His Majesty the King Appellant v. Shawn William Spencer, 2022 SKCA 135

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3413 Citation: R v Spencer , 2022 SKCA 135 Date: 2022-11-23 Between: His Majesty the King Appellant And Shawn William Spencer Respondent Before: Caldwell, Leurer and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On appeal from: CRM 194 of 2018 (QB), Regina Appeal heard: October 14, 2022 Counsel: Erin Bartsch for the Appellant Darren K. Kraushaar for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] Shawn Spencer was charged with one count of sexual exploitation, contrary to s. 153(1) (

a) of the Criminal Code and one count of sexual assault, contrary to s. 271 . The offences were alleged to have occurred in late January of 2017. The proceedings against Mr. Spencer were commenced by way of an Information sworn on March 11, 2017. [ 2 ] Three years and nine months later, on December 11, 2020, a judge of the Court of Queen’s Bench held in oral reasons that the length of the delay in the case violated Mr. Spencer’s right to be tried within a reasonable time, as guaranteed by s. 11(

b) of the Charter , and stayed the proceedings against him ( R v Spencer (11 December 2020) Regina, CRM 194/18 (Sask QB) [ Delay Decision ]). The Crown now appeals against that ruling. [ 3 ] For the reasons that follow, I conclude that the Crown’s appeal must be dismissed. II. BACKGROUND [ 4 ] I will begin with a review of the factual underpinning of the matter, to provide the necessary context for the discussion of the legal issues that follows. A. The alleged offences, the initial report, and the preliminary investigation [ 5 ] The incident that gave rise to the charges against Mr.

Spencer occurred on January 27, 2017. Mr. Spencer was present at the same gathering as the complainant. The complainant alleged that, at some point during the evening, Mr. Spencer provided her with cocaine and alcohol before inviting her to the master bedroom of the home where the gathering took place, and sexually assaulting her. The sexual contact that she described included Mr. Spencer kissing her neck, rubbing her bare genitals with his hands, and performing cunnilingus on her. [ 6 ] The complainant told her father and stepmother about the events that same night.

They brought her to the hospital, where a sexual assault examination was conducted. As part of that examination, her clothing was seized, blood samples were obtained, and swabs were taken from various parts of her body for evidentiary purposes. Those items were preserved by the Regina Police Service [RPS]. B. The proceedings in Provincial Court [ 7 ] On March 11, 2017, an Information was sworn, charging Mr. Spencer with one count of sexual interference and one count of sexual assault. He was arrested that day, released on an Undertaking, and given a date of April 12, 2017, for his first appearance in

Provincial Court. [ 8 ] Mr. Spencer eventually elected to be tried in the Court of Queen’s Bench and requested a preliminary inquiry in Provincial Court. The preliminary inquiry was scheduled for April 18, 2018. It began, but did not conclude, on that day because the Crown had yet to disclose to Mr. Spencer the results of DNA testing and toxicology analysis conducted on certain exhibits that RPS had gathered during the investigation.

Crown counsel at the time advised the preliminary inquiry judge that the items to be analysed had not been submitted to the RCMP Forensic Laboratory for that purpose until March of 2018, and that it usually took at least 60 days to obtain results. Accordingly, the preliminary inquiry was adjourned to June 25, 2018, for continuation but, despite the adjournment, the Crown had still not completed disclosure of the DNA and toxicology testing results by that date. Nonetheless, the preliminary inquiry concluded, and Mr.

Spencer was committed to stand trial. [ 9 ] As it turned out, the initial DNA testing produced little in the way of evidentiary value, as the analyst who prepared the report stated that the swabs obtained from the complainant’s body and underwear contained DNA typing profiles from two individuals. One profile matched the complainant, while the other contained such limited genetic information that no meaningful comparison could be made to known samples. C.

The proceedings in the Court of Queen’s Bench [ 10 ] The Crown filed an Indictment with the Court of Queen’s Bench on July 31, 2018, and, after a number of adjournments of the pre-trial conference, trial dates were eventually scheduled for October 28, 2019, to November 1, 2019. 1.

The Crown learns of “new” evidence [ 11 ] The trial did not proceed on the dates originally scheduled. [ 12 ] On May 29, 2019, Crown trial counsel, for the first time, contacted the analyst at the RCMP Forensic Laboratory who had conducted the DNA testing to discuss her initial report (dated May 15, 2018) and to inquire whether she would be available as a witness for the scheduled trial dates.

During that conversation, the analyst advised Crown counsel of the existence of a “new” DNA testing technique that the RCMP Forensic Laboratory had, by that time, been using for approximately 10 months (i.e., since July of 2018). This technique, called Y-STR analysis, focuses on genetic material found in the Y-chromosome and, because of that, enables DNA analysts to obtain a comparison-suitable profile of the male component in bodily substance samples more readily where both male and female profiles are present.

The analyst advised Crown counsel that, if Y-STR analysis were performed on the exhibits that had been seized from the complainant in Mr. Spencer’s case, it may be possible to generate a sample of the male component suitable for comparison. [ 13 ] Nineteen days later, on June 17, 2019, Crown counsel advised Mr. Spencer’s counsel of what she had learned regarding the availability of Y-STR analysis and indicated that she intended to have the Forensic Lab conduct that analysis in relation to the samples seized by RPS during the examination of the complainant.

This would require some time, of course, as those items would have to be re- submitted to the Forensic Lab, and a DNA sample would have to be obtained from Mr. Spencer, pursuant to a warrant, for comparison. All of that was done by July 31, 2019, and Crown counsel informed Mr. Spencer’s counsel that the Crown would still be able to proceed to trial on the scheduled date of October 28, 2019. 2. Additional applications and other intervening events [ 14 ] Ultimately, the trial did not proceed on the scheduled dates. There were two reasons for this.

The first was that the Crown’s decision to pursue the Y-STR testing meant it was obligated to provide additional disclosure to Mr. Spencer. That disclosure would not be completed by the time the trial was scheduled to begin. The second reason was that Mr. Spencer brought an application to challenge the constitutionality of ss. 276, 278.2–278.4 and 278.92–278.94 of the Criminal Code . Considering those developments, the trial judge determined that the trial itself should be adjourned and the dates that had initially been reserved for trial would be used to hear Mr.

Spencer’s constitutional challenge. [ 15 ] After hearing the constitutional challenge on October 31 and November 1, 2019, the trial judge reserved his decision, and new trial dates were scheduled for June 8–11, 2020. Mr. Spencer explicitly waived delay for the period from April 27, 2020, to June 8, 2020, because his counsel was unavailable for those dates. [ 16 ] In early March of 2020, the COVID-19 pandemic arrived.

This resulted in a temporary moratorium on trial proceedings in the Court of Queen’s Bench, although matters that did not require in-person appearances and viva voce testimony could still be heard . [ 17 ] On March 19, 2020, Mr. Spencer’s counsel filed an application seeking a stay of proceedings based on a breach of Mr. Spencer’s right to be tried within a reasonable time. Mr. Spencer attempted to have the hearing of that application proceed in advance of the scheduled June 8, 2020, trial date.

For several reasons, including the effect of COVID-19 restrictions, it was determined that the application could not be heard earlier, and it was set to June 8, 2020, for hearing. [ 18 ] However, the hearing of Mr. Spencer’s application for a stay of proceedings did not take place on June 8, 2020. This was because Mr. Spencer and the Crown each applied to strike the affidavit material that the other had filed on the application. As a result, the trial judge was required to hear and determine the applications to strike before hearing the stay application.

The trial judge reserved his decision on the strike applications, which led to the stay application being adjourned to September 11, 2020, and the trial to December 14– 18, 2020. Ultimately, Mr. Spencer’s application to strike portions of the Crown’s affidavit material was entirely successful., and the Crown’s application to strike portions of Mr. Spencer’s affidavit material was entirely dismissed. [ 19 ] The stay application proceeded as scheduled on September 11, 2020. 3. The Delay Decision

[ 20 ] On December 11, 2020, the trial judge delivered an oral decision on the stay application. He found that Mr. Spencer’s right to be tried within a reasonable time, as set out in s. 11(

b) of the Charter , had been violated and stayed the proceedings against him. [ 21 ] In the Delay Decision , the trial judge began by reviewing the factual background and cataloging the significant events that had occurred in the proceedings. He instructed himself on the law by citing the principles set out in R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], including the “presumptive ceiling” of 30 months that it established for a case to proceed from the laying of charges to the conclusion of trial in a superior court.

He also referred to the recommended analytical framework adopted by this Court in R v Boehmer , 2019 SKCA 74 at para 29 , [2020] 3 WWR 509 [ Boehmer ] for assessing applications for a stay of proceedings based on unreasonable delay, and, after doing so, proceeded to apply the Boehmer framework to determine whether the presumptive ceiling for delay had been exceeded in this case. [ 22 ] The trial judge examined whether any delay ought to be subtracted from the total delay under consideration, because it had either been waived or caused by the defence. In that respect he observed that the Crown had argued that Mr.

Spencer had waived or caused five distinct periods of delay and he proceeded to analyse each of those periods. [ 23 ] The first of these was a 47-day period from September 21, 2017, to November 7, 2017, which the Crown said was caused by Mr. Spencer’s counsel failing to confirm his readiness to proceed to preliminary inquiry in a timely fashion.

The trial judge rejected that argument, saying that the evidence upon which the Crown relied, namely a series of emails between counsel and the Provincial Court trial coordinator “provides no substantive evidence of defence delay”. [ 24 ] The second period was comprised of what Crown counsel had characterized as four distinct instances of waiver, which totalled 159 days. The first three waivers, said the Crown, covered the 117-day period from November 1, 2018, to March 15, 2019, where the Court record indicated that, on three occasions, Mr.

Spencer had requested an adjournment of the pre-trial conference and explicitly waived delay. The fourth instance of waiver that the Crown identified was the 42-day period between April 27, 2020, and June 8, 2020, when it was ready to proceed to trial and Mr. Spencer’s counsel was not. The trial judge found that only the last portion of this delay had truly been waived, because Mr. Spencer’s waivers during the pre-trial conference stage were predicated on the Crown’s unintentionally erroneous representations about its readiness to proceed to trial.

On that point, he said: Spencer disputes the validity of the first three waivers, (117 days). He states the waivers of the first three periods were the product of Crown representations they were ready to proceed to trial. The pretrial representations of the Crown regarding trial readiness were incorrect.

The Crown cannot rely on a waiver that was induced by their own faulty representations they were ready to proceed to trial when they were not. … Spencer swears that his instructions to waive defence delay would not have been provided had he known that the prosecutor had yet to speak to the DNA expert, that further DNA testing was to be conducted, reports prepared and an additional expert witness called. … There is no dispute that the Y-STR testing and the evidence resulting therefrom added a significant new dimension to the Spencer trial.

Although this evidence, or its potential availability, was not known by RPS or the frontline prosecutors until May 2019, it was potential availability, or at least the means to make an informed decision in that regard, was clearly available to the RCMP [National Forensic Laboratory] much earlier. For [National Forensic Laboratory] “policy reasons” Ms.

Bradford elected not to advise the RPS or the prosecutor, until approximately a year after Report #1 was completed that additional testing, not immediately offered by the [National Forensic Laboratory], was commercially available or that the additional testing would soon be available through [the National Forensic Laboratory]. This information was only provided after she was contacted by the prosecutor.

I am satisfied that when the prosecutors represented to the Court and to Spencer, at the November 16, December 14, 2018 and January 25, 2019 pretrial conferences that they were ready to proceed, the representation was incorrect and misleading, although not intentionally so. … Based on the above, I’m satisfied that the prosecutors misrepresented, albeit unintentionally, the true state of affairs when they asserted their readiness to proceed to trial. Spencer relied upon these representations in his decision to waive delay.

Under [these] circumstances, it would be unfair and inappropriate, in reliance on the waiver, to hold Spencer responsible for delay during the period November 16, 2018 through March 15, 2019 (117 days). [ 25 ] The third portion of the delay that the Crown had argued should be attributed to Mr. Spencer was the 14-day period it took to execute the DNA warrant so that the Y-STR testing could be completed.

The trial judge rejected the Crown’s argument on this point, saying that there was “no evidence … to substantiate a finding that Spencer was responsible for this brief delay”. [ 26 ] The fourth period that the Crown had argued should be viewed as having been caused by the defence was the delay that resulted from the allegedly unreasonably wide-ranging disclosure request Mr. Spencer’s counsel had made after having received the analyst’s report in relation to the Y-STR testing.

The trial judge rejected that argument as well, saying: I’m satisfied that the defence disclosure request was not only reasonable, but was virtually essential under the circumstance.

Without intending to impute or assign blame, when the requested disclosure of a very significant evidentiary procedure is not provided until approximately three weeks prior to trial, on charges that have been before the courts for approximately 31 months already, delay cannot appropriately be attributed to the defence. [ 27 ] The fifth period of delay that the Crown said had been caused by the defence was the 70-day period between September 14, 2020, and November 23, 2020, where defence counsel was not available for trial. The trial judge found that Mr.

Spencer was responsible for only 30 days of this period, because the trial judge himself had also been unavailable for a portion of that period.

[ 28 ] The trial judge considered the Crown’s argument that other periods of delay should be subtracted on the basis that they were the product of discrete exceptional events, namely the “discovery” of the availability of the Y-STR testing procedure and the events that followed (among those being the additional disclosure requests and constitutional challenges), and the COVID-19 pandemic.

The trial judge rejected these arguments as well. [ 29 ] With respect to the Crown’s assertion that it could not reasonably have foreseen the implementation of a new DNA testing technique, or mitigated the delay it had occasioned, the trial judge said: Overall, I am not convinced that the availability of Y-STR testing and its applicability to this case, constitute either an “exceptional circumstance,” or a “discrete exceptional event” as those terms are utilized in Jordan .

While availability and potential applicability of the testing may have been reasonably unforeseen or reasonably unavoidable to RPS and prosecutors, it was both reasonably foreseeable and reasonably avoidable to the RCMP [National Forensic Laboratory]. RPS, prosecutors and RCMP [National Forensic Laboratory] are not individual isolated participants in the proceeding. They’re all components of the “Crown”. The conduct of an individual component that negatively impacts the accused’s s. 11(

b) Charter rights, represents conduct of the Crown for purposes of a Stay of Proceedings application. [ 30 ] As for the impact of COVID-19, the trial judge found that, although the pandemic was an exceptional circumstance, it had contributed only minimally to the overall delay: It would be difficult to argue that the pandemic was not an “exceptional circumstance”; however, the direct impact of COVID-19 on this proceeding appears to be minimal. The specific period under review is March 18 through September 1, 2020, (167 days). The “Pandemic State of Emergency” commenced March 19.

By that date, for reasons unrelated to COVID-19, at a pretrial conference conducted October 31, 2019, trial dates had been scheduled for June 8 through 12, 2020. At the same pretrial, defence waived delay for the period April 27 through June 8 (43 days). Superior trial courts in Saskatchewan do not sit on non-emergent criminal matters during July and August, (62 days). Taking these considerations into account, the only dates remaining unaccounted for are March 18 through April 27 (40 days) and June 8 through 30, 2020, (22 days).

There is no evidence of Court or counsel’s availability during the period March 18 through April 27, 2020. While the trial did not proceed as scheduled on June 8 to the 12, the Court did hear several motions of both defence and Crown during June. Under this circumstance, I'm not prepared to categorize the relevant time period as an “exceptional circumstance” for purposes of calculating delay. [ 31 ] The trial judge also rejected the Crown’s contention that the requests by Mr.

Spencer’s counsel for disclosure relating to the Y- STR testing or his applications to challenge the constitutionality of various provisions of the Criminal Code should be characterized as defence delay. In that respect, he said: As I indicated previously, when considering the October 2019 time period under issue number 4 of the alleged defence delay, the disclosure request was not only reasonable, but essential under the circumstances. Full disclosure by [RCMP National Forensic Laboratory] should not only be anticipated, but routine.

Such a request cannot be classified as an exceptional circumstance. … In relation to the Constitutional Question, and indeed all of the various applications brought by defence during the course of this proceeding, all were largely successful. On no occasion did I consider any of the applications to be frivolous or deliberately designed to cause delay.

The Constitutional Question cannot, under the circumstance, appropriately be described as an exceptional circumstance nor should the time required to address the question be classified as defence delay [ 32 ] The trial judge concluded by returning to the Boehmer framework and performing the calculation it contemplates for determining whether there has been unreasonable delay. Doing that, he made the following findings: 1. Elapsed time between the date of charge and the anticipated end of trial is 1,378 days or 46 months; 2.

Subtracting defence delay, which I have found to be 72 days from total delay of 1,378 results in a net delay of 1,306 days or 43.5 months; 3. Comparing the net delay of 43.5 months to the presumptive ceiling established by Jordan of 30 months results in a 13.5 month excess and a presumption that the delay is unreasonable; 4. Under this circumstance, the Crown must establish the presence of exceptional circumstances, either discrete events or particular complexity; 5. Particular complexity was not asserted as an issue.

Of the circumstances asserted as being exceptional, I found that COVID-19, although exceptional, had only a minimal impact on this proceeding. Similarly, I found that the issues of DNA Disclosure and the Constitutional Challenge could not appropriately be described as exceptional circumstances for purposes of calculating delay. Accordingly, I find that Mr. Spencer’s right to be tried within a reasonable time, guaranteed by s. 11(

b) of the Charter , has been violated. The appropriate remedy is the entry of a judicial stay of proceedings. III. STANDARD OF REVIEW [ 33 ] The Crown asserts that the trial judge erred when calculating the net delay to be considered against the 30-month presumptive ceiling established in Jordan . It submits that, when the errors are corrected for, there was no violation of Mr. Spencer’s right to be tried within a reasonable time.

[ 34 ] I will review the details of the Crown’s submissions later in these reasons but, before doing that, it is useful to set out the governing standard of review because it is through that lens that the Crown’s arguments must be examined. As Barrington-Foote J.A. recently observed in R v Pastuch , 2022 SKCA 109 [ Pastuch ], the standard of review of a decision of the sort under appeal here “depends on the issue before the court” (at para 146).

Characterization or allocation of the delay, that is to say, assigning the delay to a particular category under the Jordan framework, is reviewable on a correctness standard. Likewise for the ultimate decision concerning the reasonableness of the delay.

Findings of fact, which include the attribution of the delay (i.e., determinations regarding who caused the delay and why) and decisions as to whether exceptional circumstances exist, are reviewable on the palpable and overriding error standard ( Pastuch at paras 145–146 , see also: R v Yusuf, 2021 SCC 2 , 453 DLR (4th) 189; Law Society of Saskatchewan v Abrametz , 2022 SCC 29 at para 183 , 470 DLR (4th) 328; R v Lemioer , 2019 SKCA 95 at paras 28-29 , 380 CCC (3d) 307; R v Pauls , 2020 ONCA 220 at para 40 , 149 OR (3d) 609; and R v Pearce , 2021 NSCA 37 at paras 53–63 , 405 CCC (3d) 75). [ 35 ] In addition, the Supreme Court has emphasized that trial-level judges are in a better position than appellate courts to assess litigation conduct and matters of trial management.

In Jordan , for example, the Court noted that “first instance judges are uniquely positioned to gauge the legitimacy of defence actions” (at para 65), and that determinations regarding whether certain matters - such as the complexity of a trial - amount to exceptional circumstances “fall well within the trial judge’s expertise” (at para 79). This means, as stated in R v Cody , 2017 SCC 31 at para 31 , [2017] 1 SCR 659 [ Cody ], that “appellate courts must show a correspondingly high level of deference” to decisions of that nature. IV. ANALYSIS [ 36 ] As noted, the proceedings against Mr.

Spencer were commenced on March 11, 2017. The expected end date for his trial was December 18, 2020. As the trial judge observed, this meant the total delay to be considered in this case was 1,378 days (which is slightly more than 45 months). From that, he determined that only 72 days could be deducted as having been waived or caused by the defence. The trial judge also found that the Crown had not succeeded in demonstrating that further periods of time should be deducted from the total delay on the basis of exceptional circumstances.

All of this left a presumptively unreasonable “net delay” of 1,306 days (for reference, the 30-month ceiling set out in Jordan , if expressed in days rather than months, is 913 days) and, accordingly, the trial judge found that there had been a violation of Mr. Spencer’s s. 11(

b) right. [ 37 ] As I will explain, after filtering the Crown’s arguments through the governing standard of review, I am not persuaded to interfere with the bottom-line ruling made by the trial judge. While the trial judge’s description of the total delay to be considered contained a mathematical error (the periods of “total” delay and “net delay” were only 45 months and 42.5 months, respectively), that error is of no consequence in this appeal.

Moreover, even if it is assumed that the trial judge made an error in failing to find that certain portions of the delay had been waived, the removal of those periods from the calculation would not bring the net delay below the 30- month Jordan ceiling. Finally, I am not persuaded that the trial judge made any of the other errors alleged by the Crown in attributing or characterizing the periods of delay, or in his treatment of the question of exceptional circumstances. A.

The Crown’s position [ 38 ] The Crown asserts that the trial judge failed to properly identify the periods of delay that should be deducted from the total delay on the basis that it had either been waived or caused by the actions of Mr. Spencer and his counsel. [ 39 ] As Jordan instructs, periods of delay that are either waived or caused solely by the defence must be deducted from the total delay under consideration. In this case, the trial judge found that only 72 days of delay should be deducted on that basis, which was comprised of a period of 42 days (April 27, 2020, to June 8, 2020) that Mr.

Spencer had explicitly waived, and a period of 30 days (representing a portion of the period between September 14, 2020, and November 27, 2020) where Mr. Spencer’s counsel was not available for trial dates that had been offered. [ 40 ] The Crown contends that, if the trial judge had properly applied the principles from Jordan , he would have found that 12.5 months of the delay in question had either been waived or caused by the defence. The Crown says that three distinct periods make up that total: (

a) The 42 days that the trial judge found had been waived by Mr. Spencer; (b) 5 months of waived delay at the pre-trial stage (implicit waiver of the period from October 12, 2018, to November 16, 2018, and explicit waivers of the period from November 16, 2018, to March 15, 2019); and (c) 6 months of delay caused by the timing of the filing of Mr. Spencer’s application for a stay of proceedings (the period from June 8, 2020, until the scheduled trial dates in December of 2020). [ 41 ] The Crown also asserts that the trial judge erred by failing to find that a period of approximately 7.5 months of delay fell into the category of exceptional circumstances. In the s. 11(

b) analysis, periods of delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable should be deducted, to the extent that such delay could not have been reasonably mitigated by the Crown and the justice system ( Jordan at paras 73 and 75 ; Cody at para 48 ). [ 42 ] In this regard, the Crown asserts that the events that flowed from its discovery of the availability of the Y-STR testing technique, which included the time needed to respond to the extensive disclosure requests that followed and the resultant adjournment of the first trial dates, are discrete exceptional events that caused the period of delay from October 29, 2019, to June 8, 2020.

The Crown takes the view that the trial judge erred in not removing this period from the calculation, because those events could not reasonably have been foreseen and, once they occurred, the Crown took appropriate and reasonable steps to mitigate any delay that resulted. As part of its arguments here, the Crown also notes that Mr. Spencer’s application to challenge the constitutionality of various provisions of the Criminal Code – which it says should properly have been viewed as defence-caused delay—also played a

part in this portion of the overall delay. The Crown also contends that the trial judge failed to adequately consider the effect of the COVID-19 pandemic as an exceptional

circumstance. [ 43 ] The Crown argues that, if the periods of delay it says the trial judge should have found to have been waived, caused by the defence, or attributable to exceptional circumstances had been deducted from the total, the net delay to the anticipated end of the trial would have been less than 30 months and, under Jordan , presumptively reasonable. B. Delay waived or caused by the defence 1. The timing of the filing of Mr. Spencer’s stay application [ 44 ] The Crown asserts that the trial judge erred by not finding that a 6-month period of delay had been caused by Mr.

Spencer, because his “eleventh hour” filing of the application for a stay of proceedings and the accompanying applications to strike the Crown’s affidavits were the reason that the trial could not proceed as scheduled on June 8, 2020. [ 45 ] In Jordan , the Court noted that the underlying goal behind deducting delay caused by the defence from the total period under consideration in an application pursuant to s. 11(

b) is to prevent the defence from benefitting from its own delay-causing actions or inaction (at para 113). However, not all delay caused by defence conduct is necessarily deducted.

The presumptive ceilings established in Jordan recognize that the right to make full answer and defence requires that a person faced with a criminal charge be given time to prepare and present their case and, for this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted ( Jordan at para 65 ; Cody at para 29 ). [ 46 ] In Cody , the Court stated that the only delay properly deductible as having been caused by the defence is “that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges” (at para 30).

Deciding whether defence conduct is legitimate is not an exact science ( Jordan at para 65 ) and, because such a determination involves a discretionary decision based on an assessment that trial judges are uniquely positioned to conduct, “appellate courts must show a correspondingly high level of deference thereto” ( Cody at para 31 ). [ 47 ] The Crown’s argument here does not impugn the trial judge’s conclusion that Mr. Spencer’s various applications had merit. Instead, it asserts that the trial judge erred by focusing only on the merit of Mr.

Spencer’s applications, to the exclusion of any consideration of their nature or timing, in the overall assessment of delay. The Crown contends that Mr. Spencer’s markedly inefficient sequencing of his applications should be seen as having caused the delay, even though his applications were largely successful. [ 48 ] The Crown is correct insofar as it asserts that, in the delay analysis, defence conduct encompasses both substance and procedure. Not only the steps taken by the defence, but the manner in which they are taken, may attract scrutiny.

All of the circumstances surrounding a particular action or conduct may be considered in determining whether it is legitimately taken to respond to the charges and, in that regard, the overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.

Moreover, even meritorious defence actions may result in delay being counted against the defence if they were taken in a manner that demonstrates an intention to cause delay or exhibits a marked inefficiency or marked indifference toward delay ( Cody at para 32 ; see also: R v Boulanger , 2022 SCC 2 at paras 2–6 , 469 DLR (4th) 63). [ 49 ] However, judges must also proceed with caution when scrutinizing the legitimacy and the efficiency of defence measures taken to respond to the charges.

Questions of this sort are not answered by simply looking at the number of applications filed and whether they led to adjournments. The analysis is qualitative and contextual, inexorably tied to the facts of the case, and must proceed from a recognition that defence decisions are made in light of various factors, including the charges the accused is facing, and the questions of fact and law the case presents ( R v Rice , 2018 QCCA 198 at paras 55–58 , 44 CR (7th) 83). [ 50 ] Bearing all of that in mind, I am not persuaded that the trial judge erred by not characterizing the delay flowing from Mr.

Spencer’s various applications as defence delay. I say that because, as mentioned above, the trial judge found that all of Mr. Spencer’s applications were legitimate and reasonable measures taken in defence of the charges he was facing, and that none of them had been deliberately designed to cause delay. As Jordan says, that is a determination a trial judge is uniquely well-positioned to make, and one with which I can see no proper basis to interfere. [ 51 ] I also reject the Crown’s invitation to interfere with the trial judge’s refusal to attribute delay to the defence on the basis that Mr.

Spencer’s applications demonstrated a marked inefficiency or marked indifference toward delay. Like the trial judge, I take no issue with the notion that it made sense to hear the constitutional challenge to the third-party records provisions before other applications (including a potential application under s. 276 to cross-examine the complainant regarding other sexual activity), given the way in which the outcome of that application may have affected the procedure in others.

Moreover, the constitutional challenge was not the sole reason for the adjournment of the first trial dates; the Crown’s late disclosure of the results of the Y-STR analysis figured prominently in that delay as well. As mentioned earlier, the trial judge found that Mr. Spencer’s decision to wait until he had received all of the disclosure before bringing such applications was reasonable and a necessary strategy. [ 52 ] Further, I see no basis for the Crown to complain about the timing of the stay application. When Mr.

Spencer filed that application, more than 36 months had passed from the date charges had been laid, and nearly three months remained before the scheduled trial date. Mr. Spencer also made reasonable efforts to bring the case before the trial judge so that the application could be heard in advance of the trial. In doing so, he acted in the way the Supreme Court has suggested defendants should act in those circumstances (see, for example: R v J.F. , 2022 SCC 17 at para 35 ; and R v K.G.K. , 2020 SCC 7 at para 43 , 443 DLR (4th) 361). Mr. Spencer also raised his objections to the Crown’s affidavits in a timely way.

Moreover, his application to strike the Crown’s affidavit material was obviously well-founded, as the trial judge granted all of the relief he sought. Conversely, the Crown’s response application – to strike portions of Mr. Spencer’s affidavits – was dismissed. Considering all of that, it is not possible to conclude that Mr. Spencer’s actions in filing the delay application were the only – or even the primary – reason that the trial could not proceed on June 8, 2020. Equally, if not more, to blame were the Crown’s attempts to file inappropriate material and its unsuccessful application to strike Mr.

Spencer’s affidavits. In other words, it cannot be said that this portion of the delay was “solely or directly caused by the accused person” ( Cody at para 30 ).

Accordingly, I am not persuaded that the trial judge erred by refusing to characterize this portion of the delay as having been caused bythe defence. 2. Waiver [53] The Crown asserts that the trial judge erred by failing to find that Mr. Spencer had waived the delay from October 12, 2018, toMarch 15, 2019, a period of approximately 5 months. Breaking this down into its constituent parts, the Crown says Mr.

Spencer shouldhave been taken as having implicitly waived delay for the period from October 12, 2018, to November 16, 2018, because theendorsements on the record show that the Crown had stated that it was ready to proceed to trial, but the pre-trial conference was adjournedat Mr. Spencer’s request because he had not yet fully retained counsel. As for the delay from November 16, 2018, to March 15, 2019, theCrown points to Mr. Spencer’s explicit, on-the-record waivers. [54] Mr.

Spencer responds by noting that the trial judge found that his explicit waivers were not valid because they were not“informed”, in that they had been premised on the Crown’s erroneous assertion that it was ready to proceed to trial. [55] As I understand the Crown’s submission on this point, it is that the trial judge erred by failing to recognize that, where anaccused person who fully understands the nature of their s. 11(

b) right clearly and unequivocally waives a specific portion of delay, thatwaiver is not subject to being retroactively vitiated by unforeseen future events.

The Crown contends that, to the extent it forms a part ofthe requirement for a valid waiver of a period of delay, the question of whether an accused person’s waiver was informed must beanswered with reference to the knowledge available to the parties when the waiver is given, and not with reference to an unexpected futureevent that may change the landscape. [56] There is a long line of authority, beginning with R v Mills, (SCC), [1986] 1 SCR 863; R v Rahey, (SCC), [1987] 1 SCR 588; and R v Askov, (SCC), [1990] 2 SCR 1199, and continuing all the way to Cody, which saysthat waiver of periods of delay must be “informed, clear and unequivocal” (Cody at para 27).

Interestingly, however, in Jordan, the Courtdid not mention the word “informed” in connection with the concept of waiver. Rather, in that case, the Court said: [61] … Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge ofhis or her rights, as well as the effect waiver will have on those rights.

However, as in the past, “[i]n considering the issue of ‘waiver’ inthe context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specificperiods in the overall assessment of reasonableness” (R v Conway, [1989] 1 S.C.R. 1569, per L’Heureux-Dubé J., at p. 1686). [57] There is some support in the jurisprudence for the proposition that subsequent events, including those that change the Crown’sposition on a material issue, may provide a basis for a finding that a previously given waiver of a period of delay is vitiated (see, forexample: R v Clarke, 2009 NLTD 42 at para 49, 875 APR 201; and R v Kemp, 2016 NSSC 7 at para 140, 368 NSR (2d) 281).

On theother side of the coin, there are also cases that have held that an unequivocal and unconditional waiver of a period of delay is not subjectto being vitiated or rescinded by later events (see, for example: R v Junkin, 2011 MBQB 170 at para 10, 266 Man R (2d) 11; R v Williams(1992), (ON SC), 9 OR (3d) 521 (Gen Div); and R v Wallis, 2011 ONSC 1159 at paras 36-40). All of that said, it is notnecessary in this case to travel very far down the road raised by the Crown’s argument on this point. This is because, even if I were toassume that the trial judge erred by finding that Mr.

Spencer had not waived any of the five-month period of delay in issue and deduct thatperiod from the total delay under consideration, the remaining net delay would still be substantially higher than the 30-month ceiling setout in Jordan and, thus, presumptively unreasonable. C. Alleged errors in the assessment of exceptional circumstances [58] That brings me to exceptional circumstances. [59] Exceptional circumstances are those that “lie outside the Crown’s control in the sense that (1) they are reasonably unforeseenor reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once theyarise” (Jordan at para 69, emphasis in original). In this context, exceptional circumstances fall into two categories: discrete events andparticularly complex cases (Jordan at para 71). There is no suggestion that Mr.

Spencer’s case was particularly complex; the occurrencesthat the Crown says constituted exceptional circumstances fall into the “discrete events” category. [60] In determining whether the Jordan ceiling has been exceeded, delay caused by any discrete exceptional events must besubtracted from the total period of delay under consideration.

However, “any portion of the delay that the Crown and the system couldreasonably have mitigated” is not to be subtracted (Jordan at para 75). [61] While the Court in Jordan was careful not to attempt to define all the circumstances that might qualify as discrete exceptionalevents on the basis of being reasonably unforeseen or reasonably unavoidable, it gave certain examples, including medical or familyemergencies on the part of the accused, counsel, trial judge or important witnesses (at para 72).

The Jordan Court also recognized that“[t]rials are not well-oiled machines” and that sometimes “[u]nforeseeable or unavoidable developments can cause cases to quickly goawry, leading to delay” (at para 73). In such circumstances, once the delay-causing event occurs, the Crown must take steps to mitigatethe delay.

In that respect, the requirement that must be met in redressing the delay is reasonableness; the Crown is not required to exhaustevery conceivable option (Cody at para 54). [62] In the end, factual determinations about whether a discrete event was reasonably foreseeable, and about whether the Crowntook reasonable steps to redress the delay “fall well within the trial judge’s expertise” (Jordan at para 79; see also: R v Vassell, 2016 SCC26 at para 5, [2016] 1 SCR 625) and, thus, are entitled to deference from an appellate court (Cody at para 31). [63] At trial, the Crown asserted that two exceptional circumstances created delay that should have been deducted from the totaldelay under consideration in this case. [64] One of those was the COVID-19 pandemic.

The Crown asserted that the pandemic created delay because, when it arrived in

March of 2020, it brought with it court closures and uncertainty about the future scheduling of matters that contributed to the need for anadjournment of the trial from June to December of that year. [65] In the Delay Decision, the trial judge acknowledged that the pandemic was an exceptional circumstance but concluded it wasnot one that contributed to the overall delay in any appreciable way. He identified three reasons for reaching this conclusion: (

i) the delayapplication and the accompanying applications to strike affidavit material were the reason the trial could not proceed on June 8, 2020; (ii)the Court generally does not hear criminal trials for accused persons who are not in custody during the months of July and August; and(iii) the trial could not be re-scheduled until December of 2020, in large part, because of his own unavailability.

The trial judge wasuniquely positioned to determine the reason the trial did not proceed in June of 2020 and the Crown takes no issue with the second andthird reasons that he gave for reaching the conclusion that the pandemic was not the effective cause of the delay in this case. In light of allof this, and the governing standard of review, I am not persuaded that it would be appropriate to interfere with the trial judge’sdetermination. [66] The second circumstance that the Crown says qualifies as exceptional is associated with the timing of its acquisition ofknowledge of the availability of Y-STR testing.

The trial judge found that the Crown’s late discovery of the availability of Y-STR testing,and the events that flowed from it, did not constitute exceptional circumstances. In that regard, he concluded that Crown trial counselcould not reasonably have been expected to have known of the existence of that technology from the outset of the proceedings.

However,he also found that the Y-STR technology was not so new as to be something of which the National Forensic Laboratory Service wasunaware and, because the National Forensic Laboratory Service is a branch of the RCMP, it is part of the “Crown” for the purposes ofassigning responsibility for delay under s. 11(b). As such, the trial judge determined that this delay could reasonably have been avoided ormitigated by the Crown and, therefore, was not attributable to an exceptional circumstance. [67] The Crown says this was an error.

It asserts that, for the purposes of s. 11(b), the prosecuting Crown and the RCMP ForensicLaboratory are not properly seen as a single indivisible entity and, that being so, the trial judge was wrong to have laid the failure of theDNA analyst to have alerted Crown counsel of the availability of the Y-STR technology in a timely way at the feet of the Crown. In thatregard, the Crown relies on R v McNeil, 2009 SCC 3, [2009] 1 SCR 66 [McNeil], where the Supreme Court held in a different context thatthe police and Crown prosecutors are separate entities. [68] I am not persuaded by the Crown’s argument on this point.

In my view, the principles in McNeil are not entirely transferable tothe s. 11(

b) context and, to the extent they are, they do not assist the Crown in this case. Let me explain. [69] McNeil is a case about disclosure. The focus in McNeil was on defining whether certain information in the possession of thepolice fell under the Crown’s first-party disclosure obligations set out in R v Stinchcombe, (SCC), [1991] 3 SCR 326[Stinchcombe], or under the third-party disclosure regime governed by the principles established in R v O’Connor, (SCC),[1995] 4 SCR 411 [O’Connor].

The Court in McNeil recognized that the police and the Crown are separate and independent entities, inboth fact and law, so not all records maintained by the police are automatically subject to the first party disclosure regime (at para 25). [70] However, even though the Court in McNeil rejected the notion that there exists a single “Crown” entity for the purposes ofdisclosure and production of records, it held that the prosecuting Crown and the investigating police agencies were deemed to beindivisible in that context where the material in question was the fruits of the investigation.

This is because, while the roles of prosecutingCrown and the police are separate and distinct, the police have a duty to participate in prosecutions, which includes a duty to disclose tothe prosecuting Crown the fruits of the police investigation (at paras 22–24). The Court in McNeil also determined that the deemedindivisibility principle applied in relation to certain other records in the possession of the police, namely, those pertaining to police officermisconduct that either (

i) related to the investigation of the accused or (ii) could reasonably impact on the case against the accused (atpara 15). [71] Significantly, in the context of Mr.

Spencer’s case, while the Court in McNeil determined that “Crown entities other than theprosecuting Crown are third parties under the O’Connor production regime”, it also held that the fact they are separate entities in thatrespect “does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other thirdparties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted”(at para 13). [72] Applying the McNeil principles to the context and legal issues at play in Mr.

Spencer’s case does not assist the Crown. This isbecause the samples that the RCMP Forensic Laboratory analysed had been collected by RPS as part of the investigation and, to the extentthat such analyses produced any results, those results were undoubtedly fruits of the investigation. In the disclosure context, the results ofboth the initial DNA analysis and the second Y-STR analysis would be first-party information that falls under the Stinchcombe regime.

Inshort, the prosecuting Crown, RPS and the Forensic Laboratory were, under the principles set out in McNeil, deemed to be indivisible forthe purpose of disclosure of that material. Viewed in that light, the McNeil principles bolster the trial judge’s conclusion that the RCMPForensic Laboratory must be seen as occupying the same position as the prosecuting Crown in the s. 11(

b) analysis. [73] Moreover, even if the Crown and the RCMP Forensic Laboratory are properly viewed as divisible entities, the delay associatedto the Y-STR testing was something that arose from steps the Crown took to gather additional evidence to strengthen its case. Such delaywill generally fall at the feet of the Crown. I would also note that more than a year passed from the time the Forensic Laboratory providedthe first DNA report until Crown counsel actually contacted the DNA analyst to discuss the results or obtain more information.

Based onthis alone, it would be very difficult to conclude that the late-in-the-day discovery of the Y-STR method was reasonably unforeseeable,even if the prosecuting Crown and the Forensic Laboratory are seen as distinct entities. This was information that could have been easilyobtained if communication between Crown counsel and the DNA analyst had taken place in a timely manner. [74] Nor does it appear, once Crown counsel learned of the availability of the Y-STR technique, that all reasonable steps were takento mitigate any resulting delay.

Although the initial DNA report had been in existence for a full year, and in the hands of Crown counselfor 11 months before she contacted the DNA analyst to discuss it, Crown counsel made the decision to proceed with the Y-STR testing infull knowledge that doing so would inevitably lead to further delay. The Crown also did so without exploring other potential options thatmay have expedited the process, such as having the Y-STR testing done by a private lab.

While these are all decisions that fall within thesphere of prosecutorial discretion, over which the courts have no supervisory role, “Crown counsel must be alive to the fact that any delay

resulting from their [exercise of] prosecutorial discretion must conform to the accused’s s. 11(

b) right” ( Jordan at para 79 ). Taking all of that into account, I conclude that deference is owed to the trial judge’s finding that the Crown’s late-gained awareness of the availability of Y-STR analysis did not amount to an exceptional circumstance under Jordan . At bottom, his conclusion in that respect was based on his understanding of the context of the pre-trial proceedings and trial readiness of the parties in this case, and his assessment of the evidence before him. He was well-positioned to make the factual findings that he made, and I see no error in his application of the law to those findings.

It follows that there is no basis to disturb his conclusion that this portion of the delay did not amount to an exceptional circumstance. V. CONCLUSION [ 75 ] For the foregoing reasons, I find no basis to interfere with the trial judge’s conclusion that Mr. Spencer’s right to be tried within a reasonable time was violated. I would dismiss the appeal. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.