, 2017, Mr. Longaphy advised the Court that he had spoken to ten lawyers, but he had still not found anyone to take on his case. The Court confirmed that the transcripts had been distributed to everybody on or about January 17, 2017.

[86] Based on preliminary conversations with lawyers, Mr. Longaphy advised the Court that he was now considering twoapplications – one for ineffective or incompetent representation by counsel and the other one being an application for an unreasonabledelay in the conduct of the trial, since it had been over five years. Mr. Longaphy said that there was still one Crown witness to be calledand that the defence evidence would be comprised of himself and two other defence witnesses. [87] The Crown Attorney stated that, in his opinion, this is not a particularly complex case and that if Mr.

Longaphy was not able tosecure counsel, he would be able to represent himself. However, Mr. Longaphy stated that he did not think he would be ready torepresent himself on April 7, 2017 and that he would like to bring an application for unreasonable delay before introducing defenceevidence. In those circumstances, the Court was not prepared to further adjourn the April 7, 2017 trial continuation date, but realized thatit may also become a status date if Mr. Longaphy was not able to retain a new lawyer who was available and able to represent him onthat date. [88] On April 7, 2017, Mr.

Hughes confirmed that he had recently been retained and would be the new solicitor of record for Mr.Longaphy. Since it already been arranged for Const. Smith to testify by video link and Defence Counsel stated that he was prepared toconduct the cross-examination of the police officer, Const. Smith’s trial evidence was heard by video link. The Crown closed its casefollowing the completion of Const. Smith’s testimony. [89] At that point, Defence Counsel advised the Court that he would be making a

section 11(

b) Charter application that Mr.Longaphy’s right to a trial within a reasonable time had been breached and that the remedy being requested would be a stay ofproceedings pursuant to section 24(1) of the Charter. [90] The Court then established dates for the filing of briefs by Defence Counsel and the Crown Attorney as well as scheduling adate for their oral submissions on the Charter issue. LEGAL FRAMEWORK: [91]

Section 11(

b) of the Charter reads as follows: “Any person charged with an offence has the right…..(

b) to be tried within a reasonable time.” [92] Section 24(1) of the Charter reads: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [93] On July 8, 2016, in R. v. Jordan, supra, the Supreme Court of Canada [hereafter the “SCC”] established a “newframework beyond which delay is presumptively unreasonable.” This decision changed the framework analysis of the right to trial withina reasonable time which is enshrined in

section 11(

b) of the Charter. The majority of the SCC observed that the

section 11(

b) litigationbased upon R. v. Morin, (SCC), [1992] 1 SCR 771 had become “too unpredictable, too confusing and too complex” andhad become a burden on already overburdened trial courts [Jordan, at para. 38]. [94] The majority of the SCC in Jordan put forward this new framework to generate “real change” which they acknowledged wouldrequire the efforts and coordination of all participants in the criminal justice system to take preventative measures to address inefficientpractices and resourcing problems.

The very clear expectations of the SCC with respect to the efforts and coordination of all participantsin the criminal justice system - Crown Attorneys, Defence Counsel, the Courts, Parliament and the provincial legislatures - weresummarized succinctly in Jordan at paras. 138-141. [95] The core concepts for the new framework for

section 11(

b) Charter analysis were described in Jordan, supra, at paras. 46-48.The new framework establishes a “presumptive ceiling” beyond which “delay is presumptively unreasonable,” however, the majority ofthe SCC also acknowledged in Jordan, at para. 51, that “obviously, reasonableness cannot be captured by a number alone, which is whythe new framework is not solely a function of time.” The majority of the SCC noted that they have simply adopted “a different view ofhow reasonableness should be assessed.” [96] The new legal framework for a

section 11(

b) Charter analysis was summarized in Jordan, supra, at para. 105: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is eighteen (18) months for cases tried in the provincial court, and thirty months (30) for cases in the superior court (or cases tried in the provincial courtafter a preliminary inquiry. Defence delay does not count towards the presumptive ceiling. • Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonablenesson the basis of exceptional circumstances.

Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonablyunforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discreteevent, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the cases complexity, thedelay is reasonable. • Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable.

To do so, the defencemust establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the casetook markedly longer than it reasonably should have. • For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to theparties’ reliance on the previous state of the law. [97] The Jordan framework for a

section 11(

b) Charter analysis may be summarized and described by the followingprocedural steps:

1. Calculate the “Total Delay” which is the time from when the charge was laid to the actual or anticipated end of the trial; 2. Deduct defence Delay from the Total Delay. The SCC notes that defence Delay may arise from two subcategories: (

a) where the defence has waived an accused’s

section 11(

b) Charter rights - this waiver may be implicit or explicit, but the defence must have full knowledge of the right and the effect of the waiver; the waiver must be clear and unequivocal; the waiver is for discrete periods of time and not the waiver of this right in its entirety and that the Crown may seek a waiver as a quid pro quo to providing consent for a procedural step in the litigation, for example, re-election; and (

b) where the Defence conduct directly results in the delay, which can arise from deliberate and calculated tactics employed by the defence to delay the trial (for example, frivolous applications) or for time periods where the Crown and the Court were available, but the defence was unavailable. It is left open to trial judges to determine when defence actions or conduct have caused delay, but the majority of the SCC added that “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.” Jordan at paras 60-65 ; 3.

Determine the Total “Net” Delay which remains after deducting the defence-waived delay and defence-caused delay from the Total Delay in the matter; 4. If the Total “Net” Delay exceeds the “presumptive ceiling” of eighteen (18) months in the Provincial Court or thirty (30) months in the superior court, then the delay is “presumptively unreasonable” and the burden shifts to the Crown to justify the delay as having been due to “exceptional circumstances;” 5.

The Crown has the onus to demonstrate that there were “exceptional circumstances” present in the case which were reasonably unforeseen or reasonably unavoidable, but they need not be rare or entirely uncommon [ Jordan at para. 69] .

The SCC notes that there can be two broad categories of “exceptional circumstances”: (a) “discrete and exceptional events” such as medical or family emergencies involving someone in the case or exceptional events that may arise at trial or the trial goes longer than reasonably expected, even where the parties have made a good-faith effort to establish realistic time estimates, then, the delay was likely unavoidable and may amount to an exceptional circumstance [ Jordan at paras 71 to 73] or (

b) particularly complex cases which involved voluminous disclosure, a large number of witnesses, significant expert evidence, charges covering a long period of time, large number of charges, pretrial applications, novel or complicated issues or a large number of issues in dispute [ Jordan at para. 77] ; 6. If the Crown has established that there were “exceptional circumstances” which the Crown could not reasonably mitigate or prevent, which caused delay, then that delay is to be deducted from the Total Net Delay; 7.

If the Total Net Delay remains below the “presumptive ceiling,” the onus or burden shifts to the Defence to show that the delay is unreasonable in those clear cases and, if so, a stay of proceedings “must be entered” [ Jordan at para. 76] . In addition, where the onus is on the defence, it must establish that it took “meaningful and sustained steps to be tried quickly”, that it was cooperative with and responsive to the Crown and the court and put them on notice when delay had become a problem and must conduct all applications reasonably and expeditiously [ Jordan at paras. 84 to 85] ; 8.

If the Total Net Delay remains above the “presumptive ceiling,” because the Crown has not established “exceptional circumstances” justifying the delay, then the delay remains “presumptively unreasonable” and the application must be granted and a stay must be entered. [ 98 ] During their submissions, neither the Crown Attorney nor Defence Counsel submitted that this was a particularly “complex case” as defined by the SCC in Jordan or as clarified in their Cody decision.

Transitional Exceptional Circumstances for Cases Already in the System: [ 99 ] The SCC points out in Jordan , at para. 94 that there are a variety of reasons for applying the new framework “contextually and flexibly for cases currently in the system.” They recognized, at paras. 92-94, that this new framework is a departure from the law that was applied to

section 11(

b) applications in the past and they did not want to create such “swift and drastic consequences” which might risk undermining the integrity of the administration of justice.

For those reasons, the majority of the SCC held that the new framework, including the presumptive ceilings, applies to cases currently in the criminal justice system, subject to two qualifications: 1.Transitional exceptional circumstances: Reliance on the Previous Law: [ 100 ] In those cases, where the Crown proves that the time which the case has taken is justified, based upon the parties’ reasonable reliance on the pre- Jordan law, this reliance will constitute “transitional exceptional circumstance” justifying delay over the presumptive ceiling. [ 101 ] As the SCC pointed out in Jordan at para. 96 , this requires a contextual assessment, sensitive to the way the previous framework was applied, for example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework and the fact that the parties’ behavior cannot be judged strictly, against a standard of which they had no notice. [ 102 ] For cases, currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable.

The trial judge should consider whether enough time has passed for the parties to “correct their behavior and the system has had some time to adapt” before determining that the transitional exceptional circumstance exists” [ Jordan at para. 96] . 2. Jurisdictions with Significant Institutional Delay: [ 103 ] A second “transitional exceptional circumstance” is the existence of “significant institutional delay problems” in the jurisdiction in question.

The SCC notes that trial judges in jurisdictions plagued by “lengthy, persistent and notorious institutional delays” should account for this reality, as the Crown’s behavior is constrained by systemic delay issues. Parliament, the legislatures and Crown counsel need time to respond to the decision and “stays of proceedings cannot be granted en masse as they were after the Askov decision, simply because problems with institutional delay currently exist.” The SCC recognized, with this “transitional exceptional circumstance that

change takes time and institutional delay – even if it is significant – will not automatically result in a stay of proceedings.” [Jordan atpara. 97] Stays Entered When Delay Vastly Exceeds the Presumptive Ceiling: [104] In Jordan, at para. 98, the majority of the SCC stated that if the delay in a simple case “vastly exceeds the ceiling” and theCrown caused the delay,

section 11(

b) breaches may still be found and stays entered for cases currently in the system, if the delays weredue to the “repeated mistakes or missteps by the Crown or the delay was unreasonable even though the parties were operating under theprevious framework.” This analysis must be contextual and the SCC stated that they relied on the “good sense of trial judges todetermine the reasonableness of the delay in the circumstances of each case.” [Jordan at para. 98] The Jordan Framework Reiterated in R. v. Cody: [105] More recently, on June 16, 2017, the SCC released its decision in R. v. Cody, 2017 SCC 31, which dealt with anotherapplication under

section 11(

b) of the Charter.

In that decision, the SCC reiterated all of its key comments from Jordan but did expandtheir comments on certain areas. [106] In Cody, supra, at para. 21, the SCC reiterated what had been said in Jordan at para. 60, that is, that the first step in the newframework entails “calculating the total delay from the charge to the actual or anticipated end of the trial.” [107] In terms of deducting the defence delay, the unanimous court confirmed in Cody, supra, at para. 28 that, in broad terms, thisdeduction of delay is concerned with defence conduct and is intended to prevent the defence from benefiting from “its own delay-causing action or inaction” (Jordan at para. 113).

Therefore, the SCC reiterated, in Cody at para. 30 what they had said in Jordan atpara. 66, that the only deductible defence delay from the total delay is that delay “which (1) is solely or directly caused by the accusedperson; and (2) flows from defence action that is illegitimate in so much as it is not taken to respond to the charges.” [108] Furthermore, in Cody, supra, at para. 30, the SCC reiterated their comments made in Jordan (at para. 63) that the moststraightforward example is “deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications andrequests.” Similarly, where the Court and the Crown are ready to proceed, but the defence is not, the resulting delay should also bededucted (Jordan at para. 64).

The SCC made it clear that these were some of the possible examples of defence delay, but this was notan exhaustive list and as they stated in Jordan at para. 64, it remains “open to trial judges to find that other defence actions or conducthave caused delay” warranting a deduction. [109] In addition, in Cody, supra, at para. 31, the SCC said that the determination of whether defence conduct is legitimate is not an“exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan at para. 65).

To determinewhether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct maytherefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice orfiling requirements and the timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence actionmay be deemed not legitimate in the context of a

section 11(

b) application if it is designed to delay or if it exhibits marked inefficiencyor marked indifference towards delay. [110] The SCC also noted in Cody, at para. 33, that inaction may amount to defence conduct that is not legitimate (Jordan at paras.113 and 121). In addition, illegitimacy may extend to omissions as well as acts [referring to R v. Dickson, (SCC) whichdealt with the Crown’s duty to disclose relevant information and Defence Counsel’s obligation to pursue disclosure with due diligence]. [111] As a result, the SCC stated, in Cody at para. 33, that the accused persons must bear in mind that a corollary of the

section 11(b)right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence Counsel are thereforeexpected to “actively advance their clients right to a trial within a reasonable time, collaborate with crown counsel when appropriate anduse court time efficiently” (Jordan at para. 138). [112] The SCC stressed in Cody, at para. 35, that with respect to a Court’s potential ruling of “illegitimate defence conduct” for thepurpose of a

section 11(

b) application, “illegitimacy in this context does not necessarily amount to professional or ethical misconduct onthe part of Defence counsel.” Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice systemparticipants – Defence counsel included – must now accept that many practices which were formally commonplace or merely toleratedare no longer compatible with the right guaranteed by

section 11(

b) of the Charter. [113] It is clear from the SCC’s comments in Cody, at paras 36-39, that they expected a proactive approach to real change to addressthe root causes of delay in the criminal justice system. This is a shared responsibility and requires the trial judge to play an importantrole in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114).

Trial judges should use their casemanagement powers to minimize delay by, for example, denying an adjournment request even if it was made by the defence if it wouldresult in an “unacceptably long delay.” [114] A further example of a trial judge’s screening function would be in a situation where an application was permitted to proceed,but if applications and requests become apparent that they are frivolous, then they should also be summarily dismissed.

In Cody, theSCC noted that the defence request for the trial judge to recuse himself was a clear example of a frivolous and illegitimate defenceconduct that directly caused delay.

It ought to have been summarily dismissed [Cody at paras. 41-42]. [115] With respect to the comments of the SCC in Cody regarding “exceptional circumstances” and “discrete events,” the SupremeCourt of Canada reiterated the comments that they had previously made in Jordan (at paras 68-71 and 94-98). [116] In relation to “Discrete Events,” the SCC stated, in Cody at para. 48, that this is where the exceptional circumstances analysisbegins.

Discrete events, like deductions for defence delay, result in “quantitative deductions of particular periods of time.” The delaycaused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable are deducted to the extent theycould not reasonably mitigated by the Crown and the justice system (Jordan at paras. 73 and 75). An example of a “discrete event”

which was appropriately conceded by Mr. Cody was the delay caused by the appointment of his former counsel to the bench. [ 117 ] In dealing with other specific examples of disputed periods of delay in Cody , at para. 51-61 , the SCC noted that there was a dispute with respect to Defence Counsel’s refusal to sign a disclosure undertaking, which took several months to resolve. The SCC noted in Cody at para. 52 that, even if this event had been reasonably unforeseeable, it was incumbent upon the Crown to take immediate steps to resolve the dispute.

Instead, it took three further court appearances and three and half months of accrued delay which the trial judge had attributed to the Crown.

The SCC deferred to the trial judge’s finding and the conclusion that the Crown had not met the second prong in establishing an exceptional circumstance, since they did not remedy the delays emanating from those circumstances once they arose. [ 118 ] In terms of a new McNeil disclosure obligation which arose on the eve of the defence Charter application to exclude evidence, the SCC in Cody , at para. 54 , agreed with the Crown that the emergence of the new disclosure obligation qualified as a discrete event and that they would deduct a portion of the delay that followed.

It was reasonably unavoidable and unforeseeable and the Crown acted responsibly in making prompt disclosure, following up as the matter proceeded and seeking the next earliest available dates.

While the SCC stated that the Crown may have been able to take additional steps rather than relying on the officer’s evidence or tendering it through an agreed statement of facts, the requirement is that of reasonableness, not that the Crown exhaust every conceivable option of addressing the event in question to satisfy the reasonable diligence requirement. [ 119 ] However, the SCC concluded that they would not deduct the entire five months for the event, since it took two months for the Crown and defence to determine how to proceed, but the court was unable to accommodate them until three months later.

Therefore, that portion of delay was a product of systemic limitations in the court system and not of the discrete event ( Cody at para. 55 and Jordan at para. 81 ). However, one month of delay was caused by Defence counsel’s unavailability ( Jordan at para. 64 ) and not by the preparation time necessary to respond to the charges, and therefore that delay should also be deducted ( Jordan at para. 65 ). [ 120 ] Finally, in Cody there was a dispute with respect to an error in the Agreed Statement of Facts which essentially resulted in a delay of slightly over eight months.

The SCC stated in Cody , at para. 58 that, in principle, an inadvertent oversight may well qualify as a discrete event. “The first prong of the test for exceptional circumstances requires only that event at issue be reasonably unforeseeable or reasonably unavoidable” [emphasis in original text]. It does not impose a standard of perfection upon the Crown. As the SCC noted in Jordan , at para. 73 , “trials are not well oiled machines” and mistakes happen.

They are “an inevitable reality” of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of

section 11(b). [ 121 ] The question then focused on the second prong of the test of exceptional circumstances, that is, whether the Crown took reasonable steps to remediate the error and minimize delay. The Crown “is not required to show that the steps it took were ultimately successful – just that it took reasonable steps in an attempt to avoid the delay” ( Jordan at para. 70 ). In Cody , the Crown acted promptly after the error was discovered, notified defence counsel and the Court and argued that the error was immaterial. The SCC expected that an issue of this nature should have been resolved in short order and if necessary brought to the attention of the trial judge on an application for

summary dismissal. Based upon the record, the SCC, was unable to conclude that the exceptional circumstances criteria were met in this case. [ 122 ] In Cody , supra, at para. 63-66 the SCC provided some further comments to clarify what might be considered to be a “particularly complex case.” They note that case complexity requires a qualitative, not quantitative assessment and that complexity is an exceptional circumstance only where the case as a whole is particularly complex.

Complexity cannot be used to deduct specific periods of delay, however, if the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable. A particularly complex case is one that because of the nature of the evidence or the nature of the issues requires an inordinate amount of trial or preparation time.

This is a determination that falls within the expertise of a trial judge ( Cody at para. 64 and Jordan at paras. 79-80 ). [ 123 ] Finally, with respect to the “Transitional Exceptional Circumstance” for cases that were already in the system when the Jordan decision was released, the SCC reiterated that this exceptional circumstance involves a “qualitative” analysis.

In terms of the “reasonable reliance on the law as presently existed” stated in Jordan at para. 96 , the SCC stated that the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its exceptions prior to Jordan and the way delay and other factors such as the seriousness of the offence and prejudice would have been assessed under Morin ( Cody at para. 68 ). [ 124 ] The SCC stated that “it is presumed” that the Crown and defence relied on the previous law until Jordan was released and that the evaluation must be undertaken contextually with a sensitivity to the manner in which the previous framework was applied – prejudice and seriousness of the offence often played a decisive role in whether delay was unreasonable and some jurisdictions were plagued with significant and notorious institutional delays ( Cody at para. 69 and Jordan at paras. 96 and 98 ). [ 125 ] 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. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt ( Cody at para. 71 and Jordan at para. 96 ). ANALYSIS [ 126 ] The first step in the Jordan framework for a

section 11(

b) Charter analysis is to establish the total delay. In Jordan , at para. 47 , the majority of the SCC stated that the calculation of the “total delay” is from the date of the charge to the actual or anticipated end of the trial, minus defence delay. During their oral submissions, the Crown Attorney and Defence Counsel agreed that the information was sworn on February 22, 2012 and that the actual or anticipated end of the trial would have been April 7, 2017. Therefore, as a starting point for the Jordan framework analysis, I find that the “total delay” is approximately sixty-one and a half (61 ½) months. Deduction of Defence Delay from the Total Delay:

February 22, 2012 to April 18, 2012: [ 127 ] In this case, the incident which resulted in charges being laid against Mr. Longaphy occurred on January 20, 2012, however, the Information was not sworn until February 22, 2012. On February 23, 2012, Mr. Longaphy was served with a summons to appear in Dartmouth Provincial Court on April 18, 2012 for arraignment on the three charges contained in the “original” Information. I find that this period of time, for the purposes of the Jordan calculation of total delay, gave Mr.

Longaphy, at a minimum, two months and possibly as much as three months to retain counsel, since the incident which brought him before the court is alleged to have occurred on January 20, 2012. [ 128 ] I find that there is no defence delay during this period of time, as it provided Mr. Longaphy with a reasonable amount of time to retain counsel, meet with counsel to obtain advice and provide instructions to counsel. April 18, 2012 to June 25, 2012: [ 129 ] Mr. Longaphy made his first appearance in court on April 18, 2012 with the assistance of the Legal Aid Duty Counsel.

The Duty Counsel advised the Court that Mr. Longaphy was planning to retain private counsel and asked for an adjournment of 2 “rotations” of the Court’s intake weeks to do so. Mr. Longaphy indicated that he thought that would provide sufficient time to hire a lawyer. [ 130 ] When the Duty Counsel referred to “rotations” of the court, it should be noted here that each of the five courtrooms located at Dartmouth Provincial Court dedicate one week in turn for “Intake” matters.

During that “Intake” week, numerous new matters are before the court for first appearance and arraignment, the scheduling of trials or sentencing hearings for cases which first appeared in that courtroom, applications to vary conditions of court orders and dealing with consent interim releases or contested bail applications of accused persons who are in custody and sentencing hearings or decisions. In the Dartmouth Provincial Court, each courtroom will have a minimum of ten intake weeks during the year, during which all court time is dedicated to those intake matters.

Obviously, the volume of intake matters in the Dartmouth Provincial Court affects the amount of trial time available during the calendar year. [ 131 ] Mr. Longaphy could have been provided with an appearance during the next intake rotation which would have been during the third week of May, 2012, but at his request, that was extended to the last week of June, 2012. I find that this period of ten weeks or two and a half months was accorded at the request of Mr. Longaphy by the Duty Counsel to provide more time to retain counsel.

In those circumstances, I find this to be an implicit waiver by the defence of that two and a half (2.5) month period of time. June 25, 2012 to July 30, 2012: [ 132 ] On June 25, 2012, Mr. Lyle Howe appeared with Mr. Longaphy for the first time, when this matter was scheduled for plea, as the Crown had previously indicated that they were proceeding summarily on the charges. Mr. Howe advised the Court that he was appearing with Mr. Longaphy for “today only” and he stated that he had not been formally retained, so he requested an adjournment of the plea to confirm the retainer and review the disclosure information.

Mr. Howe advised the court that he had written a letter to the Crown to obtain disclosure. [ 133 ] I find that this further adjournment of a month and a quarter (1.5) to the next intake period at the end of July, 2012, was primarily an implied waiver by the defence to confirm Mr. Howe’s retainer that he would be the solicitor of record. Given the fact that that it has been agreed by all counsel involved in this case that it is not one that is particularly complex, I find that it would not be very complicated to review the disclosure in short order.

For those reasons, I find that this a month and a quarter (1.25) is to be considered as an implied waiver of delay which was occasioned by the defence. July 30, 2012 to September 7, 2012: [ 134 ] On July 30, 2012, Mr. Howe appeared with Mr. Longaphy, but he did not confirm that he had been retained to be the solicitor of record, nor did he indicate that he was present for “today only.” Mr. Howe advised the Court that there “may be outstanding disclosure” and that he wanted to discuss that issue with the Crown Attorney. Mr.

Howe therefore requested that the plea in this matter be adjourned to the next rotation on September 7, 2012. [ 135 ] In considering this adjournment request, I find that it is appropriate to take into account that none of the Crown Attorneys involved in this file nor any of the Defence counsel who have represented Mr. Longaphy have considered this to be a “particularly complex” case. Mr. Longaphy had obviously met with Mr. Howe some time before late June 2012 and one would reasonably assume that Mr. Howe would have had additional opportunities to meet with Mr.

Longaphy after that and provide an opinion and enter a plea, based upon those meetings and the disclosure in his possession. [ 136 ] In those circumstances, I find that the defence request to adjourn Mr. Longaphy’s plea from July 30, 2012 to September 7, 2012 was an implied waiver of the one and a quarter (1.25) months of delay occasioned by that defence request. September 7, 2012 to June 26, 2013: [ 137 ] On September 7, 2012, Mr. Howe confirm

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