R v Lemioer, 2019 SKCA 95

Court of Appeal for Saskatchewan Docket: CACR2950 Citation: R v Lemioer , 2019 SKCA 95 Date: 2019-09-20 Between: Her Majesty the Queen Appellant And Jeremy Lemioer Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Tholl On Appeal From: 2017 SKQB 106 , Regina Appeal Heard: March 22, 2019 Counsel: Stephen Jordan for the Appellant Sharon Fox for the Respondent Leurer J.A. I.

Introduction [ 1 ] The Crown appeals the order staying criminal proceedings against Jeremy Mark Lemioer because of the time taken to bring charges against him to trial: R v Lemioer , 2017 SKQB 106 , 381 CRR (2d) 224 [ Delay Decision ]. [ 2 ] An accused person has the right to be tried within a reasonable time: Canadian Charter of Rights and Freedoms , s. 11(b) . In R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], the Supreme Court of Canada established a new set of rules for determining when delay in the prosecution of a criminal case becomes unreasonable.

This framework includes a “presumptive ceiling” of 30 months for a case to proceed from the laying of charges to the conclusion of trial in a superior court. [ 3 ] In this case, the total delay between the laying of the criminal charges and the expected completion of the trial in the Court of Queen’s Bench exceeded four years. The trial judge found that this should be adjusted by only two months to account for defence delay. The trial judge also held that, although the charges against Mr.

Lemioer were pending when Jordan was released, the delay could not be justified on the basis of a “transitional exceptional circumstance” ( Jordan at para 96 ), grounded in the Crown’s reasonable reliance on the law as it previously existed. On these bases, the trial judge stayed the charges against Mr. Lemioer. [ 4 ] Although, in my respectful view, the trial judge committed several errors in his analysis, those errors do not affect the bottom line conclusion that “the delay involved in this case is simply too long” ( Delay Decision at para 89). I would therefore dismiss the Crown’s appeal.

My reasons for reaching this conclusion follow. II. Background A. Procedural History [ 5 ] The procedural history of this case is complex. I will recite only those aspects of it that are necessary to frame the issues in this appeal. [ 6 ] Mr. Lemioer was arrested as a result of his alleged involvement in various drug trafficking offences on June 9, 2013. Two days later, on June 11, 2013, an information was sworn alleging the commission by Mr.

Lemioer and another individual [Co-accused] of various offences under the Controlled Drugs and Substances Act , SC 1996, c 19 , and the Criminal Code . [ 7 ] Between June 9, 2013 and March 5, 2014, the Crown provided disclosure and counsel organized themselves for a preliminary inquiry. On the latter of these dates, the preliminary inquiry was scheduled for October 21–23, 2014. In September 2013, Mr.

Lemioer had to change his counsel when his lawyer became subject to professional discipline at the hands of the Law Society of Saskatchewan. [ 8 ] On October 15, 2014, on the eve of the preliminary inquiry, the Co-accused’s counsel applied for leave to withdraw due to non-payment of fees. The presiding Provincial Court judge described the situation as “concerning”, but nonetheless granted the application. In her ruling, the presiding judge noted as follows: The Crown indicates it is a very complex matter and they would be reluctant here to see an unrepresented accused.

The other defence counsel is ready to proceed, as is the Crown, although she indicates she is not fully retained, but is accepting of that situation and appears to be ready to proceed. The accused are not in custody, and apparently this is the first date the matter has been set. [ 9 ] The judge then asked Crown counsel if he wanted to proceed to a preliminary inquiry against Mr. Lemioer, or if he would “be more comfortable resetting the matter and waiting for the one accused to get organized?” Crown counsel advised that he wished to proceed against the two accused jointly.

As a result, the preliminary inquiry dates were vacated. It was only on April 30, 2015 that new

dates for the preliminary inquiry were set for December 14 to 17, 2015. The 198 days between October 15, 2014 and April 30, 2015 were largely occupied by an application by the Co-accused for court-appointed counsel and then for that counsel to become acquainted with the case . [ 10 ] The preliminary inquiry did not proceed on December 14, 2015, but instead was rescheduled to begin May 3, 2016. While the reasons for this delay were a matter of contention before the trial judge, the Crown now accepts that this time must be counted against it. [ 11 ] On May 6, 2016, at the conclusion of the preliminary inquiry, Mr.

Lemioer and the Co-accused consented to a committal to stand trial in the Court of Queen’s Bench. The indictment alleged that Mr. Lemioer and the Co-accused committed seven separate offences, including unlawfully conspiring together with four others to traffic cocaine, trafficking and possession of cocaine and cannabis, possession of property obtained by the commission of crime, and unlawful storage of firearms. Mr. Lemioer, alone, was charged with three additional offences—unlawful confinement, carrying an imitation weapon, and possession of a prohibited device. [ 12 ] By this point, Mr.

Lemioer had signalled an intention to seek a stay on the ground that his s. 11(

b) Charter right had been violated. [ 13 ] The Supreme Court of Canada handed down its decision in Jordan on July 8, 2016. [ 14 ] On July 28, 2016, trial dates were set for February 21, 2017 to March 10, 2017. Mr. Lemioer’s delay application was set to be heard on November 25, 2016. [ 15 ] On September 23, 2016, the Crown sought to vacate the trial dates because of witness unavailability. Mr. Lemioer and the Co- accused did not oppose the rescheduling of the trial but also did not waive the delay arising from it. The trial was rescheduled to be heard June 12 to 29, 2017. [ 16 ] Mr.

Lemioer’s Charter application proceeded on March 7, 2017. The Delay Decision was handed down on April 13, 2017. B. The Delay Decision [ 17 ] The trial judge accepted, and structured much of his analysis consistently with, the

summary of the Jordan framework provided in R v Coulter , 2016 ONCA 704 , 340 CCC (3d) 429 [ Coulter ] . Coulter simplifies somewhat the steps required by Jordan as follows: [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

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

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “ Transitional Cases ”) ( Jordan , para. 96 ). (Emphasis in original) [ 18 ] The trial judge calculated the period from the charge to the actual or anticipated end of trial (total delay) to be 48 months, 20 days.

He then proceeded to analyze whether this delay should be adjusted under the Jordan framework. The trial judge approached this by considering three specific blocks of time: (

a) the 92 days between September 9, 2013 (the day the Crown provided its first wave of disclosure) and December 10, 2013 (the day Mr. Lemioer’s second lawyer received the disclosure and Mr. Lemioer was released on bail); (

b) the 419 days between October 21, 2014 (the date of the first scheduled preliminary inquiry) and December 14, 2015 (the second date on which the preliminary inquiry was set to begin); and (

c) the 141 days between December 14, 2015 and May 3, 2016 (the date the preliminary inquiry began). [ 19 ] The trial judge found that two months of the first block of time should be attributed to defence delay. He rejected the Crown’s arguments that any other delay during this first period should be deducted. [ 20 ] The trial judge refused to characterize any of the second period as defence delay or as an exceptional circumstance. He also rejected the argument that the delay could be justified because the Crown had relied on the law as it existed pre- Jordan. [ 21 ] As for the third block of time, the trial judge found that the delay was attributable to issues of improper disclosure, which

required the Crown to temporarily take back documentation that had been provided to defence counsel. The trial judge refused to find thatany of this delay was caused by the temporary withdrawal of Mr. Lemioer’s counsel. [22] The penultimate paragraph of the Delay Decision encapsulates the trial judge’s reasoning: [89] In the final analysis, the delay in this case, consisting of 48 months and 20 days to the anticipated conclusion of trial, should bereduced by only two months of defence delay attributable to the change in counsel in 2013. As a consequence, the total delay is reduced to46 months and 20 days.

This amount remains well in excess of the 30 month presumptive ceiling set out in Jordan. Even if I were toaccept that the complexity of the case, with the volume of disclosed documents, the multiple accused and the 15 Crown witnesses, wouldjustify a delay exceeding the presumptive ceiling, the delay involved in this case is simply too long. Under the circumstances, the delay isnot reasonable. III. THE parties’ positions [23] The Crown conceded, in this Court, that the delay associated with the third block of time (flowing from the secondrescheduling of the preliminary inquiry) must be counted against it.

However, the Crown argues that the trial judge erred in other parts ofhis analysis. [24] The Crown places most emphasis on the proposition that the trial judge misapplied the transitional rules under Jordanapplicable to cases “in the system” when the decision in that case was handed down. Most of the delay in this case occurred before Jordanwas released on July 8, 2016.

The Crown says that at each stage of the proceedings before this date it relied on the framework summarizedin R v Morin, (SCC), [1992] 1 SCR 771 [Morin]. [25] The Crown recognizes that Jordan requires that, before consideration is given to the fact that this is a transitional case, thecourt must work through other aspects of the new Jordan framework. The Crown points to several parts of Delay Decision as evincingerror in this regard.

First, the Crown says that the entirety of the 92 days between September 9, 2013 and December 10, 2013 should beattributed to defence delay, and not just the two months recognized by the trial judge. Second, the Crown argues that the 419 daysbetween October 21, 2014 (the date of the first scheduled preliminary inquiry) and December 14, 2015 (the second date on which thepreliminary inquiry was set to begin) should be subtracted at one point or another of the analysis.

Specifically, the Crown says that theentirety of this delay is attributable to the withdrawal of the Co-accused’s counsel and constitutes an exceptional circumstance of the“discrete event” category.

Even with this, the Crown concedes that, applying the Jordan framework, its best case is that the remainingdelay, after account is taken for defence delay and exceptional circumstances, is 33 months and therefore above the Jordan ceiling.However, while pointing to no single fact or decision that resulted in the case exceeding the presumptive ceiling, the Crown says that thisoverall delay is justifiable on account of its reliance on the pre-Jordan law and the complexity of the case. [26] Mr. Lemioer argues that errors made by the trial judge tended to work to the Crown’s benefit.

In particular, he says that thetrial judge should not have attributed any delay in this case to defence delay. Beyond this, Mr. Lemioer submits that the trial judge wascorrect in finding that no exceptional circumstances existed that would justify the time that this case took to get to trial nor would theoperation of the transitional rules justify the delay. As a result, Mr. Lemioer submits that the Delay Decision should be upheld. IV. Issues [27] In my respectful view, the Crown’s appeal can be appropriately determined by examining two questions: (

a) Did the trial judge err in his conclusion that, under the Jordan framework, the remaining delay in this case (after considerationof defence delay and exceptional circumstances) was 46 months, 20 days? (

b) Did the trial judge err in his application of the transitional rules that were applicable because the case against Mr. Lemioerwas in the system when Jordan was decided? V. Analysis A. Standards of Review [28] The Crown submits, with reference to R v Pidskalny, 2013 SKCA 74 at para 12, 299 CCC (3d) 396 [Pidskalny] and R v J.E.K.,2016 ABCA 171 at para 10, 337 CCC (3d) 222 [J.E.K.], that “the characterization of periods of delay, and the ultimate decisionconcerning the reasonableness of the delay, are both reviewed on the standard of correctness”.

The Crown concedes that underlyingfindings of fact are reviewable on the standard of palpable and overriding error: R v Walker, 2013 SKCA 95 at para 23, 423 Sask R 125[Walker]. Mr. Lemioer states in his factum that he agrees with the Crown’s recitation of the applicable standards of review. [29] I must observe, however, that the Supreme Court of Canada has reminded us that trial judges are in a better position thanappellate courts to assess litigation conduct and matters of trial management.

Therefore, in Jordan, the Court noted that “first instancejudges are uniquely positioned to gauge the legitimacy of defence actions” (at para 65), and determinations as to whether a trial is ofsufficient complexity to comprise an exceptional circumstance “fall well within the trial judge’s expertise” (at para 79). See also R v Cody,2017 SCC 31 at para 31, [2017] 1 SCR 659 [Cody]. [30] I also think it is important to flag that both Pidkskalny and J.E.K. pre-date Jordan. I am also not at all confident that the partieshave accurately captured the nuance of the standard of review in this province pre-Jordan.

Paragraph 12 of Pidskalny, referred to by theCrown, for instance, reads as follows:

[12] Section 676(1)(

c) of the Criminal Code affords the Crown a right of appeal from the order of a trial court which stays proceedings onan indictment. In oral argument before us there was some disagreement as to whether this right of appeal might be limited to questions oflaw or of law alone. Regardless, the Crown did not seek to directly impugn the facts as found by the judge; rather, it sought to impugn thejudge’s attribution of the factual periods of delay and her resulting conclusion that the delay was unreasonable and that, in remedy, itmerited a judicial stay. In this respect, the questions before this Court are threefold: (

i) whether, on the facts as she found them, the judge properly attributed periods of delay to the Crown, which is a question of lawreviewable on the standard of correctness (see: R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, at para. 20); (ii) whether the balancing component of the judge’s decision with respect to the resulting prejudice was reasonable, which is a decisionentitled to deference (see: R. v.

Macintosh, 2011 NSCA 111 , 281 C.C.C. (3d) 291 at para. 100, aff’d 2013 SCC 23 );and (iii) whether a stay is the proper remedy, which, as a question of law, is reviewable on a standard of correctness. (Line break formatting and emphasis added) [31] Subsequent decisions of this Court tend to support the conclusion that the ultimate balancing in a pre-Jordan context wasreviewable on a reasonableness standard: Walker at para 23, and R v Wilson, 2013 SKCA 128 at para 36, [2014] 2 WWR 26.

This is howthe jurisprudence from this Court was interpreted by Beard J.A. in R v Vandermeulen (M), 2015 MBCA 84 at para 27, [2016] 1 WWR 30.It is also somewhat ironic that the Crown cites to paragraph 10 of J.E.K., as in that case the Alberta Court of Appeal noted that “there iscurrently division amongst appellate courts in Canada on whether the standard of review on the ultimate decision is correctness orreasonableness.

Alberta, along with Ontario and British Columbia, has concluded that it is correctness while Manitoba, Saskatchewan andNova Scotia have concluded it is reasonableness”. [32] The questions that are engaged in the delay analysis have changed because of Jordan. It remains difficult to fully reconcile theapproaches taken by appellate courts as to the applicable standard of review post-Jordan.

See, for example only: R v Schenkels, 2017MBCA 62 at para 6, [2017] 11 WWR 683; R v Regan, 2018 ABCA 55 at paras 32–34, [2018] 3 WWR 637; R v Jurkus, 2018 ONCA 489at paras 22–26, 363 CCC (3d) 246; R v Rice, 2018 QCCA 198 at paras 29–36, 44 CR (7th) 83; and R v King, 2018 NLCA 66 at paras 65–68, 369 CCC (3d) 1. However, I do not consider it appropriate to assess how, if at all, Jordan may impact the applicable standard ofreview, since neither party presented argument on the issue.

Instead, for the reasons that follow, in my view it does not matter whatstandard of review is applied in the circumstances of this case. B.

Did the trial judge err in his conclusion that, under the Jordan framework,the remaining delay in this case (after consideration of defence delay and exceptionalcircumstances) was 46 months, 20 days? [33] The trial judge correctly observed that the framework established by Jordan is applicable even though charges against Mr.Lemioer were outstanding when that decision was delivered, although a transitional exceptional circumstance may arise based on relianceon the law as it existed before that decision was released: Jordan at paras 92–104.

Shortly after the Delay Decision was handed down, theSupreme Court of Canada released Cody. Cody clarified that the possibility of a transitional exceptional circumstance should beconsidered only after all other aspects of the Jordan framework are considered. The Court stated in Cody: [67] The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitionalexceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan(Jordan, at para. 96).

This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does notreduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity. [34] The trial judge did not have the benefit of Cody. Perhaps for this reason, the trial judge considered the implications of the factthat this case was in the system pre-Jordan in the context of his examination of the separate blocks of time he constructed to analyze thedelay in this case in the Jordan framework.

The Delay Decision nonetheless allows for the identification of the trial judge’sdeterminations respecting all parts of the Jordan analysis. [35] Both the Crown and Mr. Lemioer accept that the overall time that this case would have taken from the laying of the charge tocompletion of the trial of was 48 months, 20 days. There remain two contentious blocks of time within this period: (

a) the 92 days betweenSeptember 9, 2013 and December 10, 2013 (the day Mr. Lemioer’s second lawyer received the disclosure and Mr. Lemioer was releasedon bail); and (

b) the 419 days between October 21, 2014 (the date of the first scheduled preliminary inquiry) until December 14, 2015 (thesecond date on which the preliminary inquiry was set to begin). In addition, the Crown points to the complexity of the case as justifyingthe time taken to bring this case to trial. 1. September 9, 2013 to December 10, 2013 [36] Jordan recognizes that, when determining whether a trial occurred within a reasonable time, “delay attributable to the defencemust be subtracted” (at para 60).

Delay may be explicitly or implicitly waived (at para 61) or may be “caused solely by the conduct of thedefence” (at para 63). Here, there is no suggestion of waiver, so the question is whether Mr. Lemioer caused any part of this delay. [37] Mr. Lemioer’s first legal counsel withdrew in early September 2013, shortly after receiving the first wave of Crown disclosure.Mr. Lemioer retained his new (and current) counsel in early November 2013. On November 19, 2013, even before she was on record, Mr.Lemioer’s new counsel requested additional Crown disclosure.

On December 10, 2013, his new counsel received a copy of the disclosurethat had been provided to the first counsel in early September. The Crown made additional disclosure well into 2014. [38] At trial, the Crown argued the entire period between September 9, 2013 and December 10, 2013 should be attributed to the

change in defence counsel. On the other hand, Mr. Lemioer argued that there were outstanding disclosure issues that would have caused delay in any event and therefore none of this time period should be counted as defence delay. These positions were reiterated in this Court. [ 39 ] The trial judge took a compromise position, concluding that 60 days of this 92-day period was properly characterized as defence delay. He reasoned as follows: [88] From my review of the circumstances, the amount of delay involved is, in the overall scheme of the case, not particularly significant.

That said, there is always some delay that will be attributed to a change in counsel. While defence counsel makes a good point with respect to the fact that the disclosure of the ITO’s had not been fully addressed by the time former counsel was dismissed, I am satisfied that some portion of the delay should be attributed to the accused.

Rather than the full three months of delay, as contended by the Crown, I am satisfied that two months of this time should be attributed to the changing counsel. [ 40 ] In my respectful view, while there is a basis to criticize the trial judge’s reasons in this regard, there is no basis to interfere with his conclusion that 60 days’ delay during this 92-day period should be attributed to the defence. [ 41 ] In situations other than where delay is waived, to be counted as defence delay the delay must be caused “ solely by the conduct of the defence” ( Jordan at para 63 , emphasis added).

The trial judge’s statement that “there is always some delay that will be attributed to a change of counsel” (at para 88, emphasis added) does not answer Mr. Lemioer’s argument that the delay would have occurred in any event because Crown disclosure continued into 2014. To be sure, in many cases delay occurs when there is a change in counsel, but it is not an axiom. Jordan requires the Court to analyze whether there were other events occurring in the prosecution that would have caused the delay in any event.

The trial judge’s statement that delay “always” follows a change in counsel is therefore not a sufficient reason to attribute delay during this period to Mr. Lemioer. [ 42 ] However, there was a clear and simple evidentiary basis for the trial judge’s conclusion that he was “satisfied that some portion of the delay should be attributed to the accused” (at para 88). As I have explained, Mr. Lemioer’s new counsel was retained in early November. It became evident to her—almost immediately—that she would be requesting disclosure beyond what had been provided to Mr. Lemioer’s first counsel.

Her request for this disclosure was made shortly after she was retained, roughly 60 days after the first counsel withdrew. It is easy to see how the trial judge would have thought that, if Mr. Lemioer’s new counsel had been retained earlier, the request would have been made earlier and all subsequent disclosure requests would have been made, and answered, earlier as well. I therefore can find no error in the trial judge’s finding of fact that 60 days of the 92 days in this first period was caused by the defence. [ 43 ] I would make one last point about the accounting for this block of time.

Neither the Crown nor Mr. Lemioer suggested that if delay was caused by the withdrawal of his counsel it should not be characterized as defence delay. The other way to look at this is that an unexpected change in counsel, unprovoked by the actions of an accused, is an exceptional circumstance justifying an extension of time if the Crown is not able to mitigate that delay: R v Boehmer , 2019 SKCA 74 at para 43 [ Boehmer ]. In this case, it is of no consequence whether the delay flowing from the change in counsel is called defence delay or an exceptional circumstance.

The trial judge found, as a fact, that the change in counsel caused 60 days’ overall delay in the case. This is appropriately taken into account when an assessment is made as to whether the overall delay exceeded the Jordan threshold, whether called defence delay or an exceptional circumstance. 2. October 21, 2014 to December 14, 2015 [ 44 ] This period, of 419 days , relates to the delay of the preliminary inquiry resulting from the withdrawal of counsel for the Co- accused. Broadly speaking, this period is divisible into two blocks.

The first is between October 21, 2014 (the first scheduled date for the preliminary inquiry) and either April 1, 2015 (when new counsel for the Co-accused came on record) or April 30, 2015 (when new dates for the preliminary inquiry were set). The second is between April 1, 2015 (or April 30, 2015) and December 14, 2015, when the preliminary inquiry was scheduled to begin. [ 45 ] The Crown argued to the trial judge that this entire period should be deducted from the calculation of a reasonable time to trial under the Jordan framework on one of three different bases: (

a) as defence delay; (

b) as an exceptional circumstance of the “discrete event” variety; or (

c) as a transitional exceptional circumstance. On appeal to this Court, the Crown abandoned its argument that delay flowing from the withdrawal of the Co-accused’s counsel should be counted against Mr. Lemioer as defence delay. As I have explained, the proper approach is to set aside transitional considerations at this point of the analysis.

The sole remaining issue at this stage is, therefore, whether the withdrawal of the Co-accused’s counsel should be considered as an exceptional circumstance of the “discrete event” variety justifying some or all of this delay. [ 46 ] The Crown submits that the withdrawal of the Co-accused’s counsel qualifies as a discrete event, in that it was a specific unforeseen event that caused delay. The proposition that the withdrawal of counsel for the Co-accused was unforeseeable and caused delay is not challenged by Mr. Lemioer.

The contentious issue is whether the delay that followed could have been reasonably avoided by the Crown, either by successfully opposing the withdrawal, and thereby forcing the preliminary inquiry to proceed as scheduled, or by severing the charges. It is appropriate to examine these two possibilities separately. [ 47 ] In respect to the first possibility, the trial judge concluded as follows: [77] In this case, I am satisfied that the Crown was less than proactive and was not vigilant in preserving the accused’s right under s. 11 (b).

In this respect, it is notable that the Crown did not oppose the request of co-accused’s counsel to withdraw. In my view, the remarks of the presiding judge clearly showed that she was displeased with counsel’s request. Not only was her displeasure justified, it was a signal to the Crown that there were good grounds for it to oppose the request and proceed with the preliminary inquiry on the scheduled dates. I do not believe it is unfair for me to speculate that such opposition would have been well received.

Indeed, it would appear that, but for the absence of Crown opposition, leave to withdraw would probably not have been granted. [ 48 ] The Crown submits that the trial judge’s holding, that if the Crown had opposed the adjournment it would not have been granted, “is not supported by the evidentiary record”. [ 49 ] The application by counsel for the Co-accused to withdraw was made approximately one week before the preliminary inquiry

date. Because of this timing, according to the applicable Provincial Court practice directive, a hearing was required. Since the reason for withdrawal was non-payment of fees, the Provincial Court judge had discretion to refuse or allow the withdrawal: R v Cunningham , 2010 SCC 10 , [2010] 1 SCR 331. [ 50 ] The trial judge observed that “the remarks of the presiding judge clearly showed that she was displeased with counsel’s request”.

He interpreted this as a “signal to the Crown that there were good grounds for it to oppose the request and proceed with the preliminary inquiry on the scheduled dates” ( Delay Decision at para 77). The trial judge’s comment is based on what transpired on October 21, 2014. However, the discussion among counsel and the presiding Provincial Court judge had a larger context. [ 51 ] The exchange with counsel on this issue began with case management on October 1, 2014. On that date, counsel for the Co- accused informed the presiding Provincial Court judge that he had not been in contact with his client for some time.

The presiding judge then commented that she gathered counsel was “not in a position then to commit to being counsel on the preliminary hearing date?” Other matters were discussed, which created uncertainty whether the preliminary inquiry would proceed. Counsel for the Co-accused undertook to inform the Court and the Crown before the next case management meeting if he would not be able to proceed with the preliminary inquiry.

Near the end of the dialogue, the presiding judge advised that “there are three days set aside and I’m sure we could find another use for them”. [ 52 ] The Delay Decision references the October 1, 2014 case management attendance, but not the most salient exchanges. The trial judge referred to the fact that both accuseds’ counsel “advised the attending judge that they had not been in recent contact with their respective clients” (at para 29).

He made no mention of the fact that counsel for the Co-accused raised the possibility that, based on this, he may not be in a position to proceed with the preliminary inquiry. In fact, the trial judge stated that “neither defence counsel advised the court that they would not be able to proceed with the preliminary inquiry” (at para 29). While it is technically correct to say that neither counsel said that they “would not” be able to proceed, the transcript allows for no

interpretation other than that counsel for the Co-accused raised the distinct possibility that he might not be able to proceed. The following exchange took place: [COUNSEL FOR CO-ACCUSED]: … I haven’t been in contact -- or I shouldn’t say -- I should say my client has not been in contact with me for some time. I’ve sent numerous notifications about the upcoming preliminary hearing date.

So what I -- what I would state on the record today, is at this time I don’t have instructions from my client in terms of making any admissions today or any notification about how we would proceed, other than to say that I -- I haven’t heard from my client in some time. THE COURT: And do I gather you’re also not in a position then to commit to being counsel on the preliminary hearing date? [COUNSEL FOR MR.

LEMIOER]: That’s correct, Your Honour. [COUNSEL FOR CO-ACCUSED]: Yeah, that would also be correct for – for me as well. [ 53 ] Lastly, in relation to the October 1, 2014 case management, the trial judge stated that “the dates were confirmed” (at para 29). Respectfully, at best, this is a generous

interpretation of the exchange in which the ability to conduct the preliminary hearing as scheduled was clearly put in doubt and the presiding judge accepted that if it fell through the dates could be put to another use. [ 54 ] When the parties reconvened on October 21, 2014, counsel for the Co-accused sought to withdraw because he “hasn’t been retained”.

The presiding judge appears to have been upset, first, because of her belief that the Crown had not been informed in a timely manner of the intention of Co-accused’s counsel to seek withdrawal and, second, because the non-payment issue was being raised at that point in the proceedings. After this, the judge solicited the Crown’s position, but ended her inquiry noting that “I think it’s the first time it’s been set; not that it hasn’t been around for a long time – but I think this is the first date”.

In response to this, the Crown confirmed it was the first time the matter had been set for preliminary inquiry, and then took no position with respect to the application to withdraw. [ 55 ] The Crown makes a compelling case that, based on all of this, the trial judge committed a palpable and overriding error when he concluded that “but for the absence of Crown opposition, leave to withdraw would probably not have been granted” (at para 77).

Ultimately, it is unnecessary to decide this point, because in my view the trial judge’s analysis was incomplete. [ 56 ] It was not enough for the trial judge to conclude that if the Crown had opposed the withdrawal of counsel for the Co-accused, the preliminary inquiry would have gone ahead. Rather, it was incumbent on the trial judge to consider if it was unreasonable for the Crown not to oppose the withdrawal of the Co-accused’s counsel in the circumstances as they existed in October 2014 ( Jordan at para 69 ). At that point, the charges had only been outstanding for 16 months.

This was the first request for an adjournment of the preliminary inquiry. Neither counsel nor the court had reason to know that it would be more than a full year before another date for the preliminary inquiry could be arranged, or what other delays would follow. Respectfully, in the context of all of this, it involves hindsight to suggest that the Crown acted unreasonably in failing to oppose the withdrawal of counsel for the Co-accused.

The failure by the trial judge to consider if it was unreasonable for the Crown not to oppose the withdrawal of the Co-accused’s counsel, in the circumstances as they existed in October 2014, is an error of principle. [ 57 ] As I will later explain, there is a further and related reason, based on the application of the transitional rules, that the delay occasioned by the withdrawal of counsel for the Co-accused should not be counted against the Crown in this case. [ 58 ] The trial judge identified a second route the Crown could have followed to avoid the delay that was caused by the withdrawal of counsel for the Co-accused: [78] Even if I am wrong in my speculation, it is noteworthy that, after granting leave to withdraw, the presiding judge essentially invited the Crown to consider a severance of the accused’s case from that of the co-accused.

It appears that, in this respect, the presiding judge was appropriately sensitive to the accused’s s. 11(

b) Charter rights. The Crown was obviously less sensitive. At the very least, time should

have been taken to consider the question of severance and to proceed. Given the number of individuals involved, as set out in theindictment, it was clear that whatever evidence was required, it would almost certainly be presented multiple times. [59] It is significant that the trial judge did not determine it was unreasonable for the Crown not to sever the charges against Mr.Lemioer and the Co-accused. Instead, the trial judge stated that “time should have been taken to consider the question of severance”(emphasis added).

Without a positive finding that severance should have occurred, it cannot be said that the delay occasioned by thewithdrawal of the Co-accused’s counsel should have been mitigated.

However, more fundamentally, in my respectful view, the trial judgeerred in principle if the Delay Decision is to be interpreted as concluding that the Crown acted unreasonably by not severing the charges. [60] Two years prior to these events, in R v Richards, 2012 SKCA 120, [2013] 2 WWR 637 [Richards], this Court discussed theapplication of Morin principles, in a context very similar to those facing the parties in this case in October 2014. In May 2008,Mr. Richards and several others were alleged to have been part of a large trafficking conspiracy.

There were various delays in moving thecase forward and, as it ultimately turned out, Mr. Richards’ trial in the Court of Queen’s Bench was not scheduled to begin until March of2011. He brought a Charter application and in the first instance successfully argued that his s. 11(

b) rights had been denied. This decisionwas reversed on appeal to this Court, in part because the judge “had no regard to the notion of inherent delay properly understood” (at para37) and because of his conclusion that “the Crown acted improperly by failing to charge Mr. Richards separately from the other accusedat the outset and/or by failing to sever him from all of the other accused in January of 2009” (at para 40, emphasis in original).

This Courtheld: [42] In my respectful view, this line of thinking ignores the principle that co-conspirators should be tried together so as to avoid theprospect of inconsistent verdicts and the expense, impositions on witnesses and other consequences of having a multiplicity ofproceedings. As Fish J. said in R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384 (S.C.C.) at para. 47, “...[i]t is well established that separatetrials for alleged co-conspirators are the exception, not the rule.” See also: R. v.

Creighton, (SCC), [1995] 1 S.C.R. 858(S.C.C.) at para. 19. [43] This reality means that accused persons moving toward trial with co-accused will not always be in complete control of theproceedings. In other words, they will sometimes be affected by the circumstances and tactical choices of their co-accused. This is whathappened here…. [61] There is also a broader context to be considered when examining the question of severing of the charges brought against Mr.Lemioer and his Co-accused. The investigation leading to the charges against Mr.

Lemioer and the Co-accused involved many others whowere charged separately. A further severance of the case against Mr. Lemioer and the Co-accused would therefore have required an evenfurther parcelling of the charges. [62] To be sure, the Court in Richards emphasized that it “would not want to be understood as saying that, as a matter of principle,the Crown’s decisions with respect to how charges are laid in a case of this sort can never enter into the calculus of a s. 11(

b) problem”(at para 45). However, the point from all of this is that in the context of what was known in October 2014, I see no reasonable basis tocriticize the Crown for failing to pursue severance of the charges in this case. [63] In the end, in my respectful view, the trial judge erred by failing to consider the delay flowing from the withdrawal of counselfor the Co-accused to be an exceptional circumstance of the “discrete event” variety justifying delay after October 21, 2014. Mr.

Lemioerdid not forcefully contend that the Crown could have reasonably mitigated the delay between this date and December 14, 2015. Therefore,419 days should be deducted from the net delay, as that term is used in Coulter. 3. Complexity of the case [64] Complexity is considered at two stages in the Jordan framework. First, Jordan recognizes that “particularly complex cases” (atpara 71) present a category of exceptional circumstance that can justify delay above the presumptive ceilings. Second, the complexity ofthe case can be considered when applying the transitional exceptional circumstance.

For the moment, I am considering the former context. [65] Jordan assists in identifying cases which may be categorized as being “particularly” complex: [77] As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requireselaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require aninordinate amount of trial or preparation time such that the delay is justified.

As for the nature of the evidence, hallmarks of particularlycomplex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and chargescovering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among otherthings, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues indispute.

Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexityof the case. [78] A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance.

However, if an inordinateamount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken isjustified, the complexity of the case will qualify as presenting an exceptional circumstance. [66] Further insight is gained when the Supreme Court turned from the abstract to the particular in its examination of whether thecase against Mr. Jordan was sufficiently complex to justify the presumptive ceiling being exceeded: [125] There is nothing in the record to indicate that any discrete, exceptional circumstances arose.

And although particularly complexcases may present an exceptional circumstance, this is not one of those cases. In terms of the legal issues, while Mr. Jordan was initiallycharged along with nine other co-accused, this number quickly dropped as the case progressed. At the time of trial, only one co-accusedremained on the indictment with Mr. Jordan. Further, none of the alleged offences involved novel or complex points of law. Relativelyfew pre-trial applications were scheduled. In short, the legal issues in Mr. Jordan’s case were not particularly complex.

[126] As for the evidence, it was substantial but it was relatively straightforward. It consisted of surveillance evidence by police officers,undercover buys by police officers, a small amount of expert evidence regarding how dial-a-dope operations are conducted, and a searchwarrant for Mr. Jordan’s apartment. There was nothing particularly complex about this evidence. [127] In the end, while the case against Mr.

Jordan may have been moderately complex given the amount of evidence and the number ofco-accused, it was not so exceptionally complex that it would justify a delay of 44 months (excluding defence delay). [67] Here, the Crown points to four factors as justifying the delay in this case beyond what would otherwise be accounted for in theJordan framework: (1) multiple accused in a joint trial; (2) voluminous disclosure; (3) numerous intercepted private communications; and(4) a possible challenge to the validity of wiretap authorizations based on the principles set out in R v Garofoli, (SCC),[1990] 2 SCR 1421 [Garofoli]. [68] The trial judge dealt with this issue in the context of the particular time blocks he defined.

In connection with the longestperiod, from October 21, 2014 to December 14, 2015 (associated with the withdrawal of counsel for the Co-accused), he referenced R vSchertzer, 2009 ONCA 742, 248 CCC (3d) 270 [Schertzer], R v Vassell, 2016 SCC 26, [2016] 1 SCR 625 [Vassell] and R v Ny and Phan,2016 ONSC 8031, 343 CCC (3d) 512 [Ny], and then continued: [76] I am also satisfied that this passage of time cannot be justified as a discrete, exceptional event or as a consequence of the case’scomplexity.

As observed in Schertzer, Vassell and Ny, the Crown is still required to take a proactive stance in order to bring all accused,including those charged jointly, to trial within a reasonable time. It cannot close its eyes to that responsibility simply by relying on theconduct of one of the parties. [69] The Crown’s arguments properly implicate delay that occurred outside of this particular period.

Delay must be examined moreglobally, from the inception of charges to the conclusion of trial. [70] Here, apart of the trial judge’s analysis concerning the single October 21, 2014 to December 15, 2015 block of time, he simplystated that “[e]ven if I were to accept that the complexity of the case, with the volume of disclosed documents, the multiple accused andthe 15 Crown witnesses, would justify a delay exceeding the presumptive ceiling, the delay involved in this case is simply too long”(at para 89, emphasis added).

Respectfully, this statement contains no analysis to assist in examining what delay the trial judge attributedto the complexity of the case. The trial judge should have expressed a conclusion as to whether, from an overall perspective, the case metthe threshold described in Jordan as being particularly complex, and, if so, what additional delay this finding might have justified.

Thetrial judge’s failure to do means that his decision is owed no deference: R v Picard, 2017 ONCA 692 at para 137, 137 OR (3d) 401[Picard]. [71] Still, the Crown must do more than simply point to factors that it says add to the complexity of the case. The Crown should beprepared to provide some particularization as to where, in the chronology of events, these factors impacted the march of the case fromcharge to completion of the trial, so as to remove the case from the application of the presumptive ceiling or, at the very least, elaborate onhow complexity has added to the delay.

In my respectful view, in this case, the Crown has failed in this justification. In brief, even thoughshe was only retained in November 2013, Mr. Lemioer’s trial counsel had completed her review of documents and was ready to proceed topreliminary inquiry in early 2014. I have already given the Crown the benefit of subtracting the delay flowing from the introduction ofnew counsel for the Co-accused. The Garofoli application had been scheduled to occur between the hearing of the s. 11(

b) application andthe commencement of the trial, and therefore did not contribute to the overall delay. Although it is an error to analyze complexity solelyfrom the perspective as to how it will present at trial (Picard at para 57), some additional measure of the complexity of this case is evidentfrom the fact that the preliminary inquiry was scheduled for four days and was completed in three. [72] In the end, while the case had more complexity than many others, I am unconvinced that complexity justified additional delayin this case beyond what is already accounted for in the Jordan framework. 4.

Conclusion respecting the calculation of remaining delay [73] The trial judge determined the net delay to be 48 months, 20 days (1,481 days), and the remaining delay (to employ theterminology of Coulter) to be 46 months, 20 days (1,421 days). In my respectful view, 419 days should be deducted from the net delay,with the result that the remaining delay was 1,062 days, or approximately 35 months. This is still above the ceiling prescribed in Jordan. C. Is the delay in this case justifiable based on the application of thetransitional rules that were applicable because the case against Mr.

Lemioer was in thesystem when Jordan was decided? [74] Jordan recognized that a “judicial change in the law is presumed to operate retroactively and apply to past conduct” (at para 93,quoting Canada (Attorney General) v Hislop, 2007 SCC 10 at para 84, [2007] 1 SCR 429). The Supreme Court also recognized thepossibility that the applicability of this presumption could cause unfairness and therefore a period of adjustment was required. For thisreason, the Court directed that the “new framework, including the presumptive ceiling, applies to cases currently in the system, subject totwo qualifications” (at para 95).

The two qualifications are for cases in which the delay exceeds the ceiling and for cases when the delayfalls below the ceiling. This case considers the first qualification. (The second qualification was considered by this Court in Boehmer.)

Where, as here, the overall delay exceeds the Jordan ceiling, “a transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” ( Jordan at para 96 ). [ 75 ] As I have explained, in accordance with the direction given in Cody , the possible existence of a transitional exceptional circumstance should be considered only after the delay in the case is examined in the context of the general Jordan framework. [ 76 ] In Cody , the Supreme Court further explained how a court should approach a case where it is argued that delay is explainable because the parties relied on the law as it existed pre- Jordan : [68] Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise.

It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” ( Jordan , at paras. 96-97 ). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” ( Jordan , at para. 96 ).

Put another way, 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 expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin . [ 77 ] The sine quo non of a transitional exceptional circumstance is the Crown’s reliance on the law as it existed pre- Jordan as explaining the delay in the proceedings.

In my respectful view, ultimately two considerations are decisive as to why the delay in this case cannot be justified on the basis of a transitional exceptional circumstance. First, except for the delay that flowed from the withdrawal of counsel for the Co-accused, the record of reliance on pre- Jordan law as a justification for the delay is not strong.

Second, although most of the time between the charge and the projected conclusion of the trial occurred in a context where the law as articulated in Morin applied, after Jordan was decided the delay continued, without any obvious alacrity by the Crown to move ahead with the case without further undue delay. I will unpack these conclusions. [ 78 ] Submissions made by the Crown to the trial judge make clear that it would have a difficult time justifying the delay that had occurred up to July 8, 2016 under the Morin principles.

The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (

b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Here, as at July 8, 2016, over three years had already passed since the laying of the charges. By that point, the delay was therefore significant, and Charter delay concerns were clearly alive. The Crown could point to no explicit defence waiver.

Although the Crown did much to justify the time the case had taken based on inherent needs of the case and institutional delay, its overall justification for the delay rested heavily on what had occurred in the specific blocks of time that have already been discussed at length in these reasons. As the Crown submitted to the trial judge, it was in the context of the delay during these three blocks “where the Crown [was] relying on the old framework the most”. The Crown also acknowledged that Mr. Lemioer had suffered “a degree of prejudice” because he had been on conditions for a “significant period of time”.

It was presumably on these bases that, even before Jordan came down, Mr. Lemioer had signaled an intention to seek a stay based on delay. [ 79 ] Because of this, the trial judge understandably focused on these three blocks of time in the Delay Decision . As previously explained, with respect to the first block of time, the trial judge determined that, factually, 60 of the 92 days were attributable to the defence. The trial judge also held that none of the delay in the third block flowed from actions by the defence.

This then left the 419 days delay flowing from the withdrawal of counsel for the Co-accused for consideration as a transitional exceptional circumstance. [ 80 ] At trial, the Crown argued that under the Morin framework, this delay would have been considered as neutral delay to be subtracted from the overall time that the prosecution of the case should reasonably take. This argument was rejected by the trial judge.

The trial judge began his analysis by stating as follows: [79] As for the justification of this delay, as part of the transition from the former framework to the new framework implemented in Jordan , it must be remembered that the Crown is obliged to present evidence tending to show that the Crown relied on the existence of the former framework at the time of the delay in question. In this regard, no evidence was presented to show specific or express reliance.

As such, I can only review the existing evidence to determine whether reliance should be inferred. [ 81 ] In Cody , however, the Supreme Court confirmed that “it is presumed that the Crown and defence relied on the previous law until Jordan was released” (at para 69 , emphasis added). The trial judge, who I again emphasize did not have the benefit of Cody , therefore erred in principle by placing an onus on the Crown to demonstrate this reliance.

However, although the trial judge incorrectly placed an onus on the Crown to lead evidence in respect to its reliance on the pre- Jordan law, he also analyzed the Crown’s argument based on the evidence he had before him: [80] The only evidence I have in this respect is the transcript covering the discussion at the time the co-accused’s counsel sought leave to withdraw. I acknowledge that, under the previous analysis for delay, the conduct of a co-accused might ostensibly be regarded as neutral. Fairburn J. also acknowledged this in Ny .

That said, Fairburn J. made it clear, correctly in my view, that this is not an “iron-clad” rule. The court is still expected to monitor the conduct of the Crown in its assessment of the speed in which the case is prosecuted against all accused. [81] If there is a difference between the two frameworks on this issue, I believe it is one simply of acuity. The former framework did not excuse Crown complacency in the prosecution of multiple accused in a joint process.

As such, and under the particular circumstances of this case, I believe that this period of delay would not be described as neutral in the former framework. In this respect, I am satisfied that, even under the former framework, the Crown would have been expected to be more aggressive in pressing the case forward, either through vigorous opposition to the request to withdraw or through severance of the accused’s charges. [ 82 ] The trial judge was correct in his conclusion that the attribution of co-accused delay as being neutral was not “an ‘iron-clad’ rule” (at para 80).

Ny is but one decision that would support this proposition. However, the question in this case is not whether under Morin attribution of this delay would be considered to be neutral, but whether the Crown unreasonably relied on the expectation that the

delay would likely be considered to be neutral when making the decision not to oppose the withdrawal of counsel for the Co-accused. I am sympathetic to the Crown’s argument that it involves hindsight to suggest that, in the circumstances of this case, and in light of the overall thrust of the case law as it was at the time, the Crown was unreasonable in believing this specific delay would not count against it. [ 83 ] However, even if I were to give effect to the Crown’s argument, it would do nothing to assist it in this appeal.

I have already given the Crown full benefit of the 419 days’ delay flowing from the withdrawal of counsel for the Co-accused, by counting it as an exceptional circumstance of the “discrete event” variety. The same delay cannot be counted twice. Even removing this delay from the count of time, the delay exceeds the Jordan ceiling. [ 84 ] Ultimately, what is determinative is the delay that occurred in this case after Jordan was handed down on July 8, 2016. The trial dates were set on July 28, 2016. The trial was to conclude on March 10, 2017.

On this schedule, the trial would have ended 45 months after the laying of charges. Yet, even after this, the Crown again sought an adjournment of the trial. The reason given was that when the dates were first set the Crown had not consulted fully with all witnesses. When the dates became known, it turned out that several witnesses were not available. No evidence was led to explain the reasons for the witnesses’ unavailability, nor was any evidence presented to explain what efforts were taken to secure their attendance.

Respectfully, the record tends to reflect that the Crown was content to proceed as if Jordan had effected no change in the law at all, that it was “business as usual”. [ 85 ] The Supreme Court has directed that “if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account” ( Jordan at para 96 ). In Cody , the Court similarly directed that “the parties’ general level of diligence may also be an important transitional consideration” (at para 70).

In this case, the Crown had the obligation to take Jordan into account: it was no longer “business as usual”. At the very least, to justify this further delay, the Crown was required provide a compelling reason for why it could not adjust its prosecution to address the compelling delay concerns that already existed in this case. It has failed to do so.

Instead, in the broad context of this case, where the case for a stay was strong before Jordan was handed down, and the Crown has showed no alacrity in moving the case forward after the new framework was established and through its actions it has extended the period of the delay even further, I am easily able to agree with the trial judge’s conclusion that the delay was “simply too long” ( Delay Decision at para 89). [ 86 ] I have reached this conclusion without considering the impact of the additional time taken to prosecute the Crown’s appeal in this Court.

The delay in arguing this appeal is apparently attributable to various factors, including difficulty on the part of the Crown in serving its notice of appeal. As in R v Spencer , 2017 SKCA 54 at para 119 , 354 CCC (3d) 525, I leave the impact, if any, of Jordan on appeal delay to another day. VI. Conclusion [ 87 ] For the reasons given above, in my respectful view there is no basis to interfere with the trial judge’s determination that Mr. Lemioer’s right to a trial within a reasonable time was violated. The Crown does not suggest that if this Court agrees Mr.

Lemioer’s Charter rights were violated a stay is not an appropriate remedy. I would therefore dismiss the Crown’s appeal. “Leurer J.A.” Leurer J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.