R. v. Howe, 2016 NSSC 184

SUPREME COURT OF Nova Scotia Citation: R. v. Howe, 2016 NSSC 184 Date: 20160720 Docket: CRH No. 441632 Registry: Halifax Between: Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James, and David John Pearce Restriction on Publication:

Section 486.5 Judge: The Honourable Justice Peter RosinskiHeard: May 19, 2016, in Halifax, Nova ScotiaCounsel: Glen Scheuer, for the Crown Patrick Atherton for the Defendant, Duayne Jamie Howe Trevor McGuigan for the Defendant, Patrick Michael James Patrick MacEwen for the Defendant, David John Pearce By the Court: Introduction [1] As alleged members of the Bacchus Motorcycle Club, the defendants are charged with committing offences in relation to R.M.under Sections 264.1(1)(a), 264(2), 346 and 423 for the benefit of, at the direction of, or in association with a criminal organizationcontrary to

Section 467.12 of the Criminal Code. The offences are alleged between January 1, 2012, and September 15, 2012, and thesecharges are set for trial between November 21, 2016, and December 8, 2016. [2] The defendants and Crown differ as to the length of institutional delay: 33 months or 14 months? The defendants claim thedelay is so unreasonable that the minimum remedy, a judicial stay of proceedings, pursuant to Section 24(1) of the Charter of Rights, isrequired.

How to conduct the legal analysis in such cases [1] [3] The jurisprudence regarding the proper overall analysis of the issues in these cases has a long history: R. v. Morin (SCC), [1992] 1 SCR 771; R. v. Godin, 2009 SCC 26, and was most recently referred to by our Court of Appeal, as approvedin R. v. MacIntosh, 2013 SCC 23. [4] I will repeat my

summary of the general principles from R. v. Burns, 2014 NSSC 317: 20 Many cases have considered the applicable law, and the application of that law to facts in individual cases. Most helpful in myreview of the Supreme Court of Canada decisions are R. v. MacIntosh 2013 SCC 23; R. v Godin, 2009 SCC 26; R. v. Morin (SCC), [1992] 1 SCR 771; and due to their recency, a series of decisions from the Ontario Court of Appeal: R. v. Williamson 2014ONCA 598, per Lauwers JA; R. v. Stilwell 2014 ONCA 563 per Pepall JA; R. v.Ralph 2014 ONCA 3, per Rosenberg JA; R.v. Konstantakos 2014 ONCA 21; and R. v.

Florence, 2014 ONCA 443 per Rouleau JA. 21 A number of propositions are evident in those decisions: 1. The onus is on the Crown(writ large) to ensure that matters proceed expeditiously to trial -- paragraph 47, Florence;

2. That a s. 11(

b) inquiry is only triggered when courts conclude there is a prima facie period of unreasonable delay between the time of charge and time of trial [para. 36 Morin ]; once this threshold is crossed, courts should assess the delay by having regard to: a. The length of the delay; b. The explanation for the delay: (

i) Delays attributable to the Crown: Delays attributable to the action of the Crown or officers of the Crown will weigh against the Crown. Complex cases which require longer time for preparation, greater expenditure of resources by the Crown, and longer use of institutional facilities, will justify delays longer than those acceptable in simple cases. (ii) Systemic or institutional delays: Delays occasioned by inadequate resources must weigh against the Crown.

The burden of justifying inadequate resources resulting in systemic delays will always fall upon the Crown (writ large). (iii) Delays attributable to the accused: Certain actions of an accused will justify delays. This will be particularly so if the actions of the accused were undertaken for the purposes of delaying the trial. (iv) Other reasons for delay c. Waiver An accused may waive his rights by consenting to or concurring in a delay. However for such waiver to be valid it must be informed, unequivocal and freely given. The burden of showing that a waiver should be inferred falls upon the Crown. d.

Prejudice to the accused 22 There is a general, and in the case of very long delays, an often virtually irrebuttable presumption of some level of prejudice to the accused resulting from the passage of time. When the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay.

It is also open to an accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay, regardless of the length of delay. 23 Assessing whether the total length of the delay has been unreasonable, once the periods of delay are characterized appropriately, (less any periods waived by the Defence) will involve a judicial determination of the interests which

Section 11(

b) is designed to protect , and the factors which inevitably lead to delay or are otherwise the cause of delay [paras. 31 - 32 Morin ] and the consequent explanations for the delay. 24 The

Section 11(

b) interests involved are, on the one hand, an accused's right to the protection of their right to security of the person, liberty, and to a fair trial, arising from

Section 7 of the Charter of Rights . 25 Countervailing those, is the public (generally, and the complainant's specifically) interest in trials proceeding [especially regarding more serious matters] so that criminal allegations can be determined on their merits by a trial. 26 Generally speaking, the Supreme Court of Canada has suggested that a period of institutional delay between 8 to 10 months in Provincial Court, and 6 to 8 months after committal for trial in Superior Courts are not unreasonable.

"Institutional delay" is generally said to be; the aggregate of Crown, or Court resourcing based, delays, counted from when the parties are ready for trial [or a preliminary inquiry] and the system cannot accommodate them. 27 As the Court stated at para. 38 in Florence : Where the guidelines are exceeded, therefore, the court must weigh various factors including the prejudice to the accused caused by the delay, and the public's interest in seeing the charges tried on the merits. 28 Some of the more specific recent judicial pronouncements have concluded that, depending on the unique circumstances of each case: 1.

For the period from the charge to the preliminary inquiry: a. There is bound to be an inherent neutral "intake" time period which involves post -charge activities such as the retention of counsel, bail hearings; the provision of disclosure [and counsel's review with the client of disclosure]; taking positions on: elections regarding the mode of trial; whether a preliminary inquiry is required, and the availability of Defence counsel to argue for their client on these issues; and police and administrative paperwork requirements [para. 33 Florence and paras. 6 --7 Ralph ]; b.

There is bound to be a further inherent neutral time period as a result of "time necessary for Defence to review disclosure and prepare for the preliminary inquiry" -- paras. 55 and 59 Florence and para. 8 Ralph ; and possibly for variations or reviews of bail conditions, whether in Provincial Court or Superior Court as required; c. There is often a further inherent neutral time period between "the time it took to transfer the matter to Superior Court,

schedule and hold the judicial pretrial, and set the date for trial" -- para. 64 Florence .

2. From preliminary inquiry to trial : Some of the time period between the assignment of the trial date until the trial itself is properly attributed to a neutral time period : "the defence could not be expected to be ready to start the trial immediately. Some of the time following the setting of a trial date is necessary to prepare." -- Para. 63 Florence [to similar effect see para.11 in Ralph : "the parties contemplated a seven-day jury trial with several pretrial motions.

Some delay is reasonable to deal with the issues that would take this much court time, including the scheduling of the judicial pretrial"; and at para. 10 in Konstantakos : "it is not realistic to assume that no time is required for counsel to clear their schedules and prepare for trial...

That preparation time must be taken into account as part of the inherent time requirements of the case]... [Citations omitted]" 29 The premise underlying these pronouncements is that the institutional delay only starts to run when the parties are ready for trial [or the preliminary inquiry] and the system cannot accommodate them. 30 As to whether there is any obligation on an accused to re-elect his trial to obtain earlier dates, in Ralph at para. 14 Justice Rosenberg stated: "Crown counsel submits that all of this period should be considered neutral because, had the appellant re-elected Judge alone, back in October 2010,his trial could have gone ahead.

I do not accept this submission. First, it is not at all clear that a Judge alone trial could have proceeded in October... Second, the appellant was not required to give up his Charter right to a jury trial to vindicate his Charter right to a trial within a reasonable time. There is nothing on the record that in any way supports a suggestion that his refusal to re-elect in October was for tactical reasons to try and run the s.11(

b) clock." 31 Furthermore at para. 60 in Florence , the court stated "whether such period of time is attributed to institutional delay or re- characterized as Crown delay does not, in the circumstances of this case, make any difference. This is because, as I explained above, I see no basis for placing greater weight on Crown versus institutional delay in the final balance" 32 It is always open to an accused to show actual prejudice arising as a result of delay in a matter proceeding to trial.” [ 5 ] One matter of great importance is not losing sight of the proper meaning of “institutional delay”.

It only begins to run when the parties are ready for trial, preliminary hearing or pretrial motions, and the court

schedule cannot immediately accommodate them . [ 6 ] Bearing in mind that upon concluding that the delay is unreasonable, a judicial stay is the minimum remedy available, grave injustices can occur if this is not properly appreciated, especially were multiple defence counsel are involved. Where the court provides its “earliest date(

s) available”, without first ascertaining when the parties themselves are ready to conduct the matter, will inevitably lead courts to have a distorted appreciation of what periods of time are truly “institutional delay”. If for example, the court provides counsel with its earliest date, being five months into the future, one might conclude; that therefore, the minimum institutional delay therein is five months.

However, if defence counsel was not available to conduct the matter for the first three months of that five-month period in any event, then the true minimum period of institutional delay is only two months.

Over many appearances, the difference between the real period of institutional delay and the nominal period of institutional delay under such an approach can lead to judicial stays of proceedings in cases where none should have been imposed. [ 7 ] While more time-consuming, the ideal approach in setting trial, preliminary inquiry and pretrial motions dates is as follows [no inquiries should be made of the court by counsel off the record, as to available dates, without an explanation regarding counsels’ availability “on the record”]: 1.

Crown and defence counsel will advise the court how many days are likely required to complete the particular matter being set down for hearing; 2. Defence counsel will advise the first opportunity when they could collectively/individually be ready to proceed with the matter; 3. Crown counsel will advise if they are available for the dates suggested by the defence; 4.

Once counsel have agreed mutually upon dates they are available, the court will advise counsel of its earliest availability to have the matter heard; if the court cannot accommodate the earliest mutually available dates of counsel, then the institutional delay clock will begin to run at that date, and until it can accommodate the mutually agreed-upon availabilities of Crown and defence counsel. [ 8 ] This approach will be more time consuming and cumbersome for counsel and the court. However, if not followed by defence counsel, it will place their clients at a disadvantage.

A consequence of courts pre-emptorily providing their earliest available dates, is that it deprives counsel of the evidence which would demonstrate when the defendant(

s) were earlier ready for trial. [ 9 ] Perhaps an example would assist. The defendants have made an application to determine whether their

Section 11(

b) Charter Rights have been violated. As applicants, they generally bear the evidentiary burden to establish facts that directly or inferentially support their legal argument. According to the jurisprudence, if not waived, generally periods of delay may either be: inherent/neutral delay; attributable to the Crown; systemic or institutional delays occasioned by inadequate resources; and delays attributable to the accused; [other reasons for delay are also possible]. [ 10 ] According to the earlier example, if the court’s earliest available date is five months hence, and all counsel merely agree to a hearing date seven months hence, when the matter is reviewed upon a

Section 11(

b) Charter Motion, how can a reviewing court conclude what is the earliest date at which each of the parties were ready to have the matter heard? There will be no direct evidence or representation in a transcript to that effect; and it will be unlikely that the parties’ calendars can be accurately recalled when the issue arises in the future. Thus, the reviewing court can come to no conclusion other than that each of the parties were content to waive delay or not ready at any time before the earliest available court date offered to hear the matter. In the example, that would mean the court

would have to conclude that the defence cannot successfully argue that any of the five months is institutional delay. In this simpleexample, a court would have to conclude that the defence was unavailable for the entire delay associated with these five months. If thedefence wishes to argue that it merely acquiesced to the “earliest” date presented by the court, it will have to show that it was earlieravailable. But how will it do so?

I note here that it is important to understand that where the defence says nothing of its availabilityand accepts a court date, it should be presumptively considered as inherent neutral delay attributable to no specific party. If thedefence has said it is earlier available, and if not waived by the defence, generally the delay must be attributable to either the Crown or toinstitutional delay. [11] After coming to the realization, particularly regarding cases with multiple defence counsel, that institutional delay periods werebeing double-counted, I looked for jurisprudence dealing with this issue.

In a well-reasoned, and unassailed decision, Justice MichaelCode set out similar reasoning in R. v. Lahiry, 211 ONSC 6780: Reasons for delay: calculating institutional delay 25 The second period of delay was from March 3, 2010, when the trial date was set, until January 28, 2011, when the trial proceeded.The trial judge treated this entire period of just under eleven months as institutional delay that weighed against the Crown. 26 The trial judge had insisted, during oral argument of the s. 11(

b) Motion, that defence counsel file his letter of instructions to hisagent, setting out the earliest available dates that defence counsel was proposing for the trial. The letter was then made an exhibit on theMotion. This is a correct and necessary approach to the calculation of institutional delay. As Sopinka J. put it in R. v. Morin, supra at pp.16, 18 and 26-7, systemic or institutional delay is "the period that starts to run when the parties are ready for trial but the system cannotaccommodate them".

He had noted, earlier in his reasons, that "time is required for counsel to prepare" and that "counsel for theprosecution and the defence cannot be expected to devote their time exclusively to one case". Sopinka J. held that this time, forcounsel to prepare and to clear their calendars when taking on a new case, is part of the inherent time requirements of the case.On the facts of Morin's Case, counsel had sought "the earliest date" for trial and was given a date that was just over thirteen monthsaway. Sopinka J. held that this entire thirteen month period was not systemic or institutional delay.

He reasoned as follows: As counsel for the defence did not indicate a readiness for trial but merely a request for the earliest trial date, it is somewhat unclearwhether the case for the defence was as yet ready for trial ...I am prepared to infer from the totality of the facts that an institutional delayof about twelve months was involved.

This time period is the time from which the parties were ready for trial until the point at which thecourts were able to accommodate this case. [Emphasis added.] 27 In other words, Sopinka J. allocated about one month as time for counsel to prepare and make themselves available for trial,after setting the trial date. Sopinka J.'s judgment in R. v. Sharma (1992), (SCC), 71 C.C.C. (3d) 184 at pp. 193-4(S.C.C.) is to the same effect. The entire period, from the set date appearance to the trial date in that case, was just under twelve months.However, Sopinka J. held that only nine months was systemic delay.

He deducted three months because systemic delay runs "fromthe time when the parties were ready for trial" and he was not prepared to infer that they were immediately ready and available fortrial when setting the trial date. 28 In the subsequent case of R. v. M. (N.N.) (2006), (ON CA), 209 C.C.C. (3d) 436 at paras. 28, 29 and 90 (Ont.C.A.), Juriansz J.A. gave the judgment of the Court and elaborated on this point concerning the calculation of systemic delay: In this case counsel did not even put their own availability on the record.

Counsel merely stated that November 24, 2003, was the earliestdate the court could provide. It is extremely doubtful counsel were available for the preliminary inquiry immediately. Counsel'savailability is useful context for assessing the reasonableness of the total delay in the concluding balancing analysis. It is also worth noting that neither party allotted any time for counsel to prepare for the preliminary hearing. Counsel's preparation timewould be part of the inherent time required in this case. ... Moreover, neither party in this case took into account the preparation time required by counsel.

As noted above, Sopinka J.in Morin made clear that the time counsel require to prepare for trial and the other steps in the proceeding is inherently required. Defencecounsel indicated to the court on November 22, 2004, that he required two weeks to prepare for the s. 11(

b) application. The record doesnot indicate any estimates of counsel as to the preparation time required for trial, the preliminary hearing, the judicial pre-trials, the bailhearings and the other steps of the proceeding. 29 More recently, in R. v. Schertzer et al, supra at paras. 91-94 and 110-112, the Court treated the entire thirteen month periodbetween setting a date and the preliminary inquiry as "part of the inherent time required to prepare for the lengthy preliminaryinquiry".

Similarly, the entire ten month period between setting a date and the trial was also "part of the inherent timerequirements of the case" because "the date was dictated by defence counsel's availability". In R. v. Meisner, supra at paras. 35-38,Hill J. set out a similar analysis to the effect that the time defence counsel required to prepare the case and to make dates available in hiscalendar was "not properly characterized as institutional delay". 30 Most recently, in R. v. Khan (2011), 2011 ONCA 173 , 270 C.C.C. (3d) 1 at paras. 32-36 (Ont.

C.A.), Karakatsanis J.A.(as she then was) gave the judgment of the Court. In that case, the entire period from setting a date until the preliminary inquiry waseight months and twenty days. The Court inferred from the record that "the parties were not ready to proceed with a preliminaryinquiry when the date was first set". Accordingly, the first five months and ten days of this period was treated as "due to theinherent time requirements of the case".

Only the last three months and ten days of the entire period was characterized as institutionaldelay. 31 I appreciate that there has been some uncertainty in the trial courts on this point. In addition, set date courts do not consistentlyinsist that counsel state their earliest available dates for trial on the record. Furthermore, in routine drinking and driving cases, theamount of time needed to prepare for a short trial is not great. Counsel for the Respondents on these appeals submitted that a practice

has arisen in busy Ontario Court of Justice set date courts whereby counsel do not state their earliest available dates for trial on the record and they are simply deemed to be immediately available on that set date appearance. 32 I cannot accept this submission for a number of reasons. First of all, the line of binding authority on this point, set out above, is now formidable. Counsel's submission effectively invites me to ignore all these authorities. This is obviously not an option. 33 Second , I do not accept the assertion that there is a practice of not stating counsel's earliest availability on the record. I have seen many s. 11(

b) Motion records in the last twenty-five years, both as counsel and as a judge, and in the most persuasive records counsel are frank and forthright and they state when they are available. As officers of the Court, counsel have always acted with integrity, in my experience, in stating when they are actually ready and available to conduct the trial. It would be a very serious violation of counsel's ethical duties if the Court was ever misled on this point. 34 Finally, there is no place for fictions when seeking to prove Charter violations .

It is rarely true that counsel is immediately available for trial, when setting a date. Whenever counsel take on a new case they complete various preliminary steps during the intake period. Once they have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the new case for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial .

To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the Court has available for the trial is twelve months in the future, then systemic congestion in the Court is the cause of only two months of delay. The other ten months is delay that the accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case for trial and to accommodate it in an otherwise busy calendar .

It is good and necessary delay that would have occurred in any event, even if the Court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial. 35 In the case at bar, the Crown conceded, erroneously, that the entire period from setting the date until the trial proceeded was all systemic delay. The Court is not bound by the Crown's erroneous concessions, especially in constitutional litigation.

On occasion, in Charter cases, the Supreme Court of Canada has gone so far as to appoint amicus or to rely on intervenors to argue against the Crown's concessions. See: Kent Roach, "Not just the Government's Lawyer: the Attorney-General as Defender of the Rule of Law", (2006), 31 Queen's L.J. 598 ; Grant Huscroft, "Reconciling Duty and Discretion: the Attorney-General in the Charter Era", (2009), 34 Queen's L.J. 773 . 36 In any event, in this case the trial judge properly insisted that defence counsel file his instructing letter to his agent as an exhibit.

As the trial judge put it, "it would have been nice to know what those [earlier available] dates were". As a result, it was clear from the evidentiary record on the s. 11(

b) Motion that the earliest dates on which counsel could accommodate this new case in his calendar were in late April or early May of 2010. This would also allow counsel time to properly prepare the case for trial and to prepare his s. 11(

b) Motion. 37 As a result, the period of systemic delay in the case at bar, at best, ran from April 23, 2010 until January 28, 2011. In other words, this period of delay was just over nine months rather than just under eleven months. The remaining one month and twenty day period, from March 3 until April 23, 2010, was part of the inherent time requirements of the case as counsel needed time to accommodate a new case in his calendar and needed time to prepare it. This period of just under two months carries neutral weight in the s. 11(

b) analysis. [my emphasis] [ 12 ] In R. v. Steele , 2012 ONCA 383 , the court stated: [2] 19 In Tran [2012 ONCA 18], this court made several important points at paragraphs 31 to 40 of the reasons . First, the court is not bound by an erroneous concession by Crown counsel in allocating periods of delay. Second, defence counsel should put on the record their first available dates to conduct the judicial pre-trial and the preliminary inquiry or trial , as the case may be. If counsel does not do this, it may be impossible to determine how the delay should be allocated.

Especially where there is more than one counsel involved, it should not be assumed that counsel can clear their calendars and co-ordinate their schedules so as to be ready within a few months of the judicial pre-trial . Further, the time necessary for counsel to prepare for the preliminary inquiry or trial must be taken into consideration as part of the inherent time requirements of the case. In setting down these guidelines, this court found persuasive the reasons of Code J. in R. v. Lahiry , 2011 ONSC 6780 , 109 O.R. (3d) 187 , at paras. 25-37 .

As Code J. noted at para. 26, systemic or institutional delay only starts to run when the parties are ready for trial but the system cannot accommodate them. [my emphasis] The evidence before me on this voir dire

[ 13 ] I have transcripts of the court appearances between January 7, 2013 and September 10, 2015; transcripts of the preliminary inquiry hearing which began on December 10, 2013, and concluded with the decision on committal on July 13, 2015; materials sent to this court by the Provincial Court, including the original Informations, which were laid against the defendants herein: Howe and Pearce (Information No. 663811 [Mr. Howe], Information No. 663816 [Mr. Pearce] both withdrawn October 5, 2012 and replaced by Information No. 664116 [Howe and Pearce]; and Mr.

James starting with Information No. 663810 [ ss. 264.1 and 423 Criminal Code alleged between August 28 in September 14, 2012- laid on September 20, 2012 and withdrawn October 5, 2012]; No. 664115 [ss. 264.1, 264(2) (

d) and 423 Criminal Code - laid September 26, 2012 and withdrawn January 18, 2013]; and ending with Information No. 669497 [Howe, James and Pearce] laid January 3, 2013 (“the joint information”), and for which each accused was committed to stand trial on all eight counts therein). [ 14 ] All three defendants were arrested in September 2012, and have been bound by recognizances with conditions: To keep the peace and be of good behaviour; reside at a specific address; have no direct or indirect contact or communication with and not to be within 50 meters of any known place of residence or employment of seven anticipated Crown witnesses; not to have possession of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance or any other weapon as defined in the Criminal Code ; not to associate with her be in the company of any of the following persons: Any member, striker, hang- around or person associated to the Bacchus Motorcycle Club, the Darksiders Motorcycle Club, the Highlanders Motorcycle Club, the Charlottetown Harley Club, the Vagabonds Motorcycle Club, the Paradice Riders Motorcycle Club, and the Hells Angels Motorcycle Club; not to wear or display any Bacchus-related clothing or paraphernalia including jewelry and stickers; attend court as and when directed. [ 15 ] No viva voce testimony was presented.

No affidavit evidence was presented. No evidence of identifiable personal prejudice to the defendants was presented. Nevertheless, the court must consider the possibility of inferred prejudice to the defendants’ liberty, security of the person, and fair trial interests, by virtue of the delay herein. [ 16 ] In broad strokes, the positions of the defence and Crown respectively, characterizing the periods of delay, are summarized in the tables attached as Appendix “A”, which the court directed be filed by the parties. Included as well are the court’s attributions regarding the cause of delay.

Analysis of the delays herein [ 17 ] I bear in mind that the question is whose actions caused the delay, once the parties were ready to proceed, not whether that conduct was blameworthy.

The length of the delay between laying of the charges in 2012, and their proceeding to trial in late 2016, triggers the court’s obligation to examine the reasons for the delay. [ 18 ] September 20, 2012 – December 10, 2012 [when trial dates in Provincial Court were set on Information No. 664116 [Howe and Pearce] for December 10, 11, 12, 16, and 17, 2013] - January 6 2013. [ 19 ] In their submissions, the parties have characterized this time period as inherent delay, and I agree.

I also find that the period from December 10, 2012 to January 7, 2013, is inherent delay. [ 20 ] Although the defendants did not provide the transcript of the court appearance on December 10, 2012, I have listened to the tape recording thereof, and have included as evidence in this motion, a certified transcription thereof as Exhibit J-1, herein. [3] January 3, 2013 – December 9, 2013 – the time to the original five days of the preliminary inquiry hearing [ 21 ] It is of no small significance that the joint information is materially different from all the preceding informations laid in 2012.

It alleged criminal organization offences. This caused a material change to the nature of the proceedings. The delay clock was thereby reset to start running again on January 3, 2013, when the joint information was laid. That is properly my initial focal point. [ 22 ] At the January 7, 2013 appearance, defence counsel requested the matter be adjourned to allow them to consult among themselves, and receive further disclosure.

The nature of that disclosure is not identified by defence counsel; however it appears from what the Crown attorney stated that the Crown had already provided initial disclosure: … With regard to the disclosure my friend [Mr. MacEwan] has mentioned to 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. (p.8(20) transcript) [ 23 ] The matter was adjourned after the first appearance to April 29, 2013, for elections or pleas. That period is properly characterized as inherent delay.

On April 29, 2013, the defendants elected trial by judge of the Nova Scotia Supreme Court, and dates were set for their preliminary inquiry hearing: December 10, 11, 12, 16 and 17, 2013. [ 24 ] Notably, Crown counsel stated on April 29, 2013: … these matters [Information No. 664116 regarding Howe and Pearce] were before the court in early December 2012. At that point in time prior to any pleas or anything being entered in relation to that matter, the Crown was anticipating adding another information containing more counts. Counsel were aware of the information at that point in time.

There was a desire to ensure that certain trial dates or possible preliminary inquiry dates were maintained by the court and at that point in time my friends asked the matter be set down for trial and that that was in an effort to ensure those dates. It’s my understanding that Judge Buchan is aware of this matter and that any preliminary inquiry that is to be held at that point in time, Your Honour, is to be scheduled for those same dates that are currently

scheduled for the trial. [25] The defence argue this 12 months [December 2012 – December 2013] is institutional delay. I have found the delay to January7, 2013, and to April 29, 2013, to be inherent delay. Thus, I am now examining the period between April 30, 2013, and December 9,2013. [26] I have no precise basis to determine when the parties were ready to start a preliminary inquiry hearing in relation to the chargeson the joint information.

Only at the point when the court cannot accommodate their readiness to proceed, does institutional delay beginto run. [27] I observe that there are three defence counsel involved, and one Crown attorney, as well as a number of witnesses. Counselagreed to set the hearing for five days. The allegations are not simple allegations against individuals, but rather are also allegationsagainst the Bacchus Motorcycle Club and the status of the charged individuals herein in relation to the Bacchus Motorcycle Club. Theallegations involve conduct over the period January 1 – September 15, 2012.

It is fair to characterize this matter as an extraordinarycase, in terms of the time required for it to be processed by our courts. [28] For those same reasons, the time required for counsel to be available and prepare for the preliminary inquiry and eventual trial,will also be extraordinary. [29] While it was prescient that counsel set aside the December 10 – 17, 2013 dates in December 2012, because the partiesperfunctorily agreed on April 29, 2013 that those dates be used for the preliminary inquiry hearing regarding the joint information, I haveno way to know whether, on April 29, 2013, earlier dates may have been available (e.g. by using multiple separate occasions to have thepreliminary inquiry evidence heard).

Defence counsel did not even inquire whether there were earlier dates. I am left to infer that theywere content with those dates. [30] The three defence counsel herein [at that time Patricia Jones was representing Mr. James] are primarily, if not exclusively,criminal law practitioners, and as experienced counsel, are in high demand.

I am satisfied that it is more likely than not that they wouldhave had numerous previous professional and private obligations between May 2013 and December 2013, and that it would have beendifficult for them to all have been available for five consecutive days at the same time much before September 2013. I bear in mind thatin December 2012, Mssrs. Atherton and MacEwan had accepted as trial dates the December 2013 dates. [31] As Justice Arnold stated in R. v.

Kemp, 2016 NSSC 7: 12 If the delay warrants further inquiry, the court should first proceed to consider whether the accused has waived any segments of thedelay period.

Sopinka J. said in Morin at para. 37: "[i]f by agreement or other conduct the accused has waived in whole or in part his orher rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted." A waiver may beexplicit or implicit, but in either case it must be clear and unequivocal, with full knowledge of the rights the procedure was enacted toprotect and of the effect that waiver will have on those rights. … 13 Waiver may be asserted on the ground that the accused agreed to dates. In the pre-Morin decision of R. v.

Smith, (SCC), [1989] 2 S.C.R. 1120, Sopinka J., for the court, remarked that: 38. ...[a]greement by an accused to a future date will in most circumstances give rise to an inference that the accused waives hisright to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a futuredate for a trial or a preliminary inquiry would generally be characterized as more than silence... 14 Cacchione J. cited this passage in R. v. Ward, 2010 NSSC 66, [2010] N.S.J.

No. 280, adding at para. 57, "[w]hile ... consenting toa trial date or an adjournment does not give rise to an inference of a waiver if the consent amounts to mere acquiescence in theinevitable, there must be some evidentiary basis on which to base a finding that the applicant was merely acquiescing to theinevitable." Cromwell J. noted in Godin at para. 23, "[s]cheduling requires reasonable availability and reasonable cooperation; it doesnot, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. [my emphasis] [32] As elaborated by Justice Gates in R. v. Warring, 2016 ABQB 236: 50 The requirement that defence counsel produce evidence of acquiescence was discussed by Fraser CJA in R. v. Koruz, 1992 ABCA144, affirmed (SCC), [1993] 1 S.C.R. 1134, at para. 56: As for the suggestion that an agreement to dates should be treated as nothing more than an agreement to the inevitable, I reject thisposition.

First, there is absolutely no evidence that this was so. 51 This position was affirmed more recently by the Alberta Court of Appeal in R v Sapara, 2001 ABCA 59at para. 28, and byYamauchi J in R. v. Legerton, 2014 ABQB 162 at paras. 49-51. 52 I am satisfied that, absent evidence to the contrary, agreement between counsel to suggested dates should not becharacterized as mere "acquiescence to the inevitable." If there is no evidence to establish counsel's agreement to dates was in factacquiescence, the delay stemming from the agreement to the dates will amount to waiver by the accused in the Morin analysis.

[my emphasis] [ 33 ] While strictly speaking, all periods determined to be “waiver” by the accuseds should be assessed and deducted the total period of delay before examining the “reasons for delay”, in this case I find it appropriate to do so within the different stages of the proceeding, because the entire period of waiver herein is not sufficient to render unnecessary an examination by the court of the delays herein. [ 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]. [ 37 ] I also conclude more likely than not that the defendants would have collectively required preparation time for the preliminary inquiry hearing in December 2013 over a period of at least four weeks preceding the preliminary inquiry hearing. [ 38 ] Therefore, of the period May 1, 2013 to December 10, 2013, only two months remain as institutional delay .

December 18, 2013 – July 13 2014 – the time to the second five days of preliminary inquiry hearing [ 39 ] On November 6, 2013 all counsel attended for a focus hearing/prehearing conference on the joint information. While there is no transcription thereof available, on December 10, 2013 the Crown attorney did state: The focus hearing in relation to this matter was delayed somewhat when we did have it in November.

On the day of the focus hearing and, in fact, mere seconds before we entered into the hearing, I was provided, by one of the defence counsel in relation to this matter, a statement of issues and witnesses, and issues were committal, so no indication of any specific issues other than that, you know, the Crown’s requirement to prove its case sufficient to the Sheppard test, and the witnesses required by the defence are: ‘all civilian witnesses relied upon by the Crown for the purpose of committal and any and all expert witnesses relied upon by the Crown’[Statement of issues and witnesses on file – signed by Mr.

MacEwan November 5, 2013]. No particular individual Crown witness is listed, it’s just basically holus bolus saying you know, committal is an issue and we want to hear everybody. This matter is set for approximately five days. When I looked at my witness list or potential witness list after this matter, I noted approximately in excess of 40 odd witnesses that could be called.

If your honour recalls, I believe during the context of the pre-preliminary inquiry hearing conference, there was some indication made on the part of the defence that they may wish to cross-examine the expert for, you know, approximately a two day period. You know, if you wish to put credence to that, that would leave theoretically three days to call some 40 odd potential witnesses on the part of the Crown.

Accordingly, this being not a trial, but a preliminary inquiry, the Crown certainly sought to take some steps in an effort to limit that and you know, did so in relation to providing some [Criminal Code Section] 540(7) notices to my friends. [ 40 ] Mr. Atherton while strictly speaking for his client, also intimated for the defendants collectively: My friend talks about 40 witnesses. We want to hear from the civilian witnesses, the investigating officer and the expert. It’s not rocket science.

There aren’t 40 witnesses. [ 41 ] On December 2, 2013, Crown counsel had written to the defence advising that he would be proceeding by way of “paper preliminary” [my words] pursuant to Section 540(7) of the Criminal Code . The Crown would provide the court the evidence of six named Crown witnesses by introducing their police statements through the investigating police officers. Notably, the complainant R.M. was not among those listed. As an essential witness, it was therefore likely that he would be personally present to give his evidence. [ 42 ] On December 3, 2013, Mr.

Atherton on behalf of the defence advised that he would seek an order pursuant to Section 540(9) for leave of the court to cross- examine the six Crown witnesses. [ 43 ] The Crown became aware before the preliminary inquiry hearing, that R.M. had provided a statement to a private investigator retained by the defendants shortly before the preliminary inquiry hearing started. On December 10, 2013, the Crown presented the viva voce evidence of R.M. as its first witness. [ 44 ] R.M. had testified at some length (between 11:00 a.m. and 4:00 p.m.

December 10 and from 10:00 a.m. to 11:00 a.m. on December 11, 2013), before the Crown made a motion to have his September 16, 2012 audiotaped statement to the police introduced for the truth of its contents, as an exception to the hearsay rule. As a result, the remaining days set aside were consumed by evidence relevant to that motion. Submissions on the voir dire began at 11:00 a.m. on December 16, 2013. At 12:00 p.m. noon, court recessed until 9:30 a.m. on December 17, 2013. The voir dire continued with the direct examination of R.M. by the Crown until 11:00 a.m.

The defence cross-examination commenced at 11:30 a.m. until 12:00 p.m. noon, and then reconvened at 2:30 p.m. until his redirect examination was finished at approximately 4:30 p.m. on December 17, 2013. Defence counsel re-confirmed that they were not calling any evidence on the voir dire (pp. 342 and 520 transcript).

[45] On December 17, 2013, the court set March 26, 2014 for release of its decision on the voir dire. Five further days were set forcontinuation of the preliminary inquiry: July 14, 15, 16, 17 and 18, 2014 (p. 519 transcript). [46] The court rescheduled the release of its decision over to May 29, 2014. The court determined that R.M.’s audiotaped statementto the police would be admissible as “necessary” and “reliable” [R. v. Khelawon, 2006 SCC 57 , [2006] 2 SCR 787] andtherefore, for the truth of its contents.

Judge Buchan noted in part that R.M. “presented as a somewhat reluctant witness… the qualityand extent of his recall of events in his statement is in clear contrast to the quality and extent of his limited recall of these same events inhis testimony during the voir dire”. [47] The Crown properly engaged the Khelawon voir dire process. That process played out by effecting a delay of the completion ofthe preliminary inquiry hearing from December 17, 2013 until its re-commencement on July 14, 2014. It cannot be said that the Crown,court or defence caused the need for these replacement days of hearing.

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 (p. 519 trasncript). The probability ofcoordinating defence counsels’ schedules, and their likely collective availability for five consecutive days during those seven months,causes me to conclude that only three months thereof should be considered institutional delay – the other four months are inherent orwaived delay.

July 18, 2014 to November 19, 2014 – the time to the third set of five days of the preliminary inquiry hearing [48] On July 14, 2014, between 10:00 a.m. and 11:40 a.m., R.M. continued his testimony at the adjourned dates for the preliminaryinquiry. Two further witnesses were heard that day. On July 15 three further witnesses testified and a statement of one of the accusedwas played into evidence. On July 16, two further witnesses were heard. On July 17, 2014, D.M. was anticipated to testify, but becameunavailable due to a death in the family.

The Crown had earlier decided not to call her, and advised defence in a timely manner. TheCrown had arranged for service of a subpoena on her at the request of the defence (pp.52-55, October 24, 2013 transcript). Sgt.MacQueen testified all morning. He was in the midst of his cross-examination when the hearing was adjourned, in part, to permit thedefence to particularize its disclosure request regarding Sgt. MacQueen’s evidence: October 3, 2014 (½ day) [dispensed with onOctober 1 by consent], October 24, 2014 (1/2 day – no evidence called), November 19, 20, and 21, 2014 (pp. 408-413 transcript).

Therewere not specific discussions as to the respective availability of the counsel/court. The parties perfunctorily agreed to the dates. I infercounsel were content with these dates because they were not available much earlier. [49] On July 17, 2014, the defendants agreed that “the consensus is we are going to need more time for the continuation of thepreliminary inquiry in any event” (p. 400 transcript). [50] The July 14 – 18, 2014 dates were believed by the defendants to be insufficient to complete the preliminary inquiry hearing,regardless of the disclosure issue relating to Sgt.

MacQueen. [51] The Crown opposed the initial adjournment sought on July 17, 2014. On that day the Court granted an adjournment for afurther 4.5 days: to October 3 (1/2 day), October 24, and November 19, 20, and 21, 2014. The July 18, 2014, date was lost. [52] On July 17, 2014, while the defence was cross-examining Sgt. MacQueen, Mr. MacEwan stated: He’s testified about a number of searches and surveillance operations which he had been part of. I presume the purpose for that evidencewas to provide some background for the expert’s opinion which is to come further.

With respect to all the notes and reports that Iquestioned about, we have not been provided copies of that, granted we have not asked for copies, but [inaudible] he was going tobe testifying. I think that the consensus is we’re going to need more time for the continuation of this preliminary in any event.What I would propose is that maybe Sgt. MacQueen could provide copies of those documents to my friend so they could bereviewed prior to the closure of my cross-examination (p. 400 transcript). [53] The other defence counsel joined in that request.

The Crown noted that the defence had been in possession of a detailed can-say for Sgt. MacQueen for approximately seven months, and there had been no previous request for that information. Mr. MacEwan,speaking for the defendants stated: “I’ll send a formal request to the Crown Your Honour.” [54] On October 24, 2014, Mr. MacEwan stated: There are still some Crown witnesses to testify. Sgt. MacQueen obviously is still under oath and subject to cross examination. Myfriend, as I understand, has been in contact with Mr.

MacQueen and they’re still making arrangements with respect to follow-updisclosure, which was put on the record on the last date. I was to follow-up with my friend and I have to admit I was less thandiligent about that, but I did speak to him yesterday and it appears that they’re still moving forward with gathering thedocuments that we had asked for during the course of the cross- examination. (p.56 transcript) … Now Sgt. MacQueen has testified about some… of his background and his dealings with the Bacchus Motorcycle Club and we haven’treceived all the disclosure based on his experience and contact with Bacchus.

So I think maybe if we had the disclosure, and Iunderstand that the Crown and police are working on that, we’d be in a better position to answer that, but if Sgt. MacQueen, during thecross-examination, his evidence were to change in any way, and that I would suspect might change the opinion of the expert who hasbased his opinion on evidence and information provided by Sgt.

MacQueen… appears to be the only individual the Crown is calledwho’s had dealings with the Bacchus Motorcycle Club as a law enforcement officer. (p.60 transcript)… This is an instance where we have an expert who has been brought in from another jurisdiction to interpret the evidence, which goes tothe very heart of the criminal organization… It goes without saying that a large portion of the expert’s opinion comes through Sgt.MacQueen. The expert, as far as I can tell on a review of his extensive CV entered before us, he has had no dealings with Bacchus

directly, has had dealings with the Hells Angels Motorcycle Club and has essentially liaised with Sgt. MacQueen in order to determinewhether or not there is sufficient similarities between these two organizations to classify Bacchus as an outlaw motorcycle gang andtherefore a criminal organization. So with respect to the criminal organization charges, I would suggest that Sgt.

MacQueen’s evidenceand the expert’s evidence is all of the evidence that this court is going to hear about whether or not this organization is, in fact, a criminalorganization and whether or not these offenses, the remaining offences, were carried out at the behest of or furtherance of thatorganization. (pp.70-71, transcript October 24, 2014) [55] By November 17, 2014, the Crown had provided significant amounts of that disclosure to the defendants (p. 65 transcriptNov.19 2014).

The defence indicated it had retained an investigator, who is a former police officer of 21 years’ experience, and hasworked in the criminal intelligence field and particularly in relation to gangs including outlaw motorcycle gangs (p. 66 transcript). Thedefendants requested an adjournment of the preliminary inquiry in order to allow them to go through the materials provided. [56] On November 19, 2014, Mr. MacEwan suggested that two more days would be required – one full day for Sgt.

MacQueen, andone full day for the Crown’s expert witness. (p. 68 transcript) [57] In response, the Crown stated: This material that had been requested on the part of my friends was quite difficult to obtain. It involved reviewing material in otherprovinces as a matter of fact, and required quite significant vetting in relation to being able to be provided to my friends in this regard… Itake issue with one item that my friends are saying, saying that these documents form the foundation of the expert’s report. That’s notcorrect.

To the extent that any information that the expert was relying on was relied on in relation to conversations and discussions… [Itis] from his conversations with officer MacQueen... The material that my friends were requesting on previous court dates in relation tothis matter was rather corroborative material in relation to Sgt. MacQueen’s testimony, so for example, he would say, at such and such adate I attended here and I saw, you know, someone wearing a certain type of pin and then they are saying well do you have any notes ofthat? Or are there any reports generated in relation to this matter.

So the materials that we’re providing doesn’t form the foundation foranything, and isn’t new information or at least not significantly in relation to this matter, but it simply serves as corroboration – wherethis material existed it’s been provided... [There are in total 162 pages, (some heavily redacted) and including photographs]… and inrelation to the disclosure request itself, I also wish to put on the record that we were also waiting for some time, for a letter fromdefence crystallizing their request, which never came.

And it behooved me at that point in time after receiving court discs and findingthe time to actually listen to the court dates themselves to try and discern what, in fact, my friends were seeking in relation to thismatter… There is very little if any… there may be one accused’s name mentioned once in relation to attending one or two events inrelation to this matter, so… but this doesn’t relate to those accuseds per se individually and this doesn’t relate to any of the incidents in2012 that were brought before the court. (pp.72-80) [58] The defendants did not receive the materials until November 17, 2014, because the defendants did not formalize their request, orfollow-up by giving the Crown any notice of the precise nature and extent of the disclosure they were seeking.

The materials were nothandily available, straightforward or easily discerned. Nevertheless, the Crown made good faith efforts to collect what it understoodmight be of interest to the defendants. Having done so, does not amount to a tacit acknowledgement that the Crown failed in itsdisclosure obligations – e.g. R. v. Anderson, 2013 SKCA 92 at paras. 127 – 28 [cited with approval by Saunders J.A. in R. v. Carter,2014 NSCA 74, at para. 31]; R. v. Dias, 2014 ABCA 402 at paras. 15 – 16. As Justice Karakatsanis stated for the court in R. v.Quesnelle, 2014 SCC 46: A. The Principles Governing Crown Disclosure

(1) Disclosure in Criminal Cases Generally 11 The Crown has a broad duty to disclose relevant evidence and information to persons charged with criminal offences. Stinchcombe,at pp. 336-40, provides that the Crown is obliged to disclose all relevant, non-privileged information in its possession or control so as toallow the accused to make full answer and defence. For purposes of this "first party" disclosure, "the Crown" does not refer to allCrown entities, federal and provincial: "the Crown" is the prosecuting Crown. All other Crown entities, including police, are"third parties".

With the exception of the police duty to supply the Crown with the fruits of the investigation, records in the hands ofthird parties, including other Crown entities, are generally not subject to the Stinchcombe disclosure rules. 12 In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, this Court recognized that the Crown cannot merely be a passive recipient ofdisclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands ofpolice or other Crown entities that is potentially relevant to the prosecution or the defence.

This Court also recognized that policehave a duty to disclose, without prompting, "all material pertaining to its investigation of the accused" (para. 14) as well as otherinformation "obviously relevant to the accused's case" (para. 59). 13 In R. v. O' Connor, (SCC), [1995] 4 S.C.R. 411, at paras. 15-34, this Court established a separate disclosure regimefor records in the hands of "third parties" that are "likely relevant" to an issue at trial. Under O'Connor, an application is made to thecourt and the judge determines whether production should be compelled in accordance with a two-stage test.

At the first stage, theapplicant has an onus to establish the likely relevance of the record. At the second stage, the judge examines the record and determineswhether, and to what extent, it should be produced for the accused: in the case of relevant information, privacy interests yield to the rightto a full answer and defence. [my emphasis]

[59] Moreover, the failure to produce incidental disclosure, of the sort that does not have the capacity to have some real effect on theright to a fair trial (more specifically to make full answer and defence), will not be capable of constituting a breach of

Section 7. Complaints about the lack of production of, or the late disclosure of, such incidental disclosure are therefore properly seen as neutral ineffect, particularly the more so where disproportionate resources (time and money) or consequences (delays caused by the Crowngathering and producing the sought after materials) will arise in order to effect their disclosure- see e.g. R. v. Jackson, 2015 ONCA 832at para. 139 ( [2016] SCCA No. 38 - Application for leave to appeal submitted to the court April 25, 2016). [60] As the Alberta Court of Appeal stated in R. v.

JEK, 2016 ABCA 171: 66 A final point must be made. While it is true that the Crown has an ongoing obligation to disclose relevant information that comes tolight, that obligation is linked to the right to a fair trial and to make full answer and defence. Where an accused asserts a disclosuredelay, the fact of that delay must be shown to have had some real effect on the right to a fair trial and to make full answer anddefence in order to be itself a Charter breach.

In other words, delay in Crown disclosure may not require delay of the trial, muchless delay in setting either the date for a preliminary inquiry or a trial date. The judge in this case seemed to think that any sort ofdisclosure had to be rectified before a trial date, indeed before a preliminary inquiry date, could even be set. In the context here, that wasunrealistic and presumed some sort of anticipatory Charter breach.

It amounted to a notion that outstanding disclosure, no matterhow trivial or technical, and no matter that disclosure review (especially with respect to third party records) is restricted to thetrial judge hearing the trial itself, somehow puts the case into stasis with the clock ticking against the Crown. This is simply notso. [my emphasis] [61] In this case, I find that such further defence disclosure requests did not relate to “the core of the Crown’s case”, and lengthenedthe time needed to get to trial.

I bear in mind that one of the purposes of a preliminary inquiry hearing is the discovery of witnesses,which could often produce incidental information, such as was in issue in November 2014. However, as McLachlin J. (as she then was)stated in R. v. O’Connor (SCC), [1995] 4 S.C.R. 411, at para 193: Discovery on criminal cases must always be a compromise. On the one hand stands the accused’s right to a fair trial.

On the otherstands a variety of contrary considerations… [including] the increase in the length and complexity of trials, which exhaustive discoveryproceedings may introduce [and] impact adversely and heavily on the public. [62] These four months of delay arose because of a vague and not diligently pursued defence request for incidental materials. I findthe earlier lack of disclosure of those materials was not capable of constituting a breach of the defendant’s right of full answer anddefence. This delay is attributable to the defence or considered waived by the defence.

November 20, 2014 - January 25, 2015 – the time to the fourth set of preliminary inquiry (3) days [63] On November 19, 2014, the court granted the defendants further request for an adjournment to review those 162 (partiallyredacted ) pages of material arising from its July 17, 2014 vague oral request, which they did not diligently follow up. (p.81, transcript) [64] As to further hearing dates the Crown queried, “if it would be easier for the court to find single days earlier” - p. 83 transcript. The court noted that there are no dates available until the last week of January 2015.

The matter was put over to November 24, 2014,for setting of the new dates: January 26, 27 and 28, 2015. (p.100, transcript) [65] Even for this period under review, it is important to recall that the preliminary inquiry was adjourned on July 17, 2014 toNovember 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 theNovember 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.

January 29, 2015 – March 26, 2015-the final adjournment before completion of the preliminary inquiry hearing [67] On October 24, 2014, it appears the defendants anticipated only two more days would be required. [one for Sgt. MacQueen andone for the Crown’s expert. (p.68(20) transcript)] [68] On January 26, 2015, and after having received the incidental materials from the Crown on November 17, 2014, the defendantscontinued cross-examination of Sgt. MacQueen lasted only half an hour. Next, S/Sgt.

Isnor testified as the Crown’s expert witness forthe remainder of the day. [69] It appears a snowstorm was expected on January 27, 2015. (pp. 563-5 transcript) [70] On January 27, 2015, the court convened in spite of a snowstorm. Only Crown counsel, and Mr. James, were present. The

matter was adjourned to January 28, 2015. [ 71 ] After direct examination by the Crown, the cross examination of S/Sgt. Isnor continued until 4:00 p.m. on January 28, 2015. The preliminary inquiry was adjourned to March 27, 2015. [ 72 ] On March 27, 2015, S/Sgt . Isnor testified from 9:40 a.m. to 10:55 a.m. Thereafter, the Crown closed its case on the preliminary inquiry hearing. The defence gave notice it was not calling any evidence. (pp. 771-2 transcript). Clearly, had the snowstorm not intervened January 27, 2015, the hearing would have been concluded on January 28, 2015, as scheduled.

This two-month delay is properly characterized as inherent delay. March 28 – July 13, 2015 – the time between the end of evidence and committal to trial [ 73 ] The court set filing dates for briefs: for the Crown and defence, April 30, 2015 and May 29, 2015, respectively; with an anticipated decision date of June 23, 2015.

On June 23, 2015, the court convened as it was unable to have the decision ready as a result of late filing of briefs, and put the decision release over to July 13, 2015. [ 74 ] On July 13, 2015, the court committed the three defendants on all eight counts on the information to stand trial in Nova Scotia Supreme Court. [ 75 ] This period is properly characterized as inherent delay, involving as it does preparation time required by counsel to file their briefs, and for the court to render its decision.

July 14, 2015 to September 9, 2015 – Nova Scotia Supreme Court [ 76 ] On August 6, 2015, the defendants initially appeared in this court, and (after a pre-trial conference on August 31, 2015), on September 10, 2015, pre-trial motions and trial dates were set for April 4 – 14, 2016, and May 19 – June 3, 2016, respectively. [ 77 ] These initial two months are properly considered inherent delay.

September 11 2015 – April 3, 2016 – the originally set time for the pretrial motions [ 78 ] At Crownside on September 10, 2015, the court was looking for one judge who would be available to hear both the pretrial motions and the trial in relatively short order. The transcript thereof reveals Mr. Atherton stating: “…. speaking with Madam Clerk, I understand that a motion time is available between Monday, April 4, through the 14 th …. and that the trial dates would be from May 19, running through to the 3 rd of June.” Mr. McGuigan stated: “I doubt that I have three weeks…. or four weeks in January to be available”.

Given defence counsels’ schedules, I conclude that, in September 2015, the defendants’ counsel were not likely available [including as a result of their required preparation time for each of the three pre-trial applications, and time for the court to render decisions thereon] for the ten days of pre- trial motions, until February 2016, and for the 10 days of trial, until April 2016. [ 79 ] Thus, setting the starting dates of April 4, and May 19, 2016, probably resulted in 3 months institutional delay.

April 5, 2016 – June 3, 2016 – pretrial motions adjourned to days set aside for trial [ 80 ] The pretrial motions identified in the pretrial conference materials filed by the defendants for August 31, 2015, were motions for a judicial stay of proceedings based on alleged violations of Sections 7 and 11(

b) of the Charter of Rights . [4] [ 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. [ 84 ] This two month delay was caused by defence lâches in not having the necessary transcripts ready for the motions. Whether seen as waiver or (in)actions/lâches of the defence, no institutional delay occurred. [ 85 ] At the April 4, 2016 court appearance, the defendants advised that they did not yet have transcriptions of all the appearances in Provincial and Supreme Court.

On May 10, 2016 the defendants filed transcripts that “should represent all Provincial Court appearances on this matter not contained within the preliminary inquiry which was previously transcribed.” The court brought to their attention that still omitted appearance dates included the February 21, 2013, Provincial Court appearance, and the September 10, 2015 Supreme Court appearance, which were then filed on May 24, 2016. I also note that no transcriptions were ever provided for any Provincial Court

appearances prior to January 7, 2013, and no mention was made thereof by any counsel, though the Crown in its filed written materials clearly suggested that the relevant laying of charges that triggers the “delay clock” to run, only started in January 2013; whereas the defendants argued in their written materials that the laying of charges, and delay, started in September 2012.

June 4, 2016 – December 8, 2016 – trial adjourned to newly determined dates [ 86 ] Consequently, on April 4, 2016, the court also had to set new trial dates. [ 87 ] Given that the proceedings were going to have to be adjourned because the defendants were not prepared to proceed, in its March 4, 2016 letter, the Crown took the position that it would not consent to any adjournments unless the defendants were prepared to waive any delay associated with the adjournment of the trial.

The defendants did not formally respond at that time. [ 88 ] The Crown was available thereafter at any time during 2016, except for September and October. Mr. MacEwan was unavailable during June and September. Mr. Atherton was unavailable the first three weeks of November, and had no earlier availability for 10 days. Mr. McGuigan was first available for 10 straight days in November.

I conclude that the defendants’ counsels were not likely available to conduct the 10 day trial, adjourned on April 4, 2016 [from May 19 – June 3 2016] until November – December 2016, in any event. [ 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. [ 90 ] This period of six months, not being attributable to the Crown or to the court, is neutral inherent delay or waived by the defence.

Notably, the defence in its written argument characterizes this entire time period as defence delay.

Summary of periods of delay [5] [ 91 ] I conclude that there are nine months of institutional delay throughout the period of proceedings, if seen as starting September 20, 2012, and concluding December 8, 2016. [ 92 ] While this nine month institutional/Crown delay period is well within the 18 months’ “guideline” mentioned in Morin , supra, (paras. 27-29 ), I will still go on to examine the aspects of inferred and actual prejudice.

Actual or inferred prejudice [ 93 ] Prejudice to the liberty, security of the person, or fair trial interests of the defendants can turn a reasonable period of delay into an unreasonable period of delay. [ 94 ] I have found only nine (9) months of institutional/Crown delay. That result flows from my conclusion that the “earliest available date” offered by courts, without more context, likely overstates the amount of institutional delay. Most significantly, I disagreed with the defendants’ arguments that institutional delay occurred: i. April 30, 2013 to December 9, 2013 – 7 months (I say 2 months); ii.

December 17, 2013, to July 13, 2014 – 7 months (I say 3 months); iii. July 17, 2014, to November 19, 2014 – 4 months (I say no institutional/Crown delay). [ 95 ] Accepting their position for sake of argument when analyzing the actual or inferred prejudice aspects, the total institutional delay would nevertheless only amount to 27 months. [ 96 ] Generally speaking, the longer the delay the more likely that an inference of prejudice will be drawn. Where prejudice is not inferred, and is not otherwise proved, the basis for the enforcement of the individual

Section 11(

b) Charter right is seriously undermined. [ 97 ] The defendants have been subject to bail conditions since either September 2012, or January 3, 2013, depending on one’s view of when the delay clock begins to run. These are argued to have impacted their security of the person and liberty interests throughout the period of total delay – from September 2012 to December 8, 2016. These bail conditions have been varied over time. [ 98 ] As to their liberty interest, the bail conditions speak for themselves. They may be fairly characterized as being “not stringent”. There is no evidence of actual prejudice.

As the Crown noted, there was liberal use made of their “designations of counsel” throughout the numerous times they were required to be represented in court. I infer that, the prejudice flowing from the delay due to the restriction on their liberty interest, though in place for approximately 4 years, is modest. [ 99 ] As to their security of the person interest, there is no evidence of actual prejudice. Some level of prejudice may be inferred in proper circumstances, due to the stigma, stress/anxiety associated with these unresolved allegations. Specifically in relation to Mr.

Pearce, I keep in mind that he had other criminal charges in existence throughout some of the time period herein, for which he was sentenced to 18 months’ probation on March 25, 2015. I infer that the prejudice flowing from the delay due to the interference with the defendants’ security of the person interests, though the proceedings have persisted for approximately four years, is also modest.

[ 100 ] Though difficult to precisely extrapolate to which extent each plays a role, in every case, it remains important to distinguish the consequences arising as a result of the delay, from the consequences arising from the mere fact of being criminally charged – e.g. see R. v. Stilwell , 2014 ONCA 563 at para 53 . [ 101 ] As to their ability to make full answer and defence, there is no direct evidence of actual prejudice.

The defendants asked the court to infer that there is a risk of prejudice to the defendants’ fair trial rights, which arises from the mere fact of the extensive delay. [ 102 ] They argue that “memories fade over time”, and spring- boarding from that irrebuttable proposition, suggest that their right to full answer and defence has been materially prejudiced. [ 103 ] Their counsel suggested that, at the preliminary inquiry hearing it has been, and at the trial it will be, especially difficult to effectively cross-examine R.M., particularly if the Crown is successful in placing his September 16, 2012 audiotaped police statement before the court as his evidence. [ 104 ] R.M. gave his audiotaped statement September 16, 2012.

It related specifically to the events of September 14, 2012 involving Mr. Howe and Pearce. It also relates to Mr. James interactions with R.M. over the period January 1 to September 1, 2012. The defendants have the transcription of R.M.’s audiotaped statement.

They also have a statement from R.M. given to their private investigator just weeks before the preliminary inquiry hearing was to commence in December 2013. [ 105 ] The defendants have had the opportunity to cross-examine R.M., on the Khelawon voir dire in December 2013, regarding the admissibility of his audiotaped statement (the equivalent of one full day). [ 106 ] They also had the opportunity to call him as their own witness on their

Section 7 Charter voir dire on May 27, 2016. [ 107 ] R.M. presented as a reluctant Crown witness as early as December 2013. In my opinion, he remained so in May 2016. [ 108 ] On a review of the evidence and materials provided, and my personal observations of R.M., I am confidently unconvinced that, as a result of the delays herein, the defendants’ full answer and defence interests have been, or will be, materially prejudiced. [ 109 ] Insofar as similar arguments are made in relation to Sgt. MacQueen and Sgt.

Astephen (regarding most particularly their failure to record contemporaneously the comments of R.M. when they initially met him on September 15, 2012), I am similarly confidently unconvinced that, as a result of the delays herein, the defendants’ full answer and defence interests have been, or will be, materially prejudiced.

While other witnesses for the Crown and defence may be called at trial in relation to their anticipated testimony, it would be speculation for me to presently conclude that the delays herein have materially prejudiced the defendants’ right to full answer and defence. [ 110 ] Cumulatively assessing the prejudice arising from the delay here, upon the liberty, security of the person, and fair trial rights interests of the defendants, I am confidently unconvinced that that prejudice should have any material effect on my assessment of whether the delays herein are unreasonable.

Conclusion [ 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

Section 11(

b) of the Charter . [ 112 ] For such two-stage cases (preliminary inquiry and trial), the Supreme Court has suggested, as reasonable, a guideline of 18 months institutional delay in total. [ 113 ] I keep in mind the Charter interests which

Section 11(

b) is designed to protect, the causes and explanations for the delays, and the public interest in having these serious allegations tried on their merits. Given the extraordinary circumstances in this case, I would find even 27 months not to be an unreasonable delay, such that there is a violation of

Section 11 (

b) in these circumstances. [ 114 ] I dismiss the defendants’ applications. Rosinski, J. APPENDIX A Dates Events Days to Next Event Attributable to

Sept 20 – Dec 9, 2012 Original multiple informations (not criminal organization offences) laid and trial dates for Howe and Pearce set: Dec 10 – 17, 2013 (Defence counsel aware more charges will be laid in near future). 3 months + Inherent and to some extent pre-charge delay Dec 10, 2012 to Jan 7, 2013 Continuation of the waiting period for new charges to be laid (which were on January 3, 2012) 1 month Inherent and to some extent pre-charge delay Jan 8 – April 29, 2013 At request of defence, elections/pleas on criminal charges and individual charges adjourned to Feb 21 and then to Apr 29, 2010 4 months Inherent Apr 30 – Dec 9, 2013 On Apr 29, 2013 – 5 days set for preliminary inquiry hearing: Dec. 10 - 17, 2013 7 months 4 months (May – August) inherent or waived by unavailable defence; 1 month defence preparation required; 2 months institutional delay Dec 18, 2013 – July 13, 2014 On Dec 17, 2013 – hearing adjourned for decision on Khelawon voir dire regarding R.M. testimony and 5 days set for continuation of Preliminary Inquiry: July 14 – 18, 2014 7 months 4 months (Dec 2013 – April 18 2014) inherent or waived by unavailable defence; 3 month institutional delay July 17 2014 – Nov 19 2014 On July 17 2014, the defence requested an adjournment which was granted.

They sought further disclosure regarding Sgt. MacQueen. 4 ½ days were set for continuation of prelim. Inquiry: Oct 3 (1/2) Oct 24 and Nov 19, 20, 21, 2014 4 months Defence disclosure request was for incidental materials – lack of disclosure not a breach of full answer and defence – delay attributable to defence or waived: 4 months Nov 20 2014 – Jan 25 2015 On Nov 19 2014, defence granted an adjournment to permit them to review the disclosure they had requested on July 17, 2014, and received November 17, 2014 (162 pgs heavily redacted).

On November 24, 2014, new continuation dates set to replace Nov. 19- 21, 2014: January 26, 27, 28, 2015. 2 months Defence inaction in following up to particularize their request – Defence delay or waiver

Jan 29 2015 – March 26 2015 January 27 2015 – court day lost due to snowstorm; on Jan 28 2015, hearing adjourned to March 27 2015 when hearing evidence was completed 2 months Inherent delay – but for snowstorm on January 27, 2015 hearing would have ended by January 28, 2015 March 28 – July 13 2015 Court set brief filing dates with view to rendering a decision June 23 2015. Late briefs caused decision to be

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