



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rose, 2020 ONCA 306

DATE: 20200521

DOCKET: C63806 and C63807

Strathy C.J.O., Harvison Young
    and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Conroy Rose and Kharla Rose

Appellants

Ingrid Grant, for the appellants

Ian Bell, for the respondent

Heard: November 26, 2019

On appeal from the convictions entered
    on March 14, 2017 and the sentences imposed on August 22, 2017, by Justice J.
    Morissette of the Superior Court of Justice, sitting with a jury.

Harvison Young J.A.:

A.

Overview

[1]

The appellants Conroy and Kharla Rose are married. They were convicted
    before a judge and jury of several charges in relation to alleged drug
    trafficking. Specifically, Conroy was convicted of three counts of possessing
    proceeds of crime and one count of money laundering, while Kharla was convicted
    of one count of possessing proceeds of crime and one count of money laundering.
    They were self-represented at trial. Both Conroy and Kharla appeal their
    convictions and sentences.

[2]

Conroy and Kharla raise two principal grounds of appeal from conviction:
    1) the trial judge erred in failing to follow the provisions of the
Criminal Code
, R.S.C., 1985, c. C-46
that govern the procedure for
    dismissing an additional juror; and 2) the trial judge erred in admitting evidence
    of Conroys prior convictions, particularly in the form of judicial reasons.

[3]

In addition, Kharla appeals from the dismissal of her claim that she did
    not receive a trial within a reasonable time, as guaranteed by s. 11(b) of the
Canadian Charter of Rights and Freedoms
. Accordingly,
    Kharla seeks a stay of the proceedings against her.

[4]

For the reasons that follow, I would allow the appeals from conviction
    and order a new trial. As a result, I need not address the sentence appeals. I
    would also dismiss Kharlas appeal on the s. 11(b) ground.

[5]

I will only review the facts that are necessary to dispose of this
    appeal.

B.

The Factual Background

[6]

In July 2010, the police executed search warrants at an apartment on
    Oxford Street West and a house on Staffordshire Road in London, Ontario. Conroy
    had signed the lease and paid rent for the apartment. Kharla owned the house.

[7]

A
t the apartment, the police seized about
    $20,000 in cash. At the house,
the police seized 11 safety deposit box
    keys, a key that was later found to unlock the apartment, and a BMW.
Shortly after executing these warrants, the police located seven
    safety deposit boxes in Kharlas name containing over $400,000 in cash.

[8]

The police arrested and charged

Conroy and Kharla with possession of proceeds of crime and money
    laundering. Specifically, Conroy was charged with:

·

Possession of proceeds of crime, particularized as a Honda;

·

Possession of proceeds of crime, particularized as $20,000 found
    in his apartment; and

·

Possession of proceeds of crime, particularized as a BMW.

[9]

Kharla was charged with possession of proceeds of crime, particularized
    as $465,710 found in the seven safety deposit boxes in her name.

[10]

Conroy
    and Kharla were also charged jointly with one count of money laundering. The
    Crown alleged they used proceeds of crime to pay down the mortgage on their
    marital home.

[11]

The
    Crown brought an application in July 2015 to adduce evidence relating to
    Conroys former charges and convictions. As a result of this application,
    significant evidence of Conroys prior convictions was admitted in the form of
    reasons for decision. The details of this will be discussed further below.

[12]

In August and October 2015, Kharla brought a
    pre-trial s. 11(b) application for a stay of the charges against her. The
    application was dismissed.

[13]

The appellants represented themselves at the trial. The jury
    convicted Conroy and Kharla on all counts.

[14]

I will now turn to the three grounds of appeal:

·

The dismissal of the additional juror;

·

The evidence relating to Conroys prior convictions;
    and

·

The dismissal of Kharlas s. 11(b) application.

C.

The Dismissal of the Additional Juror

[15]

The trial began in March 2017.
After 12
    jurors were selected, two extra jurors were sworn in as alternate number one
    and alternate number two. Although the trial judge referred to these jurors
    as alternates, they remained present when the evidence began.

[16]

Shortly after the trial began, one of the first 12 jurors was excused.
    The trial judge ordered that alternate number one would replace the lost juror.
    She also ordered that alternate number two continue hearing evidence.

[17]

At the end of the evidence and prior to closing addresses to the jury,
    the trial judge stated (without the jury present):

So I will discharge the jury [for the weekend] and I am going
    to be discharging the alternate - actually we dont call her alternate we
    call her additional in accordance with the
Criminal Code
.

[18]

When
    the jury was present, the trial judge then dismissed alternate number two,
    addressing her as additional juror number 13. This juror did not participate
    in deliberations. For clarity, I will refer to this dismissed juror as juror
    13.

[19]

Alternate jurors
and additional jurors
    address different concerns and are governed by different procedures of the
Criminal
    Code
. Section 631(2.1) provides that a judge may select one or two
    alternate jurors. Section 631(2.2) provides that a judge may have one or two
    additional jurors sworn.

[20]

Alternate jurors protect against the risk that
    some jurors may be excused, abscond, or be otherwise unavailable between the
    time that the jury is selected and the beginning of the evidence. They are not
    intended to hear evidence. Instead, pursuant to s. 642.1(1), they are present
    at the beginning of evidence to replace any absent juror. This is to prevent
    the need to start the jury selection process anew if numbers have fallen before
    the evidence begins. Section 642.1(2) states that an alternate juror who is
    not required
shall
be excused (emphasis added). Alternate
    jurors are therefore excused before the evidence begins if there is a full jury
    present without them at that point.

[21]

Additional jurors protect against the loss of
    jurors during the course of the evidence, something which may be a particular
    concern during long trials. Unlike alternate jurors, additional jurors are
    intended to remain throughout the evidence. If the additional jurors remain at
    the time deliberations are to begin, s. 652.1 governs the procedure for
    reducing the jury to 12 members:

652.1 (1)
After the charge to the jury, the jury shall retire to try the
    issues of the indictment.

(2)
However, if there are more than 12 jurors remaining, the judge
    shall identify the 12 jurors who are to retire to consider the verdict by
    having the number of each juror written on a card that is of equal size, by
    causing the cards to be placed together in a box that is to be thoroughly
    shaken together and by drawing one card if 13 jurors remain or two cards if 14
    jurors remain. The judge shall then discharge any juror whose number is drawn.

[22]

In short, alternate jurors, by definition,
    remain present only until the evidence begins. At that point, they are excused unless
    one or both are required. Additional jurors, on the other hand, remain until
    the evidence is complete. Before deliberations, the number of the jury members
    must be reduced to 12. This reduction is done
randomly
,
    as required by s. 652.1. There is no such requirement applicable to alternate
    jurors.

[23]

It is common ground that although the trial
    judge used the term alternate to describe the extra jurors early in the
    trial, she treated them as additional jurors, as per s. 631(2.2) of the
Criminal
    Code
, by allowing them to remain
    present throughout the evidence
. The problem is that, before
    deliberations began, she dismissed juror 13, one of the two additional jurors
    chosen, and the last to have been chosen, rather than randomly selecting a
    juror to be dismissed, as s. 652.1(2) of the
Criminal Code
requires.

The Parties Submissions

[24]

The appellants submit that the trial judge
    failed to follow mandatory
Criminal Code
procedures, which resulted in
    an improperly constituted jury. Relying primarily on this courts reasons in
R.
    v. Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, at paras. 49-53, the
    appellants suggest the trial judges error deprived them of a statutory right
    in the jury selection procedure. This error is analogous to errors relating to peremptory
    challenges, challenges for cause, or stand-asides. As such, the curative
    proviso in s. 686(1)(b)(iv) of the
Criminal Code
cannot apply.

[25]

The appellants further suggest the trial judges
    errors caused prejudice. A random selection procedure to reduce the jury to 12
    members is necessary to prevent a judge from influencing the jury composition
    to an accuseds disadvantage. The appellants argue the trial judges error
    creates an appearance of unfairness, which warrants a new trial.

[26]

The Crown concedes that the trial judge should
    have randomly dismissed a juror, rather than dismissing juror 13. However, it
    denies that the jury was improperly constituted, because the trial judges
    error arose after the jury was constituted. The Crown relies on s. 643(1) of
    the
Criminal Code
, which reads:

643

(1)
The
    12, 13 or 14 jurors who are sworn in accordance with this Part and
present at the commencement of the presentation of the evidence
on the merits
shall be the jury
to hear the
    evidence on the merits. [Emphasis added.]

Based on this wording, the Crown
    suggests the jury was properly constituted at the commencement of the
    presentation of evidence in this case. Any error after this point does not go
    to the question of whether a jury is properly constituted.

[27]

In addition, the Crown submits that when this
    court has ordered a new trial based on a trial judges error in discharging (or
    failing to discharge) a juror once the trial has commenced, it has been on the
    basis that the error created at least the appearance of unfairness to the
    accused. The Crown says that here, there is no basis to support even the
    appearance that the trial judge hand-picked the final jury composition, as
    the appellants suggest. As such, the error was a mere irregularity, which can
    be saved by the curative proviso under s. 686(1)(b)(iv).

Law and Analysis

[28]

I agree with the appellants submissions on this
    issue. First, the error in failing to discharge a juror randomly under s.
    652.1(2) is analogous to errors regarding a challenge for cause, Crown stand-asides,
    static or rotating triers, or the summoning of talesman. For instance, in
Noureddine
,
    at para. 55, this court wrote that the process used to determine the
    appellants challenges for cause directly contravened the controlling
Criminal
    Code
provisions, and thus the court below was improperly constituted.
    Similarly, in this case, the process used to dismiss juror 13 directly
    contravened s. 652.1(2) of the
Criminal Code
.

[29]

While the jury may have been properly
    constituted at the outset to hear the evidence, it was not properly constituted
    according to s. 652.1(2) when it began to deliberate on that evidence. I see no
    principled distinction arising from the temporal difference between an error
    under s. 652.1(2) and other previously listed errors going to the constitution
    of the jury that could justify treating this error differently. The idea that
    following
Criminal Code
procedures at the beginning of the trial
    effectively operates to insulate the court from the requirements of those
    procedures at a later stage in the trial does not make sense.

[30]

Second, even if the curative proviso could be argued,
    it cannot be said that there was no prejudice caused to the appellants. The
    curative proviso is only successful in cases where the Crown can establish on
    a balance of probabilities that the legal error is harmless in the sense that
    no prejudice resulted or that a trier of fact would inevitably convict:
R.
    v. OBrien
, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 34.

[31]

Here, the Crown has not met its burden to
    justify the curative provisos application. As this court outlined in
R. v.
    Chouhan
, 2020 ONCA 40, 149 O.R. (3d) 365, leave to appeal granted, [2020]
    S.C.C.A. No. 19, there are various in-court mechanisms to protect against actual
    and apparent jury partiality, such as challenges for cause: at paras. 66-72.
    Similarly, the purpose of s. 652.1(2) is to ensure that the trial judge discharges
    additional jurors impartially. The random dismissal procedure helps prevent a
    trial judge from hand-picking the final composition of the jury based on
    their observations.

[32]

While there is no suggestion of actual
    partiality in this case, the point is that the failure to follow the procedure
    in s. 652.1(2) causes prejudice by tainting the
appearance
of jury impartiality. Proof of actual partiality is not necessary to
    demonstrate prejudice for the purposes of the curative proviso:
Noureddine
,
    at para. 63. Treating the trial judges error as inconsequential would risk
    bringing the administration of justice into disrepute. The curative proviso cannot
    apply.

[33]

I would therefore order a new trial on this
    ground.

D.

The Evidence relating to Conroys Prior Convictions

[34]

In July 2015, the Crown brought a pre-trial
    application to lead evidence of Conroys three prior drug trafficking-related
    charges, dated 2007, 2008, and 2010. The trial judge allowed the application
    only with respect to the 2008 charges, for which Conroy was convicted in 2011
    (the 2008 convictions). The 2008 convictions were for the possession of
    cocaine for the purpose of trafficking and possession of proceeds of crime.

[35]

At the time of the application, the parties
    indicated that they would create an agreed statement of facts to admit the
    evidence of the prior convictions. This did not happen. Instead, at trial, the
    Crown called several officers to testify about the 2008 convictions. The
    following documents were also admitted as evidence for the jurys
    consideration:

·

Tausendfreund J.s reasons for judgment on the
    2008 convictions and sentence;

·

Leitch J.s reasons for judgment on a related
    forfeiture hearing; and

·

An order from the Court of Appeal dismissing
    Conroys appeal from the 2008 convictions.

The Parties Submissions

[36]

The appellants concede that admitting the fact
    of the convictions for possession of cocaine for the purpose of drug
    trafficking was sufficiently probative regarding the origin of the money in the
    present case. However, they argue that 1) admitting the fact of the proceeds
    convictions and 2) admitting the 2008 convictions in the form of the reasons
    for decision was highly prejudicial and warrants a new trial.

[37]

First, they say the proceeds convictions should
    not have been admitted, because they were not relevant to the origin of the
    money, which was the only live issue at trial. Further, the proceeds
    convictions permitted impermissible propensity reasoning. The risk of
    propensity reasoning was particularly high, given that the proceeds convictions
    arose at least in part from the same sources of income in the same time period
    as the case at bar.

[38]

Second, the appellants argue that the reasons
    for judgment relating to the 2008 convictions should not have been admitted and
    filed as exhibits, because they contained more than the fact of the 2008
    convictions. As the reasons in their entirety were admitted, they were
    inevitably imbued with the inherent authority of another judges decision that could
    readily overwhelm a jury. Moreover, they were comprised in essence of a blend
    of hearsay and expert opinion, which both call for careful jury instructions as
    to the proper use of such evidence. No such jury instructions were given.

[39]

In response to the first issue, the Crown
    submits that the proceeds convictions were highly probative and minimally
    prejudicial. Specifically, the proceeds convictions were important additional
    evidence of Conroys commercial drug trafficking, which was relevant to the origin
    of the assets in the case at bar.

[40]

In response to the second issue, the Crown
    concedes that the trial judge failed to balance the probative value against the
    prejudicial effect of the manner in which the prior convictions were entered
    into evidence. It maintains that negligible prejudice resulted, because the
    Crown called testimonial evidence from four witnesses that amply supported the
    contents of the exhibited reasons. In addition, Conroy had the opportunity to
    cross-examine these witnesses. There was little to suggest that a challenge to
    the 2008 convictions or the evidence underlying those convictions would have
    succeeded.

[41]

The Crown concedes that the forfeiture ruling
    should not have been admitted into evidence. However, it argues that there is
    no reasonable possibility that the verdict could have been different.

Law and Analysis

[42]

Evidence of prior discreditable conduct is
    presumptively inadmissible:
R. v. Stubbs,
2013 ONCA 514, 300 C.C.C.
    (3d) 181, at paras. 54-56. It is only admissible where its probative value to
    the charges on the indictment outweigh their prejudicial effects. On appeal, a
    trial judges decision to admit this kind of evidence is generally entitled to
    deference unless it is unreasonable, tainted by legal error, or cumbered by a
    misapprehension of the material evidence:
Stubbs
, at para. 66.

[43]

The trial judge found the prior convictions for
    the 2008 offences, including the proceeds convictions, to be admissible. This
    finding is entitled to deference:
Stubbs
, at para. 58. However, the
    2008 convictions were admitted in a highly problematic manner. The trial judge
    did not balance the probative value and the prejudicial effect of the findings in
    the reasons that were made exhibits at trial. To admit these three sets of
    reasons without considering this balance is an error and this decision is thus not
    entitled to deference.

[44]

Had the trial judge conducted the balancing
    exercise, it is difficult to see how she could have admitted the reasons. They contained
    findings of fact and opinions that were more prejudicial than probative of the
    source of money in this case. For instance, Tausendfreund J.s reasons for conviction
    state that the activity viewed and observed by the police that evening were
    consistent with the accused trafficking in an illicit drug. However, in the
    present case, Conroy was not charged or convicted of trafficking; the admitted
    convictions were for possession of cocaine for the purpose of trafficking, and
    possession of proceeds of crime.

[45]

Moreover, Tausendfreund J.s sentencing reasons
    state that there is no doubt in my mind that Mr. Rose was involved in a well-organized
    and not on a small scale illicit drug marketing scheme. As the appellants
    highlight, Tausendfruend J.s findings on this point arguably addressed
    aggravating factors in sentencing, rather than inherent elements of the
    conviction.

[46]

In any case, Tausendfreund J.s sentencing
    reasons should not have been admitted at all because they were not probative of
    the source of the proceeds in this case. Similarly, and as the Crown concedes,
    there was no basis for admitting Leitch J.s forfeiture order and reasons.

[47]

The Crown argues that there is no reasonable
    possibility that the verdict could have been different. I disagree. The jury
    was presented with three sets of reasons that contained judicial findings that went
    well beyond the fact of Conroys prior convictions and as such, significantly increased
    the possibility of impermissible propensity reasoning. As authoritative
    statements from a judge, there was a particularly high risk that these findings
    would overwhelm the jurys own fact finding.

[48]

This error was further compounded by inadequate
    jury instructions regarding the prior convictions and exhibited reasons. When
    instructing the jury on the element of whether the BMW, Honda Civic, and
    $20,000 were obtained by crime, the trial judge simply stated:

Now, evidence was adduced from some witnesses
    with respect to the 2008 chargesYou have as part of Exhibits 23, 24 and 25 the
    decisions of Justice Tausendfreund, issued on September 13th, 2011, who
    convicted Conroy of possession of proceeds of crime in relation to the money he
    had in his seven bank accounts, and found him guilty of possession for the
    purposes of trafficking in cocaine.

[49]

The trial judge did not give guidance on how
    these reasons could be used. Later  when instructing the jury on the element
    of whether Conroy knew the property had been obtained by or derived from crime
     the trial judge told the jury to analyze the prior convictions as similar
    fact evidence. This is despite the fact that, as the Crown concedes, the
    evidence of Conroys prior convictions was
not
similar fact evidence as understood in
R. v. Handy
, 2002 SCC 56, [2002]
    2 SCR 908.

[50]

In these circumstances, admitting the three sets
    of reasons in the absence of adequate correcting instructions was a fatal
    error, regardless of whether the fact of the 2008 proceeds convictions should
    have been admitted. I would order a new trial on this ground as well.

E.

The Dismissal of Kharlas s. 11(b) application

[51]

Gorman J., the application judge, began by
    noting the inordinate delay of five years, two months and 11 days between
    Kharlas arrest on August 3, 2010, and her anticipated trial date on October
    14, 2015. As she issued her ruling before
R. v. Jordan
, 2016 SCC 27, [2016]
    1 S.C.R. 631, the application judge applied the test for assessing unreasonable
    delay in
R. v. Morin
, [1992] 1 S.C.R. 771.

[52]

She found that this was an inherently complex
    case involving separate investigative entities, which excused longer periods of
    delay. She noted that Conroy had changed counsel three times and Kharla had
    changed counsel twice, which contributed to the delay. Overall, she found:

·

the total neutral delay was 27 months and 22
    days;

·

the total Crown delay was 3 months and 6 days;

·

the total defence delay was 6 months and 14 days;
    and

·

the institutional delay was 19 months and 14
    days.

[53]

Having done so the application judge stated
    that:

While the overall length of delay is
    concerning, when examination is made of the relevant periods it cannot be said
    that the Crown did anything but make efforts to move the case along. This is a
    complex case with several players. There were clearly attempts at
    resolutionwhich necessitated adjournments. Further, the shifting of counsel
    did nothing to improve the pace of the litigation.

[54]

Through an affidavit, Kharla stated she had lost
    her job and been unable to find alternative work. However, she had not tried to
    find employment since 2013. The application judge noted that several of the
    most stringent bail conditions (such as non-association with Conroy, along with
    the reporting clause) had been deleted. The application judge concluded that
    Kharla had not suffered prejudice.

[55]

The application judge also emphasized that the
    charges were serious. She cited
R. v. Seegmiller
(2004), 191 C.C.C.
    (3d) 347 (Ont. C.A.), for the proposition that the absence of meaningful
    prejudice to the accused can lengthen the period of delay that is
    constitutionally tolerable, particularly where there is a heightened social
    interest in a trial on the merits. She then concluded:

A judicial stay of proceedings must only be
    granted in the clearest of cases. In my view, this is not such a case. In all
    of the circumstances I am not persuaded that [sic] delay was unreasonable.
    Accordingly the Application is dismissed.

The Parties Submissions

[56]

Kharla submits the application judge erred in
    three main ways: 1) she denied a stay of proceedings based on the clearest of
    cases test, which does not apply to s. 11(b) applications; 2) she failed to
    scrutinize the pace of disclosure and the lack of explanation for delays in
    disclosure; and 3) she failed to consider inferred prejudice. Kharla asserts
    delay based on the anticipated trial date at the time of the s. 11(b)
    application, October 14, 2015. She does not rely on any periods after this date
    for the purpose of her s. 11(b) claim of unreasonable delay.

[57]

The Crown argues that where the application
    judge made errors in characterizing specific time periods, her errors favoured
    Kharla. As for prejudice, the Crown emphasizes that Kharla does not challenge
    the underlying facts that led the application judge to reject her argument that
    she had suffered prejudice. The Crown submits that when the time periods are
    characterized properly, the delay in this case is reasonable. The case was
    inherently complex and there were significant periods of defence-caused delay.

Law and Analysis

[58]

The application judge incorrectly cited the
    clearest of cases test when refusing a stay of proceedings. While a stay of
    proceedings is to be treated as a remedy of last resort for other
Charter
violations, a stay is the minimal remedy for a s. 11(b) violation:
R. v.
    Steele
, 2012 ONCA 383, 288 C.C.C. (3d) 255, at paras. 30-31.

[59]

Having said this, the application judge
    correctly found that the delay in this case was reasonable.

[60]

To begin, I note that Kharlas s. 11(b)
    application was decided a little under one year before
Jordan
was
    released. The
Jordan
framework applies to cases in the system prior to
Jordan
s

release.

[61]

Under
Jordan
,

the presumptive
    ceiling for a case tried in the superior courts is 30 months from the date of
    arrest. Once the presumptive ceiling is exceeded, the Crown bears the burden of
    rebutting the presumption of unreasonableness, based on exceptional
    circumstances. If the Crown cannot do so, a stay will follow. An exceptional
    circumstance is the only basis upon which the Crown can discharge its burden to
    justify a delay that exceeds the presumptive ceiling.

[62]

For cases that were in the system prior to
Jordan
s
    release, transitional exceptional circumstances may justify a delay that exceeds
    a presumptive ceiling. In
R. v. J.C.P.
, 2018 ONCA 986, at para. 20,

this court explained whether and how transitional exceptional circumstances
    may apply:

[T]he Crown must satisfy the court that the
    time taken in the case is justified based on the parties reasonable reliance
    on the law as it previously existed under
R. v. Morin
, [1992] 1 S.C.R.
    771. This requires the court to undertake a contextual assessment of the delay,
    sensitive to the manner in which the previous framework was applied, and to the
    fact that the parties behaviour cannot be judged strictly, against a standard
    of which the parties had no notice. Consideration of the seriousness of the
    offences, prejudice to the accused, and the parties general level of diligence
    may inform whether the parties reasonably relied on the previous state of the
    law. [Citations omitted.]

[63]

The first step in the
Jordan
analysis
    is to determine the total delay between the charges and the anticipated end of
    the trial. The total delay here was about 63 months and one week, from August
    3, 2010 to November 11, 2015. The anticipated trial end date was based on the fact
    that, at the time of s. 11(b) application, the trial was to begin on October
    14, 2015 and last for four weeks.

[64]

The next step is to determine whether the
    defence waived or caused any of the delay. The application judge found that the
    6.5-month period from November 26, 2012 to June 10, 2013 was for a defence
    adjournment request and constituted defence delay. Kharla does not dispute this
    characterization. I agree this 6.5-month period constitutes defence delay.

[65]

The Crown suggests the following periods are also
    defence delay:

·

June 17 to September 30, 2011: defence
    adjournment requests pending results of Conroys trial on the 2008 offences;

·

September 30, 2011 to December 20, 2011:
    adjournments for possible resolution, with an explicit s. 11(b) waiver from
    November 29 to December 20; and

·

December 20, 2011 to January 13, 2012: defence
    attempts to obtain instructions for resolution.

[66]

I agree that these listed periods, which equal roughly
    6 months, should be treated as defence delay. Collectively, then, the defence
    delay is 12.5 months and must be deducted from the total delay of 63 months and
    one week. The resulting net delay is 50.75 months, which exceeds the 30-month
    presumptive ceiling in
Jordan
.

[67]

As such, the Crown must show that the time the
    case has taken is justified by exceptional circumstances. It relies on the
    transitional exceptional circumstance. For this reason, the
Morin
analysis must be applied. Under
Morin
, the following factors are
    relevant for determining whether delay is unreasonable:

1.

The length of the delay;

2.

Waiver of time periods;

3.

The reasons for delay, including:

a.

The accuseds actions;

b.

The Crowns actions;

c.

Limits on institutional resources; and

d.

Other reasons for delay; and

4.

Prejudice to the accused.

[68]

Kharla advances only one recharacterization of
    delay periods. She suggests that a substantial portion of August 3, 2010 to
    November 29, 2011, should be seen as Crown instead of neutral delay, due to
    delays in providing disclosure.

[69]

I do not agree. I have already found that the
    period from June 17, 2011 to December 20, 2011 was defence delay. During the rest
    of the impugned period, the parties focused on resolution rather than setting
    dates.

[70]

The Crown concedes that it may have taken
    excessive time to unseal the relevant warrants, but maintains this did not
    substantially affect the delay in this case. This is supported by the record.
    For instance, the absence of the warrants did not appear to prevent a focus
    hearing from occurring on April 19, 2011, and a first judicial pre-trial on May
    3, 2011.

[71]

I agree with the Crown that the five-month
    adjournment from June 17, 2013 until November 19, 2013 of the preliminary
    hearing should be considered as neutral delay. Counsel for Kharla made a clear
    concession on this point at the hearing, as evidenced in the transcripts.

[72]

I also find that the institutional delay in
    awaiting the anticipated trial date is about six months, from April 7, 2015 to
    October 14, 2015. Institutional delay does not necessarily begin from the set
    date. Instead, institutional delay only begins to run when the parties are
    ready for trial and the system cannot accommodate them:
Morin
, at pp.
    794-795; see also,
R. v. Picard
, 2017 ONCA 692, 137 O.R. (3d) 401, at
    paras. 92-102, leave to appeal refused, [2018] S.C.C.A. No. 135.

[73]

In this case, on February 18, 2015 and April 7,
    2015, there was a judicial pre-trial to discuss pre-trial motions and clarify
    related issues. This demonstrates the parties were not ready to begin trial
    until April 7, 2015, at the earliest.

[74]

At most, the total institutional delay is 16
    months and 12 days, as follows:

·

March 26, 2012 to November 26, 2012: awaiting
    preliminary hearing;

·

June 6, 2014 to August 11, 2014: awaiting
    decision on committal; and

·

April 7, 2015 to October 14, 2015: awaiting
    trial.

[75]

This falls under the 18-month
Morin
guidelines for institutional delay. The Crown delay is two months and 13 days,
    from January 13, 2012 to March 26, 2012, a period where the Crown was awaiting
    a witness list for a focus hearing. The defence delay is 14 months, as
    indicated earlier. The remaining delay is neutral.

[76]

Regarding prejudice under the
Morin
framework,
    the application judge correctly concluded that Kharla did not suffer any
    specific prejudice. While she did not explicitly consider inferred prejudice, I
    find that any inferred prejudice would not outweigh other relevant
    considerations. Kharla did not seriously raise Crown missteps that render the
    delay otherwise unreasonable. Additionally, the parties agree this was a
    complex prosecution on serious charges.

[77]

In these circumstances, which occurred entirely
    pre-
Jordan
, the delay was reasonable under the
Morin
framework. The release of
Jordan
should not automatically transform
    what would previously have been considered reasonable delay into an
    unreasonable one:
Jordan
,

at para. 102. The situation here
    is akin to that in
R. v. Barna
, 2018 ONCA 1034, 371 C.C.C. (3d) 217, at
    para. 7, where this court wrote:

The relative complexity of the case, the fact
    the period of institutional delay  fell within (albeit at the upper limits) of
    the
Morin
guidelines, and the seriousness of the charges, weighed
    against the prejudice to the accused, support the application of the transitional
    exceptional circumstance in this case.

[78]

This is not a case like
J.C.P
or
Steele
,
    where the institutional and Crown delay make up a majority of the total delay,
    and the institutional delay exceeded the
Morin
guidelines:
J.C.P
,
    at paras. 46-52;
Steele
, at paras. 34-36. The application judge did
    not err in dismissing Kharlas s. 11(b) application in the circumstances.

F.

DISPOSITION

[79]

The trial judge erred in failing to dismiss an
    additional juror according to the procedure under s. 652.1(2) of the
Criminal
    Code
. The trial judge also erred in allowing the Crown to file reasons for
    judgment relating to Conroys 2008 convictions. The application judge did not
    err in dismissing Kharlas s. 11(b) application. For these reasons, I would
    allow the appeal, set aside the convictions and order a new trial.

Released: May 21, 2020

GRS

A. Harvison Young J.A.

I agree G.R. Strathy C.J.O.

I agree M. Jamal J.A.


