



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gopie, 2017 ONCA 728

DATE: 20170925

DOCKET: C61075

Gillese, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Samuel Gopie

Appellant

Saman Wickramasinghe and Zachary Kerbel, for the
    appellant

David Littlefield and Holly Akin, for the respondent

Heard: April 3, 2017

On appeal from the conviction entered on February 21,
    2014, by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting
    with a jury, and from the sentence imposed on August 20, 2014.

Gillese J.A
.:

[1]

This case is about a conspiracy to import cocaine from St. Maarten to
    Montreal. Among other things, it requires the court to determine how to treat
    delay caused by the actions of a co-accused for the purposes of an application
    under s. 11(b) of the
Charter
.

OVERVIEW

[2]

In November 2009, 7.85 kilograms of cocaine were found in the luggage of
    a drug courier. In July 2010, the information was sworn. Nearly 44 months
    later, the jury trial of Albert Samuel Gopie and Philip Wezley Sargeant, two
    alleged members of the conspiracy, took place.

[3]

Before trial, Gopie and Sargeant applied for a stay of proceedings,
    arguing that their s. 11(b) right to be tried within a reasonable time had been
    infringed (the Application). The application judge dismissed the Application based
    on the then-governing principles in
R. v. Morin
, [1992] 1 S.C.R. 771:
    see
R. v. Gittens
, 2014 ONSC 6499.

[4]

Gopie and Sargeant were jointly tried on one count of conspiracy to
    import a narcotic and one count of importing a controlled substance (cocaine). The
    jury acquitted Sargeant of both counts and convicted Gopie of one count only:
    conspiring to import a narcotic. He was sentenced to nine years in prison.

[5]

Gopie appeals against conviction and sentence. He raises three grounds
    of appeal, one of which is a challenge to the dismissal of the Application.

[6]

In a companion appeal, the Crown appeals Sargeants acquittal: see
R.
    v. Sargeant
, 2017 ONCA 725. Sargeant opposes the Crown appeal and,
    alternatively, asks that the dismissal of the Application be set aside and the
    proceedings against him be stayed.

[7]

For the reasons that follow, I would dismiss Gopies appeal from
    conviction.  I would grant leave to appeal sentence but dismiss that appeal.

BACKGROUND

[8]

In August 2009, Ernest Wilson recruited Tara Fraser to take drugs to the
    United States and pick up money. A month later, Fraser abandoned that scheme. In
    late October, after losing her job, Fraser again agreed to work with Wilson to
    transport drugs.

[9]

Wilson and Fraser spoke over the phone and met with each other several
    times. In November, Fraser agreed with Wilson that she would fly from Montreal
    to St. Maarten to pick up a bag and bring it back to Montreal. Wilson told her
    that the bag would contain marijuana.

[10]

Wilson
    provided Fraser with money to obtain a passport on an expedited basis, and a ticket
    and itinerary for the trip.

[11]

In
    November 2009, Gopie drove Wilson to two different meetings with Fraser. The
    first occurred in the parking lot of a McDonalds restaurant. Gopie left the
    car and entered the McDonalds while Fraser and Wilson talked. At the end of
    this meeting, Gopie returned and Wilson introduced Gopie to Fraser as John.
    According to Fraser, Gopie did not speak to her during this encounter.

[12]

The
    second meeting was on November 13, 2009, when Gopie drove Wilson to Frasers
    house, so that Wilson could print a document for Fraser to sign. According to
    Fraser, the document was a visitation paper for a woman named Sharon. Since
    Frasers home printer was not working at the time, the three went to a store
    with printing services. After they printed the document, Wilson gave Fraser $200,
    saying that it was for food and expenses while she was in St. Maarten. This occurred
    in the car and in Gopies presence.

[13]

Later
    that same day, Fraser drove to a gas station to meet Wilson for the trip to
    Montreal. Wilson had told Fraser earlier that Gopie would accompany them on the
    trip.  While the evidence is somewhat conflicting on this point, it appears
    that Gopie ultimately travelled to Montreal in a different vehicle.  Wilson
    drove Frasers car to Montreal, with Fraser and an unnamed woman and her son as
    passengers.  Gopie, Sargeant and Melissa Gittens also drove to Montreal from
    Toronto that day, but in a different car. Gittens was Gopies romantic partner
    at the time.  Allegedly, like Fraser, she was also a drug courier. Godfrey
    Gibson also travelled to Montreal in one of the two cars.

[14]

The
    two groups happened to encounter each other while en route to Montreal at a Tim
    Hortons restaurant where both cars had stopped. Gittens approached Frasers car
    but was waved off by Wilson.

[15]

The
    two groups stayed at the same motel in Montreal that night.

[16]

The
    following day (November 14, 2009), Wilson and Fraser together took a taxi to
    the airport. Wilson asked to borrow Frasers car while she was in St. Maarten. Gibson,
    Gopie and Sargeant took Gittens to the airport.

[17]

While
    Fraser was at the airport checking in, she noticed Wilson seated at a table in
    the airport food court with Gopie, Gibson and Sargeant.

[18]

Fraser
    and Gittens flew from Montreal to St. Maarten on the same flight.   Fraser and
    Gittens had not met before, and they had no contact until a week later, on
    their last day in St. Maarten. On that day, Fraser approached Gittens on the
    hotels patio because Gittens had been the only person whom Fraser had heard
    speak in English during her stay in St. Maarten. During their conversation,
    they realized that they were in St. Maarten for the same reason.  That day, Fraser
    and Gittens met with Wilsons contact, a woman named Sharon, who gave them a
    total of three suitcases to take back to Canada.

[19]

Gittens
    and Fraser flew back to Montreal, arriving in the early hours of November 22,
    2009. Fraser expected to be met at the Montreal airport by Wilson and Gopie,
    who would then take her to Toronto. However, on the return flight, Gittens told
    Fraser that they would be picked up by Gopie, Wilson, Gibson and Sargeant, and
    taken to a Montreal motel where the suitcases with the drugs would be picked up.

[20]

When
    they landed in Montreal, Gittens and Fraser discovered that Gittens luggage had
    arrived but Frasers had not. Gittens collected the suitcase that Sharon had
    given her in St. Maarten.  As Frasers luggage had not arrived at the airport,
    she was unable to retrieve her suitcases.

[21]

Unbeknownst
    to Fraser, the airline had misloaded her suitcases with the result that they
    ended up in Toronto.  In Toronto, customs officials had discovered the cocaine
    in her luggage.  They then transferred the suitcases to the RCMP, which
    detained them.

[22]

Gopie,
    Wilson, Gibson and Sargeant picked up Fraser and Gittens from the airport. Gopie,
    Wilson and Fraser left in Frasers car. Fraser sat in the back seat behind
    Gopie, who was driving. Wilson joked with Fraser about the missing luggage. Fraser
    freaked out, complaining that she would take the fall. Gopie intervened and
    told Wilson to leave Fraser alone.

[23]

Sargeant,
    Gittens and Gibson left the airport in a different vehicle.

[24]

After
    both groups obtained rooms in the Montreal motel, Gittens suitcase was placed
    in the room that she shared with Gopie. According to Fraser, afterwards someone
    transferred that suitcase to Sargeants room.  Later that same morning (November
    22), a man and a woman arrived in a SUV and met with Gibson and Sargeant. Fraser
    did not see Gittens suitcase after that.

[25]

Two
    trips were made to the airport to try to find Frasers lost suitcases. The
    first trip occurred early in the afternoon on November 22, 2009, after the
    people in the SUV had arrived at and left the motel. This trip was made by Fraser,
    Gibson, Wilson, and Sargeant, who was the driver. When they arrived at the
    airport, Fraser entered by herself with Wilson and Gibson following shortly thereafter.
    Inside the airport, Fraser used a phone designated for lost luggage inquiries. The
    person who responded to Frasers call said there were no items identified under
    the information that Fraser provided.

[26]

Fraser
    testified that during the car ride back to the motel from this first attempt to
    find her suitcases, she overheard Sargeant call someone whom Sargeant addressed
    as Randy, while Sargeant identified himself to Randy as Paul.

[27]

The
    second trip to find the suitcases occurred the following day, November 23,
    2009. Sargeant drove Gopie, Fraser, Gittens and Gibson to the airport. Sargeant
    went into the airport with Fraser and Gittens while Gopie and Gibson waited
    outside.

[28]

Police
    arrested Fraser and Gittens at the airport while they were trying to retrieve
    Frasers luggage. Minutes later, Fraser received a text from Gopie, who had
    used Gittens cell phone to text her. The text message read, Answer your
    phone, its John.

[29]

Police
    arrested Gibson, Gopie and Sargeant in the airports parking lot. Gibson has
    since been deported.

[30]

The
    RCMP located Wilson in the motel on November 24, 2009, and arrested him.
    However, he was not charged with conspiracy to import cocaine until July 2010. In
    December 2011, in the middle of the preliminary inquiry, Wilson disappeared. At
    the time of Gopie and Sargeants trial, Wilson remained at large.

[31]

Both
    Gopie and Sargeant were charged with one count of conspiracy to import a
    controlled substance and one count of importing a controlled substance. The
    first charge was later changed to conspiracy to import a narcotic.

[32]

Fraser
    pleaded guilty to importing cocaine and received a conditional sentence of two
    years less a day. Gopie, Sargeant and Gittens initially were to be tried
    together but, at the beginning of the trial, with the Crowns consent, the
    trial judge ordered that Gittens be tried separately.

[33]

Fraser
    was the prosecutions main witness at Gopie and Sargeants trial.

[34]

The
    central issues at trial were whether the evidence proved that Gopie and
    Sargeant knew about a conspiracy to import a narcotic and whether they were
    co-conspirators in the importation scheme.

[35]

Gopie
    did not testify. Sargeant testified and denied involvement in the conspiracy.

[36]

The
    jury convicted Gopie of conspiracy to import a narcotic and acquitted Sargeant of
    both counts.

THE
ISSUES

[37]

On
    his conviction appeal, Gopie submits that:

1.

the trial judge
    erred in leaving the conspiracy count with the jury or, alternatively, that the
    verdict on the conspiracy count was unreasonable;

2.

the jury charge
    was inadequate in several respects; and

3.

the application
    judge erred in dismissing the Application.

1.       WAS THE VERDICT UNREASONABLE?

[38]

At
    the close of the Crowns case, Gopie moved for a directed verdict. The trial
    judge dismissed the motion. On appeal, Gopie submits that the trial judge erred
    in leaving the conspiracy count with the jury. Alternatively, he submits that
    the verdict is unreasonable.

[39]

Gopie
    contends that the Crowns case, taken at its highest, established no more than his
    presence for a limited number of events as part of Wilson and Frasers plan to
    import drugs unfolded. He argues that the evidence could not reasonably support
    the inference that he had agreed to import a narcotic with Wilson or anyone
    else. Therefore, the motion for a directed verdict was wrongly dismissed.

[40]

Alternatively,
    Gopie points to the fact that the jury acquitted him on the importing count and
    says that since the evidence was cross-applicable on both counts, it was not
    reasonable for the jury to convict him of conspiring to import a narcotic.

[41]

I
    accept neither submission.

(a)

The Relevant Legal
    Principles

(i)

Directed Verdict

[42]

A
    motion for a directed verdict of acquittal should not be granted in any case
    in which there is admissible evidence which could, if it were believed, result
    in a conviction:
R. v. Charemski
, [1998] 1 S.C.R. 679, at para. 2.  For
    there to be evidence upon which a reasonable jury properly instructed could
    return a verdict of guilty, the Crown must adduce some evidence of culpability
    for every essential definitional element of the crime for which the Crown has
    the evidential burden. Where the evidence is purely circumstantial, the
    question of whether it meets the requirement of the so-called rule in
Hodges
    Case
is for the jury:
Charemski
, at paras. 2-4.

(ii)

Unreasonable Verdict

[43]

The
    Supreme Court set out the legal principles that govern the scope of appellate
    review of a jury verdict based on alleged unreasonableness in
R. v. W.H.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-29. Those principles can be
    summarized as follows.

[44]

A
    jury verdict is unreasonable (or cannot be supported by the evidence) if it is
    one that a properly instructed jury, acting judicially, could not reasonably
    have rendered (
W.H.
, at para. 26).

[45]

Appellate
    review of a jurys verdict of guilt must be conducted within two boundaries. As
    the Court stated at paras. 27-28:

On one hand, the reviewing court must give due weight to the
    advantages of the jury as the trier of fact who was present throughout the
    trial and saw and heard the evidence as it unfolded.

On the other hand, however, the review cannot be limited to
    assessing the sufficiency of the evidence... [T]he court is required to review,
    analyse and, within the limits of appellate disadvantage, weigh the evidence
    and consider through the lens of judicial experience, whether judicial
    fact-finding
precludes
the conclusion reached by the jury. Thus, in
    deciding whether the verdict is one which a properly instructed jury acting
    judicially could reasonably have rendered, the reviewing court must ask not
    only whether there is evidence in the record to support the verdict, but also
    whether the jurys conclusion conflicts with the bulk of judicial experience. [Citations
    omitted.] [Emphasis in original.]

[46]

Examples
    of the sorts of cases in which accumulated judicial experience may suggest that
    a jurys verdict is unreasonable include the evidence of jailhouse informants
    and accomplices, and eyewitness identification evidence (
W.H.
, at
    para. 29).

(b)

Application to this
    Appeal

[47]

The
    trial judge flatly rejected the motion for a directed verdict. While the
    evidence against Gopie was largely circumstantial, it is clear that if
    believed, it could result in Gopies conviction for conspiring to import a
    narcotic. Therefore, the trial judge did not err in dismissing the motion. The
    summary of the evidence, below, also explains why the jury verdict was not
    unreasonable.

[48]

There
    was no real issue in this case that there was a conspiracy to import a narcotic
    into Canada. The issue was whether Gopie and Sargeant were members of the
    conspiracy. The essence of this ground of Gopies appeal is his contention that
    guilt could not be reasonably inferred from the body of mostly circumstantial
    evidence. In support of this contention, he points to pieces of the evidence,
    saying that they were equally consistent with him simply wanting to be in
    Montreal to party.

[49]

The
    flaw in this submission is that Gopie asks this court to view the individual
    pieces of evidence in isolation. When viewed in its entirety, the evidence
    reasonably supported the verdict. I will not repeat the facts set out above in
    the background section of these reasons. Instead, I will summarize some of the
    more significant aspects of that evidence.

[50]

Gopies
    involvement began only after Wilson and Fraser had agreed to the St. Maarten
    drug plan in early November 2009.  He was present at two meetings between
    Wilson and Fraser and he was in the car when Wilson handed Fraser $200 and said
    it was spending money for when she was in St. Maarten. Gopie went to Montreal from
    Toronto on the same day and at the same time as Fraser and Wilson, albeit in a different
    car. The two cars arrived at the same Montreal motel. The occupants of the two
    cars  including Gopie, Fraser and Wilson  stayed at the motel that night.   The
    following day, Fraser flew to St. Maarten where she picked up the drugs.

[51]

Gopie
    (and others) went to the Montreal airport to pick up Fraser and Gittens when
    they returned from St. Maarten with drugs in their luggage. In Gopies
    presence, Wilson and Gibson tried to find out what had happened to Frasers lost
    luggage and Wilson was very concerned that the luggage was missing.  Gopie tried
    to calm Fraser down when she freaked out that she would be found out and told
    Wilson to lay off Fraser at that point in the return journey from the
    Montreal airport to the motel where they were all staying.

[52]

Gopie
    shared a room with Gittens at that motel. Gittens suitcase  given to her by
    Wilsons contact in St. Maarten  was first delivered to the motel room she
    shared with Gopie.

[53]

On
    November 23, Gopie went to the airport with Gittens and Fraser (and others) where
    they attempted to retrieve Frasers lost luggage. Gopie texted Fraser within
    moments of her arrest, telling her to answer the phone because it was John
    (his nickname).

[54]

This
    evidence, if believed, could result in Gopies conviction for conspiracy to
    import a narcotic. It reasonably supports the inference that Gopie was part of
    the plan to import a narcotic into Canada, along with Wilson and Fraser. I note
    also that this is not the type of case in which accumulated judicial experience
    suggests that the jurys verdict might be unreasonable.  Finally, as I have
    already indicated, this evidence shows why it was not unreasonable for the jury
    to have convicted Gopie of conspiracy to import a narcotic while acquitting him
    on the importing count.

[55]

Therefore,
    I would dismiss this ground of appeal.

2.       WAS THE JURY CHARGE INADEQUATE?

[56]

In
    his factum, Gopie argued that the charge did not fairly guide the jury: (a) through
    the relevant evidence as it applied to the law of conspiracy; (b) on the
    relevance of expert evidence given by Constable Palanuk; and (c) on the
    exculpatory effects of the evidence of Fraser, Sargeant and Palanuk.

[57]

In
    oral argument, Gopie abandoned the latter two submissions. Therefore, I will address
    only his first submission, the substance of which is that the trial judge failed
    to fairly summarize the whole of the evidence relevant to step two of the
Carter
[1]

analysis. In effect, he contends that the trial judge erred because he set
    out the evidence directly admissible against Gopie on step two but did not
    point out other evidence (or lack thereof) suggesting that Gopie was in
    Montreal simply to party and hang out with friends.

[58]

I
    do not accept this submission.

(a)

The Relevant Legal
    Principles

[59]

A
    functional approach must be taken when assessing the adequacy of jury instructions
     they must be tested against their ability to fulfil the purposes for which
    they are given. The charge must ensure that the jury understands: the factual
    issues to be resolved; the law to be applied to those issues and the evidence;
    the positions of the parties; and, the evidence relevant to the positions taken
    by the parties on the various issues:
R. v. MacKinnon

(1999),
    43 O.R. (3d) 378 (C.A.), at p. 386.

[60]

Gopies
    submission on this ground of appeal centers around step two of the
Carter
analysis.
    In considering this submission, it is useful to bear in mind the three steps in
    that analysis. In
R. v. Chang
(2003), 173 C.C.C. (3d) 397 (Ont. C.A.),
    at para. 53 (relying on
R. v. Barrow
,

[1987] 2 S.C.R. 694), this
    court set out those steps as follows:

1.       the trier of fact must first be satisfied beyond a reasonable
    doubt that the alleged conspiracy in fact existed;

2.       if the alleged conspiracy is found to
    exist, the trier of fact must review all the evidence that is directly
    admissible against the accused and decide on a balance of probabilities whether
    the accused is a member of the conspiracy; and

3.       if the trier of fact so concludes, the
    trier must go on and decide whether the Crown has established such membership
    beyond a reasonable doubt. In this last step only, the trier of fact can apply
    the hearsay exception and consider evidence of acts and declarations of co-conspirators
    done in furtherance of the object of the conspiracy as evidence against the
    accused on the issue of his guilt.

(b)

Application to this
    Appeal

[61]

Gopie
    makes no complaint about the trial judges articulation of the relevant legal
    principles, the factual issues the jury was directed to resolve, or the
    parties positions. His quarrel is with the trial judges review of the
    evidence at step two of
Carter
. While not determinative, the fact that
    defence counsel did not object to the instruction on this matter, despite
    having the draft charge for a week in advance of it being delivered, is telling:
R. v. Warren
, 2016 ONCA 104, 345 O.A.C. 225, at paras. 26-27. This consideration
    is underlined by the fact that the trial judge engaged in extensive consultation
    with counsel regarding his instructions at step two of the
Carter
analysis
    before finalizing his jury instructions.

[62]

In
    my view, the jury instruction clearly meets the functional approach set out in
MacKinnon
,
    above.

[63]

The
    trial judge set out the elements of the offence of conspiracy, stating that the
    Crown had an obligation to prove beyond a reasonable doubt that: (1) there was
    a conspiracy among two or more persons; (2) the conspiracy was to import a
    narcotic into Canada; and (3) Gopie and Sargeant were members of that
    conspiracy. He reviewed the evidence relating to the first element and said that
    if the jury accepted Frasers testimony about her dealings with Wilson in
    arranging for her to bring back a narcotic from St. Maarten, they would have no
    difficulty in determining that there was a conspiracy between Tara Fraser and
    Ernest Wilson to import a narcotic into Canada.

[64]

The
    trial judge then told the jury that the real issue they had to determine was
    whether Gopie and Sargeant were members of that conspiracy. He explained steps
    two and three of
Carter
, which would enable them to decide that matter.

[65]

The
    trial judge instructed the jury that for a person to be a member of a
    conspiracy, it is essential that they have an understanding of the unlawful
    nature of the plan and voluntarily and intentionally join in it. He stated that,
    in any case, the person must actually agree and intend to agree to achieve the
    common unlawful purpose. He stressed that mere knowledge of the common
    unlawful purpose did not make a person a member of a conspiracy and that merely
    being present when something happens, merely acting in the same way as others,
    or merely associating with others who are said to be members of a conspiracy
    does not prove that a person has joined in the agreement with knowledge of its nature
    and purpose.

[66]

The
    trial judge then instructed the jury to consider Gopie and Sargeant separately
    at step two of the
Carter
analysis  only the evidence about what each
    said and did could be considered to determine whether that accused was probably
    a member of the conspiracy.

[67]

The
    trial judge then reviewed the relevant evidence for Gopie and Sargeant
    separately.

[68]

With
    respect to Gopie, the trial judge noted, among other things, that: Gopies
    involvement began in early or mid-November 2009 after the plan between Wilson
    and Fraser became firm; when Fraser and Wilson met at McDonalds, Gopie drove
    Wilson to the meeting, using Wilsons car; Gopie also drove Wilson, in Wilsons
    car, to Frasers residence and then to the printing shop and a bank; Gopie stayed
    in the same Montreal motel as Wilson and Fraser on the weekend that Fraser flew
    from Montreal to St. Maarten; Gopie (and others) attended at the airport with
    Fraser to see her off on her trip to St. Maarten; Gopie drove Frasers car
    while she was in St. Maarten and when she returned, Gopie (and others) went to
    the airport to pick her up; on the way back to the Montreal motel, Gopie told
    Wilson to leave Fraser alone when she was complaining about her lost luggage;
    Gopie (and others) stayed at the motel during the period that Fraser was trying
    to retrieve her luggage; and, Gopie accompanied Fraser to the airport when she
    went to try and get her lost luggage.

[69]

After
    reviewing the evidence relevant to Gopie, the trial judge reviewed for the jury
    the relevant evidence of Sargeants own acts and words.

[70]

Following
    that, the trial judge instructed the jury on step three of
Carter
. He
    explained that if the jury concluded, on the evidence of each accuseds own
    words and conduct, that they were probably members of the conspiracy, they had
    to go on to determine whether the Crown had proven beyond a reasonable doubt
    that Gopie and Sargeant were members of the conspiracy.

[71]

The
    trial judge carefully explained the legal parameters circumscribing what other
    evidence the jury could consider in making that determination. He followed with
    a review of the evidence that the jury could consider, in addition to that
    which he had already reviewed with them. In this review of the relevant
    evidence, the trial judge thoroughly described the cross examination of each of
    Fraser and Sargeant and, in so doing, he provided the defence position and
    context for Gopies actions which Gopie now complains are missing in the
    instruction at step two of
Carter
.

[72]

It
    is within this context that I return to a consideration of Gopies complaint
    about the jury instruction at step two of
Carter
. As Gopie concedes,
    the trial judges instructions made clear to the jury the factual issue it had
    to decide: based on Gopies own acts and words, was he probably a member of the
    conspiracy? As well, Gopie makes no complaint about the instruction on the law applicable
    to that issue. I note also that immediately prior to setting out the relevant
    evidence of Gopies acts and words, the trial judge instructed the jury that
    mere knowledge of the common unlawful purpose was not sufficient nor was mere
    presence or mere association with others who were members of the conspiracy. In
    this context, I simply see nothing in the contention that the jury charge was
    inadequate at step two of
Carter
.

[73]

The
    instructions gave the jury the tools it needed to determine the issue based on
    the evidence. The fact that some of the contextual considerations associated
    with that evidence were amplified in the instruction at step three of
Carter
does not mean that the instruction at step two was flawed.

[74]

Accordingly,
    I would dismiss this ground of appeal.

3.       WAS THE APPLICATION WRONGLY DECIDED?

Overview

[75]

With
    the exception of this ground of appeal, to avoid confusion, I have dealt with the
    Gopie and Sargeant appeals separately. However, on this ground, Gopie and
    Sargeant are similarly situated (both are the appellant) and advance similar arguments.
    For that reason, I deal with their appeals against the dismissal of the Application
    together.

[76]

It
    took 43.5 months from when Gopie and Sargeant (the appellants) were charged
    to the completion of their trial. Gopie and Sargeant say this delay was
    unreasonable and a breach of their rights under s. 11(b) of the
Charter
under both the new
Jordan
[2]

framework and the former
Morin

one. They ask this court to
    set aside the dismissal of their Application, grant the Application and make an
    order staying the proceedings.

[77]

The
    Crown submits that when the time period is properly assessed for defence delay,
    the Net Delay is below the 30-month ceiling and is presumptively reasonable. Alternatively,
    it says the delay is justified as a transitional exceptional circumstance.

[78]

I
    conclude that the delay in this case is justified. To explain how I reach this
    conclusion, I will: (a) review the factual background relevant to the
    Application; (b) summarise the application judges decision; (c) set out the
Jordan

framework; and (d) apply the
Jordan

framework to this case.

(a)

The Factual
    Background for the Application

[79]

The
    information charging the appellants with the offences was sworn on July 8,
    2010. The jury rendered its verdict on February 21, 2014, approximately 43.5
    months later.

[80]

Following
    the swearing of the information, various procedural steps took place: counsel
    were retained; bail hearings were held; disclosure was provided; and judicial
    pre-trials were conducted.

[81]

At
    a judicial pre-trial on October 29, 2010, the Crown advised that she intended
    to rely on s. 540(7) of the
Criminal Code
in calling evidence relating
    to the appellants arrest, and further indicated she would call only one
    witness, Fraser. The parties estimated that the preliminary inquiry would take
    1.5 days and January 17 and 20, 2011, were set aside for it.

[82]

On
    January 17, 2011, the Crown announced that she would call two civilian
    witnesses  Fraser and a travel agent  in addition to police officers who
    handled the luggage and a customs officer. Certain disclosure related to these
    new witnesses had not been provided. The preliminary inquiry judge suggested
    the parties use the scheduled time to deal with Frasers evidence, the primary
    civilian witness. However, ultimately, all counsel asked for an adjournment of
    the preliminary inquiry. The Crown agreed to release the appellants on bail.
    Two days of court time were lost. The matter was adjourned to February 11, 2011,
    for a pre-trial.

[83]

On
    February 11, 2011, a new preliminary inquiry date could not be set because
    counsel for Wilson, a co-accused at that time, had not provided his available
    dates. The pre-trial was adjourned to February 25, 2011, at which time the
    parties set aside two days for the preliminary inquiry. The court had
    availability in March, but the first available dates for all parties were July
    14 and 15, 2011.

[84]

On
    July 14, the first day of the preliminary inquiry, it became apparent that the
    parties had underestimated the time required for the preliminary inquiry, given
    the number of witnesses the Crown planned to call and that multiple defence
    counsel would be cross-examining the witnesses. The parties sought additional
    days to complete the preliminary inquiry. The courts first available date was
    July 28, 2011, the first available date for the Crown was December 2, 2011, and
    the first available date for the accused was January 11, 2012.

[85]

Two
    additional days were set to continue the preliminary inquiry: January 11 and
    23, 2012. A further two days were scheduled to complete the preliminary inquiry:
    January 24 and February 8, 2012.

[86]

The
    preliminary inquiry continued on January 11 and 23, 2012. On January 24, after
    reviewing some new disclosure, the accused advised that continuity of exhibits
    was now in issue. The case was adjourned to February 8, 2012, to allow the
    Crown to call additional witnesses on the issue of continuity.

[87]

At
    the end of the sixth day of the preliminary inquiry (February 8, 2012), the accused
    advised that they wanted to hear from another police officer. The parties also
    had not yet completed submissions on committal. The court had availability to
    continue the preliminary inquiry on February 21, but the first available date for
    the parties was April 20, 2012. The appellants were committed to stand trial on
    April 20, 2012.

[88]

The
    parties made their first appearance in the Superior Court of Justice on May 18,
    2012. On that date, the appellants co-accused Wilson did not attend court as
    he had absconded during the preliminary inquiry. A bench warrant was issued for
    his arrest. The matter was adjourned to May 30, 2012, for a judicial pre-trial.

[89]

On
    May 30, 2012, the judicial pre-trial was again adjourned (to June 8, 2012) to
    set a trial date.

[90]

On
    June 8, 2012, a trial date was set for November 13, 2012. The trial was
    scheduled to run for six weeks. Neither the Crown nor the accused indicated
    availability earlier than November 13, 2012.

[91]

At
    a judicial pre-trial on July 24, 2012, Gopies counsel advised that he had
    inadvertently double-booked the scheduled November 13, 2012 trial date. The
    trial date was, therefore, vacated. That day, the appellants also advised that
    they would bring a s. 11(b) application. The application was scheduled to be
    heard on the courts first available date of December 3, 2012. Three days were
    also selected for other pre-trial motions, beginning on January 7, 2013. The
    appellants did not have a clear six-week time period for trial before February
    4, 2013, so the trial was scheduled to begin on February 6, 2013.

[92]

On
    November 5, 2012, the appellants abandoned their s. 11(b) application which had
    been scheduled for December 3, 2012. They gave no reason for abandoning it.

[93]

At
    a judicial pre-trial in January 2013, counsel for the co-accused Gittens
    advised that, due to his March break vacation, he could not continue the trial
    if a verdict was not reached prior to March 14, 2013. The issue of re-election
    was discussed. Gittens confirmed she wanted a trial by judge and jury.

[94]

The
    pre-trial motions that had been scheduled to begin on January 7, 2013, were
    adjourned to February 6, 2013. On that date, the Crown advised that she had
    just received the accuseds motion materials that morning and sought a five-day
    adjournment to respond. The matter was adjourned to February 11, 2013.

[95]

On
    February 11, 2013, the Crown sought and was granted an adjournment because a
    key police witness on the motions was unavailable. The Crown had agreed,
    following the preliminary inquiry, to have this witness available for
    examination for discovery. However, efforts to make those arrangements had
    failed. The pre-trial motions were rescheduled to February 22, 2013.

[96]

On
    February 22, 2013, the police officer was again not available. The matter was
    adjourned to March 1, 2013, as a set date.

[97]

On
    March 1, 2013, the appellants again advised the court that they would bring a
    s. 11(b) application.  (It is this application that was defined, above, as the
    Application). The dates of June 12 and 13, 2013, were set aside for it and other
    pre-trial motions were set to begin on August 6, 2013.

[98]

At
    a judicial pre-trial on May 17, 2013, counsel for Gopie asked to adjourn the Application
    (scheduled for June 12 and 13) due to a conflict in his schedule. The Application
    was adjourned to August 6 and 7, 2013, and the pre-trial motions that had been scheduled
    for that week were rescheduled to begin on the first day of the trial (January
    6, 2014).

[99]

There
    were numerous judicial pre-trials held in July and August of 2013, concerning the
    Application. On the appearances on May 17, July 19, July 23, August 6 and
    August 15, transcripts necessary for the Application remained outstanding. The Application
    was adjourned to October 7 and 15, 2013.

[100]

The Application
    did not proceed on October 7, 2013. At an appearance on September 23, 2013, the
    Crown advised that the appellants Application materials were late and some
    transcripts were still missing. The hearing dates of October 7 and 15, 2013,
    were vacated and the matter was rescheduled to December 2 and 3, 2013.

[101]

From December 2,
    2013, to January 6, 2014, the parties were preparing for trial and the Application
    was argued.

[102]

The trial commenced
    on January 6, 2014, and ended on February 14, 2014.

(b)

The Application Judges
    Decision

[103]

The application
    judge found the total delay from the time the appellants were charged to the
    anticipated completion of trial was 1,324 days or 43.5 months.

[104]

He rejected the
    appellants submission that this was a routine drug importation case. He described
    it as a complex case involving multiple accused, border officials and RCMP
    officers from two provinces (Ontario and Quebec), and voluminous disclosure. He
    took judicial notice of the fact that it is not a common occurrence in a drug
    importation case for the accused to include both the alleged drug couriers and
    the alleged masterminds behind the transaction. He also noted that the reasons
    for the delay in this case were interrelated and interwoven, with a series of
    different and concurrent factors causing the same period of delay. Where the
    reasons for delay were attributable to both the Crown and the accused, he
    treated the delay as neutral.

[105]

At para. 147 of
    his reasons for decision, the application judge summarized his allocations for
    the delay as follows:



(i) Inherent time requirements:







a. Ontario Court of Justice

381 days





b. Superior Court of Justice

253 days







Total

634 days



(ii) Actions of the Accused:







a. Ontario Court of Justice

14 days





b. Superior Court of Justice

83 days







Total

97 days



(iii) Actions of the Crown:







a. Ontario Court of Justice

25 days





b. Superior Court of Justice

18 days







Total

43 days













(iv) Limits on Institutional Resources:







a. Ontario Court of Justice

34 days





b. Superior Court of Justice

250 days







[Total]

284 days













(v) Other reasons for the delay: Neutral Delay







a. Ontario Court of Justice

198 days





b. Superior Court of Justice

68 days







Total

266 days



[106]

This summary
    flowed from the following findings of the application judge:

-

July
    8, 2010 to October 29, 2010
 113 days  intake period/inherent time requirements.

-

October
    29, 2010 to January 17, 2011
 10 days institutional delay and 70 days
    neutral time.

At the judicial pre-trial on October 29, the court offered
    nine dates for the preliminary inquiry. The Crown and the appellants were
    unavailable on the first available dates offered by the court: November 8 and
    9, 2010. The application judge attributed 10 days as institutional delay. He attributed
    the 70 days from November 8 to January 17 as neutral because it resulted from finding
    court dates suitable for all parties.

-

January
    17, 2011 to July 14, 2011
 25 days Crown delay, 14 days defence delay, 11 days
    institutional delay and 128 days neutral time. The application judge attributed
    25 days to the Crown for delay because of the Crowns change in strategy,
    necessitating an adjournment. He attributed 14 days to defence delay resulting
    from counsels failure to provide his available dates at the February 11 pre-trial.
    He attributed 11 days from February 25 to March 8, 2011 as institutional delay because
    the latter date was the courts first available date for the preliminary inquiry.
    He attributed 128 days, from March 8 to July 14, 2011, as neutral, because they
    arose from difficulties in aligning the schedules of multiple counsel.

-

July
    14, 2011 to April 20, 2012
 268 days inherent time requirements and 13 days
    institutional delay. The application judge found that because both the Crown
    and defence had made an unrealistic estimate for how long the preliminary inquiry
    would take, the 193 days from July 14, 2011, to January 23, 2012, were attributable
    to inherent time requirements. He attributed 15 days from January 24 to
    February 8, 2012, as inherent time requirements because the issues which arose
    on January 24, 2012, necessitating further time for the preliminary inquiry, were
    new issues that could not have been anticipated.  He attributed 13 days, from
    February 8 to February 21, 2012 (the first date available to the court to
    continue the preliminary inquiry), to institutional delay.  Finally, the
    application judge attributed 59 days, from February 21 to April 20, 2012, as
    inherent time requirements to complete the preliminary inquiry.

-

April
    20, 2012 to November 13, 2012
 179 days inherent time requirements and 28
    days institutional delay. The application judge attributed the 28 days from
    April 20 to May 18, 2012 (the first assignment court date offered by the
    Superior Court of Justice) as institutional delay. He found that from May 18 to
    June 8, 2012, the parties were preparing for the six-week trial and he attributed
    that 21 day period as inherent time requirements. The application judge
    attributed the 158 days from June 8 (the judicial pre-trial) to November 13,
    2012 (the date set for trial) as inherent time requirements.

-

November
    13, 2012 to February 6, 2013
 83 days defence delay and 2 days
    institutional delay. In July, counsel for Gopie advised that, because of other
    commitments, he would not be available for trial until February 4, 2013. The
    first available court date was then February 6, 2013. The application judge attributed
    the 83 days from November 13, 2012, to February 4, 2013, as defence delay, and
    the 2 days from February 4 to 6, 2013, as institutional delay.

-

February
    6, 2013 to February 14, 2014
 61 days neutral time, 18 days Crown delay,
    220 days institutional delay and 74 days inherent time requirements.

The
    application judge attributed the five days from February 6 to 11, 2013, as
    neutral time because while the appellants motion materials were deficient,
    there were also outstanding transcripts from the preliminary inquiry required
    for those motions. He attributed the 18 days from February 11 to March 1, 2013,
    when the Crowns witness was unavailable, to Crown delay. The application judge
    attributed the 158 days from March 1 to August 6, 2013, as institutional delay.
    Further, he found that even though the period from August 12 to January 6, 2014,
    would ordinarily be considered Crown delay (the court was available earlier but
    the Crown was not), other events affected this period of delay. In particular,
    at a judicial pre-trial on May 17, 2013, counsel for Gopie requested an adjournment
    of the Application (scheduled for June 12 and 13, 2013) because of a conflict
    in his schedule. The Application was adjourned to August 6 and 7, 2013; the
    pre-trial motions scheduled for that week were then rescheduled to begin on the
    first day of the trial (January 6, 2014). The Application was later adjourned
    to October 7 and 15, 2013. The application judge attributed the 62 days from
    August 6 to October 7, 2013, as systemic/institutional delay due to missing
    transcripts. The Application did not proceed on October 7, 2013, and was
    rescheduled to December 2 and 3, 2013. The application judge attributed the 56
    days from October 7 to December 2, 2013, as neutral because it was the result
    of the accused failing to file materials on time and missing transcripts. The application
    judge attributed the 35 days from December 2, 2013, to January 6, 2014, (to
    prepare for trial and to hear the Application) as inherent time requirements.
    Finally, he attributed the 39 days from January 6 to February 14, 2014, as
    inherent time requirements.

[107]

The application
    judge noted that the combined institutional and Crown delay in the Ontario
    Court of Justice was 59 days (which was within the
Morin

guideline
    of 8 to 10 months in provincial court), and 268 days in the Superior Court of
    Justice (which exceeded the
Morin

guideline of 6 to 8 months by
    10 days).

[108]

In terms of prejudice,
    the application judge considered the appellants evidence of alleged prejudice
    they faced as a result of the delay, as well as their efforts to move the
    matter forward. He found that, based on their inaction, the appellants had
    acquiesced to the pace of the case. In particular, he held that the appellants:
    were complicit in underestimating the time for the preliminary inquiry; failed
    to use the first day of the original preliminary hearing to cross-examine Fraser,
    the key Crown witness; and, importantly, failed to follow the protocol
    established in Brampton to ensure the timely production of transcripts. Further,
    the application judge found that the appellants were not ready for trial on
    November 13, 2012, and could not have completed a six-week trial without
    interruption had it commenced on February 6, 2013.

[109]

The application
    judge concluded that the appellants had failed to establish that their s. 11(b)
    rights were infringed.

(c)

The
Jordan

Framework

[110]

Since
    the Application was decided, the Supreme Court released
Jordan
, which
created a new framework for s. 11(b) applications. The
    new framework applies to any case in the justice system when
Jordan

was released. Consequently, this court must apply the
Jordan

framework
    to determine whether the Application was wrongly decided, as the appellants
    allege.

[111]

The
Jordan

framework is based on ceilings beyond which delay is
    presumptively unreasonable. Because this case was tried in the Superior Court,
    the presumptive ceiling is 30 months. The following steps determine whether the
    delay in this case exceeds that ceiling and, if it does, whether the delay is
    nonetheless reasonable.

[112]


The first step is to calculate the total delay from the
    charge to the actual or anticipated end of trial.

[113]

Next,
    defence delay must be subtracted from the total delay, leaving the Net Delay.
    Defence delay has two components: that arising from defence waiver and, that
    caused solely by the conduct of the defence (defence-caused delay). The
    latter is comprised of situations where the acts of the defence either directly
    caused the delay or are shown to be a deliberate and calculated tactic employed
    to delay the trial. Frivolous applications and requests are straightforward
    examples of defence-caused delay (
Jordan
, at paras. 60-67).

[114]

If
    the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable
    (
Jordan
, at para. 68).

[115]

To
    rebut the presumption of unreasonableness, the Crown must establish the
    presence of exceptional circumstances. Exceptional circumstances are those
    which lie outside the Crowns control, in that they are: (1) reasonably unforeseen
    or reasonably unavoidable; and (2) Crown counsel could not reasonably remedy the
    delay emanating from the circumstances once they arose. Such circumstances need
    not be rare or entirely uncommon (
Jordan
, at paras. 68-69).

[116]

Generally,
    exceptional circumstances fall under two categories: (1) discrete events; and
    (2) particularly complex cases. An illustration of a discrete event is a
    medical or family emergency on the part of the accused, important witnesses,
    counsel or the trial judge (
Jordan
, at paras. 71-72).

[117]

The period of
    delay caused by discrete events must be subtracted from the Net Delay 
    yielding the Resulting Delay  for the purposes of determining whether the
    presumptive ceiling has been reached. If the Resulting Delay exceeds the
    presumptive ceiling, the court must consider whether the case was particularly
    complex, such that the time the case took was justified and the delay
    reasonable (
Jordan
, at paras. 75-80).

[118]

If the Resulting
    Delay falls below the presumptive ceiling, the onus shifts to the appellants to
    show that the delay is unreasonable. Stays beneath the ceiling are expected to
    be rare and limited to clear cases (
Jordan
, at paras. 82-83).

[119]

For cases in the
    justice system on the date of
Jordan
s
release, a transitional
    exceptional circumstance applies if the Crown satisfies the court that the time
    the case took is justified based on the parties reasonable reliance on the
    previous state of the law. This is a contextual assessment, sensitive to the
    manner in which the
Morin

framework was applied and to the fact
    that the parties behaviour cannot be judged strictly against a standard of
    which they had no notice when the proceedings began. Considerations of
    prejudice and the seriousness of the offence can inform whether the parties
    reliance on the previous state of the law was reasonable (
Jordan
, at
    para. 96. See also
R v. Pyrek
, 2017 ONCA 476, at paras. 9, 28).

(d)

The
Jordan
Framework
    Applied

[120]

The parties
    agree that the total delay in this case was approximately 43.5 months and that
    neither Gopie nor Sargeant waived any periods of delay. They do not agree,
    however, on how much of the delay is defence-caused. There are two components
    to their disagreement. First, they disagree on how to attribute delay caused by
    the actions of a co-accused. Second, they disagree on whether other delay 
    such as that associated with missing transcripts  should be treated as
    defence-caused delay.

[121]

Gopie and
    Sargeant submit that neither exceptional circumstances nor transitional
    exceptional circumstances justify the delay in this case. The Crown argues that
    the Net Delay was less than 30 months but, alternatively, the delay is
    justified under transitional exceptional circumstances.

[122]

Therefore, in
    applying the
Jordan

framework, I must determine: (i) how to
    attribute delay caused by the actions of a co-accused; (ii) whether other delay
    in this case should be treated as defence-caused delay; (iii) the Net Delay for
    each of Gopie and Sargeant; (iv) whether exceptional circumstances justify the
    delay; and (v) whether transitional exceptional circumstances justify the delay.

(i)

Delay Caused by the
    Actions of a Co-Accused

The Parties Positions

[123]

Gopie accepts responsibility
    for only 83 days of delay, the period from November 13, 2012 (the scheduled
    first day of trial) to February 4, 2013 (the first date that Gopies counsel
    was available to begin trial). As noted above, Gopies counsel was unavailable
    for the scheduled first day of trial because he had inadvertently double-booked
    himself.

[124]

Sargeant says
    that no delay is attributable to him. He submits that the application judge
    erred in attributing to him two periods of delay caused by his co-accused. The
    first period is from February 11 to 25, 2011. On February 11, the parties
    attended a pre-trial to set new dates for the preliminary inquiry. However,
    counsel for the co-accused Wilson did not provide the court with dates so the
    matter had to be adjourned to February 25, 2011, to set new dates. The second
    period is the 83 days for which Gopie accepts responsibility.

[125]

Sargeant argues
    that as neither of these two time periods is attributable to his conduct, they should
    not serve to mitigate the delay in his case. Citing
R. v. Manasseri
,
    2016 ONCA 703, 132 O.R. (3d) 401, at para. 373, Sargeant contends that [a]
    joint trial is not some magic wand the Crown can wave to make a co-accuseds s.
    11(b) rights disappear.

[126]

The Crown points
    out that had the trial gone ahead as scheduled  beginning on November 13,
    2012, and running for six-weeks  it would have finished before the end of
    2012, well within the
Jordan

presumptive 30-month ceiling. The
    trial had to be rescheduled because Gopies counsel had double-booked the first
    trial date. The court then had to adjourn the February 2013 trial date to
    accommodate the holiday plans of Gittens counsel. The Crown contends that the
    inevitable delays caused by accommodating multiple accused counsels schedules
    should be borne by the appellants. It submits that delay by one accused should
    be attributed to all, except in rare instances where one accused is causing such
    lengthy delays that severance is required.

[127]

The Crown relies
    on
R. v. Brisset
t
, 2017 ONSC 401, 373 C.R.R. (2d) 170, and this
    courts decision in
R. v. L.G.
, 2007 ONCA 654, 228 C.C.C. (3d) 194. At
    para. 63 of
L.G.
, this court said that delay caused by a co-accused is
    ordinarily classified as neutral under
Morin

because it is in
    the interests of justice that individuals charged jointly with an offence be
    tried together. The Crown argues that joint trials are at risk if
L.G.

is no longer good law.

Analysis

[128]

I do not agree
    with the Crown that delay by one accused should be attributed to all. Rather, an
    individualized approach must be taken to the attribution of defence-caused
    delay in cases of jointly-charged accused. This conclusion flows from
Jordan

and the weight of the jurisprudence.
Accordingly,
    I would not attribute delay caused by the actions of a co-accused to Sargeant
    or Gopie.

[129]

I begin by
    acknowledging that
Jordan

does not expressly address this issue.
    However, the
Jordan

framework is based on the concept of
    accountability, focusing on the conduct of individual players in the justice system.
    Furthermore, when discussing defence-caused delay, the court in
Jordan

directs an assessment of the accuseds acts and whether his or her acts
    directly caused delay, or can be shown to be a deliberate and calculated tactic
    to delay the trial (
Jordan
,

at para. 63). This language suggests
    that the conduct of the accused must be looked at on an individual basis and
    attributed accordingly.

[130]

The Supreme
    Court recently provided further guidance on the concept of defence-caused delay
    in
R. v. Cody
,

2017 SCC 31. At para. 30 of
Cody
, the
    Court emphasized that the only deductible defence-caused delay is that which
    is solely or directly caused by the accused person and flows from defence
    action that is illegitimate insomuch as it is not taken to respond to the
    charges.

[131]

Further, while it pre-dated
Jordan

by a week, the
    Supreme Courts decision in
R. v. Vassell
, 2016 SCC 26, [2016] 1
    S.C.R. 625, revg 2015 ABCA 409, 609 A.R. 253, is also
instructive. A majority of the Alberta Court of Appeal upheld the trial
    decision which found the delay was reasonable. OFerrall J.A. dissented, saying
    that the trial judge had erred by counting delay caused
by Vassells
    co-accused against Vassell on his s. 11(b) application.


[132]

Th
e Supreme Court approved of the reasoning of OFerrall
    J.A. and allowed the appeal. The Court commented, at paras. 6-7:

[I]t was clear from the outset that the delay caused by the
    various co-accused not only prevented the Crown's case from moving forward, it
    also prevented Mr. Vassell from proceeding expeditiously, as he wanted.
    Importantly, this is not a case where Mr. Vassell simply did not cause any of
    the delay; rather, it is one in which he took proactive steps throughout, from
    start to finish, to have his case tried as soon as possible. In this regard,
    his counsel reviewed disclosure promptly, pushed for a pre-trial conference or
    case management, worked with the Crown to streamline the issues at trial,
    agreed to admit an expert report, made the Crown and the Court aware of s. 11(
b
)
    problems, and at all times sought early dates.

[]

the Crown
    cannot close its eyes to the circumstances of an accused who has done
    everything possible to move the matter along, only to be held hostage by his or
    her co-accused and the inability of the system to provide earlier dates.

[133]

This courts
    decision in
Manasseri
is also consistent with an individual approach
    to the attribution of defence-caused delay. At para. 329 of
Manasseri
,
    Watt J.A. assessed what amount of time should be deducted from the total delay
    as defence-caused delay, saying:

The record does not reveal any occasion on which the court was
    available, the Crown and co-accused ready to proceed but Kenny was unavailable
    or not ready to proceed. Kenny brought two pre-trial motions. The first sought
    severance: the second, which was brought twice, a stay of proceedings. Neither
    was frivolous. Neither was lengthy.
Any rescheduling of the hearing dates originated with
    others, not Kenny.
[Emphasis added.]

[134]

Fairburn J. (as
    she then was) addressed this issue in
R. v. Ny
, 2016 ONSC 8031, 343 C.C.C.
    (3d) 512. She rejected the Crowns position that when one accused causes delay
    in a case involving jointly-charged accused, the delay is attributable to each
    of the accused as defence delay. Her analysis for concluding that the
    assessment of defence delay must be done on an individualized basis is
    persuasive. At paras. 37-38 she stated:

As for the second component of defence delay, it requires an
    assessment of the "accused's acts" and whether his or her acts
    directly caused the delay:


Jordan
, at para.
    63. It also requires an assessment of whether "the acts of the
    accused" can be shown to be a "deliberate and calculated tactic
    employed to delay the trial". Like waiver, these are concepts attaching to
    a specific individual and his or her decisions to act in a certain way.

The inquiry into whether a party is the sole cause of delay is
    not conducive to then turning around and cloaking others with that delay. A
    decision by an accused to waive the right to a timely trial, or to behave
    indifferently toward the right through the actions he takes, is an individual
    choice. It is a choice that cannot be directly visited on a co-accused in the
    sense that the net delay faced by the co-accused will change. [Cited in
    original.]

[135]

See also
R.
    v. Curry
, 2016 BCSC 1435, 360 C.R.R. (2d) 273.

[136]

In my view,
    attributing to an accused the delay caused by the actions or inactions of a
    co-accused is inconsistent with the approach and language of
Jordan
.
That does not mean, however, that delay caused because
    the matter proceeded jointly against multiple accused is irrelevant to the s.
    11(b) assessment under
Jordan
.
As I discuss below, delays arising in the case of jointly-charged
    accused can give rise to exceptional circumstances under the
Jordan

framework.

[137]

Before
    concluding on this issue, I offer this comment concerning delays caused by a
    co-accused and the implications of the
Jordan

decision on this
    courts decision in
L.G.

[138]

Pre-
Jordan
,
co-accused delay was considered neutral delay in the s. 11(b) assessment;
    it was not treated as defence delay. The rationale was that, generally speaking,
    it is in the interests of justice that individuals charged jointly with an
    offence be tried together.  A single trial for two or more accused persons generally
    conserves judicial resources, avoids inconsistent verdicts, and avoids
    witnesses having to testify more than once: see
L.G.
, at para. 63,
    quoting from
R. v. Whylie
(2006), 207 C.C.C. (3d) 97 (Ont. C.A.), at
    para. 24.

[139]

Importantly, however,
    as this court recognized in
Whylie

and
R. v. Heaslip

(1983), 9 C.C.C. (3d) 480 (Ont. C.A.), the Crowns legitimate interest in
    having jointly-charged accused tried together must be balanced against the
    accuseds constitutional right to be tried within a reasonable amount of time. As
    Martin J.A. stated in
Heaslip
, at pp. 496-497
:

The Crowns desire to ensure that all the accused be tried
    together was, of course, entirely proper, but it imposed a corresponding
    obligation on the Crown to take appropriate measures to ensure that Garofolis
    motion proceeded expeditiously, and to move to have the application dismissed
    if Garofolis counsel did not proceed promptly.

[140]

This
    balancing of interests is evident in
R. v. Topol
, 2008 ONCA 113, 236
    O.A.C. 1, affg 160 C.R.R. (2d) 100 (S.C.), where this court upheld the
    decision of Nordheimer J., who found that at least some of the delay caused by
    scheduling difficulties among numerous counsel had to be borne by the Crown due
    to the Crowns consistent consent to delays and initial failure to seek severance
    for Topol.

[141]

Moreover, as the
    Supreme Court noted in
R. v. Last
,

2009 SCC 45, [2009] 3 S.C.R.
    146, at para. 18, whether the accuseds right to be tried within a reasonable
    time would be prejudiced by continuing with a joint prosecution is one of the factors
    for consideration in determining if, in the interests of justice, co-accused
    should be severed.

[142]

In conclusion on
    this point, while under the
Jordan

framework the category of
    neutral time no longer exists, in my view, the principles set out in
L.G.

still apply. As I discuss more fully below, provided it is in the best
    interests of justice to proceed jointly against co-accused, delays resulting
    from the fact that there are jointly-charged accused are considered under the
    exceptional circumstances analysis in
Jordan
.

(ii)

Should Other Delay be Treated as Defence-Caused Delay?

The Parties Positions

[143]

Sargeant argues
    that the application judge wrongly treated two periods of delay as neutral,
    having found that they were the result of a combination of institutional delay
    and defence delay. Sargeant says they should have been treated as institutional
    delay because they were caused by the systems failure to produce transcripts
    in a timely fashion.

[144]

The two time
    periods are the 5 days from February 6 to 11, 2013, and the 56 days from
    October 7 to December 2, 2013. The first period was a five-day adjournment of
    the pre-trial motions because of the lateness of the appellants motion
    materials and the unavailability of the preliminary inquiry transcripts needed for
    those motions. The second period arose because the Application, which was scheduled
    to be heard on October 7, 2013, had to be rescheduled to December 2 and 3, 2013,
    because transcripts were still missing and the appellants had filed their
    Application materials late.

[145]

Gopie adopts Sargeants
    position on this matter.

[146]

The Crown argues
    that the application judge failed to appreciate that the s. 11(b) transcripts
    were missing because the appellants had not ordered them, not because of
    institutional delay in producing the transcripts. The Crown says that if the
    application judge had properly assessed the evidence, he would have classified most
    of the delay from November 13, 2012 (the first scheduled trial date) to January
    6, 2014 (the third scheduled trial date and the actual first day of trial) as
    defence-caused delay. The Crown says that starting with the first trial dates
    having to be adjourned because Gopies counsel was double-booked, the
    appellants continued to delay progress because they failed to order the
    necessary transcripts, leading to repeated adjournments.

Analysis

[147]

The parties
    point out that much of the application judges time allocation for the period
    from February 6, 2013, onward was driven by his determination that the delays
    were caused by a mixture of defence delay (delivering incomplete and/or late
    materials) and institutional delay (resulting from missing transcripts).

[148]

I acknowledge
    that the application judges findings should be afforded deference. However, at
    para. 32 of
Cody
,
the Supreme Court makes it clear that both the
    substance and procedure of defence conduct is to be considered, saying:

Defence conduct encompasses both substance and procedure. The
    decision to take a step,
as well as the manner in which it is conducted
,
    may attract scrutiny. To determine whether defence action is legitimately taken
    to respond to the charges, the circumstances surrounding the action or conduct
    may therefore be considered. The overall number, strength, importance,
    proximity to the
Jordan

ceilings, compliance with any notice or
    filing requirements and timeliness of defence applications may be relevant
    considerations. Irrespective of its merit, a defence action may be deemed not
    legitimate in the context of a s. 11(
b
) application if it is designed to
    delay or if it exhibits marked inefficiency or marked indifference toward
    delay. [Emphasis in original.]

The Court continued at para. 33, citing
Jordan
:

Accused persons must bear in mind that a corollary of the s.
    11(
b
) right to be tried within a reasonable time is the responsibility
    to avoid causing unreasonable delay. Defence counsel are therefore expected to
    actively advance their clients right to a trial within a reasonable time,
    collaborat[e] with Crown counsel when appropriate and  us[e] court time
    efficiently. [Citations omitted.]

[149]

Accordingly, in
    my view, the procedural history related to the transcripts must be reviewed.

[150]

At
    the assignment court appearance on August 10, 2012, the presiding judge reminded
    the parties about the protocol in place with respect to s. 11(b) applications
    in Brampton, particularly as it concerned the ordering of transcripts. The
    court stated, [i]f you are going to be ordering transcripts, given the number
    of transcripts that are ordered in this building each month, and I believe it
    is about 1,700, ordering them two weeks before you need them is not going to
    work. You are going to have to order them as soon as the potential for the
    issue arises. This was approximately four months before the appellants were
    scheduled to argue their first s. 11(b) application, which was set for December
    3, 2012. It will be recalled that the appellants abandoned that application and,
    on the record, gave no reason for so doing.

[151]

The
    issue of the s. 11(b) application next arose at the assignment court appearance
    on March 1, 2013. Counsel were asked if the necessary transcripts had been
    ordered. Gopies counsel responded, No, there are going to be a lot of
    transcripts  so were going to need a fair bit of time for that. Gittens
    counsel then confirmed that the appellants had thus far ordered only the
    preliminary inquiry transcripts; they had not ordered the other required Ontario
    Court of Justice transcripts and they did not have any Superior Court
    transcripts either.

[152]

On
    the next appearance, Gopies counsel provided the court with an update on the
    transcripts for the s. 11(b) application. Counsel advised [w]eve ordered some
    materials and we havent really received anything yet, and within the next
    couple of weeks well be in a much better position to give Your Honour a more
    firm understanding of how things are coming along. When the parties next
    appeared in assignment court on April 5, 2013, Gopies counsel simply asked to
    come back in May to update the court on the Application but provided no details
    of the status of the transcripts.

[153]

On
    May 10, 2013, the parties returned to assignment court.  Hill J. again referred
    them to the Brampton protocol. Gittens counsel advised that it had been kind
    of left up to [Gopies counsel] to order all the transcripts. He then stated,
    [Gopies counsel] contacted counsel  a couple of days ago to indicate that
    there [were] some problems with respect to transcripts and his availability for
    those 11(b) motions. Hill J. asked how many transcripts were missing and
    Gittens counsel stated, I think from what I understand all of them. The
    court adjourned the matter for one week, but noted that the court required an
    explanation for how an 11(b) application could have been set between the 12
th
and 13
th
[of June] with no transcripts having been ordered. Thats
    just nonsense.

[154]

On
    May 17, 2013, Gopies counsel advised that he had a scheduling conflict and
    requested an adjournment of the Application. No mention was made of the
    outstanding transcripts.

[155]

On
    the record, it is apparent that the vast majority of the transcripts for the Application
    were ordered on May 14, 2013, just three days before the June Application date
    was adjourned at the appellants request, and almost a year after the first
    dates for trial and the first s. 11(b) application had been set.

[156]

As
    the Supreme Court noted at para. 32 of
Cody
, [i]rrespective of its
    merit, a defence action may be deemed not legitimate in the context of a s. 11(
b
)
    application if it is designed to delay or if it exhibits marked inefficiency or
    marked indifference toward delay. Bearing that admonition in mind, in my view,
    much of the delay resulting from the missing transcripts must be attributed to the
    appellants as defence-caused delay. The appellants were not diligent in
    ordering and following up on the transcripts. They did not follow the Brampton
    protocol despite repeated urgings by the court. In the words of
Cody
, the
    appellants conduct exhibited marked inefficiency or marked indifference
    toward delay.

[157]

The
    adjournments triggered by missing transcripts and late or incomplete materials
    adversely impacted the progress of the case. In particular, much of the time
    between March 1, 2013 (when the appellants advised for the second time that
    they would bring a s. 11(b) application) and December 2 and 3, 2013 (when the
    Application was finally heard) must be treated as defence-caused delay. While
    not an exact science, I would attribute seven months of that nine month period as
    defence-caused delay to both Sargeant and Gopie.

(iii)

Net Delay

[158]

It
    will be recalled that Net Delay is calculated by subtracting defence delay from
    total delay.

[159]

For
    Sargeant, the Net Delay is 36.5 months  43.5 months of total delay minus the 7
    months of defence-caused delay, explained above.

[160]

For
    Gopie, the Net Delay is 33.5 months. From the total delay of 43.5 months, two
    periods of defence-caused delay must be subtracted. The first is the 3 months
    of delay which Gopie acknowledges arose because his trial counsel double-booked
    himself for the first trial date. The second is the 7 months of defence-caused delay,
    explained above.

[161]

In
    both cases, the Net Delay exceeds the ceiling of 30 months and is therefore
    presumptively unreasonable.

(iv)

Delay Justified by Exceptional Circumstances

[162]

As
    the Net Delay in each case exceeds the presumptive ceiling, it falls to the Crown
    to rebut the presumption by demonstrating the existence of exceptional
    circumstances. While the list of exceptional circumstances is not closed, they
    typically fall into two categories: (i) discrete events; and (ii) particularly
    complex cases (
Jordan
, at paras. 68-71).

Discrete Events

[163]

While
    the Crown does not argue that any periods of time constitute discrete events, in
    my view, the appellants properly concede one month of delay for a discrete
    event. The period from February 11 to March 1, 2013, was lost because a Crown
    witness, Officer Terreault, was on medical leave and therefore unavailable for
    the preliminary inquiry. At the appearance on February 11, Sargeants counsel stated
    that there was no lack of diligence on the Crowns part that led to this. The
    Crown had checked Officer Terreaults availability with the RCMP before booking
    the date and been assured that she would be there. Sargeants counsel also advised
    the court that as soon as the Crown became aware of Officer Terreaults
    unavailability, she advised defence counsel and made every effort to try to
    deal with the matter in some other fashion (such as an agreed statement of
    facts).

[164]

I
    agree this constitutes a discrete event within the
Jordan

framework.
    Officer Terreaults unavailability at the preliminary inquiry was reasonably
    unforeseen and unavoidable and, despite the Crowns best efforts, she could not
    remedy the resulting delay.

[165]

In
Cody
,

at paras. 48 and 64, the Supreme Court clarified that
    discrete events result in a quantitative deduction of particular periods of
    time, while complexity of the case is a qualitative assessment. I would,
    therefore, subtract the one month of discrete delay for the purpose of
    determining whether the presumptive ceiling was reached in this case.

[166]

Accordingly,
    the Resulting Delay for Sargeant is 35.5 months and for Gopie it is 32.5 months.
    As both periods exceed the presumptive 30-month ceiling, I must go on to
    consider whether the Crown has established that the complexity of this case
    justifies the time that it took, thereby rendering the delay reasonable.

Complexity

[167]

The
    appellants submit that the delay in this case is not justified because the case
    was not complex and much of the delay resulted from the Crowns mismanagement
    of the prosecution and its disorganised approach. They point to such things as:
    four different prosecuting Crown attorneys carried the case; a lack of timely disclosure;
    and, the Crowns change in approach to the preliminary inquiry, which led to it
    having to be rescheduled. Moreover, the appellants argue that the Crown was not
    vigilant in protecting their s. 11(b) rights, as evidenced by the Crowns decision
    to proceed against three accused jointly and the resulting difficulties in
    aligning the schedules of all counsel.

[168]

There
    is some validity to the appellants submission. Despite that, in my view, the
    delays arising from the complexity of the case justify the delay.

[169]

Delays
    arising from complexity may justify an otherwise unreasonable delay that
    exceeds the ceiling (
Jordan
,

at paras. 80-81, 105). The nature
    of the issues and the evidence drive the complexity analysis under
Jordan
.
Complexity may also arise from proceedings that involve more than one
    accused. As noted in
Jordan
,

at para. 77, [p]roceeding jointly
    against multiple co-accused, so long as it is in the interest of justice to do
    so, may also impact the complexity of the case.  The Supreme Court underlined
    this point at para. 6 of
Vassell
,

stating that [i]n many
    cases, delay caused by proceeding against multiple co-accused must be accepted
    as a fact of life and must be considered in deciding what constitutes a
    reasonable time for trial.

[170]

Fairburn J.
    aptly summed up this point in
Ny
,

at para. 47, stating:

[T]he concept of reasonable time within s. 11(b) may
    fluctuate depending on whether accused are standing alone or together. Provided
    it is in the interests of justice to proceed jointly, delay above the ceiling
    may reflect the realities of life in a joint trial and transform an otherwise unreasonable
    delay into a reasonable one.

[171]

There
    may come a time when the interests of justice are no longer served by
    proceeding jointly, including where s. 11(b) rights are in jeopardy. The Crown
    has an obligation to continually assess whether the decision to proceed jointly
    remains in the best interests of justice. One accused cannot be held hostage
    by his co-accuseds actions or inactions (
Vassell
,

at para. 7;
    and
Manasseri
,

at para. 323).

[172]

The
    reasonableness of the delay above the ceiling must be assessed based on the
    circumstances of the case. I accept the application judges finding that this
    was not a routine case and had inherent complexity due to voluminous
    disclosure, out-of-province witnesses, multiple accused, various pre-trial
    motions, a seven-day preliminary hearing and a month-long trial. Although the
    application judge used
Morin

principles in making his finding
    that the case was complex, using the
Jordan

framework, I am
    satisfied that this was a complex case.

[173]

Further,
    at para. 89 of
Jordan
,

Moldaver J. said that local and systemic
    circumstances play a role in assessing the reasonableness of the length of time
    it took to get the matter to trial. That consideration is relevant in this case
    as evidenced by the Brampton protocol concerning transcripts and s. 11(b)
    applications  a protocol clearly designed to address systemic pressures.

[174]

The
    proceedings were undoubtedly complicated by the fact that the case involved
    multiple accused. However, in this case, the interests of justice favoured
    proceeding against the appellants jointly. The core allegations involved the
    accused having worked together to import cocaine through the Montreal airport.
    Importantly, as the application judge found at para. 120 of his reasons: This
    is not a case where severance was requested or where severance was an option. While
    Sargeant occasionally asserted an interest in moving the matter along, delay
    issues were not raised, other than when counsel advised the court of their
    intention to bring a s. 11(b) application. Nor was severance ever requested in
    the lead up to trial.

[175]

Furthermore,
    on the findings of the application judge, instead of being proactive, the
    appellants were complacent and/or inactive when it came to ensuring that the case
    moved forward expeditiously.

[176]

Thus,
    in my view, while the Crown could have been more expeditious, in light of the
    nature of the evidence, the issues and the number of accused, the time it took
    for this matter to conclude was not unreasonable.

(v)

Delay Justified as a Transitional Exceptional Circumstance

[177]

In
    my view, the delay is also justified when analyzed as a
Jordan

transitional
    exceptional circumstance.

[178]

In
R. v. Williamson
,
    2016 SCC 28, [2016] 1 S.C.R. 741, the majority decision discussed, as the relevant
    considerations informing the transitional exceptional circumstance analysis:
    (i) the complexity of the case; (ii) the period of delay in excess of the
Morin

guidelines; (iii) the Crown's response,
    if any, to any institutional delay; (iv) the defence efforts, if any, to move
    the case along; and (v) prejudice to the accused.

[179]

I
    explain above why, using the
Jordan

framework, I find this case
    to have been complex. I will not repeat that discussion.

[180]

The
    application judge found that the combined institutional and Crown delay in the
    Ontario Court of Justice in this case fell within the
Morin

guideline,
    and exceeded the guideline in the Superior Court of Justice by only a very small
    margin (ten days). I see no basis for interfering with those findings. In
    particular, I do not accept that the application judge should have attributed more
    of the time he characterized as inherent time requirements as either
    institutional or Crown delay.

[181]

I
    also accept the application judges findings in respect of defence efforts (or
    lack thereof) to move the case along and prejudice to the appellants. The
    application judge found that to the extent either Gopie or Sargeant suffered
    prejudice, there were numerous instances of their inaction that were inconsistent
    with a desire to move the matter along. He made specific findings which showed
    that the appellants had acquiesced to the pace of the case, including that the
    appellants: were complicit in underestimating the time for the preliminary
    inquiry; failed to use the first day of the original preliminary inquiry to
    cross-examine Fraser, the key Crown witness; were not ready for trial on
    November 13, 2012, causing it to have to be adjourned; could not have completed
    a six-week trial without interruption if it had commenced on February 6, 2013,
    resulting in a further adjournment; and, failed to follow the Brampton protocol
    that had been designed to ensure the timely production of transcripts, leading
    to many adjournments.

[182]

For
    these reasons, I conclude that the delay was justifiable as a transitional
    exceptional circumstance.

THE SENTENCE
    APPEAL

[183]

On
    his sentence appeal, Gopie submits that the trial judge: failed to consider his
    role in the conspiracy and the lack of evidence in that regard; and, sentenced
    him on the basis that he had conspired to import cocaine, as opposed to
    marijuana or some other less harmful narcotic.

[184]

I
    see no basis on which to interfere with the trial judges findings or the
    sentence that he imposed. In reaching this conclusion, I am guided by
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, which provides
    that except where a sentencing judge makes an error of law or an error in
    principle that has an impact on the sentence, an appellate court may not vary
    the sentence unless it is demonstrably unfit. I see no error that had an impact
    on the sentence nor is the sentence demonstrably unfit.

[185]

In
    relation to Gopies role in the conspiracy, the trial judge explicitly instructed
    himself, in accordance with
R. v. Ferguson
, 2008 SCC 6,

[2008]
    1 S.C.R. 96, that he had to determine the facts for sentencing independently,
    if the factual implications of the jurys verdict were unclear. He was not
    satisfied beyond a reasonable doubt that Gopie was at the top of the hierarchy
    as the importer. However, he had no doubt that Gopie was more than
    tangentially involved, noting that Gopie twice accompanied Wilson and Fraser
    (along with others) to Montreal and was present throughout this importation of
    drugs from St. Maarten.

[186]

On
    the matter of the nature of the drug, the fact that Fraser believed she was
    importing marijuana because that is what Wilson told her is not a basis for the
    trial judge to find that Gopie was also duped about the nature of the drug. It
    was Gopies onus to establish this mitigating circumstance. He did not
    discharge that onus.

[187]

As
    for whether the nine-year sentence is demonstrably unfit, I begin by noting
    that the Crown sought a sentence of ten years and the defence submitted that a
    period of six to eight years was the appropriate range.

[188]

While
    Gopie had no criminal record, at the time of the offence he was on probation
    and had been in Canada for only two and a half years. The conspiracy was
    planned and detailed and led to the importation of a large amount of hard drugs
     almost eight kilograms of cocaine. And, while Gopie was not found to be at
    the top of the hierarchy as the importer, as I have explained, it was available
    to the trial judge to find, as he did, that Gopies role was more than
    tangential.

[189]

In
    light of the amount and nature of the drug that was imported and Gopies role
    in the conspiracy, the sentence cannot be said to be demonstrably unfit.

DISPOSITION

[190]

For these
    reasons, I would dismiss the appeal against conviction. I would grant leave to
    appeal sentence but would dismiss that appeal, as well.

E.E.
    Gillese J.A.

I agree.
    K. van Rensburg J.A.


Brown J.A
.:
    (concurring)

[191]

I concur with my
    colleague that the appeals from conviction and sentence should be dismissed. I
    agree with her treatment of the issues of unreasonable verdict, adequacy of the
    jury charge, and sentence. I also agree the application judge did not err in
    dismissing the s. 11(b) Application.

[192]

However, I
    respectfully disagree with one aspect of her s. 11(b) analysis: where to
    consider the consequences of delay by a co-accused in the
Jordan
framework. My colleague would not examine such delay as part of defence-caused
    delay, but as a factor in the exceptional circumstances analysis of the
    complexity of the case.

[193]

I would adopt a
    different approach and place the consideration of delay caused by the actions
    of a co-accused in the defence-caused delay part of the
Jordan
framework. In my view, that approach would more effectively promote
Jordans
goal of ridding our criminal justice system of a culture of complacency
    towards delay:
Jordan
, at para. 40.

[194]

I do not read
Jordan
as merely substituting a new way of performing the s. 11(b) judicial days-counting
    exercise for the old one. Although
Jordan
directs a change in the
    mechanics of s. 11(b) numbers-crunching, it does so as a means to an important
    end  to change courtroom culture in order to accomplish the purpose of s.
    11(b), which is to expedite trials and minimize prejudice and not to avoid trials
    on the merits:
Jordan
, at para. 60.

[195]

The hard
    ceilings set by
Jordan
will not permit the parties or the courts to
    operate business as usual. The ceiling is designed to encourage conduct and the
    allocation of resources that promote timely trials:
Jordan
, at para.
    107.  To that end, ridding the criminal justice system of the culture of
    complacency towards delay requires discarding a deeply entrenched mindset
    towards the use of litigation time that rewards the wrong behavior [and]
    frustrates the well-intentioned:
Jordan
, at para. 40, citing
B.C. Justice Reform Initiative.
A
    Criminal Justice System for the 21st Century: Final Report to the Minister of
    Justice and Attorney General Honourable Shirley Bond
, report by D. Geoffrey Cowper, Q.C.,
    Chair. Victoria: The Initiative, 2012, at pp. 48.

[196]

Jordans
new framework seeks to create incentives for both sides and to enhance
    accountability by fostering proactive, preventative problem solving:
Jordan
,
    at para. 112.

[197]

Such
    problem-solving is the responsibility of all those involved in a criminal case:
    [A]ll participants in the justice system must work in concert to achieve
    speedier trials:
Jordan
, at para. 116. This collective responsibility
    of the Crown, defence counsel, judges, and court administrators was repeated by
    the Court
Cody
, at para. 1: [E]very actor in the justice system has a
    responsibility to ensure that criminal proceedings are carried out in a manner
    that is consistent with an accused persons right to a trial within a
    reasonable time.

[198]

All
    participants and every actor include defence counsel. In
Cody
, the
    Court stated at para. 35:

All
justice system participants  defence counsel
    included  must now accept that many practices which were formerly commonplace
    or merely tolerated are no longer compatible with the right guaranteed by s.
    11(b) of the
Charter
.

[199]

Why the need for
    such shared responsibility? As the Court stated in
Jordan
at para. 86,
    the practical litigation reality is that:

[A] level of cooperation between the parties is necessary in
    planning and conducting a trial. Encouraging the defence to be part of the
    solution will have positive ramifications not only for individual cases but for
    the entire justice system, thereby enhancing  rather than diminishing  timely
    justice.

[200]

Where in this
    new time-management problem-solving paradigm should the court locate its
    examination of delay caused by the conduct of a co-accused? To foster the
    change in litigation culture required to achieve the purpose of s. 11(b)  to
    expedite trials on the merits  a court should examine such delay when
    considering the delay attributable to the defence in order to determine net
    delay. I reach this conclusion for five reasons.

[201]

First, achieving
    change in our litigation culture requires altering the way litigation
    participants think about an issue. My colleague would treat the consequences of
    delay by a co-accused under the exceptional circumstances rubric of the
Jordan
analysis. The risk in so doing, in my respectful view, is that defence counsel
    in joint trials will regard delay by other co-accused as a peripheral,
    exceptional factor, instead of as a problem that all share a core
    responsibility to solve.

[202]

Second, placing
    the consideration of delay by a co-accused in defence-caused delay will
    incent counsel for co-accused to remind each other of the need to be part of
    the systemic solution of securing timely trials. It would operate to decrease
    the incidence of conduct such as that seen in the present case, described by my
    colleague in para. 175 of her reasons: [O]n the findings of the application
    judge, instead of being proactive, the appellants were complacent and/or
    inactive when it came to ensuring that the case moved forward expeditiously.
    Further, increasing the number of defence counsel working to move a case along,
    notwithstanding the reluctance of some co-accused, will provide case and trial
    management judges with an additional tool to promote and secure a timely trial
    of the entire case.

[203]

Third, assessing
    the consequences of delay by a co-accused in this fashion should foster
    separating the procedural time-management issues in a joint prosecution from
    the issues concerning the merits of a case. In a joint prosecution, it would
    foster a sense of common responsibility for the litigation process  moving a
    case along to a timely disposition on its merits  while leaving each accused
    free to advance whatever defence on the merits he or she saw fit in the
    circumstances: whether it be a one for all, all for one or cut-throat
    defence.

[204]

Fourth, a
    somewhat technical point. Assessing the delay of a co-accused under
    defence-caused delay should result in a more transparent quantitative
    days-counting analysis, rather than the necessarily more opaque qualitative
    analysis associated with exceptional circumstances complexity.

[205]

Finally, I do
    not see assessing the consequences of delay by a co-accused under
    defence-caused delay as risking visiting the procedural sins of one
    co-accused on a procedurally innocent co-accused to the prejudice of that
    accuseds individual s. 11(b) rights. On a s. 11(b) application, it would
    always be open to an accused to point to the tangible evidence of his or her
    proactive efforts to move the case along to trial in the face of foot-dragging
    by other co-accused. Evidence about how an accused responded to the delaying
    conduct of a co-accused would play an important role in assessing the accuseds
    ultimate responsibility for a cases delay, as occurred in

Vassell

and
Manasseri
.

[206]

Although I would
    locate the examination of delay caused by a co-accused in defence-caused
    delay instead of exceptional circumstances complexity, I would reach the same
    result as my colleague: see her discussion of the issue in paras. 126 and
    167-176.

[207]

Accordingly, I
    concur with my colleague that Gopies appeals from conviction and sentence
    should be dismissed.

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

David Brown J.A.





[1]

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



[2]

R. v. Jordan
, 2016 SCC 27, [2016]
    1 S.C.R. 631.


