



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Charley, 2019 ONCA 726

DATE:
    20190919

DOCKET: C65681

Doherty, Benotto and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ammaan Charley

Respondent

Michael Fawcett, for the appellant

Philip Campbell and Howard L. Krongold,
    for the respondent

Heard: February 26-27, 2019

On appeal from the order of Justice Edward
    M. Morgan of the Superior Court of Justice, dated June 25, 2018, staying the
    charges against the respondent with reasons reported at 2018 ONSC 3551, 414
    C.R.R. (2d) 45.

Doherty J.A.:


I



overview

[1]

The respondent, Ammaan Charley, was found guilty
    of robbery with a firearm and related offences. Subsequent to the findings of
    guilt, but before sentence, the respondent brought a motion to stay the
    proceedings, claiming that his right to be tried within a reasonable time had
    been denied as a result of post-verdict delay. The trial judge granted the
    motion and stayed the proceedings. In doing so, he applied the presumptive
    30-month ceiling established in
R. v. Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631 to the period beginning with the laying of the charge and extending
    to the anticipated date of sentencing. After deducting certain periods, the
    trial judge calculated the net delay at 32 months. He went on to hold that the
    Crown had not discharged its onus of showing that the delay was reasonable.

[2]

The Crown appeals. The Crown accepts that s.
    11(b) applies throughout the trial process, including through sentencing. Crown
    counsel maintains, however, that post-verdict delay must be treated separately
    from pre-verdict delay and is not subject to the presumptive ceilings
    established in
Jordan
. Counsel
    contends that the onus of demonstrating the reasonableness of post-verdict
    delay is always on the defence and falls to be determined by the test set down
    in
Jordan
for delay
    that is below the
presumptive ceilings. The Crown submits that the
    defence failed to show that the post-verdict delay was unreasonable.

[3]

The application of the
Jordan
analysis to post-verdict delay is an open question
    in this court. For the reasons that follow, I would hold that while the
Jordan
analysis does apply to post-verdict delay, the
    presumptive ceilings established in
Jordan
do not include post-verdict delay. Post-verdict
    delay, for the purposes of applying a presumptive ceiling, should be assessed
    separately from pre-verdict delay and should be subject to its own presumptive
    ceiling. I would fix that ceiling at five months. Applying that approach to
    this case, the post-verdict delay was not unreasonable.

[4]

With respect to
    the order this court should make, I am satisfied that this court has the
    jurisdiction to set aside the stay and either order a new trial, or affirm the
    finding of guilt and either sentence the respondent, or remit the matter to the
    trial court for sentence. I would set aside the stay, affirm the findings of
    guilt and remit the matter to the trial court for sentence.


II



factual background:
    the robbery

[5]

The Crown alleged that the respondent and an
    accomplice robbed a clerk in a convenience store at gunpoint. The Crowns case
    relied primarily on the evidence of the clerk, Glassford Gordon.

[6]

Mr. Gordon testified that the respondent and a
    younger man entered the store together at about 5:30 p.m. As soon as they
    entered, the young man came over the counter and attacked Mr. Gordon. As Mr.
    Gordon struggled with the young man, he saw the respondent pointing a gun at
    him. The respondent pushed the young man out of the way and said to Mr. Gordon,
    wheres the money?

[7]

The respondent pushed Mr. Gordon toward the back
    of the store and continued to demand money. He struck Mr. Gordon on the head
    with the handgun twice, opening a significant gash on his head. The respondent
    also pulled a gold chain from Mr. Gordons neck and gave it to the young man.

[8]

The respondent continued to demand money. At one
    point, the respondent gave the gun to the young man, telling him to watch Mr.
    Gordon. The respondent had taken some keys from Mr. Gordon and was trying to open
    a door with one of the keys.

[9]

When the young man became distracted, Mr. Gordon
    grabbed the gun and ran into the alleyway behind the store. The respondent and
    the young man gave chase. The respondent grabbed the hand in which Mr. Gordon
    was holding the gun. They fell to the ground while struggling for the gun. The
    gun discharged twice. Fortunately, no one was hit. The young man, at the
    respondents urging, joined in the struggle for the gun, stomping on Mr.
    Gordons hand and grabbing the muzzle of the gun.

[10]

Mr. Gordon was determined to hold onto the gun,
    despite the attack by the respondent and the young man. When the police arrived
    at the scene in response to a 911 call, they found the respondent and Mr.
    Gordon in the alleyway on the ground, fighting for control of the gun.

[11]

Mr. Gordons evidence was supported in several respects
    by the physical and forensic evidence, and the evidence of a witness who saw the
    beginning of the attack in the store and the last stages of the struggle for
    the gun in the alleyway. That witness had called 911 immediately after she fled
    the store.

[12]

The respondent testified in his own defence. He
    indicated that he had been in the same store the previous day to purchase marijuana
    from Mr. Gordon. While he was there, a group of men robbed the store. He had
    nothing to do with the robbery and just happened to be in the wrong place at
    the wrong time.

[13]

In his evidence, Mr. Gordon confirmed that a
    group of masked men had robbed him the day before. The respondent was in the
    store at the time. He was not masked, and as far as Mr. Gordon could tell, was
    not involved in the robbery.

[14]

The respondent testified that he went back to
    the same store to purchase more marijuana the next day. He was with his girlfriend
    and a young man. They arrived in a taxi. His girlfriend stayed in the taxi
    while the respondent and the young man went into the store.

[15]

As soon as the respondent and the young man entered
    the store, the young man ran toward the clerk, jumped over the counter, and attacked
    him. It was the respondents evidence that, for the second day in a row, he had
    the misfortune of being in the store during a robbery in which he was not
    involved.

[16]

The respondent indicated that as soon as he
    realized that the young man was trying to rob the store, he ran out of the
    front door onto the street. He wanted nothing to do with the robbery. He did
    not return to the taxi where his girlfriend was waiting for him but instead
    walked in the other direction.

[17]

According to the respondent, he walked a short
    distance away from the store. He was standing on the street trying to decide
    what to do when he heard gunshots. He walked back to the store and saw Mr.
    Gordon and the young man fighting in the alleyway. The respondent decided to
    help the young man, who seemed to be losing the fight. The respondent and Mr.
    Gordon were struggling for possession of the gun in the alleyway when the
    police arrived in response to a 911 call.

[18]

The respondent denied that he was ever in
    possession of the gun and claimed to have no knowledge of the gun. In
    cross-examination, the defence suggested to Mr. Gordon that he had the gun
    because, as a drug dealer, he needed to protect himself. He denied the
    suggestion.

[19]

The trial judge disbelieved the respondents
    evidence. He went on to conclude, based on the rest of the evidence, including
    Mr. Gordons testimony, that the Crown had proven the allegations beyond a
    reasonable doubt:
R. v. Charley
, 2017 ONSC 605.


III



post-verdict
    proceedings

[20]

On June 25, 2018, 17 months after the trial
    judge found the respondent guilty on various charges, he entered a stay of
    proceedings, holding that the prolonged post-verdict proceedings resulted in a
    breach of the respondents right to be tried within a reasonable time under s.
    11(b) of the
Charter
. The s. 11(b) claim focuses entirely on the
    post-verdict phase of the proceedings. There is no suggestion of any
    unreasonable delay prior to the verdict.

[21]

The post-verdict chronology is set out below:



Date

Event



January 27, 2017

The trial judge finds the respondent
          guilty of various offences. The Crown indicates it may bring an application
          under Part XXIV of the
Criminal Code
for an order declaring the
          respondent a dangerous offender or a long-term offender. The Crown seeks an
          order for a psychiatric assessment under s. 752.1, as a first step to
          bringing an application under Part XXIV. The Crown indicates that it is
          gathering the necessary material. Defence counsel states that he will not
          bring any defence motions relevant to sentencing until the Crown application is
          resolved. The trial judge accepts this position.



February 22, 2017

The Crown advises of the status of the
          voluminous material necessary for the application. The Crown suggests that
          the application could be argued on a date in May.



May 18 and 19, 2017

The parties make submissions on the s.
          752.1 application.



June 8, 2017

The trial judge grants the s. 752.1 application
          and gives reasons.



June 22, 2017

The trial judge reconsiders his decision
          on the s. 752.1 application based on a factual error in his reasons that
          counsel have brought to his attention. The trial judge dismisses the s. 752.1
          application. This brings the Crowns application to an end and also ends any
          possibility of a dangerous offender or long-term offender application.

Counsel and the trial judge discuss the
          scheduling of the sentencing. The Crown suggests two days are needed. The
          defence suggests three days out of an abundance of caution. The defence
          also indicates that it will file material relating to the respondents
          treatment while in pre-sentence custody. The Crown requests a pre-sentence
          report and advises that six weeks are necessary to obtain the report. The
          Crown indicates it is available in early August or early September. The
          defence suggests late August. The parties eventually agree that the
          sentencing will proceed on September 27, 28, and 29.



September 27, 2017

Between the scheduling of the sentencing
          hearing on June 22 and September 27, the date scheduled for the hearing, the
          defence has filed a wide-ranging constitutional challenge, targeting not only
          the respondents conditions while in pre-trial custody, but also government
          policies in respect of pre-trial custody. The defence has joined several
          other government actors in the proceeding. The defence has also served
          various broad-ranging disclosure requests in support of the constitutional
          challenge. The defence now anticipates that the motion will take six days.
          The Crown takes the position that the application record on the
          constitutional issues is incomplete. There are long discussions with respect
          to scheduling and, in particular, the order in which the various issues
          raised by the defence should be addressed.



October 2017  February 22, 2018

There are numerous days of evidence and
          argument on a variety of issues arising out of the constitutional challenge.
          The defence continues to serve new disclosure requests.



February 22, 2018

On a motion brought by one of the responding
          government parties, the trial judge rules that he will only hear the
          constitutional challenge as it relates to the respondent and not as it
          relates to broader policy issues in respect of pre-trial detention. He also
          directs that the sentencing hearing should proceed as soon as practicable.



March 23, 2018

The defence brings a motion for
          directions seeking clarification of whether it can seek
Charter
relief for the respondent based on the pre-sentence detention conditions. The
          trial judge indicates that the defence can seek a stay and raise other
          constitutional issues relevant to the respondents sentence. The defence asks
          for a 40-day adjournment to file the necessary material. In response to a
          question from the trial judge, the defence indicates that it does not
          anticipate a s. 11(b) motion.



April 11, 2018

The defence advises the Crown that it
          will allege a s. 11(b) violation and seek a stay.



May 2, 2018  May 29, 2018

The defence intermittently files material
          relevant to the s. 11(b) motion, the constitutional challenge to s. 719(3.1)
          of the
Criminal Code
, and the motion for a stay based on the
          respondents pre-sentence detention conditions.



June 1, 2018

The court hears evidence in respect of
          the motions brought by the defence and the s. 11(b) motion begins.



June 5, 2018

The parties make submissions on the s.
          11(b) motion.



June 25, 2018

The trial judge finds a violation of the
          respondents right to be tried within a reasonable period of time and stays
          the proceedings.




IV



the trial judges
    ruling on the section 11(b) motion

[22]

The trial judge began by accepting that s. 11(b)
    applies to post-verdict delay:
R. v. Charley
, 2018 ONSC 3551, 414
    C.R.R. (2d) 45, at paras. 2-3 (
Charley (application)
). He rejected the
    Crowns argument that the post-verdict delay should be measured exclusively
    against the criteria set out in
R. v. Morin
, [1992] 1 S.C.R. 771. He
    agreed with the defence contention that the post-verdict delay should be
    assessed by using the
Morin
criteria as tempered by the analysis in
Jordan
:
Charley (application)
, at paras. 6-9.

[23]

The trial judge calculated the delay from the laying
    of the charges to the verdict as 24½ months (January 15, 2015  January 27,
    2017). He then calculated the delay between conviction and the presumed date of
    sentence as 17 months (January 27, 2017  June 25, 2018). The total delay was
    41 months and 10 days.

[24]

The trial judge examined the 17-month post-verdict
    period in detail. Using concepts developed in
Morin
, he characterized
    parts of the 17 months as inherent time requirements, institutional delay,
    Crown delay, or defence delay. He held that of the 17 months, 4 months was
    attributable to the defence and 5 months was properly characterized as inherent
    time requirements, leaving 8 months, which the trial judge found could not be justified
    by the Crown. He added that 8-month post-verdict period to the 24 months pre-verdict,
    resulting in a total delay of 32 months:
Charley (application)
, at
    paras. 24-80.

[25]

The trial judge next considered the 32-month
    delay by reference to the presumptive 30-month ceiling established in
Jordan
.
    He treated the 30-month ceiling as applicable to the entire time period between
    the laying of the charge and the sentencing date. As the total delay from
    charge to sentence exceeded 30 months, it was presumptively unreasonable unless
    the Crown could demonstrate otherwise:
Charley (application)
, at para.
    80.

[26]

In considering whether the Crown had rebutted the
    presumption of unreasonable delay, the trial judge considered any prejudice
    suffered by the respondent. He determined that the respondent was significantly
    prejudiced by the delay, as he was in custody throughout:
Charley
    (application)
, at paras. 81-84. He also rejected the Crowns submission
    that the transitional exception set down in
Jordan
should apply in
    this case. The trial judge observed that the post-verdict delay, which lay at
    the heart of the s. 11(b) claim, all occurred well after
Jordan
had been
    decided:
Charley (application)
, at para. 86.

[27]

The trial judge concluded that the Crown could
    not rebut the presumption that the 32-month delay was unreasonable, compelling
    the conclusion that the respondents right to be tried within a reasonable time
    had been breached. The trial judge entered a permanent stay of proceedings. The
    Crown did not argue that there were any other remedies available under s. 24(1)
    of the
Charter
for a breach of s. 11(b).


V



the positions of
    the parties with respect to the section 11(b) claim

(i)

The Crown Position

[28]

Both the Crown and the respondent take different
    approaches on appeal to the application of s. 11(b) to post-verdict delay than they
    took at trial. The Crown acknowledges that the right to be tried within a
    reasonable time under s. 11(b) includes the right to be sentenced within a
    reasonable time:
R. v. MacDougall
, [1998] 3 S.C.R. 45, at paras. 10, 19-26.
    The Crown also accepts that the
Morin
analysis no longer has any role
    to play on a s. 11(b) motion, regardless of whether one is concerned with pre-
    or post-verdict delay. As counsel put it in his factum:

Morin
is
    dead. Today the
Jordan
framework governs the assessment of sentencing
    delay.

[29]

The Crown goes on, however, to argue that the presumptive
    ceiling, a central feature of the 
Jordan
framework should not be
    used in the context of post-verdict delay. The Crown contends that, not only
    should the specific presumptive ceilings set down in
Jordan
(18 months
    or 30 months) not apply to post-verdict delay, there should be no point in time
    at which post-conviction delay becomes presumptively unreasonable.

[30]

The Crown submits that when the defence
    brings a s. 11(b) application based on post-verdict delay, the defence must
    show, first, that it took meaningful steps demonstrating a sustained effort to
    expedite the proceedings and, second, that the case took markedly longer than
    it reasonably should have. This two-prong test is the test applied in
Jordan
to allegations of pre-verdict delay that falls below
    the presumptive ceilings:
Jordan
, at paras. 82-91. In effect, the Crown argues that
    post-verdict delay can never be presumptively unreasonable and the defence
    must, in all cases, establish the unreasonableness of the delay according to the
    criteria described in
Jordan
that are applicable to delay below the presumptive ceiling.

[31]

The Crown submits
    that the respondent cannot show that he made a sustained effort to expedite
    the proceedings. To the contrary, the Crown submits that the unfocused and
    unprepared approach taken by the defence
*
to the constitutional claims and related motions caused
    virtually all of the delay after August 2017. Crown counsel contends that the
    record demonstrates that the defence, with the acquiescence of the trial judge,
    turned what should have been a two or three-day sentencing hearing into a
    seemingly ever-expanding inquiry into the policies and practices in remand
    centres. The inquiry came to include various federal and provincial ministries.
    The determination of an appropriate sentence for the respondent became an
    afterthought.

(ii)

The Respondent Position

[32]

Counsel for the respondent, like the Crown,
    accepts that the right guaranteed by s. 11(b) runs to the end of the sentencing
    phase of the criminal trial process. Further, counsel accepts that the
    analytical approach set down in
Jordan
, and not the
Morin
analysis, must be applied when assessing the constitutionality of
    post-verdict delay. Counsel also agrees that post-verdict delay should be
    assessed separately from pre-verdict delay for the purposes of s. 11(b).

[33]

Counsel for
    the respondent contends, however, that a ceiling beyond which delay is
    presumptively unreasonable is integral and essential to the functioning of the
Jordan
analysis. Counsel maintains that
    without a presumptive ceiling, both the need for added certainty in the
    application of s. 11(b), and the desire to shift the trial culture away from
    complacency  the two goals which drove the reformulation of the s. 11(b)
    analysis in
Jordan
 would be
lost. Counsel submits that the several reasons identified in
Jordan
for the reformulation of the s. 11(b) test apply to
    delay at the post-verdict phase.

[34]

The
    respondent submits that post-verdict delay should have its own presumptive
    ceiling. Counsel argue for a 90-day presumptive ceiling that would be
    calculated from the date of verdict through to the date of sentencing. The 90-day
    presumptive ceiling would be subject to the same exceptions and qualifications
    as the
Jordan
pre-verdict presumptive ceilings. For example, as
    with pre-verdict delay, post-verdict delay caused by the defence would be
    deducted before applying the 90-day presumptive ceiling.

[35]

Counsel for
    the respondent concedes, correctly in my view, that on the facts of this case
    the delay in sentencing after August 2017, when the Crown was prepared to make sentencing
    submissions, should be characterized as defence delay and deducted from the
    overall time period. Counsel further submits, however, that the five-month
    delay between the findings of guilt in January 2017 and the dismissal of the s.
    752.1
application
in June 2017 should be treated as post-verdict delay for the purposes
    of s. 11(b). The respondent bases this submission on the contention that the
    Crowns s. 752.1
application
was
    devoid of merit and is properly viewed as frivolous for the purposes of
    considering any delay flowing from the
application
: see
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38.

[36]

Counsel submits
    that, as the five months exceeds the 90-day presumptive ceiling, the delay is
    presumptively unreasonable. The Crown cannot rebut that presumption on this
    record. Consequently, the proceedings were properly stayed by the trial judge.


VI



analysis of the
    section 11(b) claim

[37]

Section 11(b)
    reads:

Any person
    charged with an offence has the right:

(b)
    to be tried within a reasonable time.

[38]

The

Supreme
    Court of Canada in
MacDougall
, at paras. 9-18, held that the phrase charged with an offence must
    be read as including both the pre-verdict and post-verdict phases of the trial
    proceedings.
MacDougall
further determined, at paras. 19-26, that the
    word tried in s. 11(b) includes the sentencing phase of the process.
[1]


[39]

In
Jordan
, in a footnote, the majority referred to
MacDougall
, stating:

This Court has
    held that s. 11(b) applies to sentencing proceedings. Some sentencing
    proceedings require significant time, for example, dangerous offender
    applications or situations in which expert reports are required, or extensive
    evidence is tendered. The issue of delay in sentencing, however, is not before
    us, and we make no comment about how this ceiling should apply to s. 11(b)
    applications brought after a conviction is entered, or whether additional time
    should be added to the ceiling in such cases.

[Citations omitted.]

[40]

Jordan
does not address post-verdict delay beyond the reference in the above-quoted
    footnote. This court has, without comment, examined post-
Jordan
s. 11(b) claims by reference to the time elapsed
    between the laying of the charge and the verdict, or anticipated date of
    verdict, and not by reference to the sentencing date: see
R. v.
    Manasseri
,

2016 ONCA 703, 132 O.R. (3d) 401, leave to appeal
    refused, [2016] S.C.C.A. No. 513;
R. v. Baron
,

2017 ONCA 772, 356 C.C.C. (3d) 212;
R. v. MacIsaac
,

2018 ONCA 650, 141 O.R. (3d) 721;
R. v. Picard,
2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal
    refused, [2018] S.C.C.A. No. 135
.
In other cases, the court has assumed that the
    relevant time period runs through to sentence:
R. v. Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433;
R.
    v. Gordon
, 2017 ONCA 436, 137 O.R.
    (3d) 776;
R. v. Kidd
,
    2016 ONCA 757. In at least two cases, the court has specifically indicated that
    the treatment of post-conviction delay after
Jordan
remains an open question:
R. v. St.
    Amand
, 2017 ONCA 913, 358 C.C.C. (3d)
    226, at paras. 62-63;
R. v. Mallozzi
,

2017 ONCA 644, at para. 50, leave to appeal refused, [2017] S.C.C.A.
    No. 392;

see also
R. v. Stephan,
2017 ABCA 380, at
    paras. 149-152
,
revd
    on another ground, 2018 SCC 21, [2018] 1 S.C.R. 633.
[2]

[41]

Counsel for the
    respondent submits that the footnote in
Jordan
does resolve the application of s. 11(b)
    to post-verdict delay in one respect. Counsel argues that the wording of the
    footnote indicates that the court was satisfied that post-verdict delay should
    be subject to a presumptive ceiling just like pre-verdict delay. The respondent
    contends that the court left open
the question of
    what that presumptive ceiling should be and how it should be calculated.

[42]

There is some force to this submission. It is also
    arguable that in light of the majoritys consignment of its comment about post-verdict
    delay to a footnote, the majority did not intend to say anything binding about
    post-verdict delay. As I am satisfied, for reasons I will explain, that a
    presumptive ceiling should apply to post-verdict delay, I need not choose
    between these two interpretations of the footnote in
Jordan
.

[43]

As I see it, there are four possible approaches
    to post-verdict delay:

[1]  the delay
    should be analyzed in accordance with the criteria in
Morin
;

[2] the delay
    should be analyzed in accordance with the principles set down in
Jordan
and the presumptive ceilings established in
Jordan
should include any
    post-verdict delay;

[3] the delay
    should be analyzed in accordance with the principles in
Jordan
, but without regard to any presumptive ceiling; and

[4] the delay
    should be analyzed in accordance with the principles in
Jordan
and subject to its own separate presumptive ceiling.

[44]

Option #3 is the position favoured by the Crown.
    The respondent argues for option #4. The trial judges reasons reflect a
    blending of options #1 and #2. I will address each approach in turn.

(i)

Option #1: Should the
Morin
Analysis Apply?

[45]

The trial
    judge applied the
Morin
factors, tempered by
Jordan
,
    in allocating responsibility for various parts of the 17 months between verdict
    and the assumed sentencing date. His analysis tracks closely that of the court
    in
MacDougall
, at paras. 44-59.

[46]

There is
    appellate authority supporting the application of the
Morin
criteria
    to delay between verdict and sentence in the post-
Jordan
era: see
R. v. S.C.W.
, 2018 BCCA 346, 367 C.C.C. (3d) 518, at
    paras. 23, 34-35, leave to appeal refused, [2018] S.C.C.A. No. 452. Some trial
    courts have also favoured an approach which examines post-verdict delay through
    the
Morin
lens: e.g. see
R.
    v. Dadmand
, 2017
    BCSC 1644, 396 C.R.R. (2d) 121, at paras. 49-58;
R. v. Eid
,
    2017 ONSC 892, 375 C.R.R. (2d) 158, at paras. 6, 28-30.

[47]

I agree with counsel for the Crown and the
    respondent that the majority reasons in
Jordan
, at paras. 5, 29-38, 45, represent a considered and unqualified
    rejection of the
Morin
approach
    to s. 11(b) as unpredictable, unnecessarily complex, and too accepting of
    systemic inertia and institutional complacency.
The concerns that
    drove the court in
Jordan
to
    depart from the
Mori
n
    analysis apply to post-verdict delay. Nothing about the post-verdict phase of
    the process makes the application of
Morin
any less unpredictable or complex. Similarly, the
    culture of complacency identified in
Jordan
is not limited to the pre-verdict stage of the
    criminal process. Clearly, the communitys interest in a timely completion of
    that process applies to the sentencing phase as well. A timely verdict does
    little for the communitys confidence in the justice system if that verdict is
    not followed by a timely disposition. Indeed, the
Criminal Code
requires that sentences be imposed as soon as
    practicable:
Criminal Cod
e, R.S.C., 1985, c. C-46, s. 720(1).

[48]

I can find no
    logical or doctrinal justification for analyzing pre- and post-verdict delay in
    fundamentally different ways. Apart from transitional cases in which at least
    some of the delay occurred before the release of
Jordan
in
    July 2016, the
Morin
analysis has no place pre- or post-verdict.

(ii)

Option #2: Should the
Jordan
Presumptive
    Ceilings Apply to Post-Verdict Delay?

[49]

The trial judge held that the presumptive
    ceilings set down in
Jordan
included post-verdict delay. He offered no
    explanation for that holding. This court has also assumed in some cases,
    without explanation, that the 18 and 30-month ceilings set in
Jordan
include
    the post-verdict phase of the process. In those cases, however, the court
    determined that there was no breach of s. 11(b): see
Kidd
;
Coulter
; and
Gordon
.

[50]

Neither the Crown, nor the respondent, support
    the position that
Jordan
intended
    the presumptive ceilings to include the post-verdict period between conviction
    and sentence
. Nor do I.

[51]

The ratio in
Jordan
speaks explicitly to pre-trial delay:
Jordan
, at paras. 2-3. The facts of
Jordan
also stand against treating
    post-verdict delay as part of the relevant time period for the purposes of
    determining whether the delay exceeds the presumptive ceiling
. In
Jordan
, the delay was calculated from the laying of the
    charge to the date of conviction:
Jorda
n
, at paras.
    7-12. The four-month delay between the verdict and the sentence was not even
    mentioned in the s. 11(b) analysis, much less taken into account in fixing the 30-month
    presumptive ceiling. Similarly, in
R. v. Williamson
, 2016 SCC 28, [2016]
    1 S.C.R. 741, a companion case to
Jordan
, total delay was calculated
    by reference to the time from the laying of the charge to the verdict without
    regard to the additional time between verdict and sentencing.

[52]

Given the centrality of the presumptive ceilings
    to the reformulation of the s. 11(b) analysis accomplished by
Jordan
,
    the majoritys determination of the end point for the purposes of calculating
    the relevant time period must be regarded as a carefully considered position. If
    the court had intended that post-verdict delay should be taken into account
    when determining whether the presumptive ceilings had been exceeded, the court
    would not have fixed those presumptive ceilings by reference to the date of verdict.

[53]

The impact of including post-verdict delay
    when assessing whether the case has exceeded the presumptive limits is
    significant. In many criminal cases, particularly the more serious cases, sentencing
    will, of necessity, take time, sometimes a matter of months. If, for the
    purposes of the presumptive ceilings, the constitutional clock runs through to
    sentencing, what was described in
Jordan
as an 18 or 30-month ceiling will in reality be a significantly lower
    ceiling. Treating the presumptive ceilings as operating through to sentencing substantially
    redraws the line drawn in
Jordan
between presumptively reasonable delay and
    presumptively unconstitutional delay.

[54]

Trial courts have
    also pointed out the practical problem with treating the presumptive ceilings
    as including post-verdict delay. The vast majority of s. 11(b)
applications are brought prior to verdict.
[3]
While
    the anticipated date of verdict can be determined with reasonable accuracy, any
    assessment of the additional time beyond verdict needed to complete sentence
    requires an assumption of guilt and pure speculation. Furthermore, if the court
    is expected to make assumptions about delay between verdict and sentence, the
    court must arguably entertain submissions about the nature of the sentencing proceeding
    which might be held, including the kind of evidence that the Crown might call.
    This kind of speculation leads down roads that could be significantly
    prejudicial to an accused who, at the time of the application had not been
    tried and was presumed innocent: see
R. v. J.M
., 2017 ONCJ 4, 344
    C.C.C. (3d) 217, at paras. 34-42.

[55]

The extension of the presumptive ceilings
    from
Jordan
to include the time
    period between verdict and sentence also ignores the different impact that pre-
    and post-verdict delay have on the rights of an accused. Prior to verdict, an
    accused is presumed innocent and has a constitutional right to make full answer
    and defence in response to the charge. Delays prior to verdict must be assessed
    in light of the negative impact that inordinate delay has on those rights.

[56]

Post-verdict,
    the accused is no longer presumed innocent. The right to make full answer and
    defence is spent, subject to the right to address sentence. While the accused clearly
    retains significant liberty and security of the person interests post-verdict,
    and those interests can be compromised by delay, they are qualitatively
    different than the interests that exist pre-verdict: see
MacDougall
,
    at paras. 32-37. The change in the accuseds status flowing from the verdict
    and the impact that change has on the accuseds protected interests justify a
    resetting of the constitutional clock for the purposes of fixing the
    presumptive ceiling applicable to post-verdict proceedings.
[4]

[57]

Several
    appellate courts have held that the presumptive ceilings in
Jordan
run from the
laying of the charge to the verdict
    or anticipated date of the verdict and not to the date of sentence: see
S.C.W.
,
    at para. 34;
R. v. Rhode
, 2019 SKCA 17, 372 C.C.C. (3d) 442, at para.
    43, leave to appeal refused, [2019] S.C.C.A. No. 112;
R. v. Lecompte
,
    2018 NBCA 33, 362 C.C.C. (3d) 354 at para. 20;
R. v. Rice
, 2018 QCCA
    198, 44 C.R. (7th) 83 at para. 41. Many trial courts have also determined that
    the presumptive ceilings run only to verdict or date of anticipated verdict:
    see

Dadmand
, at para. 28;
R. v. Patel
, 2017 ONSC 5827, 399 C.R.R. (2d) 327, at paras.
    26-35;
R. v. Pelletier
,
    2016 BCSC 2496, 136 W.C.B. (2d) 264, at paras. 32-34;
R. v.
    Tsega
, 2017 ONSC 3090, at paras. 6-14,
    affd on the s. 11(b) issue without reference to this point, 2019 ONCA 111, 144
    O.R. (3d) 561, leave to appeal requested, [2019] S.C.C.A. No. 69;
R.
    v. R.M.P.
, 2018 ONSC 4117, 148 W.C.B.
    (2d) 573, at paras. 28-38;
R. v. Crant
, 2018 ONSC 1479;
R. v. Haniffa
, 2017 ONCJ 781, at paras. 3-5;
R. v.
    Agbeyaka
, [2017] O.J. No. 6896, at
    paras. 89-90;
R. v. Akumu
,
    2017 BCSC 896, at para. 36, leave to appeal to S.C.C. refused, 38333 (February
    8, 2019).

[58]

I join
    company with all of the authorities set out above. The point at which
    post-verdict delay becomes presumptively unreasonable should be measured strictly
    by reference to the period of post-verdict delay, and not by reference to the pre-verdict
    presumptive ceilings designed to distinguish between tolerable and
    unconstitutional delay at the pre-verdict stage.

(iii)

Option #3: Should
    the
Jordan
Principles Apply, but Without a Presumptive Ceiling?

[59]

On this approach, favoured by the Crown, post-verdict
    delay is assessed separately from pre-verdict delay. It is also assessed
    according to
Jordan
principles,
    but without any presumptive ceiling.
Instead of a presumptive
    ceiling, the onus is always on the defence to establish a breach of s. 11(b).
    To satisfy that onus, the defence must show first that it took meaningful steps
    that demonstrate a sustained effort to expedite the sentencing proceedings and,
    second, that the sentencing proceedings, despite those efforts, took markedly
    longer than they reasonably should have. This is the test used in
Jordan
for the assessment of pre-verdict delay that falls
    below the presumptive ceiling:
Jordan
, at para. 82
.

[60]

One need only consider how the proposed analysis
    favoured by the Crown would operate in practice to understand why this approach
    is inconsistent with the spirit and rationale of
Jordan
. On this approach, t
he onus would be on
    the accused in all cases to take meaningful steps that demonstrate a sustained
    effort to expedite the sentencing proceedings. If an accused did not take those
    steps, nothing done or not done by the Crown or the court would result in a breach
    of s. 11(b). In other words, absent a sustained effort by the defence to move
    the matter to sentence, there could be no obligation on the Crown or the court
    to do anything to move the matter forward, regardless of the length of the
    post-verdict delay. This approach would not only reinforce the culture of
    complacency
Jordan
sought to displace, it would raise the criminal
    justice systems tolerance for that complacency to new heights at the
    post-verdict stage.

[61]

The fundamental problem with the Crowns
    position is that, while it purports to apply the
Jordan
analysis to post-verdict delay, it removes the
    heart of that analysis when it eliminates presumptive ceilings:
Jordan
, at paras. 5, 46. Without those ceilings, the
Jordan
analysis becomes, like the
Morin
analysis, a method of measuring case-specific delay from
    an after-the-fact perspective. Stripped of the presumptive ceilings,
Jordan
becomes
Morin
, except that
Jordan
places a significantly higher burden of proof on the
    defence to demonstrate unreasonable delay than does
Morin
.

[62]

By removing
    the presumptive ceilings and exclusively using the test for delay articulated
    in
Jordan
for cases that fell below the presumptive ceilings, the
    Crown proposes a test that has no regard to the factors that have always gone
    into the analysis of delay for the purposes of s. 11(b). For example,
    institutional delay, a specific factor considered in
Morin
,
    and a factor reflected by the presumptive ceilings in
Jordan
,
    disappears from the s. 11(b) analysis proposed by the Crown, unless the defence
    first shows that it took meaningful steps that demonstrate a sustained
    effort to expedite the proceedings.

[63]

The majority
    in
Jordan
made it clear that the test it proposed for
    measuring delay below the presumptive ceiling, which placed a heavy onus of the
    defence, was warranted only because it worked in tandem with the presumption of
    unreasonableness created when the presumptive ceilings were reached. The majority
    explained, at para. 83:

We expect stays
    beneath the ceiling to be granted only in clear cases. As we have said, in
    setting the ceiling, we factored in the tolerance for reasonable institutional
    delay established in Morin, as well as the inherent needs and the increased
    complexity of most cases.

[64]

The heavy burden placed on the defence to
    demonstrate that the delay is unreasonable cannot be justified, absent
    presumptive ceilings which shift the onus to the Crown at a fixed point in
    time.

[65]

The Crown argues that the sentencing phase of
    the trial process is highly individualized and therefore not amenable to
    presumptive guidelines. No doubt, fixing an appropriate sentence is a highly
    personalized assessment. The court must decide on the fit sentence for the
    specific offender in the specific circumstances. However, while the assessment
    is highly individualized, the process is at least as standardized as the trial
    process. Indeed, I would suggest that the sentencing process is, in many ways, more
    predictable and controllable than the pre-verdict stage of the process.

[66]

Sentencing proceedings are almost inevitably
    much shorter than trial proceedings. This makes them easier to schedule and
    complete. They normally involve fewer and simpler evidentiary and legal issues.
    At the sentencing phase, a trial judge can be more proactive in requiring
    counsel, especially defence counsel, to make the kinds of disclosures with
    respect to issues and evidence that tend to facilitate hearings. I see nothing inherent
    in the nature of sentencing that makes a presumptive ceiling impractical or
    unworkable.

[67]

The Crown next argues that there should be no
    ceiling in respect of post-verdict delay because sentencing, properly done,
    requires time. Counsel submits that a sentence which considers all of the
    relevant factors must be preferred over a sentence that is hastily imposed to
    comply with a preordained presumptive ceiling.

[68]

This is not an argument against presumptive
    ceilings. It is an argument for presumptive ceilings that are reasonable and
    allow the parties sufficient time to take the appropriate steps that are
    necessary to arrive at a fit sentence.

[69]

The Crown also argues that presumptive ceilings
    applicable to sentencing could not take into account those cases in which time-consuming,
    but necessary, steps must be taken to arrive at a fit sentence. The Crown
    points out that often these additional steps enure to the benefit of the
    accused.

[70]

This submission assumes that the s. 11(b)
    analysis in
Jordan
amounts to a
    mechanical calculation based only on the application of the presumptive
    ceilings. The
Jordan
analysis is more flexible than that. Considerations of defence waiver, defence
    delay, and exceptional circumstances may operate to render a pre-verdict delay
    that is above the presumptive ceiling acceptable in the circumstances:
Jordan
, at para. 58. Similar flexibility would be necessary
    in any presumptive ceilings applicable to the sentencing phase. For example, if
    the defence requested an adjournment to allow the accused to take certain
    rehabilitative steps before sentencing, and the length of the adjournment would
    necessarily take the proceedings beyond the presumptive ceiling, I would think
    the request for that adjournment would be treated as an implicit waiver of any
    s. 11(b) claim based on the delay flowing from that requested adjournment.

[71]

The Crown next submits that presumptive ceilings
    are inappropriate at the sentencing phase because the presumption of prejudice
    underlying the creation of those ceilings for the purposes of the pre-verdict
    stage does not hold true at the sentencing phase. I agree that the presumption
    of prejudice is attenuated post-verdict: see
MacDougall
, at para. 32.
    However, prejudice does not disappear. Persons awaiting sentence suffer various
    forms of prejudice ranging from the psychological distress brought on by the uncertainty
    of the sentence to be imposed to the very real physical stress of pre-sentence
    incarceration, sometimes in conditions that are worse than those experienced
    post-sentence.

[72]

I accept that the nature of the post-verdict prejudice
    is different. This difference should be taken into account in fixing the
    presumptive ceilings for the sentencing phase of the process. The difference
    does not, however, justify jettisoning presumptive ceilings as part of the
    post-
Jordan
analysis of sentencing delay.

[73]

Finally, the Crown submits that the nature of a
    sentencing proceeding is such that the Crown is very much in the dark as to
    what may or may not occur at sentencing. Counsel submits that it is unrealistic
    to place the responsibility on the Crown to move the sentencing proceeding forward
    when the Crown has little ability to control that process.

[74]

I take a different view of how the sentencing
    process should work post-
Jordan
. In my view, the trial judge can and
    should control that process. A trial judge can, very early in the sentencing
    process, require both sides to declare their intentions with respect to
    sentence, including identifying the issues to be raised, the evidence to be called,
    and the positions to be taken. Realistic timelines for the exchange of material
    and oral argument should be drawn. Those timelines must recognize both the
    statutory requirement to sentence as soon as practicable and the presumptive
    ceilings. The Crown and the defence have an obligation to cooperate in bringing
    the matter on for sentencing.

[75]

At sentencing, an accused is no longer
    presumed innocent. Nor, in my view, does the right to silence permit the
    defence to withhold disclosure of what it proposes to do on sentence. A trial
    judges power to control trial proceedings includes the power to require
    counsel on both sides to lay out their game plan for sentencing very early in
    the sentencing process. That game plan should include a realistic estimate as
    to how much court time will be needed to deal with sentencing. If dates are set
    based on those estimates, counsel must expect they will be required to adhere
    to them. In taking firm but fair control over the sentencing process, the trial
    judge can invoke the powerful language in
Jordan
, to the effect that all participants in the criminal
    justice system have an obligation to work toward achieving prompt justice:
Jordan
, at paras. 5, 137-139.

[76]

In my view, a
Jordan
analysis without presumptive ceilings is not a
Jordan
analysis. I am not persuaded by the Crowns arguments that the sentencing
    process is sufficiently different than the trial process to warrant the
    abandonment of such a central feature of the
Jordan
analysis. I would not adopt option #3.

(iv)

Option #4: The
Jordan
Principles Should
    Apply with a Separate Presumptive Ceiling

[77]

This is the option I would choose. The rationale
    that drove the court in
Jordan
to
    redo the
s. 11(b) analysis as it pertained to pre-verdict delay
    applies with equal force to post-verdict delay. In
Jordan
, the court described presumptive ceilings as giving meaningful
    direction to the Crown as to the nature of its s. 11(b) obligation. Presumptive
    ceilings provide a benchmark against which the Crown can measure the progress
    of its case and anticipate potential s. 11(b) problems. A presumptive ceiling
    in respect of sentencing proceedings would serve the same guiding function: see
Jordan
, at para. 50.

[78]

The majority
    in
Jordan
also described presumptive ceilings as enhancing
    analytical simplicity when addressing s. 11(b) claims and as fostering
    constructive incentives in reacting to potential delay problems:
Jordan
,
    at paras. 51-52. The same simplicity and incentives are brought to the
    sentencing phase by a presumptive ceiling: see D. Spencer, Extending Jordan to
    Consider Verdict and Sentencing Delays (2019) 50 C.R. (7th) 30, at p. 40.

[79]

The strong
    case made by the majority in
Jordan
for the reformulation of the s. 11(b)
    analysis as applied to pre-verdict delay is equally convincing in the context
    of post-verdict delay. In any event, I would think that absent some compelling
    reason for taking a different approach to post-verdict delay, doctrinal
    consistency would dictate a common analytical approach to the measurement for
    constitutional purposes of delay before and after a verdict. As outlined above,
    none of the reasons offered by the Crown for taking a different approach to
    delay post-verdict are convincing.

[80]

Before
    addressing the quantum of the presumptive ceiling applicable to post-verdict
    delay, I would make two additional points. First, there is no reason to
    differentiate between proceedings in the provincial court and the Superior
    Court for the purposes of fixing the presumptive ceiling to the sentencing
    phase. Whether the trial took place entirely in the provincial court, or passed
    through the provincial court to the Superior Court, should have no relevance to
    the point at which delay in moving the case from verdict to sentence should
    become presumptively unreasonable.

[81]

Nor, in my
    view, is there any connection between the quantifying of the appropriate presumptive
    ceiling for pre-verdict delay and the fixing of an appropriate ceiling for
    post-verdict delay. The time at which delay should become presumptively
    unreasonable for the purpose of sentence should not be influenced by the time taken
    to reach the verdict. In applying presumptive ceilings, I would keep the
    pre-verdict and post-verdict parts of the process separate from each other.

[82]

Although I
    would treat pre- and post-verdict delay separately for the purpose of the
    presumptive ceilings, pre-verdict delay takes on a somewhat different role when
    the defence relies on post-verdict delay that is below the presumptive ceiling
    to establish a breach of s. 11(b). In that case, the court can look to the
    length of the proceedings prior to verdict as a factor in determining whether
    the defence has established unreasonable delay post-verdict. For example, the
    defence in attempting to show that the case took markedly longer than it
    reasonably should have, could argue that the post-verdict delay, although below
    the presumptive ceiling, constitutes unreasonable delay in the context of very
    significant pre-verdict delay.

[83]

The case for
    having a presumptive ceiling is a strong one. Fixing that ceiling at a specific
    number is more problematic. Setting the presumptive ceiling for post-verdict
    delay presents the most difficult issue on this appeal.

[84]

The parties
    did not provide empirical data referable to the time between verdict and
    sentencing, in the provincial court or in the Superior Court. Informal
    inquiries by the court indicated that the data was not available in a usable
    form. A review of the chronology of cases from this courts recent inventory
    provided little insight. The court was left to rely on its own experience, the
    submissions of experienced counsel, a review of the reported cases, and
    comments about local conditions made by trial judges in some of the reported
    cases.

[85]

Fixing a
    presumptive ceiling based on the information available to this court gives me
    pause.
[5]
Ultimately, I am prepared to do so
    because, in my view, sentencing does tend to run to form, except in situations
    in which there are readily identifiable exceptional circumstances. The
    flexibility built into the
Jordan
approach to presumptive ceilings allows a
    court to properly deal with those cases that involve exceptional circumstances.
    I also doubt that any data available would provide a more reliable indicator of
    the appropriate presumptive ceiling.

[86]

In fixing a
    presumptive ceiling, I bear in mind that the presumptive ceiling is not
    intended to identify the amount of time it should take to move the case from
    verdict to sentence. As stated by the majority in
Jordan
,
    at para. 56:

We also make this observation about the
    presumptive ceiling. It is not an aspirational target. Rather, it is the point
    at which delay becomes presumptively unreasonable. The public should expect
    that most cases can and should be resolved before reaching the ceiling. For
    this reason, as we will explain, the Crown bears the onus of justifying delays
    that exceed the ceiling. It is also for this reason that an accused may in
    clear cases still demonstrate that his or her right to be tried within a
    reasonable time has been infringed, even before the ceiling has been breached.

[87]

I would set the presumptive ceiling for
    post-verdict delay at five months. In doing so, I stress that five months is
    not the norm, and should not be allowed to become the norm. Instead, five
    months is the point at which the delay is sufficiently long that it is regarded
    as presumptively unreasonable for the purposes of s. 11(b). The onus falls to
    the Crown to justify the delay.

[88]

I have already referred to the important role of
    the trial judge in ensuring that the sentencing process proceeds in a timely
    fashion. In most cases, sentencing will be straightforward and will be
    completed in less than a day of court time. By exchanging information and
    positions in respect of sentence, counsel should be able to expedite the
    proceedings. In many cases, a pre-sentence report will be necessary. There may
    also be evidence from victims or character witnesses. That evidence should be quite
    straightforward. In routine sentencing cases, the trial judge should set a
    date for sentencing that is well-below the presumptive ceiling.

[89]

Counsel should provide opposing counsel with
    material to be relied on well before the scheduled sentencing date. Any
    unexpected problems with holding and completing the sentencing on the selected
    date should be brought to the attention of the court and opposing counsel
    immediately, so that steps can be taken to minimize the delay. Crown counsel
    who do not fully engage in this cooperative process will find it difficult to
    justify any delay above the presumptive ceiling:
Jordan
, at para. 70.
    Defence counsel who fail in their obligation to participate in the appropriate
    management of the sentencing process may find causally related delays
    attributed to the defence or viewed as implicitly waived by the defence
    conduct.

[90]

In cases in which the sentencing proceeding will
    be complex, the parties should be required very soon after the verdict to make
    the trial judge aware of the issues that will be raised on sentencing. In doing
    so, counsel must be prepared to discuss those issues and their potential
    complexities in some detail and with some precision. Vague references to
    evidence that might or might not be called in respect of undefined issues are
    not good enough and should not be accepted by the trial judge. All parties are
    responsible for developing a plan that will allow the sentencing to proceed
    expeditiously.

[91]

When a trial judge has been alerted to complex
    issues that will be raised on sentence, the trial judge should set an
    appropriate schedule with counsel to address those issues in a timely and
    efficient manner. That schedule must keep the presumptive ceiling firmly in
    mind. If it appears to the trial judge that the proposed plans of counsel could
    run up against the presumptive ceiling, the trial judge should raise that issue
    with counsel at the scheduling meeting. Counsel should be asked to specifically
    address issues such as waiver and exceptional circumstances considered in the
    context of their proposed plans with respect to sentencing. Potential s. 11(b)
    problems should be confronted and addressed before they become s. 11(b)
    violations.

[92]

In my view, the trial judge is entitled to
    expect a high level of cooperation between counsel on sentencing. For example,
    the impact of pre-trial custody conditions on sentence has become a commonly
    litigated matter. Counsel should be well-aware of the kind of material that should
    be put before the trial judge in support of a claim that the sentence should be
    mitigated to reflect those pre-trial conditions. Defence counsel should be able
    to identify, with particularity, the material needed. The trial judge is
    entitled to look to the Crown to cooperate with the defence in obtaining that
    material, especially if it is in the hands of government agencies.

[93]

This case provides a good example of what
    cannot be allowed to happen in respect of sentencing proceedings that have some
    complexity. Defence counsels position that he should not be required to take
    any steps to prepare his various motions and arguments on sentencing until the
    Crowns s. 752.1 application was resolved should have been rejected. There is no
    reason why the defence could not have prepared and filed the material relating
    to the appellants pre-trial custody at the same time as the Crown was
    preparing its s. 752.1 application. Counsels suggestion that the respondents
    right to silence entitled him to simply await the resolution of the s. 752.1 application
    was untenable. Armed with a five-month presumptive ceiling and the recognition
    in
Jordan
that all involved have
    an obligation to move the matter forward, a trial judge could, absent a waiver
    of delay, require defence counsel to move forward immediately after verdict
    with the various issues it proposed to raise on sentencing.

[94]

Appropriate management of the sentencing process
    by the trial judge would also avoid the kind of rudderless, ever-expanding
    arguments brought by the defence in this case. With respect, it should have
    been obvious, very soon after the defence served its first wave of
    constitutional material in the summer of 2017, that the issues the defence
    proposed to raise went far beyond those that were relevant to determining the
    fit sentence for the respondent. The trial judge did eventually limit the scope
    of the defence motions on sentencing. He did so only after a formal motion
    brought by one of the government respondents, and some seven months after the
    defence motions had begun. By then, numerous court days had been used up, much
    of the time spent inquiring into matters that had nothing to do with the
    appropriate sentence for the respondent. Hopefully, a presumptive ceiling
    applicable to post-verdict delay will alert everyone to the need to focus on the
    issues relevant to the imposition of a fit sentence. A presumptive ceiling
    should encourage trial judges to intervene when necessary to keep sentencing
    proceedings on track.

(v)

Application of the
Jordan
Analysis to
    this Case

[95]

The trial judge found the respondent guilty of
    various charges on January 27, 2017. The respondent would have been sentenced on
    June 25, 2018, had the proceedings not been stayed. For the purposes of the
Jordan
analysis, the total delay post-verdict is 17 months. After the Crowns s. 752.1
    application was dismissed in June 2017, the Crown was prepared to speak to
    sentence in early-August 2017. In oral argument, counsel for the respondent
    acknowledged that the period from August 2017 until the convictions were stayed
    in 2018 was consumed with defence constitutional applications and motions,
    which in the circumstances are properly characterized as defence delay for the
    purposes of the
Jordan
analysis. I
    fully agree with this concession. Consequently, the net delay is
seven
    months (late-January 2017  August 2017).

[96]

The net delay of seven months exceeds the
    presumptive ceiling of five months that I would hold as applicable to
    post-verdict proceedings. However, five of the seven months was occupied with
    the Crowns application under s. 752.1 for an order directing a psychiatric
    assessment of the respondent.

[97]

The s. 752.1 application could only be made
    after the guilty verdicts. It required the Crown to gather a large amount of
    material from a variety of sources. The Crown began to assemble the material
    well before the verdict. Some of the material could not, however, be obtained
    until after the verdicts. In addition to assembling the material, the Crown had
    to prepare an application record, serve it, and prepare for argument. The
    defence also needed time to digest the information once it was provided by the
    Crown and prepare a response.

[98]

A s. 752.1 application is the Crowns first step
    in the bringing of a dangerous offender or long-term offender application under
    Part XXIV of the
Criminal Code
. Part XXIV proceedings are, of
    necessity, taken after verdict. In my view, those proceedings are properly
    characterized as exceptional in the sense that they are reasonably
    unavoidable once the Crown has determined that the circumstances dictate that
    a Part XXIV designation should be sought: see
Jordan
, at paras. 69-72;
Cody
, at paras. 46-48. However, even when delay is attributable to a
    reasonably unavoidable circumstance or event, the Crown has an obligation to
    mitigate any resulting delay:
Cody
, at para. 48.

[99]

In this case, the Crown could have been
somewhat more proactive in gathering the necessary
    material before the verdicts. The Crowns conduct in this regard cannot,
    however, be characterized as unreasonable. The Crown acted responsibly:
Cody
, at para. 54;
Tsega
, at para. 82.

[100]

I would treat
    the
five months
    between the verdicts and the dismissal of the s. 752.1 application (late
-
January 2017  June 2017) as
    attributable to an exceptional circumstance, that is the commencement of a Part
    XXIV proceeding. In my view, the s. 752.1 application constitutes a discrete
    event in the context of that exceptional circumstance. The five months required
    to bring and resolve the s. 752.1 application should be deducted from
    post-verdict delay before applying the five-month presumptive ceiling:
Jordan
, at paras. 48, 75;
Coulter
, at para. 38.

[101]

I do not
    understand counsel for the respondent to suggest that the bringing of a s.
    752.1 application does not qualify as an exceptional circumstance, for the
    purpose of the
Jordan
analysis. Counsel submits, however, that
    this application had no chance of success and is properly characterized as
    frivolous. Relying on
Cody
, at paras. 30-35, counsel contends that
    the time spent by the Crown in advancing a frivolous
application
cannot be excused or
    justified as an exceptional circumstance.

[102]

I accept that if the s.
752.1 application is properly characterized as frivolous, the Crown
    cannot rely on the time needed to make and dispose of that application as an
    exceptional circumstance. I do not, however, agree that the Crowns application
    was frivolous. The application was arguable. Indeed, it initially succeeded.
    The trial judge reconsidered and reversed his decision based on a factual error
    concerning one entry in the respondents criminal record. The trial judges
    reasons tell me that this was a close call.

[103]

Counsel for the respondents argument that the application was
    frivolous rests on the assertion that because the test for granting an
    assessment order under s. 752.1 is a low one, any application that fails to
    meet that test must be frivolous. In judging merit, one looks not at the
    severity of the test for granting the relief sought, but rather at how close
    the applicant came to meeting the test. If the application is arguable on the
    test to be applied, the application cannot be branded as frivolous, regardless
    of how difficult or easy the test is to meet.

[104]

In summary, I would treat the initiation of a proceeding under Part
    XXIV of the
Criminal Code
as an exceptional circumstance. I would also
    treat the s. 752.1 application as a discrete event in that process. I would
    deduct five months from the seven-month delay: see
Coulter
, at para.
    38. The remaining two-month delay falls below the five-month presumptive
    ceiling I would set. It is also below the three-month presumptive ceiling
    suggested by the respondent.

[105]

I make one further observation with
    respect to the application of the
Jordan
analysis to post-verdict delay.
Jordan
recognized that the
    new framework it put in place should be applied somewhat differently in respect
    of cases that were in the system before
Jordan
was released: see
Jordan
, at paras. 95-100. The majority described
    transitional exceptional circumstances that could, in some situations, justify
    delay above the presumptive ceiling. I would take the same approach in applying
    the presumptive ceiling applicable to post-verdict delay set down in this case.
    There is, however, no need to consider how the transitional exception would
    apply on the facts of this case, as the post-verdict delay falls under the
    presumptive ceiling.
There was no s. 11(b) breach.

(vi)

The Appropriate Remedy for a Section 11(b)
    Breach Post-Verdict

[106]

As I find no breach of s. 11(b), I do not reach the question of the
    appropriate remedy for that breach. However, as counsel for the Crown has
    argued that this court should recognize that remedies other than a stay of
    proceedings are available when a s. 11(b) breach arises out of post-verdict
    delay, I will briefly address that submission.

[107]

It is settled law, at least in respect of s. 11(b) breaches that
    occur prior to verdict, that a stay of proceedings is the only available
    remedy:
R. v. Rahey
,

[
1987] 1 S.C.R. 588, 78
    N.S.R. (2d) 183, per Lamer J., at pp. 614-615, per Le Dain J., at pp. 617-618,
    per Wilson J., at p. 619;
R. v. Askov
,
    [1990] 2 S.C.R. 1199,
75 O.R. (2d) 673, at pp. 1240-1241. In his
    factum, Crown counsel suggests that
Rahey
and the subsequent line of
    authority from the Supreme Court of Canada has been heavily criticized
[6]
and is ripe for reconsideration after
Jordan
. Crown
    counsel, however, does not suggest that this court should reconsider the
ratio
from
Rahey
in this case. Instead, counsel focuses on the appropriate
    remedy for a breach of s. 11(b) caused by post-verdict delay. He submits that
    this issue was not decided by
Rahey
and that this court is free to
    exercise the full remedial versatility of s. 24(1) of the
Charter
and
    develop a remedy that is appropriate and just in all of the circumstances.

[108]

Neither
Rahey
nor any of the subsequent cases specifically
    address the appropriate remedy for post-verdict delay. In
Betterman v.
    Montana
, 578 U.S. ___, 136 S. Ct. 1609, at p. 1615, Ginsburg J., for the
    court, described the possibility of vacating a valid conviction based on
    sentencing delay as an unjustified windfall for the accused. That seems to me
    to be an accurate description.

[109]

The analysis offered in
Rahey
to support the holding that a
    stay of proceedings was the required remedy for a s. 11(b) breach suggests that
    the remedy for a post-verdict s. 11(b) breach should target sentence and not
    conviction. In
Rahey
, at p. 614, Lamer J., for himself and Dickson
    C.J.C., two of the six-person majority, explained that a stay of proceedings
    was the only appropriate remedy for a s. 11(b) breach for jurisdictional
    reasons:

Now to turn to the remedy. Again in
Mills
,
    I have explained why a stay is the minimal remedy. If an accused has the
    constitutional right to be tried within a reasonable time, he has the right not
    to be tried beyond that point in time, and no court has jurisdiction to try him
    or order that he be tried in violation of that right. After the passage of an
    unreasonable period of time, no trial, not even the fairest possible trial, is
    permissible. To allow a trial to proceed after such a finding would be to
    participate in a further violation of the
Charter
.

[110]

Applying the jurisdictional rationale advanced by Lamer J., it could
    be argued that post-verdict delay should impact only the jurisdiction to
    sentence.

[111]

Wilson and Le Dain JJ., writing separately for the other four
    members of the
Rahey
majority, did not embrace Lamer J.s
    jurisdictional explanation for the need to impose a stay in all cases involving
    a breach of s. 11(b). They did, however, agree that a stay was the only
    appropriate remedy. For example, Wilson J. said, at p. 619:

What the court cannot do is find that his
    right has been violated, i.e., that the reasonable time has already expired,
    and still press him on to trial. For to do so is to deprive him of his right
    under s. 11(b) in the pretext of granting him a remedy for its violation.

[112]

The language of Wilson J., like the reasons of Lamer J., justifies a
    stay of proceedings on the basis that the breach precludes further prosecution.
    The stay does not undo what has happened, but prohibits the prosecution from
    going further.

[113]

This court has, in the exercise of its appellate powers, stayed the
    enforcement of a part of a sentence when it would be inappropriate to
    reincarcerate an offender: see
R. v. Plange
, 2019 ONCA 646, at para.
    48. The jurisprudence also recognizes that
Charter
breaches may
    mitigate sentence, either through a s. 24(1)
Charter
remedy
, or by the application of the
    generally applicable principles of sentencing: see
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 56-64.

[114]

It is arguable that the remedy for post-verdict delay should not
    affect the conviction, but should be based on a determination of the
    appropriate and just remedy as it relates to sentencing. Appropriate remedies
    might include a stay of the sentencing, or a stay of the enforcement of all or
    part of the sentence imposed. I leave this issue to a case in which the court
    has found a breach of s. 11(b) post-verdict.


VII



what order should
    this court make?

[115]

This Crown appeal from the stay of proceedings ordered by the trial
    judge was brought pursuant to s. 676(1)(c). This courts remedial powers when
    it allows a Crown appeal are found in s. 686(4). Although s. 686(4) does not
    refer to appeals from a stay of proceedings, appellate courts, including this
    one, have held that the remedial powers in s. 686(4) are applicable to Crown
    appeals from a stay of proceedings: see
R. v. Allen
(1996), 110 C.C.C.
    (3d) 331, at p. 353 (Ont. C.A.), affd [1997] 3 S.C.R. 700;
R. v. Yelle
,
    2006 ABCA 276, 213 C.C.C. (3d) 20, at paras. 11-15.

[116]

In cases tried by a judge alone (like this one), this court, in
    allowing a Crown appeal pursuant to s. 686(4)(b), may set aside the acquittal
    [stay] and:

·

order a new trial (s. 686(4)(b)(i)); or

·

enter a verdict of guilty with respect to the
    offence that the accused should have been found guilty of, and either pass
    sentence or remit the matter to the trial court for sentence (s.
    686(4)(b)(ii)).

[117]

Section 686(4)(b)(ii) allows the court to enter a verdict of
    guilty. That language is awkward when the Crown appeal is not from an
    acquittal, but instead from an order staying proceedings after a finding of
    guilt. Just as with the reference to acquittal in s. 686(4) must be read
    purposively to include orders imposing permanent stays of proceedings, the
    phrase enter a verdict of guilty should be read to include making an order
    that sets aside a permanent stay and affirms a finding of guilt made in the
    trial court: see
R. v. Pearson
, [1998] 3 S.C.R. 620, at para. 16.

[118]

In a case like this, when this court is satisfied that an order
    staying the proceedings must be set aside and the trial judge has made findings
    of guilt, it is necessary for this court to examine the reasons for those
    findings before deciding the appropriate order under s. 686(4)(b). If this
    court is satisfied that the trial judges reasons for his findings of guilt
    reveal reversible error, the court should not affirm findings of guilt based on
    those reasons. Consequently, it can neither proceed to sentence, nor remit the
    matter to the trial judge for sentencing. If the reasons on which the findings
    of guilty are based reveal reversible error, I think the only appropriate
    remedy is an order directing a new trial under s. 686(4)(b)(i).

[119]

Consequently, I would hold that the respondent is entitled to
    challenge the trial judges reasons for finding him guilty on the charges. He
    does so, not by way of a conviction appeal as it was characterized by the
    Crown, but as an argument directed at the manner in which this court should
    exercise its remedial powers under s. 686(4)(b).

[120]

Counsel for the respondent submits that the trial judge made several
    errors in his analysis of the evidence. The errors include misapprehension of
    material parts of the evidence given by different witnesses and the failure to
    adequately assess the credibility of Mr. Gordon, the key Crown witness.

[121]

Mr. Campbell, with his usual skill and attention to detail, has
    carefully mustered the evidence and examined the reasons. He makes what appears,
    on its face, to be an overwhelming case against the respondent, seem less
    compelling. He does not, however, demonstrate any error by the trial judge. He
    essentially invites this court to retry the case.

[122]

I do not propose to review each of the arguments made by counsel.
    They essentially challenge the manner in which the trial judge assessed the
    evidence. They certainly demonstrate that the trial judge could have looked at
    some of the evidence differently than he did. That is not, however, reversible
    error.

[123]

Two examples of counsels submissions challenging the trial judges
    treatment of the evidence will suffice. Counsel carefully examined the physical
    evidence which the trial judge had said supported, to a significant degree, Mr.
    Gordons credibility. Counsel makes a case for viewing that evidence as less
    supportive of Mr. Gordons credibility than did the trial judge. That
    submission, however, goes to the weight assigned to the evidence, territory
    reserved to the trial judge.

[124]

The trial judge also relied on the evidence of Ms. Sandra Jonathan
    to a significant extent. Ms. Jonathan was in the store when the robbery
    started, fled the store, walked across the street, and called 911 while
    watching the store. The Crown relied on her evidence to refute the respondents
    evidence about his movements after the robbery started.

[125]

Counsel carefully dissected Ms. Jonathans evidence and argued that,
    on her evidence, it was possible that she did not see any of the relevant
    movements made by the respondent. He submits that the trial judge
    misapprehended the evidence in coming to a different assessment.

[126]

Assuming it is possible to read Ms. Jonathans evidence in a way
    that would explain why she saw none of the respondents movements to which he
    testified, that does not mean the trial judge was obligated to take that view
    of their evidence. He took a different view, noting that it would be a rather
    large coincidence if Ms. Jonathan, while watching the store, had missed all of
    the movements described by the respondent. It was open to the trial judge to
    take that view of the evidence.

[127]

There is no basis upon which to interfere with the trial judges
    findings of guilt. I would not order a new trial.


VIII



conclusion

[128]

In summary, I would extend the analysis in
Jordan
to
    post-verdict delay. Post-verdict delay should be subject to a five-month
    presumptive ceiling that would operate in the same manner, and with the same
    qualifications, as the presumptive ceilings applicable to pre-verdict delay set
    down in
Jordan
. The post-verdict delay in this case did not exceed the
    five-month presumptive ceiling. There is no suggestion that the delay, even if
    below the presumptive ceiling, was nonetheless unreasonable in the
    circumstances.

[129]

I would allow the Crown appeal and set aside the permanent stay
    entered by the trial judge. The trial judge found the respondent guilty of
    armed robbery, aggravated assault, and possession of a loaded firearm: see
R.
    v. Charley
, 2017 ONSC 605, at para. 99. I would affirm the findings of
    guilt on each of those charges and remit the matter to the trial court for
    sentencing on those charges.

Released:
DD
    SEP 19 2019

Doherty
    J.A.

I
    agree M.L. Benotto J.A.

I agree
    Grant Huscroft J.A.






*
Neither Mr. Campbell, nor Mr. Krongold, acted for the respondent at
    trial.



[1]

In
MacDougall
, at para. 38,
    the court relied on certain American authorities in support of its position
    that s. 11(b) reached the sentencing phase. The Supreme Court of the United
    States has since held that the sixth amendment right to a speedy trial does
    not apply to the sentencing phase of the trial process: see
Betterman v. Montana
, 578 U.S. ____, 136 S. Ct. 1609
    (2016).



[2]

This courts cases also leave unresolved the treatment of
    delay while a trial judgment is under reserve. That issue does not arise in
    this case. The Manitoba Court of Appeal recently split on the issue: see
R. v. K.G.K.
,
    2019 MBCA 9, 373 C.C.C. (3d) 1, appeal as of right to be heard September 25,
    2019, 38532.



[3]
Both the Provincial and Superior Courts in Ontario require s. 11(b)
    applications to be brought prior to trial unless the court directs otherwise:
Criminal
    Rules of the Ontario Court of Justice
, at r. 2.4;
Provincial Practice Direction Regarding Criminal Proceedings
,
    (May 1, 2017), at s. 21-23 (Superior Court).



[4]

As explained below, at paras. 106-114, post-verdict delay
    may also attract different remedies.



[5]

See P. Paciocco,
The Hours are Long: Unreasonable Delay After Jordan
(2017) 81 S.C.L.R. (2d) 233, at pp. 243-45.



[6]

For example, see C. Sherrin, 
Reconsidering the Charter Remedy for Unreasonable
    Delay in Criminal Cases
 (2016) 20 Can. Crim. L. Rev. 263;
Standing Senate Committee on Legal and Constitutional Affairs,
    Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court
    Delays in Canada (Final Report)
June 2017
,
at pp. 36-38.


