WARNING

The Court directs that the following should be
  attached to the file:

Orders restricting publication in this proceeding were
  made under ss. 517 and 539 of the
Criminal Code
and continue to be in
  effect.  These sections of the
Criminal Code
provide:

517(1)          If the prosecutor or the accused
  intends to show cause under section 515, he or she shall so state to the
  justice and the justice may, and shall on application by the accused, before or
  at any time during the course of the proceedings under that section, make an
  order directing that the evidence taken, the information given or the
  representations made and the reasons, if any, given or to be given by the
  justice shall not be published in any document, or broadcast or transmitted in
  any way before such time as

(a)      if a preliminary inquiry is held, the
  accused in respect of whom the proceedings are held is discharged; or

(b)      if the accused in
  respect of whom the proceedings are held is tried or ordered to stand trial,
  the trial is ended.

Failure to comply

(2)      Everyone who fails without lawful excuse,
  the proof of which lies on him, to comply with an order made under subsection
  (1) is guilty of an offence punishable on summary conviction.

(3)      [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
  Supp.), s. 101(E); 2005, c. 32, s. 17.

539(1)          Prior to the commencement of the
  taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the
  prosecutor, and

(b) shall, if application
  therefor is made by any of the accused,

make
  an order directing that the evidence taken at the inquiry shall not be
  published in any document or broadcast or transmitted in any way before such
  time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to
  stand trial, the trial is ended.

***

(3)     Everyone who fails
  to comply with an order made pursuant to subsection (1) is guilty of an offence
  punishable on summary conviction

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st
  Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Picard, 2017 ONCA 692

DATE: 20170907

DOCKET: C62949

Doherty, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Adam Picard

Respondent

Roger Pinnock and Tracy Kozlowski, for the appellant

Howard L. Krongold, for the respondent

Heard: June 12, 2017

On appeal from the order of Justice Julianne A. Parfett
    of the Superior Court of Justice, staying the proceedings against the
    respondent, dated November 15, 2016, with reasons reported at 2016 ONSC 7061,
    368 C.R.R. (2d) 64.

Rouleau J.A.:

A.

INTRODUCTION

[1]

Adam Picard was charged with the first degree murder of Fouad Nayel. Before
    the start of the trial, and following the release of the Supreme Court of
    Canadas decision in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631,
    the trial judge stayed the charge for unreasonable delay pursuant to s. 11(b)
    of the
Charter
.

[2]

The Crown appeals on the basis that it was prejudiced by the lateness of
    the s. 11(b) application, and that the trial judge erred in her attribution of defence-caused
    delay, her assessment of the complexity of the case and her application of the
    transitional exceptional circumstance under
Jordan
.

[3]

I would allow the appeal. In my view, the trial judge erred in her
    application of the transitional exceptional circumstance under
Jordan
.
    The charge in this case predated
Jordan
and was a few months from
    trial when
Jordan
was released.

[4]

I acknowledge that this case exhibits some of the delay concerns that
Jordan
sought to address. Had the charges been laid and prosecuted under the
Jordan
regime from the outset, the overall time needed to bring the case to trial
    combined with the Crowns refusal to agree to a trial on the first available
    dates in the Superior Court would, in my view, have resulted in a stay.

[5]

The court in
Jordan
recognized, however, that the new framework
    it created should provide for a transition. Where, as here, the matter was
    prosecuted almost entirely prior to
Jordan
s
release and the delays would not, under the framework
    that was in place prior to
Jordan
, have resulted in a stay, the
    parties behaviour should not be judged strictly, against a standard of which
    they had no notice:
Jordan
, at para. 96. Reasonable reliance on the
    law as it previously existed constitutes an exceptional circumstance in this
    transitional period.

B.

FACTS

The history of the proceeding

[6]

On December 12, 2012, Mr. Picard was charged with the first degree
    murder of Mr. Nayel, whose death is believed to have occurred on June 17, 2012.
    [This sentence has been edited for publication, pending the conclusion of the
    trial, in compliance with publication bans. The full text of this decision is
    available at the registry office of the Court of Appeal.]

[7]

[This paragraph has been edited for publication, pending the conclusion
    of the trial, in compliance with publication bans. The full text of this
    decision is available at the registry office of the Court of Appeal.]

[8]

The Crowns case was circumstantial. It was built on a complex analysis
    of data from 53 cellphones, including more than 25,000 text messages, GPS data,
    call records and Google Earth files as to the location of the phones owners
    during the relevant period. All of this data had to be interpreted by experts
    in the field.

[9]

The Crown also relied on admissions made by Mr. Picard and anticipated
    calling some 43 witnesses at trial.

[10]

The disclosure required was voluminous and took considerable time to
    complete. Following disclosure, a four-day bail hearing was held, after which
    Mr. Picard was detained in custody pending trial.

[11]

After being denied bail, Mr. Picard dismissed his counsel. Retaining new
    counsel took six months because the first lawyers Mr. Picard contacted
    discovered that they had conflicts preventing them from acting for him.

[12]

When new counsel was hired, it took him approximately two months to
    review the disclosure and become sufficiently knowledgeable about the case to
    set the preliminary inquiry dates. The preliminary inquiry proceeded for some
    five weeks, following which Mr. Picard was committed to trial for first degree
    murder.

[13]

In May 2015, the parties appeared in court to set the dates for trial.
    The Crown was not prepared to accept the first dates when both the defence and
    the court were available, which were in February 2016. The two senior Crowns assigned
    to the case were not available until the end of June and insisted on scheduling
    the trial on dates when both were available.

[14]

Because jury trials are not scheduled during the summer months, the
    parties and the court scheduled the trial to start in September 2016, some
    seven months later than the proposed February dates. Pre-trial motions,
    anticipated to last nine days, were scheduled to commence on September 6, 2016,
    followed by a six-week jury trial commencing on November 7, 2016.

The motion to expedite the trial

[15]

Following the scheduling of the trial dates, Mr. Picard brought a motion
    to expedite the proceeding. The Crown opposed the motion, arguing that if the
    trial were scheduled before July 2016, this would have the effect of removing
    at least one assigned Crown, thereby interfering with prosecutorial discretion.

[16]

The motion was heard on August 6 and 7, 2015. The Crown called Det. Lori
    Birmingham as a witness. Her evidence supported the Crowns decision not to
    remove either of the Crown attorneys. She described the process of bringing the
    Crown attorneys up to speed on the large amount of evidence in the case,
    including an overwhelming quantity of text messages. She also commented on
    the efforts made to build a relationship with the family of the victim, including
    meetings between the Crown attorneys and family members. The suggestion was
    that much of this work would need to be done again if new Crown attorneys were
    assigned to the matter.

[17]

The Crown explained neither Crown attorney assigned to the case was
    available on the earlier dates because they were assigned to other complex and
    serious first degree murder prosecutions, one of which was the third trial in
    relation to a murder that took place in 2010. It reviewed its evidence against
    Mr. Picard in some detail, emphasizing the complexity of the case and the
    detailed familiarity required to prosecute it.

[18]

In response, defence counsel suggested that, as many of the relevant
    facts could be the subject of admissions at trial, this evidence would be
    unnecessary and the case would not be complex. Defence counsel also argued
    that, while this was not a s. 11(b) application, the decision should nonetheless
    be informed by the right to a trial within a reasonable time.

[19]

The Crown responded that the defence could bring a s. 11(b) application
    if it believed the right had been infringed and that, in any event, there was
    not enough evidence before the court to determine whether such an application
    would succeed.

[20]

The motion was dismissed. In his reasons, the motion judge held that the
    effect of granting the motion would be to override the Attorney Generals
    discretion to appoint counsel to carry out the prosecution. The motion judge
    went on to explain:

The Crown Attorneys have had carriage of the prosecution of a
    serious and relatively complex murder trial since the beginning. The Crown Attorneys
    have legitimate reasons for their unavailability to proceed with this trial as
    they are currently assigned to other complex first degree murder trials between
    February 1, 2016 and September 1, 2016.

[21]

Following this disposition, the Crown and defence worked towards
    agreeing on various admissions and streamlining the presentation of the case.

[22]

In September 2016 and, following some delay, in October, the trial judge
    heard and disposed of the pre-trial motions.

The s. 11(b) application

[23]

On November 1, 2016, less than a week before the start of the trial, Mr.
    Picard informed the Crown of his intention to bring a s. 11(b) application. Mr.
    Picard relied on the recently released decision in
Jordan
to argue
    that a stay was necessary.

[24]

Despite its lateness, the trial judge heard the application on November
    10 and granted a stay on November 15, 2016.

[25]

While I will discuss
Jordan
in more detail below, I will
    briefly describe the new framework as context for understanding the trial
    judges reasons on the s. 11(b) application.

[26]

In brief, under
Jordan
a delay from the date of the charge to
    the actual or anticipated end of trial in Superior Court (minus defence delay)
    is presumptively unreasonable if it exceeds 30 months. To rebut this
    presumption, the Crown must establish exceptional circumstances. Exceptional
    circumstances generally fall into two categories: (1) discrete events, and (2)
    particular complexity arising from the evidence or the issues. The Crown may
    also rely on a transitional exceptional circumstance for cases that were
    already in the system pre-
Jordan
. A transitional exceptional
    circumstance will apply if the Crown can establish that the time the case has
    taken is justified based on the parties reasonable reliance on the law as it
    previously existed.

[27]

Applying the
Jordan
framework in this case, the trial judge began
    by noting that the delay from the laying of the charge to the anticipated end
    of the trial was 48 months. She then found that none of the delay had been
    waived by Mr. Picard and she rejected the Crowns claim that the seven months
    from the date of the charge to the dates of the bail hearing should be deducted
    as defence delay.

[28]

She agreed with the Crown that the six months it took Mr. Picard to
    retain new counsel following the dismissal of the counsel who had represented
    him at the bail hearing constituted an exceptional circumstance under the
Jordan
framework. As a result, she agreed that this time period should be deducted
    from the total delay. She also agreed with both counsels submission that the
    two months it took new counsel to receive and review disclosure was duplicative
    and should be characterized as defence conduct. That time should therefore also
    be deducted from the total delay.

[29]

This brought the delay down to 40 months, still well above the
Jordan
presumptive ceiling of 30 months. The trial judge then turned to the issue of
    complexity. She listed the factors supporting the Crowns submission that the
    case was sufficiently complex to justify the 40-month delay. The factors noted
    were:

·

Six
    months of investigation, involving two police services;

·

30,000
    pages of disclosure;

·

2,800
    photographs;

·

Dozens
    of video-recorded witness statements;

·

6,800
    pages of cell phone records;

·

25,000
    text messages with content;

·

103,000
    lines in Excel of subscriber records from Mr. Picards phone;

·

78
    witnesses interviewed;

·

60
    judicial authorizations; and

·

Eight
    separate areas of expert evidence.

[30]

The trial judge acknowledged that [a]t first blush, it would appear
    that the Crown can easily make the case for complexity, but concluded that
    when looked at more closely, it does not stand up. She explained that despite
    the large quantity of disclosure, only a fraction of the text messages,
    photographs and cellphone records would be introduced into evidence at trial. In
    her view, this was, in essence, a circumstantial case and the legal issues were
    not complex or novel. She therefore rejected the Crowns submission that the
    complexity of the case justified the delay in excess of the presumptive ceiling,
    commenting: In short, to the extent that any murder trial could ever be
    described as typical, this is it.

[31]

The trial judge then turned to whether the transitional exceptional circumstance
    applied to this case, considering the factors set out in
R. v. Williamson
,
    2016 SCC 28, [2016] 1 S.C.R. 741. She repeated her earlier finding that this
    was not a complex murder trial. She then applied the framework from
R. v.
    Morin
, [1992] 1 S.C.R. 771,
to assess the delay. As for the analysis of the 48 months of delay, she found
    that, as per her earlier analysis, there were eight months of defence delay,
    which reduced the total for
Morin
purposes to 40 months. A delay of
    that length made it vulnerable to a finding that it was unreasonable and
    further analysis was required.

[32]

According to the calculations of the trial judge, the 40 months of delay
    comprised 14 months of inherent time requirements, 19 months of institutional
    delay and seven months of Crown delay. She expressed concern that the
    institutional delay of 19 months was in excess of the 14 to 18 months representing
    an acceptable allowance for limits on institutional resources under
Morin
.
    The seven months of Crown delay were problematic, particularly in view of the
    institutional delay being beyond the acceptable limits. The situation was all
    the worse given that Mr. Picard had suffered serious prejudice, having remained
    in custody throughout the period of delay.

[33]

The trial judge found that the Crowns decision to delay the trial to
    accommodate the schedule of two assigned Crowns demonstrated a failure to pay
    any real heed to the s. 11(b) interest of the accused. She concluded that the
    delay was not justified under the transitional exceptional circumstance of
Jordan
and a stay should issue.

Timeline

[34]

Before turning to the issues raised on appeal, it is useful to set out
    the timing of the various steps taken from the laying of the charge to the
    scheduled end of the trial. The timeline is as follows:

Date

Information

Month

December 12, 2012

Mr. Picard is arrested

0

December 13, 2012

Information is sworn

0

May 23-24 and June 19-20, 2013

Bail hearing is held

5-6

June 25, 2013

Bail is denied

6

July 18, 2013

Mr. Picard dismisses his lawyer

7

January 28, 2014

Mr. Picard hires Mr. Greenspon

13

March 26, 2014

Judicial pre-trial is held

15

April 4, 2014

Dates are set for a four-week preliminary inquiry from
          December 1 to 19, 2014 and January 5 to 9, 2015

15

May 6, 2014

January 26 to 30, 2015 are added to the preliminary
          inquiry dates

16

December 1, 2014 to January 30, 2015

Preliminary inquiry is held

24-25

March 13, 2015

Committal to stand trial for first degree murder is ordered

27

May 29, 2015

Trial dates are set: nine days of pre-trial motions
          commencing September 6, 2016, followed by a six-week jury trial commencing
          November 7, 2016

29

August 6-7, 2015

Motion to expedite trial is heard

31

February 1, 2016

Date originally offered for commencement of pre-trial
          motions but rejected by the Crown due to unavailability of  the assigned
          Crowns

37

September 6, 2016

Pre-trial motions begin

44

November 7, 2016

Trial begins

46

November 10, 2016

Section 11(b) application is heard

46

November 15, 2016

Section 11(b) application is granted  stay entered

47

December 16, 2016

Trial scheduled to end

48

C.

ISSUES

[35]

The Crown raises four issues on appeal. It argues that the trial judge
    erred:

1.

in her failure to consider the prejudice to the Crown resulting from the
    late and deficient s. 11(b) application;

2.

in her attribution of defence delay;

3.

in her complexity analysis; and

4.

in her application of the transitional exceptional circumstance.

D.

ANALYSIS

The law

[36]

The
Jordan
framework governs the s. 11(b) analysis in this
    case. Because the charges were laid well before the decision in
Jordan
,
    the transitional exceptional circumstance set out in
Jordan
needs to
    be considered as a last step in the analysis.

[37]

As explained above,
Jordan
provides that delay is measured from the date of the charge to the end or
    anticipated end of the trial. From this period is deducted any delay attributed
    to the defence. If the net delay exceeds the presumptive ceiling of 30 months
    for cases in the Superior Court, the Crown bears the onus of establishing that
    the delay was caused by exceptional circumstances beyond its control.

[38]

Exceptional circumstances generally fall into two categories: (1) discrete
    events, and (2) particular complexity arising from the evidence or the issues.

[39]

Delay arising from discrete events is subtracted from the net delay for
    the purpose of determining whether the presumptive ceiling has been reached. If
    the remaining delay exceeds the ceiling, the court must consider whether the
    case was particularly complex, such that the delay is justified:
R. v.
    Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 39.

[40]

As explained in
Cody
at para. 64, [c]ase complexity requires a
    qualitative, not quantitative assessment. Complexity is an exceptional
    circumstance only where the case as a whole is particularly complex. Unlike
    defence delay or discrete events [c]omplexity cannot be used to deduct
    specific periods of delay but rather it involves considering whether the net
    delay is reasonable in view of the cases overall complexity: para. 64.

[41]

For cases already in the system at the time of
Jordan
s release,
    a transitional exceptional circumstance may arise if the Crown establishes 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. The transitional
    exceptional circumstance may justify the delay even where the deduction of
    discrete events does not reduce the delay below the ceiling and excess delay
    cannot be justified by case complexity:
R. v. Cody
, 2017 SCC 31, at
    para. 67.

[42]

As explained in
Cody
,

at paras. 68 - 69:

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
.

To be clear, it is presumed that the Crown and the defence
    relied on the previous law until
Jordan
was released.

[43]

In reviewing aspects of the case predating
Jordan
, the court
    should focus on reliance on factors that were relevant under the previous
Morin
framework:
Cody
,
at
    para. 71.

[44]

In the present case, virtually all of the delay, and all of the
    decisions made that caused the delay, predate the release of
Jordan
.

Fresh Evidence Motions

[45]

Before this court, Mr. Picard brought a motion for the admission of
    fresh evidence. The Crowns appeal books also contain materials that were not
    before the trial judge on the s. 11(b) application, which I will treat as
    proposed fresh evidence. The bulk of this proposed fresh evidence relates to
    the motion to expedite the trial and the availability and assignment of Crown
    counsel in the period leading up to and at the date of trial.

[46]

From my review, those materials, with the exception of the transcript of
    the hearing of the motion to expedite, do not materially change the record that
    was before the trial judge and therefore could not reasonably be expected to
    have affected the result:
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775.
    As a result, apart from that transcript, which both parties rely on in their
    submissions, I would not grant leave to file the fresh evidence.

Discussion of the grounds of appeal

(1)

Did the trial judge err in accepting the s. 11(b) application on the
    basis it was late and deficient?

[47]

The Crown submits that the trial judge erred in failing to consider
    prejudice to the Crown resulting from the late and incomplete materials filed
    on the s. 11(b) application. Counsel argues that inadequate notice in this case
    put the Crown at a disadvantage and that the trial judge ought to have
    considered whether an adjournment was necessary and, at a minimum, ought to
    have allowed the Crown more than one or two days to review Mr. Picards s.
    11(b) material.

[48]

In my view, the Crown was not prejudiced by the short notice in this
    case. Up to and during the aftermath of the s. 11(b) hearing, the Crown
    advanced no claim of unfair advantage or prejudice. The Crown vigorously argued
    the application and, even in this court, fails to demonstrate any tangible
    prejudice. As a result, I would dismiss this ground of appeal.

(2)

Did the trial judge err in her attribution of defence delay?

[49]

The Crown argues that the trial judge erred in deducting only two months
    as a result of Mr. Picards change of trial counsel. In the Crowns view, the full
    seven months from the laying of the charge to the decision denying bail ought
    also to have been deducted as defence delay.

[50]

In the Crowns submission, it is apparent from the record that Mr.
    Picard was focussed only on obtaining bail during this period and did nothing
    to move the matter forward.

[51]

I disagree. The trial judge correctly determined that, under
Jordan
,
    the seven months was legitimate defence preparation time to review disclosure
    and bring on a bail application. It should not be characterized as defence
    delay. I also agree with Mr. Picards submission that the Crown has an obligation
    to move a matter forward and the Crown never proposed scheduling a judicial
    pre-trial until after Mr. Picards bail status was determined.

[52]

Given my conclusion on this issue, it follows that the trial judge was
    correct in finding that the net delay is 46 months. On appeal, the parties do
    not dispute the trial judges additional deduction of six months for discrete
    events, leaving a remaining delay of 40 months, which exceeds the presumptive
Jordan
ceiling. It remains to be considered whether the trial judge erred in
    finding that the excess delay was not justified by case complexity or by the
    transitional exceptional circumstance.

(3)

Did the trial judge err in her complexity analysis?

[53]

Complexity is considered at two stages in the
Jordan
analysis.

[54]

First, the Crown may be able to rebut the presumption that a delay over
    the presumptive ceiling is unreasonable by showing that there were exceptional
    circumstances. One such exceptional circumstance is that the case is
    particularly complex:
Cody
,
at para. 63.

[55]

Second, the complexity of the case is considered when applying the
    transitional exceptional circumstance. As explained in
Jordan
,
at para. 97, cases already in the
    system where the delay exceeds the presumptive ceiling will not automatically
    be stayed where the delay results from the fact that the case is of moderate
    complexity in a jurisdiction with significant institutional delay problems: see
    also
Williamson
, at para. 26. In addition, the complexity of the case
    may serve to excuse longer periods of delay under the
Morin
jurisprudence
    which, for charges laid before
Jordan
,
the parties may have reasonably relied on. As explained in
R. v. Schertzer
,
    2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 126 and 131, the acceptable
    inherent delay will be longer in complex cases where, for example, it results
    in a lengthy disclosure process.

[56]

In my view, the trial judge committed two errors in her consideration of
    the complexity of the case. As I will explain, however, these errors had little
    impact on the outcome of the appeal.

[57]

First, in assessing whether there was an exceptional circumstance, she
    focussed her analysis of the complexity of the case on how the case would present
    at trial, rather than considering the complexity of the case more broadly over
    the course of the entire proceeding.

[58]

Second, she failed to consider the complexity of the case in her
    analysis of the transitional exceptional circumstance. In that analysis, she
    simply referred to her earlier finding on complexity and commented that the
    case was, at most, moderately complex.

[59]

In this section of my reasons I will only address the first of the two
    errors. As for the second error, I will return to it when, later in these
    reasons, I deal with the transitional exceptional circumstance.

[60]

Dealing now with the first error, the Supreme Court of Canada described
    the nature of complex cases at para. 77 of
Jordan
:

Particularly complex cases are cases that, because of the
    nature of the
evidence
or the nature of the
issues
, require
    an inordinate amount of trial or preparation time such that the delay is
    justified. As for the nature of the evidence, hallmarks of particularly complex
    cases include voluminous disclosure, a large number of witnesses, significant
    requirements for expert evidence, and charges covering a long period of time. [Emphasis
    in original.]

[61]

In the Crowns submission, the evidence in this case made it a complex
    case to litigate and it is an error to look only at the complexity of the trial
    as the trial judge did.

[62]

In
Cody
,
at
    para. 64, the court explained that complexity is an exceptional circumstance
    only where the case
as a whole
is particularly
    complex (emphasis added). A case can be complex in the earlier stages and
    require extensive disclosure, the compiling of expert evidence and numerous
    witness statements, only to be made simpler and more straightforward when it
    comes time for trial. This can be the result of factors such as concessions
    made by the defence, the negotiation of a comprehensive agreed statement of facts,
    changes in the charges or number of accused, or even, as here, the preparation
    of charts or summaries that distill extensive and complex data so as to assist
    in the presentation of the case. These kinds of complexity in the early stages
    may result in inevitable delays due to extensive disclosure, a lengthy
    preliminary inquiry and so on, although the case is simple by the time of
    trial.

[63]

In her reasons, the trial judge listed the complexities involved in
    putting together the case. After noting that the extensive investigation and
    documentation at first blush easily made out a case for complexity, she then
    turned to what evidence would be led at trial and concluded that, at trial, the
    case would not be a particularly complex one to present. Although I agree that
    not all of the documents, records, photographs and text messages assembled by
    the Crown would have to be tendered in evidence at trial, and that this reduced
    complexity at trial is a component of the complexity analysis, it is just that
     only a component of what should have been a broader analysis.

[64]

There clearly was significant complexity in the early stages of this
    case, as illustrated by the voluminous disclosure and the need for a five-week
    preliminary inquiry. This said, I do not consider that the trial judges error
    was of any consequence at this stage of the
Jordan
analysis. I say so
    for three reasons.

[65]

First, it is apparent that the Crown, through preparing charts and
    summaries and through negotiating admissions by the defence, attenuated the
    complexity involved in presenting the case at trial and reduced any delay that
    might otherwise be justified to account for preparing and presenting a complex
    trial. This, in effect, is what the trial judge observed.

[66]

Second, the fact that there was an eight-month delay when Mr. Picard
    changed counsel gave the Crown time it may otherwise have needed to prepare material
    and witnesses required for the extensive preliminary inquiry, further
    attenuating the impact of the complexity of the case.

[67]

Third and most significantly, the problematic seven-month delay that resulted
    from the Crowns insistence that the trial only proceed when the two senior
    Crowns assigned to the case were available was only peripherally related to the
    complexity of the case. I am prepared to accept that, in a case such as this,
    where there is a very extensive documentary record and extensive disclosure, it
    makes some sense to try and retain the original Crowns. Reassigning a case to
    different Crowns would undoubtedly result in a waste of time and resources. The
    reluctance to reassign the case might, therefore, justify a modest delay. But the
    delay caused here is simply too long. In addition, the fact that the courts
    first available dates were eight months away gave ample time for a reassignment
    of one or both Crowns and time for the new Crowns to prepare the case. Complexity,
    therefore, did not justify taking the position that the trial could not proceed
    until the assigned Crowns were available.

[68]

In my view, when, as here, Mr. Picard has been incarcerated for some 29
    months awaiting trial, and a trial at month 37 is offered by the court and
    defence, the Crown cannot, by insisting that both senior Crowns assigned to the
    case be available, push the start date of the trial to month 44. This is
    precisely the type of approach that
Jordan
seeks to remedy.

[69]

As a result, despite the error in how the trial judge approached the
    issue of complexity, I agree with her conclusion that the complexity of this
    case did not constitute an exceptional circumstance such that the time the case
    has taken above the presumptive ceiling is justified under
Jordan
.

(4)

Did the trial judge err in her analysis of the transitional exceptional
    circumstance?

[70]

A presumptively unreasonable delay can be justified under the
    transitional exceptional circumstance if it is shown that, on a correct
    assessment of the law as it previously existed, the time the case has taken is
    justified and the parties reasonably relied on the previous state of the law:
Jordan
,
    at para. 96.

[71]

To determine whether a transitional exceptional circumstance justifies a
    delay above the presumptive ceiling, the court must conduct a contextual
    assessment of all the circumstances:
R. v. Manasseri
, 2016 ONCA 703, 132
    O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. 513, at paras. 320-321.
    Following the example set in
Williamson
, relevant circumstances
    include:

i

the complexity of the case

ii

the
    period of delay in excess of the Morin guidelines

iii

the
    Crowns response, if any, to institutional delay

iv

the defence
    efforts, if any, to move the case along

v

prejudice
    to the accused

[72]

In considering the transitional exceptional circumstance, the trial
    judge in this case effectively ignored the first consideration, the complexity
    of the case. She simply stated that she would not reiterate the analysis she
    had already undertaken in finding that case complexity did not justify the
    delay and noted that, at most, this could be described as a moderately complex
    case.

[73]

The complexity of the case appears to have played no further role in the
    trial judges analysis of the transitional exceptional circumstance. This was
    an error. As was stated recently in
R. v. Pyrek
, 2017 ONCA 476, at
    para. 30, although this case was not sufficiently complex to meet the
    requirement of exceptional circumstances under
Jordan
, for
    transitional cases moderate complexity bears on the reasonableness of the
    delay.

[74]

The more significant error, however, is in how the trial judge assessed
    the delay under the
Morin
framework. As I will explain, she
    mischaracterized several elements of the delay, significantly overstating the
    amount of institutional delay. These errors infected her analysis of the Crowns
    actions: she found that the Crowns refusal to expedite the trial was
    particularly problematic as it added seven months of delay when the anticipated
    institutional delay was already above the
Morin
guidelines.  Properly
    analyzed, the institutional delay should have been seen as being well within
    the
Morin
guidelines, and it would have remained within the guidelines
    even when the Crown delay was added. When correctly assessed, therefore, the
    delay would not have been found unreasonable under the law prior to
Jordan
.

[75]

I turn now to the assessment of the reasonableness of the delay under
Morin
.

(1)

The general framework under
Morin

[76]

Under
Morin
, the reasonableness of the delay is determined by
    balancing the following factors, which are set out at pp. 787-788:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case,

(b) actions of the accused,

(c) actions of the Crown,

(d) limits on institutional resources, and

(e) other reasons for delay; and

4. prejudice to the accused.

[77]

The court is to begin by considering whether the length of the delay warrants
    an inquiry. The relevant period of time is from the charge to the end of the
    trial. If this period is long enough to raise an issue as to its reasonableness,
    then the court proceeds to subtract periods waived by the defence. If waiver on
    its own does not resolve the s. 11(b) application, the court goes on to
    allocate delay to the factors set out in (a) to (e) above:
R. v. Tran
,
    2012 ONCA 18, 288 C.C.C. (3d) 177, at paras. 21-22.

[78]

Inherent time requirements will reflect the complexity of the case, and
    will also include intake requirements, including a longer period for cases
    which go through a pre-trial. Institutional delay starts to run when the
    parties are ready for trial, but the system cannot accommodate them. The period
    of institutional delay is compared with the
Morin
guidelines, which are
    eight to ten months in provincial court and six to eight months between
    committal and the start of the trial in Superior Court. Crown delay also counts
    in favour of a finding of unreasonable delay.

[79]

At the balancing stage, the court looks at the reasons for the delay,
    the prejudice to the accused, and the interests s. 11(b) seeks to protect:
R.
    v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18;
Tran
, at
    paras. 23-24. In explaining the purpose of s. 11(b), the majority in
Morin
observed
    that there is a societal interest in bringing cases to trial, and [a]s the
    seriousness of the offence increases so does the societal demand that the
    accused be brought to trial: p. 787.

(2)

The trial judges
Morin
analysis  categorization of time periods

[80]

The trial judges allocation of the delay under
Morin
was set
    out in an appendix to her reasons as follows:

Ontario Court of Justice

Dates

Delay

Characterization

Attribution

Totals

December 12, 2012 to July
          18, 2013

7 months

intake, includes
1 month to set bail hearing date

Neutral/

Institutional

July 18, 2013 to March 26,
          2014

8 months

change of counsel

Defence

March 26, 2014 to December
          1, 2014

9 months

institutional

Institutional

December 2014 to March 13,
          2015

3 months

preliminary hearing -
          inherent

Neutral

Inherent:

9 months

Institutional:

10 months

Defence:

8 months

Totals

27 months

Superior Court of
          Justice

Dates

Delay

Characterization

Attribution

Totals

March 13 to
May 29, 2015

3 months

intake

Neutral

May 29, 2015 to February 1,
          2016

8 months

institutional

Institutional

March 2016 to September
          2016

7 months

Crown unavailability

Crown

September 2016 to November
          2016

2 months

PTMs and trial - inherent

Neutral

Inherent:

5 months

Institutional:

9 months

Crown:

7 months

Totals

21 months

[81]

When considering the Ontario Court of Justice proceedings, the trial judge
    attributed nine months to the inherent requirements of the case, ten months to
    institutional delay and eight to defence delay. In the Superior Court, she
    attributed five months to inherent time requirements, eight months to
    institutional delay (although she appears to have shown it to be nine months in
    the section giving the totals) and seven months to Crown delay. The overall
    result, according to the trial judge, was 19 months of institutional delay,
    which is slightly above the high end of the
Morin
guideline of 14-18
    months for a trial that proceeds through the Ontario Court of Justice and the
    Superior Court: see
R. v. A.J.W.
, 2009 ONCA 661, 257 O.A.C. 11, at
    para. 45. To these 19 months of institutional delay the trial judge added the
    seven months of Crown delay, for a total delay of 26 months. She therefore
    concluded that the delay would likely have been unreasonable under
Morin
.

[82]

As I will explain, the application judge erred in two respects. First, she
    attributed one month of the December 12, 2012 to July 18, 2013 period to
    institutional delay. Second, she did not provide for a reasonable period of
    inherent time to allow the parties the time to prepare and be available for
    the preliminary inquiry and trial. Rather, she characterized as institutional
    delay all of the time from the date the preliminary inquiry was set (April 4,
    2014) to the beginning of the preliminary inquiry (December 1, 2014) and from
    the time the trial date was set (May 29, 2015) to the first date the court and
    defence were available to begin pre-trial motions (February 1, 2016).

[83]

Contrary to the Crowns submission, however, I would not interfere with
    her attribution of the whole of the seven-month delay from February 1, 2016 to
    September 6, 2016 to the Crown.

[84]

Further, I agree with the trial judges finding that, in the
    circumstances, the Crowns reliance on prosecutorial discretion to justify the
    delay was unreasonable.

[85]

I will now address these in turn.

(3)

The proper allocation of the December 12, 2012 to July 18, 2013 period

[86]

The trial judge divided the seven-month period from the laying of the
    charge on December 12, 2012 to the date Mr. Picard dismissed his counsel, July
    18, 2013, into six months of neutral intake time and one month of institutional
    delay. This appears to flow from her finding that a reasonable intake period in
    this case was six months. Her reasons, however, do not explain why she
    determined that the seventh month was institutional delay. From the record,
    there appear to have been two possibilities  both, in my view, incorrect.

[87]

One possible basis is that the trial judge reasoned that, because neither
    the court nor the Crown had scheduled the preliminary inquiry by the sixth
    month, the additional month just prior to the dismissal of Mr. Picards counsel
    should be viewed as institutional delay.

[88]

I do not quarrel with the trial judges assessment that six months is a
    reasonable intake period and would give the parties sufficient time to get
    organized, deal with disclosure and set a preliminary inquiry date. The error,
    however, would be in attributing the seventh month, June 18 to July 18, to
    institutional delay. It is apparent from the record that the delay was due to
    Mr. Picards legal aid issues.

[89]

On June 25, 2013, Mr. Picards counsel advised the court that there was
    a significant issue with respect to  an outstanding legal aid application. So
    in terms of setting further [judicial pre-trials] or preliminary inquiry dates
    were still waiting for that. Then again on July 4, 2013, counsel for Mr.
    Picard indicated to the court that [w]ere still in the process of going
    through the legal aid application.

[90]

To the extent that Mr. Picards dealings with legal aid played a role in
    the delay up to July 2013, the time needed to apply for and obtain legal aid is,
    under the
Morin
regime, properly considered as an inherent time
    requirement of the case: see
R. v. Boateng
, 2015 ONCA 857, 128 O.R.
    (3d) 372.

[91]

The second possible reason the trial judge may have categorized the one
    month as institutional delay is that she counted the period between the setting
    of the date for the bail hearing and the beginning of the bail hearing on May
    23, 2013  a period she estimated as one month, given the lack of evidence
    regarding when exactly the date was set  as institutional delay. This, too,
    would have been in error. The delay in holding the bail hearing did not delay
    the overall proceeding. The intake period of six months continued to run during
    the month following the setting of the date for the bail hearing. Moreover, as
    I will explain, it would, as a rule, be unreasonable to deem the parties to be
    ready to conduct a hearing as of the date when the hearing date is set.

(4)

The proper allocation of delay between the setting of the preliminary
    inquiry dates and the start of the preliminary inquiry and between the setting
    of the trial dates and the first date the court and defence were available to
    begin pre-trial motions?

[92]

Under the
Morin
regime, institutional delay does not automatically
    start to run from the day the preliminary inquiry date is set or from the day
    the trial date is set. As Simmons J.A. explained in
Tran
, at para. 32:

[P]arties should not be deemed automatically to be ready to
    conduct a hearing as of the date a hearing date is set. Counsel require time to
    clear their schedule so they can be available for the hearing as well as time
    to prepare for the hearing. These time frames are part of the inherent time
    requirements of the case. Institutional delay begins to run only when counsel
    are ready to proceed but the court is unable to accommodate them.

[93]

The trial judge erred, therefore, by attributing the entire period from
    March 26, 2014, which was shortly before the dates for the preliminary inquiry
    were set, to December 1, 2014, when the preliminary inquiry began, to
    institutional delay.
[1]
Similarly, she erred by categorizing as institutional delay the entire period
    from May 29, 2015, when the trial dates were set, to February 1, 2016, the
    first available date for pre-trial motions.

[94]

Turning first to the preliminary inquiry dates, institutional delay
    could only have started running on March 26, 2014, as found by the trial judge,
    if the parties would have been ready to begin the preliminary inquiry on that
    date. It is, however, apparent that the parties would not have been able to
    begin on that date.

[95]

Where there is evidence from which courts can infer the availability of
    the parties, this has been used to determine how much time to attribute to
    inherent time requirements for becoming available and preparing for the hearing.
    In the present case, however, it is not clear from the record what would have
    been the earliest time at which the parties would have been ready to proceed
    with the preliminary inquiry.

[96]

Based on the fact that discussions about admissions and witnesses
    continued into the end of April, it is clear that the parties would not have
    been ready on April 4, 2014, when the date of the preliminary inquiry was set.
    The record further shows that in May the parties determined that five days
    should be added to the length of the preliminary inquiry. [This sentence has
    been edited for publication, pending the conclusion of the trial, in compliance
    with publication bans. The full text of this decision is available at the
    registry office of the Court of Appeal.] It is also of note that Mr. Picards
    new counsel had been in place for only two months when the date of the five-week
    preliminary inquiry was set. It is reasonable to conclude, therefore, that a
    substantial portion of the eight-month period leading to the start of the
    preliminary inquiry was needed for Mr. Picards counsel to clear his calendar
    and prepare for the preliminary inquiry.

[97]

The range as to what length of time is appropriately classified as
    inherent varies widely in the case law from a few days to up to 13 months,
    depending on factors such as the complexity of the case and length of the
    proposed preliminary inquiry: see, for example,
R. v. Khan
, 2011 ONCA
    173, 270 C.C.C. (3d) 1, where five months and 10 days was allowed;
Schertzer
,
where 13 months was allowed; and
R.
    v. Ralph
, 2014 ONCA 3, 313 O.A.C. 384, where four months was allowed.

[98]

I consider it reasonable in this case to allocate from March 26, 2014 to
    July 31, 2014, just over four months, to the inherent time requirements of the
    case. The remaining four months are properly categorized as institutional
    delay.

[99]

The trial judge made a similar error in treating the entire period from May
    29, 2015, when the trial date was set, to February 1, 2016, as institutional
    delay. February 1, 2016 was the first date the court could offer for pre-trial
    motions to begin. Again, institutional delay begins when the parties are ready
    to proceed to trial but the court is not. To treat this eight-month period as
    institutional delay is to assume that the parties could have proceeded with the
    trial on the day after the set date hearing. I see no evidence of this in the
    record.

[100]

At the court
    appearance on May 29, 2015, the court reviewed the various dates that were
    offered. Defence counsel confirmed that they were available for the earliest
    possible dates, which were February 1st and then February 29th and we are
    available for all of the other dates that were offered. Crown counsel
    confirmed that they were unavailable from February 1, 2016 until the end of
    June 2016. There is no indication as to when, before February 1, 2016, counsel would
    have been available and ready to proceed. It is not clear, therefore, what part
    of the May 29, 2015 to February 1, 2016 period is properly considered to be inherent
    time requirements of the case. However, some time would be required for the
    parties to be available and prepare. By this point in the proceedings, counsel would
    be quite familiar with the case and, as is apparent from Mr. Picards later motion
    to expedite the trial, he was anxious to proceed. There was, nonetheless, the
    need to prepare and be available for two weeks of pre-trial motions and six
    weeks of trial. There was also the need for some time to work out any
    admissions.

[101]

Again, the case-law
    is of little assistance as to what is an appropriate period of time to allow.
    Each case is specific to its own facts. Given the significant anticipated
    length of the trial, I consider a reasonable period for inherent time to
    prepare and be available for trial to be from May 29, 2015 to November 1, 2015,
    a period of just over five months. The remaining three months until February 1,
    2016 are institutional delay.

[102]

These errors in
    the allocation of delay significantly overstated the extent of institutional
    delay. In fairness to the trial judge, the Crown appears to have agreed with
    the trial judges allocation of institutional delay. This court is, however,
    not bound by erroneous concessions made by the Crown in allocating periods of
    delay:
Tran
, at para. 31.

(5)

The assessment of Crown delay

[103]

The trial judge viewed
    the entire seven-month delay from February 1, 2016 to September 6, 2016 as
    Crown delay.
[2]

[104]

The Crown argues
    that, under the
Morin
regime, none of the seven-month delay to
    accommodate the schedule of the two assigned Crowns should be viewed as Crown
    delay. Properly assessed it should be viewed as neutral. In support of its
    submission, the Crown relies on
R. v. Cody
, 2016 NLCA 57, 365 C.R.R.
    (2d) 111, which was released shortly before the hearing of the s. 11(b)
    application, as well as the case of
Godin
.

[105]

The Crown also
    takes issue with the trial judges finding that, in the circumstances of this
    case, the Crowns decision to oppose Mr. Picards motion to expedite the trial
    and rely on prosecutorial discretion in the assignment of Crown counsel was
    unreasonable. This error, the Crown submits, contributed to the trial judge
    incorrectly attributing the seven-month delay to the Crown.

[106]

I disagree. I
    will deal first with the trial judges finding that the Crowns opposition to
    the motion to expedite, although within its right to make, was unreasonable.

[107]

On the motion to
    expedite, the Crowns position was that absent a finding by the court that the
    Crown selection of trial counsel amounted to an abuse of process, the court had
    no power to set the matter for trial on a date when assigned Crown counsel were
    not available. In effect, the Crown argued that subject to a finding of abuse
    of process (a very difficult finding to make), the Crown could veto any
    proposed trial date. On the Crowns argument, setting a trial date for a date
    on which an assigned Crown was not available was tantamount to a court order
    removing the chosen Crown counsel from the trial. The Crown argued that such an
    order could only be made if the trial judge concluded that allowing the
    assigned Crown to remain in place constituted an abuse of process. Although the
    motion judge agreed with this position, I do not.

[108]

There is no
    doubt that the choice of counsel to prosecute a particular case is a matter for
    the Attorney General or his or her representative. The court does not play a
    role in that decision. It is equally beyond doubt that it is the court that sets
    trial dates. In deciding when a trial should start, the court must have regard
    to the various legitimate concerns advanced by the defence and the Crown as
    well as systemic and institutional concerns. In some prosecutions, and this is
    certainly one, the Crown has a legitimate interest in having senior counsel,
    who have had carriage of the prosecution throughout, represent the Crown at
    trial so as to maintain continuity in the prosecution. That interest is,
    however, only one of many legitimate concerns that must be taken into account.
    Accommodating the Crowns desire to maintain continuity in the prosecution of
    the case must be balanced against other concerns, notably the continued
    imprisonment of an accused, who is presumed innocent, for an additional lengthy
    period of time. In this case, the accused had already been in custody for two
    and a half years and the proposed trial date was eight months in the future,
    giving the Crown ample time to make alternative arrangements.

[109]

I disagree
    therefore with the decision of the motion judge who heard the motion to
    expedite and would not have given effect to the Crowns position and the
    premise on which it was granted. In my view, a proper exercise of the courts
    discretion in setting the trial date on the motion to expedite should have led
    to a trial date in February. It would then have fallen to the Attorney General
    or his designate to decide who would prosecute the case. As a result, I see no
    error in the trial judge concluding that the Crowns reliance on prosecutorial
    discretion to oppose the setting of a February trial date was in this case unreasonable.

[110]

I turn now to
    the proper characterization of the seven-month delay.

[111]

In my view, the
    trial judge was correct in her conclusion that this delay was not neutral.

[112]

The Supreme
    Court of Canada reversed the Newfoundland and Labrador Court of Appeals
    decision in
Cody,
which the Crown relied on.

[113]

Furthermore, the
    situation in
Godin
is not comparable to what occurred in this case and
    does not stand for the proposition advanced by the Crown. In
Godin
,
    the court held that it was an error to attribute delay to the defence as soon
    as a single available date is offered to defence counsel and not accepted. The
    court noted that s. 11(b) requires reasonable availability and cooperation, but
    does not require defence counsel to hold themselves in a state of perpetual
    availability. In the present case, the delay in question did not arise from
    Crown unavailability on a single date, but from Crown unavailability on any of
    the dates offered in a five-month period.

[114]

In
Morin
,
    the court explained that actions of the Crown that delay the trial and that are
    unreasonable will result in the delay being attributable to the Crown.
    Assigning delay to the Crown, however, is not to be taken as assigning fault or
    blame nor ought it be viewed as assigning improper motives: para. 46.

[115]

It follows,
    therefore, that the Crowns failure to propose reasonable dates for trial is
    properly characterized as Crown delay both under
Jordan
and under the
    previous
Morin
regime. This is all the more so given that Mr. Picard
    remained in custody throughout.

[116]

The Crown
    further argues that it should only be held responsible for five months of delay,
    as it was prepared to commence the trial at the beginning of July. It was only
    the courts unavailability that pushed the trial date to September. The trial
    judge rejected this submission because, in her view, all of the delay resulting
    from the Crowns rejection of the earlier dates offered constituted Crown delay.

[117]

On appeal, Mr.
    Picard supports the trial judges decision in this regard. He relies on
R. v.
    N.N.M.
(2006), 209 O.A.C. 331 (C.A.), where this court made it clear that
    a party who causes an adjournment is responsible for the entire period of delay
    until the matter can be rescheduled, unless the other party is unavailable for
    an unreasonable length of time.

[118]

In my view, on
    the facts of this case, it was open to the trial judge to characterize the
    seven months of delay as Crown delay. She found that, if the earlier dates
    offered to the Crown had been accepted, the trial would have concluded before
    the summer break. As a result, she concluded that the Crown had to accept
    responsibility for the entire period of the delay. Her finding in this regard
    is owed deference.

[119]

The trial judge
    noted that, traditionally, the court does not schedule jury trial matters in
    July and August. This likely explains why the possibility of scheduling the
    pre-trial motions during July and August does not appear to have been explored
    when the trial dates were set. Scheduling the pre-trial motions in the summer would
    have allowed the trial proper to begin in September, obviating the need to
    empanel a jury during the summer months, but nonetheless, shortening the
    overall delay by two months. Under
Jordan
the summer scheduling policy
    may have to be revisited.

(6)

Summary of the
Morin
factors

[120]

I do not take
    issue with the trial judges characterizations of time periods other than those
    dealt with in the previous paragraphs. Nor have the parties raised an issue
    with respect to these. I have therefore adopted them in my analysis of the
    overall delay.

[121]

As I noted
    earlier, the trial judge made one transpositional error in her table: it shows
    the amount of institutional delay in the Superior Court to be eight months, but,
    in listing the totals, indicates that the institutional delay was nine months. The
    trial judge also made two additional errors. The period from March 26, 2014 to
    December 1, 2014 is eight months, rather than nine. The end of the trial should
    be shown as December rather than November, which makes this period of inherent
    delay four months.

[122]

I would
    summarize the correct allocation of the delay under
Morin
as follows:

Ontario Court of Justice

Dates

Delay

Characterization

Attribution

Totals

Dec.12, 2012 to July 18,
          2013

7 months

Intake

Inherent

July 18, 2013 to March 26,
          2014

8 months

Change of counsel

Defence

March 26, 2014 to July 31,
          2014

4 months

Time to be available and
          prepare for preliminary inquiry

Inherent

July 31, 2014 to December
          1, 2014

4 months

Institutional delay

Institutional

December 1, 2014 to March
          13, 2015

3 months

Preliminary inquiry

Inherent

Inherent:

14 months

Institutional:

4 months

Defence:

8 months

Totals

26 months

Superior Court of
          Justice

Dates

Delay

Characterization

Attribution

Totals

Mar. 13, 2015 to May
          29, 2015

3 months

Intake

Inherent

May 29, 2015 to Nov. 1,
          2015

5 months

Time to be available and
          prepare for trial

Inherent

Nov. 1, 2015 to Feb. 1,
          2016

3 months

Institutional delay

Institutional

Feb. 1, 2016 to Sept. 6,
          2016

7 months

Crown unavailability

Crown

Sept. 6, 2016 to Dec. 16, 2016

4 months

Pre-trial motions and trial

Inherent

Inherent:

12 months

Institutional:

3 months

Crown:

7 months

Totals

22 months

[123]

Properly analyzed, therefore, the total delay is 48 months, made up of
    eight months of defence delay, seven months of Crown delay, seven months of
    institutional delay and 26 months of inherent time requirements.

(7)

The balancing under
Morin

[124]

I turn now to
    the final step in a
Morin
analysis: whether the delay is unreasonable having
    regard to the interests s. 11(b) aims to protect, the explanations for the
    delay and the prejudice to the accused: see
Morin
, at pp. 786-803.

[125]

The length of
    the delay, 48 months, is clearly a concern. There is significant prejudice to Mr.
    Picards liberty interest, given that he was in custody throughout the
    proceeding. There is, however, no suggestion of prejudice to Mr. Picards right
    to a fair trial.

[126]

The prejudice to
    Mr. Picard is, however, mitigated by several facts. First, in excess of half of
    the delay in this case is inherent. This was a somewhat complex prosecution
    that required extensive disclosure and a significant amount of court time to
    complete: a four-day bail hearing, a five-week preliminary inquiry, numerous
    appearances, two weeks of pre-trial motions and a six-week trial. Prejudice to
    a liberty interest accruing during a time period that is part of the inherent
    time requirements of the case cannot justify a finding of a breach of s. 11(b):
Boateng
, at para. 41.

To this is added the fact that eight
    months of delay are attributable to the defence.

[127]

Mr. Picards
    efforts to set an earlier trial date also favour a stay. Clearly, in bringing
    his motion to expedite the trial, Mr. Picard was doing what he could to reduce
    delay and have the case heard.

[128]

Institutional
    delay, however, does not favour a stay. It was only seven months in total, well
    below the 14 to 18 month
Morin
guideline.

[129]

In my view, the
    Crowns decision to delay the trial to accommodate the schedule of its two
    assigned Crowns is a serious concern. It resulted in an additional seven months
    of delay. The Crown maintained this position in the face of a defence motion to
    expedite the trial. With Mr. Picard in detention during this period, this
    additional seven-month delay weighs in favour of a stay.

[130]

It would,
    however, be an error to view the Crowns decision through the lens of the new
Jordan
regime. Clearly, as a result of the decision in
Jordan
, a
    decision such as the one the Crown made in this case would weigh heavily against
    the Crown and might in fact be determinative as to whether a stay should issue.
    Under
Jordan
,
where
    accumulated delay is significant, whatever the cause, the Crown, defence and
    the court are to work toward reaching and completing the trial in as short a
    time as reasonably possible. This is all the more so when the accused is
    detained.

[131]

The Crowns
    decision must, therefore, be viewed in its proper context. At the time the
    motion to expedite was heard in August 2015,
Jordan
had not been
    released and, on a proper analysis of the accrued delay in the Ontario Court of
    Justice, only four months of institutional delay had occurred. The proposed
    trial date of February 2016 would have resulted in only three more months of
    institutional delay. On this analysis, therefore, even with the addition of
    seven months of Crown delay the Crown could reasonably conclude that on the
    analysis set out in
Morin
, a trial in the fall of 2016 would not
    violate Mr. Picards s. 11(b) rights. In fact, given that Mr. Picards s. 11(b)
    application was only brought at the last minute, after all of his scheduled pre-trial
    motions had been dealt with in September and October, it appears that no s.
    11(b) application was initially planned. The application was brought in early
    November, just prior to the commencement of trial. It was, no doubt, motivated
    in large part by the release that summer of the
Jordan
decision.

[132]

Even after the seven
    additional months of delay are taken into account, the total institutional and
    Crown delay is only 14 months, at the bottom end of the
Morin
guideline
    of 14 to 18 months.

[133]

It is also a
    consideration that the Crown appears to have thought that the delay caused by its
    decision would be considered neutral and not Crown delay. This, as I have
    explained, is incorrect. I view it, however, as a mistake or misstep that is to
    be taken into account and not, as the trial judge characterized it, as an
    example of the Crown making a choice that paid no heed to the accuseds s.
    11(b) rights. The Crown believed that, under the existing framework, the delay
    was neutral and that the overall delay in the case was well within the
Morin
guideline.

[134]

Additional
    factors weighing against granting a stay under
Morin
are complexity
    and the seriousness of the offence. This was, at a minimum, a moderately
    complex case. Complexity serves to explain, in part, the extent of inherent
    time requirements for this case: as noted earlier, the court time required was
    extensive, disclosure was lengthy and the time required for preparation for a five-week
    preliminary inquiry and a six-week trial were also significant. Complexity also
    provides some justification for the Crowns decision to delay the trial in
    order that the Crowns assigned to the case need not change.

[135]

First degree
    murder is the most serious offence in the
Criminal Code
. Given the serious
    nature of the alleged crime, there is a heightened societal interest in a trial
    on the merits.
The trial judge appears to
    have interpreted the Supreme Court of Canadas decision in
Williamson
as standing for the proposition that the seriousness
    of the offence was neutral. As a result, she failed to take this interest into
    account. In
Cody
, the
    court makes it clear that, when doing the
Morin
analysis in the context of the transitional exceptional
    circumstance, the seriousness of the offence remains a significant
    consideration: paras. 70-71.

[136]

I have
    concluded, therefore, that applying the
Morin
framework, a court would
    not, weighing the length of the delay, the reasons for the delay, the significant
    prejudice to the accused and the societal interest, consider the overall delay to
    be unreasonable.

(8)

Conclusion on the transitional exceptional circumstance

[137]

I turn now to
    the final step of the
Jordan
analysis: whether, in all the
    circumstances, the delay is justified by the transitional exceptional
    circumstance. I accept that, as recognized in
Jordan
, trial judges are
    generally in the best position to determine whether exceptional circumstances
    exist. However, in this case, given the clear legal errors made by the trial
    judge in assessing whether a transitional exceptional circumstance arose, her
    resulting conclusion that the delay was unreasonable is owed no deference.

[138]

Mr. Picard
    argues that the Crowns mistaken belief about the delay resulting from Crown
    unavailability does not support the application of the transitional exceptional
    circumstance, as reliance on this belief was not reasonable. I disagree. As
    explained in
Cody
, at para. 69, in transitional cases such as this,
    the parties are presumed to have relied on the law that applied prior to
Jordan
.
    Under the
Morin
regime, in light of the way delay was weighed, the overall
    delay in this case was reasonable, even accounting for the delay flowing from
    the Crowns decision not to reassign the case to different Crowns. Although,
    even under
Morin
, the Crown could be faulted for failing to reassign
    the case so as to reduce overall delay, the failure to take those steps would
    not have led to a stay under
Morin
.

[139]

As stated in
Jordan
,
    at para. 102, for most cases that are already in the system, the release of [
Jordan
]
    should not automatically transform what would previously have been considered a
    reasonable delay into an unreasonable one. At para. 98 of
Jordan
, the
    court makes it clear that it will be relatively rare that cases already in the
    system when
Jordan
was decided, that complied with
Morin
,
    will nonetheless be found unreasonable under
Jordan
. This case is not
    akin to the example given in
Jordan
of a case where the delay in a
    simple case vastly exceeds the ceiling because of repeated mistakes or missteps
    by the Crown: para. 98.

[140]

Further, this is
    not a case where, as contemplated in
Jordan
, at para. 96, the parties
    have had time following the release of [
Jordan
] to correct their
    behaviour. There was no opportunity between the issuance of
Jordan
and the beginning of the trial for the Crown to change its position with
    respect to retaining the assigned Crowns or to take other steps to reduce the delay.
    The few months of delay that accrued after
Jordan
was released were
    not enough time for the parties and the court to adapt:
Cody
, at para.
    71.

[141]

This is a
    difficult case. After weighing all of the factors, however, I am of the view
    that the appeal should be allowed. The delay above the presumptive
Jordan
ceiling is justified by the transitional exceptional circumstance.

E.

CONCLUSION

[142]

In conclusion, I
    would dismiss the motions to file fresh evidence except for the filing of the
    transcript of the motion to expedite, which I would allow. I would also allow the
    appeal, dismiss the s. 11(b) application, lift the stay and remit the matter to
    the Superior Court for trial.

Paul Rouleau J.A.

I agree Doherty J.A.

I agree S.E. Pepall
    J.A.

Released: September 07, 2017

[1]
In addition, the trial judge appears to have counted this period as nine months
    rather than eight.

[2]
The chart appended to the trial judges reasons appears to be in error, as it
    shows the period to be from March to September, rather than February to
    September.


WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(1)        Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)      any
    of the following offences;

(i)       an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)      REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)      In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)      at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)      on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)      In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)      An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)        Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)      For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prohaska, 2017 ONCA 684

DATE: 20170905

DOCKET: C58238

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Prohaska

Appellant

Frank Miller, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally: August 28, 2017

On appeal from the conviction entered on August 9, 2013
    by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of assault after a trial before a judge
    sitting without a jury on charges of sexual assault and sexual interference.
    The conduct alleged took place in a stall in a public washroom at a campground.
    The complainant was three years old and a stranger to the appellant.

The Background Facts

[2]

The circumstances of the alleged offence fall within a narrow compass
    and are largely uncontested.

[3]

The complainant and an older sibling walked to the public washroom at a
    campground where their family was staying. As the complainant approached one
    side of the entrance, the appellant arrived at the same time and opened the
    door to the washroom. The appellant and complainant entered the washroom at the
    same time. Shortly thereafter, the appellant entered the washroom stall where
    the complainant was standing, his one-piece sleeper down around his ankles. Without
    any request from the complainant for assistance, the appellant, who had not
    knocked on the stall door, reached down and pulled the complainants sleepers
    up, making contact with the complainants buttocks as he did so.

[4]

In his interview by investigators and his testimony at trial, the
    appellant denied any suggestion that his contact with the complainant was
    motivated by any sexual interest or sexual purpose.

The Grounds of Appeal

[5]

On his appeal from conviction, the appellant contends that the trial
    judge erred:

i.

in failing to apply an objective test to the appellants conduct,
    thereby failing to decide whether the conduct was within the class of conduct
    generally acceptable in the ordinary conduct of daily life; and

ii.

in failing to apply the criminal standard to the issues of whether the
    conduct fell within the class of ordinarily acceptable conduct and whether the
    appellant was acting unreasonably.

Discussion

[6]

We do not give effect to either ground of appeal advanced by the
    appellant.

[7]

As we apprehend the argument advanced, it is that the statutory
    definition of assault is not exhaustive of what the Crown must prove to
    establish guilt of that offence. The appellant would add to the requirements
    that a touching be intentional and non-consensual, that it must also be
    socially unacceptable conduct.

[8]

We are unable to construe the definition of assault in s. 265(1)(a) of
    the
Criminal Code
in this way. It is unsupported by authority and at
    odds with the applicable principles of statutory construction.

[9]

In the result, the appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sargeant, 2017 ONCA 725

DATE: 20170925

DOCKET: C58505

Gillese, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Philip Wezley Sargeant

Respondent

David Littlefield and Holly Akin, for the appellant

Carlos F. Rippell and Diana M. Lumba, for the respondent

Heard: April 3, 2017

On appeal from the acquittal entered on February 21, 2014,
    by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.:

OVERVIEW

[1]

This appeal was heard with the companion appeal,
R. v. Gopie
,
    2017 ONCA 728.

[2]

Philip Wezley Sargeant and his co-accused, Albert Samuel Gopie, were jointly
    tried on one count of conspiracy to import a narcotic and one count of importing
    a controlled substance (cocaine). The jury convicted Gopie of the conspiracy
    count and acquitted Sargeant of both counts. Gopie was sentenced to 9 years in
    prison.

[3]

The companion appeal is Gopies appeal against conviction and sentence.

[4]

This is the Crowns appeal of Sargeants acquittal. The Crown raises two
    issues on appeal. First, it submits that the trial judge wrongly excluded
    evidence tying Sargeant to the conspiracy. Second, it submits that the trial
    judge erred by imposing a reasonable doubt standard at step two of the
Carter
[1]
test.

[5]

Sargeant submits that the trial judge did not make the alleged errors
    and, even if such errors were made, they could not have affected the verdict.
    Accordingly, he asks that the appeal be dismissed. Alternatively, if this court
    is inclined to allow the Crown appeal and order a new trial, Sargeant asks that
    the proceedings be stayed based on the s. 11(b)
Charter

application
    (the Application) that he and Gopie brought before trial.  Like Gopie, Sargeant
    says that the Application was wrongly decided.

[6]

For the reasons that follow, I would dismiss the Crown appeal against
    acquittal. In the companion appeal, I explain why, in my view, the application
    judge did not err in dismissing the Application.

BACKGROUND

[7]

The factual background is set out in the
Gopie
judgment and will
    not be repeated here. It is sufficient to note that the charges related to 7.85
    kilograms of cocaine that were found in Tara Frasers luggage when she returned
    to Montreal after a one-week stay in St. Maarten. Fraser was one of two drug
    couriers involved in the conspiracy. The other alleged drug courier was Melissa
    Gittens. Although Fraser and Gittens did not meet until the end of the week in
    St. Maarten, they each took the same flights to and from St. Maarten.

[8]

To the extent that additional facts are required to dispose of the
    issues raised on this appeal, they are set out in the analysis of those issues.

WAS RELEVANT EVIDENCE WRONGLY EXCLUDED?

[9]

The Crown submits that the trial judge wrongly excluded evidence: (1) of
    Randy Datta, the travel agent who sold the return tickets for Frasers and
    Gittens flights to St. Maarten; (2) of a statement that Gittens made to Fraser
    on the return flight from St. Maarten; and (3) about the name Rasta, Sargeants
    purported nickname.

(1)

The Travel Agents Receipt from Paul

[10]

At
    trial, the Crown sought to tender evidence from Datta. Datta testified on a
voir
    dire

that a customer who identified himself as Paul Gomes bought tickets
    for several return trips between Montreal and St. Maarten and that a travel
    receipt for Paul from July 2009 (the July Receipt) listed his address as 25 Martha
    Eaton Way (the Address).

[11]

Paul
    purchased the tickets for Frasers and Gittens return flights from Montreal to
    St. Maarten in November 2009. There was no record of a receipt for this
    transaction.

[12]

If
    not excluded, Datta would have testified that Paul was probably Sargeant and he
    would have given the evidence about the July Receipt.

[13]

The
    trial judge ruled that Datta could not give the identification evidence because
    the photo line-up procedure had been tainted.
[2]
The Crown does not appeal that ruling.

[14]

The
    Crown does, however, submit that the trial judge erred in excluding Dattas evidence
    about the July Receipt.

[15]

The
    trial judge said the following when he excluded the evidence of the July
    Receipt:

But  Im having difficulty with that coming in.  I mean, you
    could ask [Datta] about the, the particulars of his, his meeting with [Paul].
    But I think the relevant time period is this, is this transaction.  If he, at
    the time that these tickets were purchased, you know, did he, did he provide
    any other details. I think that would get us closer to a probative evidence although
    it would still be hearsay coming from Paul Gomes who, according to my ruling,
    [Datta is] not going to be able to say its the accused before the court. So
    thats the difficulty Im having with the, the temporal connection and that
    being a hearsay document coming in.  And its not the address thats given on
    the other one.

[16]

While
    not perfectly expressed, in my view, in excluding the evidence of the July Receipt,
    the trial judge exercised his discretion based on a weighing of the probative
    and prejudicial value of that evidence. I would not interfere with the exercise
    of that discretion.

[17]

It
    is important to begin by placing the ruling in context.

[18]

When
    the Crown raised the admissibility of the July Receipt, she did not give a
    clear indication of the basis on which she sought to have it admitted nor did she
    offer the court any authority justifying its admission.

[19]

Ultimately,
    the Crown chose not to call Datta as a witness before the jury. Instead,
    Dattas evidence went in as an agreed statement of facts. The agreed statement
    of facts did not include a statement indicating that Paul had given Datta the address
    when purchasing tickets other than those for Fraser and Gittens.

[20]

Several
    days elapsed between when the Crown first raised the admissibility of the July
    Receipt and when it introduced Dattas evidence by way of the agreed statement
    of facts. On a full and fair reading of the transcript, it is clear that the Crown
    could have raised again, with the trial judge, the admissibility of the July Receipt
    in that intervening period. Had the Crown sought to have the ruling revisited, she
    could have offered a coherent basis and authority for its admission. The Crown did
    not do so.

[21]

In
    any event, I do not accept that the trial judge erred in his comments about the
    lack of a temporal connection between the July Receipt and the transaction in
    November in which Paul purchased tickets for Frasers and Gittens trips to
    St. Maarten. While Fraser did first meet with Ernest Wilson in July 2009, their
    discussions at that time related to a drug importation scheme involving travel
    to the United States. Fraser abandoned that plan in September. It was not until
    late October 2009 that Fraser renewed her discussions with Wilson and eventually
    agreed to travel to St. Maarten in November 2009 and bring back drugs.

[22]

Further,
    I do not see that the trial judge erred in finding that there was little
    probative value to the July Receipt. The Address on the July Receipt (
25
Martha
    Eaton Way) did not match the evidence at trial that Sargeant resided at
15
Martha Eaton Way. 15 Martha Eaton Way was the address on Sargeants drivers
    license and it was the address he gave when booking the motel rooms in Montreal
    the night before Gittens and Fraser flew to St. Maarten. Moreover, it was
    Wilson whom Fraser asked to wire her money in St. Maarten, not Sargeant. And, the
    address used for the wire was 25 Martha Eaton Way, not 15 Martha Eaton Way.

(2)

Gittens Hearsay Evidence

[23]

Fraser
    expected that when she flew into the Montreal airport on her return from St.
    Maarten, she would be met by Wilson and Gopie who would then take her to
    Toronto. However, during the return flight to Montreal, Gittens told Fraser that
    Sargeant would also meet them at the airport and that Sargeant had been involved
    in planning the importation. Gittens further said that instead of returning
    immediately to Toronto, she and Fraser would be taken to a Montreal motel where
    the luggage containing the drugs would be picked up.

[24]

The
    trial judge allowed Fraser to testify about what would happen upon their
    arrival in Montreal. However, he ruled that Fraser could not relay Gittens comment
    that Sargeant had been involved in planning the importation, finding that it
    was narrative and not in furtherance of the conspiracy.

[25]

The
    Crown says this evidence was wrongly excluded.

[26]

I
    see nothing in this submission.

[27]

The
    Crown relies on several cases for the proposition that statements about past
    events may be admissible under the co-conspirators exception to the hearsay
    rule if they furthered the conspiracy:
R. v. Mota
(1979), 46 C.C.C. (2d)
    273 (Ont. C.A.), at pp. 282-283;
R. v. Bogiatzis
, 2010 ONCA 902, 285
    C.C.C. (3d) 437, at paras. 42-44;
R. v. White
(1997), 32 O.R. (3d) 722
    (C.A.), at pp. 772-774, leave to appeal to SCC refused, [1997] 3 S.C.R. xv; and
R. v. J.F.
, 2011 ONCA 220, 105 O.R. (3d) 161, at paras. 38-44, affd
    2013 SCC 12, [2013] 1 S.C.R. 565.

[28]

However,
    those cases are readily distinguishable from the present case. In each of those
    cases, the statements were found to have been made to further the conspiracy. The
    statements in
Mota

were designed to reassure an undercover
    police officer (the person to whom the statements were made) that he would
    receive the cocaine for which he had paid (at para. 23). In
Bogiatzis
,
    the conversations were an attempt to reassure the other party of the speakers
    reliability and entice him into further transactions (at para. 43). The
    information in
White

was necessary because the recipient had to
    deal with the auditor in question (at para. 161). And, in
J.F.
, the conversation
    gave the recipient details of the murder necessary for planning its concealment
    (at para. 42).

[29]

The
    trial judge carefully reviewed Frasers statements about what Gittens said on
    the flight back to Montreal. He admitted the portions that were made in
    furtherance of the conspiracy. However, as the trial judge found, Gittens excluded
    statement to Fraser was not made in furtherance of the conspiracy. The excluded
    statement was not designed to reassure Fraser that she would be paid, or to entice
    her into further transactions. Nor was the excluded statement necessary for
    Fraser to fulfill her role in the conspiracy. It was simply narrative about the
    past.

(3)

The Name Rasta

[30]

The
    trial judge ruled that Sargeant had not adopted the nickname Rasta by his
    silence.
[3]
The Crown does not appeal that ruling.

[31]

However,
    in its written submissions, the Crown says that the trial judge erred in ruling
    that Fraser could not testify that she was told that Sargeants nickname was
    Rasta.
[4]
The Crown submits that evidence was important because the Rasta nickname linked
    Sargeant to a cellphone number used to text instructions to Fraser and further
    linked Sargeant to Paul because Paul gave Datta the same number when he
    purchased the airplane tickets for Gittens and Fraser.

[32]

The
    Crowns assertion on this matter is not borne out by the record. The trial
    judge did not rule that Fraser could not testify that she was told that Sargeants
    nickname was Rasta. In fact, Fraser testified that she knew Sargeant as Rasta
    and was cross-examined on how she came to learn the nickname. However, the
    evidence on that point was incomplete and inconclusive.

[33]

To
    the extent that the Crown modified its argument in oral argument to suggest
    that Gittens and Fraser, when speaking on the flight back to Montreal, must
    have used the nickname Rasta, I would simply note that when describing her conversation
    with Gittens, Fraser did not use the nickname Rasta.

[34]

I
    see no error in the way in which the trial judge dealt with the Rasta nickname
    evidence.

WAS THE WRONG
    STANDARD APPLIED AT STEP TWO OF THE
CARTER
TEST?

[35]

The
    Crown submits that the trial judge misdirected the jury on the burden of proof
    at step two of the
Carter

test. As membership in the conspiracy
    at step two must be decided on a balance of probabilities, the Crown says that the
    trial judge erred by instructing the jury that they had to be satisfied beyond
    a reasonable doubt of Sargeants membership in the conspiracy. The Crowns submission
    is founded on the following part of the charge:

Mr. Sargeant attended on two occasions at the airport to assist
    Ms. Fraser with her luggage.  On the second occasion, November the 23rd, 2009,
    he went into the airport with her, as you can see on the video filed as an
    exhibit.

If,
    and only if you are satisfied beyond a reasonable doubt that Mr. Sargeant is in
    fact Rasta and Paul, and if you are satisfied that he is the Paul who purchased
    the tickets from [Datta]
at PayLess Travel, then you can consider
    the fact that he bought the tickets as part of Mr. Sargeants own words and
    conduct at this stage of your analysis relating to probable membership.

Also,
if, and only if you are satisfied beyond a reasonable doubt that Mr.
    Sargeant is Rasta and Paul, and that therefore it is Mr. Sargeant who called
    [Datta] while in the vehicle and identified himself as Paul, then you can
    consider that call as part of Mr. Sargeants own words and conduct
at this stage of your analysis relating to probable membership. And if, and
    only if you find that the text sent to Ms. Fraser stating: Tell them you need
    your clothes and dont have any money, was sent from Mr. Sargeant, then you
    can consider that as well at this stage of your analysis relating to probable
    membership. [Emphasis added.]

[36]

The
    Crown acknowledges that, at trial, it agreed with this instruction. However,
    relying on
R. v. Mohamed
, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para.
    13, the Crown says that while counsels consent may be considered when
    assessing the errors impact, it is not determinative because the charge is ultimately
    the trial judges responsibility.

[37]

I
    do not accept the Crowns submission on this ground of appeal. In my view, it
    is misguided. The impugned references to the standard of proof are not directed
    at the question of whether Sargeant was a member of the conspiracy.  Rather, the
    impugned references are instructions to the jury about how to approach some of
    the identification evidence at stage two of the
Carter

test. Specifically,
    the trial judge was instructing the jury that, in the circumstances of this
    case, they could not convict Sargeant using a balance of probabilities standard
    with respect to the identification evidence about Rasta and Paul. In so doing, as
    the trial judge discussed with counsel at the pre-charge conference, he was
    following this courts decision in
R. v. Quidley
, 2008 ONCA 501, a
    conspiracy to import cocaine (and other drugs) case. In setting aside the
    convictions in
Quidley
, this court held that the trial judge erred in
    instructing the jury that the voice identification on the wiretaps could be
    considered on a balance of probabilities standard because the voice
    identification evidence was critical.

[38]

Recall
    the context within which the impugned instruction was given. In this case, it
    was clear that there was a conspiracy to import cocaine. The issue that the
    jury had to grapple with was whether Sargeant and Gopie were members of that conspiracy.
    The trial judge instructed the jury on multiple occasions that if they were
    satisfied there was a conspiracy to import cocaine, they then had to decide if
    Sargeant and Gopie were probably a part of the conspiracy. The trial judge also
    provided an explanation as to the meaning of the phrase balance of probabilities.
    Recall also the issues around the names Paul and Rasta, discussed above.

[39]

Read
    in context, it is clear that in the impugned passage, the trial judge was instructing
    the jury about how to approach the evidence to be considered when deciding
    whether Sargeant was a member of the conspiracy. He made it clear to the jury
    that they had to be satisfied beyond a reasonable doubt that Sargeant was Rasta
    and Paul before it could consider that evidence to decide whether, on a balance
    of probabilities, Sargeant was a member of the conspiracy.

[40]

Accordingly,
    there was no error in the trial judges instruction on the burden of proof at
    step two of the
Carter

test.

DISPOSITION

[41]

For
    these reasons, I would dismiss the appeal.

Released: E.E.G. September 25, 2017

E. E. Gillese J.A.

I agree. K. van Rensburg J.A.

I agree. David Brown J.A.

[1]

R. v. Carter
, [1982] 1 S.C.R.
    938.

[2]

See
R. v. Sargeant
, 2014 ONSC 4928.

[3]

See
R. v. Sargeant
, 2014 ONSC 4926.

[4]

In oral submissions, the Crown appears to have recognized that
    Fraser did testify at trial that Sargeants nickname was Rasta.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sandhu, 2017 ONCA 709

DATE: 20170912

DOCKET: C62027

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gurpreet Singh Sandhu

Appellant

Melina Macchia, for the appellant

Concetta Zary, for the respondent

Heard and released orally: September 11, 2017

On appeal from the conviction entered on December 18,
    2015 by Justice Robert Gee of the Ontario Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

Mr. Sandhu was convicted of possession
    of cocaine for the purpose of trafficking. The principal issue at trial was
    whether Mr. Sandhus knowledge could be inferred from the circumstantial
    evidence. The trial judge found beyond a reasonable doubt that the apartment
    was Mr. Sandhus residence and that he had knowledge of and control over the
    cocaine in the freezer.

[2]

On appeal Mr. Sandhu submits that the
    verdict was unreasonable. He contends that one could reasonably infer that the
    apartment was his wifes home and that she alone had knowledge of the cocaine.
    We do not accept Mr. Sandhus submission.

[3]

The test we must apply is whether it
    was reasonable for the trial judge to conclude that the evidence as a whole excluded
    all reasonable alternatives to guilt. In our view it was reasonable. We rely on
    the following pieces of evidence:

·

Mr. Sandhus presence in the
    apartment with his three year old daughter, who obviously lived there;

·

His telephone call to his wife to
    come home and take care of their daughter; and

·

The amount of cocaine, which was
    easily seen in the freezer.

[4]

To paraphrase Justice Watt in
R.
    v. Pannu
it is a reasonable inference that such
    a valuable amount of drugs would not be entrusted to anyone who did not know
    about them or where they were located.

[5]

The appeal therefore is dismissed.

John Laskin J.A.

G.T. Trotter J.A.

Fairburn J.A.