



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Faulkner, 2018 ONCA 174

DATE: 20180223

DOCKET: C57007

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Faulkner

Appellant

Ronald Faulkner, in person

James Carlisle,
amicus curiae

Hannah Freeman, for the respondent

Heard: August 29, 2017

On appeal from the decision given on April 10, 2013 by
    Justice Michael Code of the Superior Court of Justice, sitting without a jury,
    dismissing a motion to stay proceedings, with reasons given on May 23, 2013 and
    reported at 2013 ONSC 2373, and from the conviction entered on April 11, 2013
    by Justice John B. McMahon of the Superior Court of Justice, sitting without a
    jury.

Watt
    J.A.:

[1]

On November 27, 2008 Ronald Faulkner was arrested on five counts of
    criminal harassment. The charges alleged offences over a period of about six
    weeks. Each involved the same complainant, a former lover of Ronald Faulkner.

[2]

Over the next three years, Ronald Faulkner got arrested again. Six
    times. Nothing changed. Same victim. Similar conduct. Sometimes charged as
    criminal harassment, at other times, as failure to comply with a recognizance.
    Sometimes detained, other times released.

[3]

In early April, 2013, Ronald Faulkner appeared for trial in the Superior
    Court of Justice. The indictment contained 17 counts, a mélange of criminal harassment,
    failures to comply and obstruction of justice. Assisted by
amicus
,
    Ronald Faulkner asked the judge to stay proceedings because he had not been
    tried within a reasonable time. The judge disagreed and dismissed the motion
    for a stay.

[4]

On April 11, 2013, the day after the motion to stay proceedings was
    dismissed, Ronald Faulkner appeared before a different judge of the Superior
    Court of Justice. He pleaded to guilty to 5 of the 17 counts in the indictment.
    A month or so later, the judge suspended the passing of sentence and ordered
    Ronald Faulkner to comply with the terms of a probation for three years. By
    then, Ronald Faulkner had spent 663 days in custody since his first arrest.

[5]

Ronald Faulkner thinks the judge who refused to stay proceedings against
    him for unreasonable delay (the motion judge) got it wrong. That judge,
    Faulkner says, didnt apply what was then the law correctly. But even if the
    motion judge got it right the first time, the law is different now and warrants
    entry of a stay of proceedings by this court.

[6]

These reasons explain why I have concluded, not only that the motion
    judge got it right under what was then the law, but also that the result is the
    same under the current regimen for assessing claims of s. 11(b) infringement.

the background facts

[7]

The issues in this appeal do not require any extended discussion of the
    circumstances of the offences Ronald Faulkner is alleged to have committed. It
    is enough to say that they followed the complainants termination of a lengthy
    intimate relationship with Faulkner. The charges relate to the nature and
    extent of Faulkners contact with the complainant after her termination of the
    relationship, including his persistent contact in breach of the terms of
    various recognizances by which he was bound.

[8]

Of greater importance to the issues raised and the remedy claimed in
    this court is a journey along the long and winding road these proceedings have
    followed from charge to final disposition and the manner in which the motion
    judge treated them in his s. 11(b) analysis.

The Chronology

October 15, 2008  February 20, 2009 (4 Months)

[9]

This period begins with the laying of the first information charging
    Faulkner with five counts of criminal harassment and ends with the first
    judicial pre-trial in the Ontario Court of Justice. Ronald Faulkner was
    arrested on November 27, 2008 and released from custody on a recognizance. He
    was re-arrested twice during this period on charges of failure to comply with
    his recognizance and ultimately detained in custody.

[10]

During
    this period, the usual intake activities took place. The retention of counsel. The
    conduct of show cause and review hearings. Crown disclosure. The arrangement of
    a judicial pre-trial.

[11]

The
    motion judge considered this period as the neutral intake period, a
    characterization with which
amicus
agreed, and neutral in his s. 11(b)
    analysis.

February 20, 2009  September 8, 2009 (6.5 Months)

[12]

During
    this period, the Crown elected to proceed by indictment. Faulkner elected trial
    in the Ontario Court of Justice. The trial was to be held on three separate informations
    on which Faulkner was then charged. The trial was estimated to require 15 days
    of court time. Trial dates were fixed for September and October, 2009.

[13]

Within
    this time frame, Faulkner had counsel who engaged in resolution discussions
    with the Crown. Judicial pre-trials and case management continued. Faulkner
    discharged his first lawyer. He hired a second who advised the court that
    Faulkner had changed his election and now wanted a preliminary inquiry. The
    estimate for the preliminary inquiry was 8 or 12 days, depending on the success
    of a Crown application under s. 540(7) of the
Criminal Code
. A bail
    review took place over two days. Before it was dismissed, Faulkner discharged
    his second counsel. Shortly thereafter he retained his third lawyer, who had
    limited availability on the dates already scheduled for the preliminary
    inquiry.

[14]

The
    motion judge concluded that the parties were never ready to proceed with either
    a trial or a preliminary inquiry until the end of this time period. Faulkner
    required time to retain new counsel on two occasions. New counsel required time
    to prepare, including to review a very large brief. Ongoing judicial case
    management was necessary to move the proceedings along.

[15]

This
    entire period  six and one-half months  was characterized as inherent or
    necessary delay, although the motion judge recognized that part of it could be
    viewed as defence delay because its genesis was in Faulkners firing and hiring
    of lawyers. The systemic delay clock had not yet begun to run.

September 8, 2009  November 2, 2009 (2 months)

[16]

On
    the first day of the scheduled preliminary hearing, the Crown and Faulkners
    third counsel, an experienced and respected member of the Toronto defence bar,
    reached a resolution. Faulkner pleaded guilty to a single count of criminal
    harassment and four counts of breach of recognizance. However, as the day wore
    on, the resolution fell apart, primarily because Faulkner changed his position
    about admitting one of the essential elements of criminal harassment. The
    presiding judge struck the guilty pleas.

[17]

As
    a result of the disintegration of the resolution agreement and her inability to
    abide by the Law Society Rules in continuing her solicitor-client relationship
    with Faulkner, the third counsel was permitted to withdraw, leaving Faulkner
    unrepresented. A
Rowbotham
application failed.

[18]

Because
    Faulkner was unrepresented, the judge presiding at the preliminary inquiry appointed
    counsel to cross-examine the complainant under s. 486.3 of the
Criminal
    Code
. Appointed counsel also responded to the Crowns motion under s.
    540(7) of the
Criminal Code
. The motion was granted.

[19]

When
    the preliminary inquiry resumed one month later on October 22, 2009, appointed
    counsel was not prepared to proceed with the cross-examination of the
    complainant. Following the complainants testimony-in-chief, appointed counsel had
    sought further disclosure, which the Crown provided on the morning of October
    22, 2009. Appointed counsel sought an adjournment beyond the next scheduled
    date. The preliminary judge dismissed the application.

[20]

When
    the preliminary inquiry resumed on November 2, 2009, appointed counsel indicated
    that she was again unable to proceed. She had prepared 130 pages of questions.
    Faulkner had also prepared a massive amount of questions. He insisted on
    reviewing counsels 130 pages of questions. During a recess granted to permit
    counsel and Faulkner to review the questions, Faulkner read only one page of
    counsels proposed questions.

[21]

When
    court resumed after the recess, appointed counsel informed the judge that she
    could not proceed because Faulkner had not read the questions or given her
    instructions. As a result she was not prepared to properly represent him. Faulkner
    said nothing to contradict what counsel had said. As the discussion about
    proceeding progressed Faulkner made insulting or defiant comments to the judge,
    who ultimately ordered Faulkners removal from the courtroom. The judge then
    discharged appointed counsel, ruled that the witness is not required to
    testify anymore and, after hearing closing submissions from the Crown (not Ms.
    Freeman), committed Faulkner for trial on some of the charges.

[22]

The
    motion judge considered that two months was a reasonable period of time within
    which to complete the preliminary inquiry in the circumstances in this case. He
    pointed out that among the difficulties that arose during this period were:

i.

Faulkners constructive dismissal of his third counsel;

ii.

the appointment of s. 486.3 counsel and the need for her to get ready to
    cross-examine the complainant on short notice; and

iii.

the erroneous belief of Faulkner and appointed counsel that Faulkner was
    entitled to review and approve each question to be asked in cross-examination.

[23]

As
    a result, the motion judge characterized the entire two-month period as
    inherent or necessary delay, thus as neutral in his s. 11(b) analysis.

November 2, 2009  February 26, 2010 (4 months)

[24]

This
    period begins with the order that Faulkner stand trial and concludes with the
    completion of the first judicial pre-trial in the Superior Court of Justice.

[25]

Ronald
    Faulkner filed a motion to quash his committal for trial. A judge of the
    Superior Court of Justice appointed
amicus
to assist Faulkner in the
    preparation and argument of his motion. Faulkner tried but failed to retain a fourth
    counsel and filed another
Rowbotham
application. He conducted a four
    day bail review hearing, but remained in custody.

[26]

On
    the return on the motion, the presiding judge offered Faulkner a trial date in
    April 2010. With one minor exception, Faulkner abandoned his motion to quash
    and said that he would not advance any s. 11(b)
Charter
claim if his
    trial were held in April, 2010. The judge dismissed the
Rowbotham
application, but appointed counsel under s. 486.3, a lawyer whose integrity and
    work ethic Faulkner lauded, unlike any of his prior counsel whose ethics and
    integrity he was quick to assail on the
Rowbotham
motion. In an
    ominous sign, Faulkner described appointed counsels reception of 75 pages of
    his (Faulkners) required questions for the cross-examination of the
    complainant.

[27]

Ronald
    Faulkner then told the presiding judge about a third party records application
    he proposed to make. Although initially resistant to the suggestion, Faulkner
    ultimately agreed to an expansion of the mandate of counsel appointed under s. 486.3
    to assist him with the proposed third party records application and yet another
    motion under s. 276 of the
Criminal Code
.

[28]

The
    motion judge did not arrive at a final characterization of this time period. He
    was prepared to assume, in light of the several motions, outstanding or
    proposed, that the time could be considered as intake in the Superior Court of
    Justice. At all events, the judge reasoned, the time elapsed was not to be laid
    at the feet of the Crown or labelled as systemic delay.

February 26, 2010  May 10, 2010 (2.5 Months)

[29]

This
    period began with the conclusion of the judicial pre-trial in the Superior
    Court of Justice and ended when the first trial date was adjourned.

[30]

The
    third party records application was scheduled to proceed on April 6, 2010 with
    the trial to follow three weeks later. A trial judge had been assigned.

[31]

On
    an appearance in early March, 2010, Faulkner filed an expanded third party
    records application and advised the presiding judge about some disclosure
    issues he wished to raise. This despite prior counsels assessment assurance
    over five months earlier that full disclosure had been made and discussions
    at the judicial pre-trial about the same subject.

[32]

Neither
    the third party records application nor the trial proceeded as scheduled. The
    third party records had not been subpoenaed. The application had not been
    prepared. Nor had anything been done on the proposed s. 276 application.
    Faulkner was actively involved in bringing these applications. Appointed
    counsel continued to do Faulkners bidding, including seeking items that were
    plainly beyond the scope of the Crowns disclosure obligations.

[33]

The
    motion judge considered this entire period as defence delay.

May 10, 2010  November 12, 2010 (6 Months)

[34]

Throughout
    this six-month period, the Crown and court waited for the defence to perfect
    and argue the third party records application. The application was adjourned
    repeatedly, never perfected and, on November 12, 2010, ultimately abandoned.

[35]

During
    this time, Ronald Faulkner filed a motion to remove appointed counsel. The
    motion was granted. Another lawyer was appointed under s. 486.3. Faulkner
    described her as competent and able and prepared to proceed with the third
    party records application on its scheduled date of October 26, 2010. But on the
    scheduled hearing date newly appointed s. 486.3 counsel sought an adjournment
    of the application, which remained unperfected. About three weeks later, after consultation
    with Faulkner, appointed counsel advised the presiding judge that no third
    party records or disclosure application would be brought at this time. She
    gave no reasons. Ronald Faulkner said that he had no objection to the
    abandonment of the application.

[36]

Ronald
    Faulkner had been re-arrested and detained in custody. The newly appointed lawyer
    under s. 486.3 was the same lawyer who appeared on his behalf on the new
    charges then in the Ontario Court of Justice.

[37]

The
    motion judge marked this period down to defence delay because of the defences
    failure to perfect and argue the third party records application when the Crown
    and court were prepared to proceed.

[38]

The
    trial was scheduled to begin on January 10, 2011. Ronald Faulkner did not seek
    an earlier trial date or suggest that he could be ready for trial at any
    earlier time.

October 7, 2010  December 1, 2010 (2 Months)

[39]

During
    this period, which included the pendency of the third party records application,
    Ronald Faulkner filed a motion to quash his committal for trial made almost one
    year earlier. The motion proceeded to argument. On December 1, 2010 a judge of
    the Superior Court of Justice quashed the committal for trial.

[40]

As
    the motion judge pointed out, the motion to quash the committal for trial was
    unfounded and should never have been permitted to proceed. The indictment had
    been preferred in the Superior Court of Justice. A trial date had been set.
    Ronald Faulkner had appeared before a court ready to proceed with his trial.
    The remedy sought by the motion to quash was no longer available:
R. v. Chabot
,
    [1980] 2 S.C.R. 985.

[41]

The
    motion judge assigned 19 days of this period, from the abandonment of the third
    party records application on November 12, 2010 until the committal was quashed
    on December 1, 2010 to defence delay.

December 1, 2010  December 23, 2010 (3 Weeks)

[42]

This
    three-week interlude represents the time required to commence the new preliminary
    inquiry after the previous committal was quashed on December 1, 2010. It was
    common ground that for s. 11(b) purposes this period was part of the inherent
    time requirements of the case, thus neutral for the purposes of the s. 11(b)
    analysis.

December 23, 2010  December 1, 2011 (11 Months)

[43]

The
    second preliminary inquiry involved the introduction of evidence over a period
    of seven weeks. The presiding judge reserved his decision for one month after
    hearing argument. No one suggested that these periods were other than part of
    the inherent time requirements of the case.

[44]

As
    the second preliminary hearing began, Faulkner sought an adjournment for a
    month to review various transcripts in support of further submissions.

[45]

The
    examination-in-chief of the complainant consisted of a transcript of her
    evidence in chief at the prior preliminary inquiry. Appointed counsel
    cross-examined the complainant for nine days, then sought an adjournment,
    supported by Faulkner, to review further questions to put to the complainant.
    Although the adjournment was refused, the next available date was about a month
    away. The remainder of the case for the Crown was completed in five days,
    including Faulkners cross-examination of the Crown witnesses. Appointed
    counsel, supported by Faulkner, applied to re-open cross-examination of the
    complainant. In the intervening month, Faulkner had provided counsel with over
    700 questions he wanted her to ask. The presiding judge permitted some further
    cross-examination.

[46]

In
    early February, 2011 Ronald Faulkner was re-arrested and detained in custody.
    Crown counsel sought an adjournment of the preliminary inquiry for three months
    because she had carriage of a major murder prosecution. About four days after
    the adjournment was granted, Faulkner was released from custody on a bail
    review.

[47]

When
    the preliminary inquiry resumed, Ronald Faulkner testified in chief for three
    days. He was not cross-examined. He called about a dozen defence witnesses between
    July 28, 2011 and September 12, 2011. He was re-arrested and detained on August
    29, 2011.

[48]

On
    December 1, 2011 the presiding judge committed Ronald Faulkner to stand trial
    on several counts contained in the information.

[49]

In
    apportioning parts of this time period for s. 11(b) purposes, the motion judge
    assigned the three-month period during which the Crown carried out a murder
    prosecution as Crown delay. He found no systemic delay and allocated the
    remaining eight-month period to the ever-expanding inherent time requirements
    of a very unusual case. He noted in this respect Faulkners extraordinary
    misconduct throughout the inquiry, in particular, his constant stream of
    frivolous or marginal legal arguments. The motion judge added that when
    proceedings did adjourn for one month on two occasions, Faulkner had in fact
    sought an adjournment on each occasion to prepare for the continuation of the
    inquiry.

December 1, 2011  February 27, 2012 (3 Months)

[50]

Amicus
conceded and the motion judge found that this period, from the committal for
    trial until the first judicial pre-trial on the new indictment in the Superior
    Court of Justice, was neutral or inherent delay to ready the case for trial.
    Faulkner was self-represented. He was trying to retain
amicus
as his
    own counsel. He was arrested again on new charges of criminal harassment and
    breach of recognizance. He sought release. He filed yet another
Rowbotham
application. In the interim, awaiting hearing and determination of the
Rowbotham
application,
amicus
was re-appointed.

February 27, 2012  March 25, 2013 (13 Months)

[51]

The
    first three months of this interval were taken up with a continuing judicial pre-trial
    in the Superior Court of Justice. At the outset, Ronald Faulkner had not
    perfected his
Rowbotham
application, much less brought it on for a hearing.
    The parties estimates of the anticipated length of the trial proceedings on
    what had become a 17 count indictment varied widely. The Crown said two weeks
    if Faulkner had counsel.
Amicus
estimated six weeks. Faulkner claimed
    12 to 14 weeks with a bare minimum of 8 to 10 weeks, including four weeks for
    his own testimony.

[52]

The
    presiding judge offered trial dates in November, 2012 for a six week trial and
    April 1, 2013 for the longer trial Ronald Faulkner proposed. The judge
    suggested a further pre-trial after the
Rowbotham
application had been
    decided. Ronald Faulkner insisted on renewing the third party records
    application he had abandoned earlier. He also filed a motion under s. 11(b) of
    the
Charter
three days after the judicial pre-trial.

[53]

The
Rowbotham
application was perfected and scheduled for hearing on May
    7, 2012. It was withdrawn on the hearing date because
amicus
was
    re-appointed. The pre-trial continued before the supervising judge. Neither the
    s. 11(b) application, nor the third party records motion had been prepared.
    Faulkner suggested October and November, 2012 for the third party records
    application and January, 2013 for the s. 11(b) motion. The supervising judge
    said that he would set a trial date of April 1, 2013; ensure appointment of a
    trial judge in advance of the trial date; and have the motions heard prior to
    trial. Faulkner did not ask for earlier dates or suggest he would be ready to
    proceed earlier.

[54]

When
    the dust finally settled, Ronald Faulkner said he wanted to bring four
    pre-trial motions:

i.

certiorari
to quash certain bail proceedings and to remove
    Crown counsel from the record;

ii.

certiorari
to quash the committal for trial;

iii.

the third party records application; and

iv.

the s. 11(b) motion.

Nothing had been filed on the third party records
    application.

[55]

The
    motion judge began hearing pre-trial applications. He dismissed the motion to
    quash the bail proceedings and remove Crown counsel. Once again,
amicus
advised that the third party records application, on which nothing had been
    filed, was being abandoned. The motion judge dismissed the motion to quash the
    committal, then turned to the s. 11(b) motion.

[56]

The
    motion judge concluded that the 13-month period from February 27, 2012 until
    March 25, 2013 was part of the inherent time requirements of the case. Faulkner
    needed time to prepare his motions and to complete the judicial pre-trial. He
    never suggested that he was ready to proceed earlier.

The Conclusions of the Motion Judge

[57]

The
    motion judge concluded that the only period of delay that weighed against the
    Crown was the three-month period during which the second preliminary inquiry had
    been adjourned to permit Crown counsel to conduct a murder trial to which she
    had been assigned earlier. The judge found no systemic delay. Congestion in the
    courts never actually caused any period of delay. The actions of Ronald
    Faulkner caused a delay of nine months. The balance of the delay, approximately
    42 months, was caused by the inherent time requirements of the case as it
    played out.

[58]

After
    considering the issue of prejudice, the motion judge concluded that no breach
    of s. 11(b) had been established. Among his conclusions are these (at paras.
    129 and 131):

I am satisfied that Faulkner has not established
    a violation of his s. 11(b)
Charter
rights. Although the total delay of four years and six months is unusual,
    there was very little unreasonable or unjustified delay in this
    case. Furthermore, the prejudice that Faulkner experienced was mainly
    caused by his own actions and by the needs of the case, given the way in which
    he and his appointed counsel chose to conduct it. This is simply not
    legally relevant prejudice, in the s. 11(b) context, and it must be overlooked
    as La Forest J. put it in
Rahey
.



The common thread running through all these
    cases, like the case at bar, is that much of the delay was caused by actions of
    the accused and/or much of the delay was due to lengthy periods of inherent
    time requirements that were driven by the circumstances of the particular
    case. These kinds of delays are not unreasonable or unjustified, in the s.
    11(b) sense, because they are either sought by the accused for his own benefit
    or they are necessary, in light of the nature of the case and the way it is
    being conducted.

The Plea Proceedings

[59]

The day following dismissal of the s. 11(b) application, more than a
    month before the motion judge released his written reasons, Ronald
Faulkner
    appeared before another judge of the Superior Court of Justice. There, he
    pleaded guilty to one count of criminal harassment and four counts of failing
    to comply with recognizances on which he had been released from custody.

[60]

A
    few weeks later, based on a joint submission of
amicus
and the Crown,
    which took into account 663 days of pre-disposition custody, the judge
    suspended the passing of sentence and ordered Ronald Faulkner to comply with
    the terms of a probation order for a period of three years.

the ground of appeal

[61]

Ronald
    Faulkner (the appellant) appeals his convictions. He advances a single ground
    of appeal. He says that the trial judge erred in failing to stay proceedings
    against him because his right to a trial in a reasonable time guaranteed under
    s. 11(b) of the
Charter
was infringed. He advances two discrete
    grounds of error, one relating to the application of the principles put in
    place by
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, decided after
    the trial judge had made his ruling, and the other claiming error in the
    application of the standard set out in
R. v. Morin
, [1992] 1 S.C.R.
    771, the controlling authority when the trial judge made his decision.

[62]

Preliminary
    to an assessment of these claims of error, it is necessary to consider first an
    issue raised by a member of the panel during argument about whether the
    decision of this court in
R. v. Fegan
(1993), 80 C.C.C. (3d) 356 (Ont.
    C.A.), bars the appellant from contesting the correctness of the motion judges
    s. 11(b) ruling because he pleaded guilty to the various charges.

The Preliminary Issue: The Impact of
R. v. Fegan

[63]

Some
    further procedural history will complete the sketch of background necessary to
    consider the impact of
Fegan
on the disposition of the appeal.

The Proceedings at Plea

[64]

When
    the appellant appeared before a different judge the day following the motion
    judges dismissal of his application under s. 11(b), he was unrepresented by
    counsel. He pleaded guilty to 5 of 17 counts in the indictment.

[65]

As
    is the practice in this province, the trial Crown read a statement of facts
    summarizing the case on the counts to which the appellant pleaded guilty. The
    appellant, who is a non-practising member of the bar, agreed that the Crowns
    summary of the facts was accurate. After a plea inquiry the presiding judge
    entered findings of guilt, recorded convictions on the counts to which the
    appellant had pleaded guilty, and set a date for sentencing.

[66]

Nothing
    was said about the appellants wish to challenge the motion judges dismissal
    of his motion under s. 11(b). Nor did anyone propose that the appellant would maintain
    his plea of not guilty; agree with the Crowns summary of the facts; make no
    submissions; and acknowledge that findings of guilt and convictions should be
    entered.

The Notice of Appeal

[67]

In
    the month following the s. 11(b) decision, the appellant filed an in person
    notice of appeal challenging the decision.

[68]

At
    no time did the respondent move to quash the appeal on the basis that it was
    barred because of the appellants plea of guilty and the decision in
Fegan
.

The Appointment of
Amicus

[69]

A
    judge of this court appointed
amicus
to assist the appellant in the
    completion of the record to be used on the appeal and preparation of a factum
    to spell out the grounds to be argued. The appeal was case-managed to ensure
    timely completion of the record and perfection.

[70]

At
    no time during this period was an issue raised about the impact of the
    appellants plea of guilty on the availability of appellate relief.

The Hearing of the Appeal

[71]

In
    factums filed in this court,
amicus
and the respondent focused
    exclusively on the correctness of the motion judges dismissal of the s. 11(b)
    motion. Their submissions related to the impact of
Jordan
and the
    correctness of the trial judges analysis under the
Morin
framework.

[72]

During
    oral argument, a member of the panel queried with counsel whether the decision
    in
Fegan
erected a bar to the appellants claim of error below. So
    that the proceedings would not be adjourned or further delayed, we heard the
    appeal on the merits and set a schedule for counsel and
amicus
to file
    written submissions on the
Fegan
issue. We reserved our decision to
    consider not only the merits of the appeal, but also whether the decision in
Fegan
barred relitigation of the issue.

The Arguments on Appeal

[73]

In
    his written submissions,
amicus
contends that the decision in
Fegan
does not extinguish the appellants right of appeal simply because he pleaded
    guilty at first instance. The appellants claim of s. 11(b) infringement
    survives his plea of guilty and the public interest in timely adjudication of
    allegations of crime requires determination of its validity.
Amicus
adds that this appeal is not moot because of the guilty plea, but even if it
    were, we should decide the appeal on its merits.

[74]

In
    this case,
amicus
says, the appellant does not resile from or seek to
    set aside his guilty plea. He does not seek a new trial. With the benefit of
    legal advice when he entered his plea of guilty, the appellant could have
    adopted the work-around procedure advanced in
Fegan
, which would
    have left open his right to challenge the correctness of the s. 11(b) decision.
    That he did not do so because he lacked legal advice should not disentitle him
    to appeal. In any event,
amicus
continues, the authorities do permit
    the appellant to challenge the s. 11(b) ruling, even without successfully
    setting aside his guilty plea.

[75]

According
    to
amicus,
applications to stay proceedings for unreasonable delay
    under s. 11(b) are qualitatively different from applications to exclude
    evidence for constitutional infringement, as was the case in
Fegan
.
    Rulings on the admissibility of evidence are interlocutory and relate to the
    ability of the Crown to prove its case. Section 11(b) goes to the heart of
    whether the prosecution should be permitted to continue because of the failure
    of the state to proceed in a constitutionally timely manner. The rationale in
Fegan,
even if it could be said to bar appeals to question the correctness of
    interlocutory evidentiary rulings after entry of a guilty plea, does not apply
    where the issue raised has to do with the regularity of the prosecution.

[76]

On
    the issue of mootness,
amicus
points out that an active controversy
    remains between the parties about whether the appellant was tried in a
    reasonable time. Even if the appeal is moot, issues important to the
    administration of justice remain. These include whether a self-represented
    litigant is responsible for delays caused by counsel appointed under s. 486.3,
    and the extent to which the conduct of a self-represented litigant should be
    counted against him in a s. 11(b) analysis.

[77]

The
    respondent says that the decision in
Fegan
disentitles the appellant
    to the relief he seeks. A plea of guilty is the equivalent of a waiver of constitutionally-protected
    safeguards. This remains the case unless the plea of guilty is set aside on
    appeal. This can occur where an appellant can show that the plea was not
    voluntary, informed or unequivocal when entered, or when the conviction amounts
    to a miscarriage of justice. The appellant, who must shoulder the burden of
    setting aside the plea, has failed to do so here.

[78]

The
    respondent points out that essential to this courts decision to entertain the
    appeal in
Fegan
was its finding, based on a concession by the Crown,
    that Fegans

plea was uninformed because he didnt know that his plea
    of guilty would shutter his right to challenge the validity of his conviction
    on the basis that the trial judge had wrongly admitted crucial evidence against
    him. No such finding is pursued or available or the evidence of this case.

[79]

The
    respondent argues that the
Fegan
rationale applies here despite the
    differences in the constitutional infringements relied upon in the two cases.
    In each case, the plea of guilty constitutes a waiver of the appellants right
    to require the Crown to prove its case beyond a reasonable doubt. The plea also
    waives the procedural safeguards associated with a criminal trial including
    those, like the right to a trial within a reasonable time, which are
    constitutionally protected. Both rulings are interlocutory.

[80]

Further,
    the respondent continues, the policy reasons underpinning the decision in
Fegan
have equal currency here. The plea was the product of negotiations. The
    appellant pleaded guilty to only 5 of 17 counts. He relied on his plea in
    advancing his case for a non-custodial sentence. He cannot now reverse engineer
    what occurred earlier.

[81]

The
    respondent accepts that
Fegan
does not foreclose an appeal from an
    interlocutory ruling after a conviction has been recorded on entry of a guilty
    plea where the plea is shown or admitted to be uninformed, thus invalid. But
    that is not this case. After all, the appellant has the onus of establishing
    the uninformed nature of his plea. In this case, the respondent says, we have
    no evidence that the plea was uninformed, as for example because it was
    contingent on the appellant being able to appeal the adverse ruling on his s.
    11(b) application. At the judicial pre-trial immediately before entry of the
    guilty plea, the appellant said nothing about wishing to appeal the s. 11(b)
    ruling. Although it may have been better had the judge at the judicial
    pre-trial or during the plea inquiry advised the appellant about this
    consequence of his guilty plea, the failure to do so does not make the plea
    uninformed.

[82]

In
    the end, the respondent says, it may be unnecessary to resolve the impact of
Fegan
on the circumstances of this case because the complaint of error fails on the
    merits.

The Governing Principles

[83]

To
    determine whether a plea of guilty bars a challenge to rulings made in
    pre-trial proceedings that precede entry of the plea, it is helpful to consider
    first the nature and effect of a guilty plea, then to examine the decision in
Fegan
about the impact of the plea on the availability of appellate review of
    interlocutory decisions prior to entry of the plea.

The Guilty Plea

[84]

As
    is well known, to be effective a guilty plea must be voluntary, unequivocal and
    informed. And to be informed, the person pleading guilty must be aware of the
    nature of the allegations said to constitute the offence; the effect of the
    plea; and the consequences of the plea:
R. v. T.(R.)
(1992), 10 O.R.
    (3d) 514 (C.A.), at p. 519;
R. v. Lyons
, [1987] 2 S.C.R. 309, at p.
    371.

[85]

A
    guilty plea is a formal in-court admission of guilt. Further, it constitutes a
    waiver not only of the accuseds right to require the Crown to prove guilt
    beyond a reasonable doubt by properly admissible evidence, but also of the
    related procedural safeguards in the criminal trial process, some of which are
    constitutionally enshrined and protected:
T.(R.)
, at p. 519;
Korponay
    v. Canada (Attorney General)
, [1982] 1 S.C.R. 41, at p. 49.

[86]

On
    an appeal from conviction, an accused may challenge the validity of a guilty
    plea, but bears the onus of showing, on a balance of probabilities, that the
    plea was invalid because one (or more) of the elements essential to a valid
    plea was lacking:
T.(R.),
at p. 519. In the usual course, an appellate
    challenge to the validity of a guilty plea entered at trial involves the
    introduction of fresh evidence in support of the claim, as well as a review of
    the trial record:
T.(R.)
, at p. 519.

[87]

A
    final point concerns appellate review of cases in which a guilty plea meets all
    the traditional tests of validity. In such cases, an appellate court retains a
    discretion, exercisable in the interest of justice, to receive fresh evidence
    to explain the circumstances that led to the plea and to demonstrate that a
    miscarriage of justice has occurred:
R. v. Hanemaayer
, 2008 ONCA 580,
    234 C.C.C. (3d) 3, at para. 19;
R. v. Kumar
, 2011 ONCA 120, 268 C.C.C.
    (3d) 369, at para. 34.

The Decision in
Fegan

[88]

In
Fegan
, the case for the Crown depended on the admissibility of
    evidence obtained by use of an authorized digital number recorder (DNR). On
    the basis of an agreed statement of facts, the parties made submissions on a
    pre-trial application to determine the admissibility of the DNR evidence. The
    trial judge ruled the evidence admissible. Fegan changed his plea to guilty. The
    trial judge entered a conviction and imposed sentence.

[89]

Fegan
    appealed. He challenged the pre-trial ruling admitting the DNR evidence that
    was the case for the Crown against him. On appeal, the Crown conceded that when
    he pleaded guilty, Fegan was under the mistaken belief, fostered by the advice
    he had received from trial counsel, that, despite his guilty plea, he could
    appeal his conviction and challenge the correctness of the pre-trial
    admissibility ruling. It was common ground that Fegan pleaded guilty without
    intending to give up his right to challenge the admissibility ruling on appeal.

[90]

On
    appeal, this court held that, having pleaded guilty, the appellant was required
    to obtain leave to withdraw the plea of guilty or persuade the court to
    exercise its jurisdiction under s. 686(1)(a)(iii) and allow the appeal, despite
    the plea, on the ground that there was a miscarriage of justice. In either
    case, the burden was on the appellant to explain away his plea of guilty as a
    condition precedent to any relief:
Fegan
, at p. 360.

[91]

This
    court proceeded to hear the appeal on the basis of the Crowns concession about
    the uninformed nature of the plea. It reached no firm conclusion about the
    effect of a valid guilty plea that remained effectual on appeal and did not
    attract the operation of s. 686(1)(a)(iii). The appeal was dismissed on the
    merits because the court was satisfied that the trial judges admissibility
    ruling was correct.

[92]

The
Fegan
court suggested that in future cases a procedure could be
    followed that did not require entry of a guilty plea, thus preserving an
    accuseds right to challenge the correctness of a pre-trial ruling on appeal.
    The procedure involved post-ruling acceptance of the case for the Crown,
    followed by no defence evidence and entry of a conviction based on an agreed
    statement of facts. This procedure would preserve the accuseds right of appeal
    against conviction on the real issue in dispute without imposing the additional
    burden of setting aside the guilty plea.

[93]

The
    British Columbia Court of Appeal has also treated a plea of guilty as a bar to
    relitigation of interlocutory rulings, usually those involving the
    admissibility of evidence, unless the plea of guilty can be set aside on one
    basis or another:
R. v. Duong
, 2006 BCCA 325, at paras. 16-18;
R.
    v. Carter
, 2003 BCCA 632, at paras. 6-7;
R. v. Chuhaniuk
, 2010
    BCCA 403, at paras. 46-49.

The Principles Applied

[94]

At
    issue here is whether entry of a guilty plea by a self-represented accused,
    which he does not seek to withdraw or have set aside on appeal, disentitles him
    from challenging on appeal a pre-trial ruling that proceedings taken against
    him were constitutionally flawed because his trial is not held in a reasonable
    time. I believe that it does.

[95]

As
    I have tried to illustrate above, through his legal chicanery and manoeuvres
    over the years, Faulkner has attempted to make a mockery of the criminal trial
    process. His latest gambit  plead guilty/appeal immediately  is merely
    another incarnation of this litigation strategy, albeit in the appellate forum.

[96]

After
    substantial negotiations during an in-court judicial pre-trial conference,
    conducted by a very experienced criminal trial judge, the Crown agreed to
    withdraw 12 of 17 charges in exchange for the appellants pleas of guilty to
    the 5 remaining counts. The appellant then leveraged his guilty plea as a
    mitigating factor in support of his submission that he should receive a
    non-custodial sentence. The trial judge agreed and gave Faulkner full
    mitigating credit for his plea.

[97]

I
    acknowledge that Faulkner was self-represented before the trial court, as he is
    in this court. However, during the in-court pre-trial conference, and during
    the guilty plea proceedings, he benefitted from the participation of
amicus
counsel, the same one who ably assisted this court on appeal. Moreover, at no
    time has Faulkner sought to distance himself from his guilty pleas, which
    occurred in the context of proceedings that were error-free, if not flawless.

[98]

By
    his pleas of guilty, Faulkner acknowledged the underlying facts of the
    offences. The transcript of proceedings reflects that his pleas were voluntary,
    unequivocal, and fully informed. He does not suggest otherwise on appeal. The
    law is clear from
R.T.
, and other cases, that by his pleas of guilty,
    the appellant relieved the Crown of the burden of proving the charges against
    him; he also waived the procedural safeguards, constitutionally protected or
    otherwise, associated with the prosecution against him. This included his right
    to subsequently challenge all interlocutory decisions, including the s. 11(b)
Charter
ruling
.

[99]

Fegan
supports the Crowns position that the appellants appeal should not be heard
    on its merits. The
Fegan
court determined that the appeal could
    proceed in light of the Crowns concession that his plea was uninformed. No
    evidence was placed before this court to support the assertion that Faulkner
    was acting under a similar misapprehension; nor is there any concession by the
    Crown that this was the true state of affairs.

[100]

Mr. Carlisle
    argues that there is a qualitative difference between the situation in
Fegan
,
    involving an evidentiary issue, and the appellants assertion of his s. 11(b)
    rights. I fail to see a meaningful distinction for present purposes. The
    dismissal of a s.11(b) application is an interlocutory ruling like any other in
    this context. While a successful s. 11(b) application results in the ultimate
    remedy available in criminal law  a stay of proceedings  this does not change
    its character as a Charter-based procedural safeguard contemplated in
T.(R.).

[101]

Consequently,
Fegan
prevents the appellant from appealing the s. 11(b) ruling. Moreover, this is
    not a case involving a miscarriage of justice of the type considered in
Hanemaayer
.
    This appeal is just another attempt by Faulkner to pervert the process.

[102]

When Faulkner
    entered his pleas of guilty and was sentenced on just 5 counts in a 17-count
    indictment, it was reasonable for all concerned to believe that the case was at
    an end, that finality had been achieved. This was undoubtedly the Crowns goal
    in participating in this process with Faulkner. The trial judge was clearly
    acting on a similar assumption. He observed in his sentencing remarks that
    Faulkner has taken responsibility for his actions, which is a positive step
    when looking at rehabilitation. As it turned out, Faulkner had other ideas.
    This was not the end of the case; it was just the beginning of the next
    procedural phase.

[103]

To condone this
    type of litigation conduct would have a deleterious impact on guilty plea
    proceedings, long considered to be an instrumental feature of our criminal
    justice system:
R. v. Anthony-Cook
, 2016 SCC 43, [2016] 2 S.C.R. 204.
    If permitted, it may create a disincentive for Crowns to resolve cases in this
    manner, thereby contributing to further delays, a most regrettable result in a
    post-
Jordan
era.

[104]

As I noted in
    para. 92 above,
Fegan
contemplates a work-around option, whereby the
    parties may fashion a procedure in which guilty pleas are dispensed with, and
    the foundation for the case is established by way of an agreed statement of
    facts. The procedure suggested there makes good sense where the success or
    failure of the case for the Crown depends on the result of pre-trial motions.
    This procedure preserves the right of an appellant to challenge the correctness
    of a pre-trial ruling. It does not waste valuable and limited court resources
    where it is clear that the admissibility of the evidence is dispositive of
    guilt. And it expedites appellate review.

[105]

But that was not
    this case. Not even close. The appellant had the majority of counts withdrawn
    against him. In these circumstances, it is difficult to fathom that the Crown
    would agree to such a favourable arrangement, knowing that Faulkner would turn
    around and appeal the s. 11(b) ruling.

[106]

I would dismiss
    the appeal on this basis. However, for the sake of completeness, I also
    consider the s. 11(b) ground of appeal on its merits.

Ground #1: The s. 11(b) Argument

[107]

The appellant
    advances a single ground of appeal. He says that the motion judge was wrong in
    failing to stay proceedings on account of a breach of s. 11(b) of the
Charter.
This ground invokes not only the approach required by
Jordan
for cases
    decided before its release but reviewed thereafter, but also asserts error in
    the application of the
Morin
framework that was controlling before the
    motion judge.

[108]

In an earlier
    part of these reasons I reviewed the history of this prosecution and the manner
    in which the motion judge characterized various periods within that chronology
    for the purposes of his s. 11(b) analysis. Their repetition is unnecessary.

[109]

The arguments
    advanced provide a logical point of departure for the discussion that follows.

The Arguments on Appeal

[110]

Amicus
submits
    that the total delay in this case should be calculated from the time the
    charges were first laid to the anticipated completion date of trial.
    Fifty-seven months. Under
Jordan
,
amicus
continues, which
    controls the disposition of this ground of appeal, the net delay, after
    deducting the motion judges calculation of defence delay of 9 months from a
    total of 57 months is 48 months. This well exceeds the presumptive ceiling in
Jordan
of 30 months. It follows,
amicus
contends, that the delay is
    presumptively unreasonable and infringes s. 11(b).

[111]

According to
amicus
,
    no exceptional circumstances are at play here to reduce this delay below the
Jordan
presumptive ceiling. This was not a complex case, let alone a particularly
    complex case. Counts, albeit many, of criminal harassment and failure to comply
    with the terms of a recognizance. Evidence based almost entirely on a single Crown
    witness. No complex legal issues. Nor unsettled principles of law.

[112]

Amicus
acknowledges that the teachings of
Jordan
do not permit an assail of
    the correctness of the motion judges application of
Morin
, but,
amicus
continues, a consideration of the
Morin
analysis may illuminate the
    way to a proper application of
Jordan
.

[113]

In the
    submission of
amicus
, the motion judge erred in designating any delay
    caused by counsel appointed under s. 486.3 as defence delay. Appointed counsel
    were not the appellants counsel for anything other than cross-examining the
    complainant. In particular, they were not his counsel for the purposes of any
    third party records application, disclosure motion or application under s. 276
    of the
Criminal Code
. It follows,
amicus
continues, that any
    delay those counsel caused should not have been laid at the appellants
    doorstep. And, as an alternative submission, the assistance they provided was
    so ineffective that the time spent should not be tallied against the appellant.

[114]

Amicus
focuses
    on several other periods which, he says, the motion judge erred in attributing
    to defence delay or in failing to put them down as institutional delay. For example,
    the period during which the motion to quash the first committal was pursued.
    This was not defence delay. And the time spent completing the second
    preliminary. This was due, in part at least, to the courts failure to ensure
    it proceeded continuously and the judges tardiness in rendering judgment.
    Similarly, the period between fixing the date for trial and the start of the
    trial should have been characterized as institutional delay because the court
    could not provide an earlier trial date.

[115]

Overall,
amicus
says, the motion judge undertook a microanalysis of 11 discrete time periods,
    contrary to the teachings of
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R.
    3, rather than looking at the total delay which would have compelled entry of a
    stay of proceedings under
Morin
.

[116]

The respondent
    begins with a reminder. The correctness of the decision not to stay proceedings
    for unreasonable delay is governed by the
Jordan
framework for
    transitional cases, not determined by a review of the motion judges
Morin
analysis. Admittedly, the total period of delay, from the first information
    until the guilty plea  54 months  well exceeds the presumptive ceiling of 30
    months for trials in the Superior Court of Justice. But from this total, we
    must determine, then deduct, defence delay and decide whether any exceptional
    circumstances reduce the delay below the presumptive ceiling or justify it as
    reasonable. On completion of this exercise, the respondent says, no stay is
    warranted.

[117]

The respondent
    says that defence delay takes in delay solely or directly caused by the
    defence. It is delay that flows from defence action that is illegitimate, said
    another way, conduct not undertaken to respond to the charges. Defence delay
    has to do with both substance and procedure. The decision to take a step and
    the manner in which the step is taken. Illegitimate defence conduct includes
    steps designed to delay proceedings or actions that reveal a marked
    indifference to delay.

[118]

In this case,
    the respondent continues, four substantial periods of defence delay  a total
    of 22.75 months  should be deducted to reduce the net delay to about two months
    beyond the presumptive ceiling.

[119]

The respondent
    submits that a period of 7.25 months should be chalked up to defence delay in
    connection with the third party records application that was later abandoned
    with the express agreement of the appellant.

[120]

The application
    was first filed about two months before the trial date in the Superior Court of
    Justice. It sought a broad range of records from a variety of sources. It had
    not been perfected by the original trial date, thus necessitating an
    adjournment to permit its perfection since the availability of these records
    might be important for counsel to cross-examine the complainant. On two later
    occasions scheduled to deal with the application, the records had not been
    subpoenaed, the motion not perfected. Further delay occurred, when appointed
    counsel added an equally frivolous disclosure motion seeking materials well
    beyond the most fevered imaginings of obligations under
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326.

[121]

In the end, the
    application was abandoned with the express agreement of the appellant. When its
    reincarnation was later proposed,
amicus
observed that he could see no
    basis upon which the application could succeed. A second abandonment followed.

[122]

The respondent
    next invites us to assign 5.5 months of delay, which occurred during the ten-month
    period it took to complete the second preliminary inquiry, to defence delay.

[123]

The respondent
    says that the manner in which appointed counsel, at the appellants direction,
    conducted the preliminary inquiry demonstrates a marked inefficiency and palpable
    indifference to delay. Counsel and the appellant sought an adjournment of one
    month to review transcripts of prior testimony. Appointed counsel
    cross-examined the complainant for nine days and fully subscribed to the appellants
    position that he (the appellant) was entitled to review any proposed questions
    and approve of them being asked. Appointed counsel applied to re-open her
    cross-examination when presented with 700 further questions the appellant
    wanted her to ask.

[124]

The respondent
    points to the appellants misconduct at the preliminary inquiry. His abusive
    comments. His constant objections. His denigration of other participants. This,
    the respondent says, affords compelling evidence of marked inefficiency and
    indifference to delay. In response to commonplace charges of criminal
    harassment and failure to comply with recognizances, the appellant testified in
    chief for three days. He was not cross-examined.

[125]

As an
    alternative submission, the respondent argues that some portion of the time
    spent completing the preliminary inquiry should be deducted as an exceptional
    circumstance because the requirement of the second preliminary was beyond the
    control of the Crown and could not reasonably have been foreseen in light of
R.
    v. Chabot
, [1980] 2 S.C.R. 985. Besides, the Crown took several steps to
    expedite proceedings and mitigate the delay prior to the second preliminary
    inquiry.

[126]

Further, the
    respondent continues, 5.25 months of delay associated with attempts to have counsel
    assigned on
Rowbotham
applications after the case was otherwise ready
    to proceed should be characterized as defence delay. This delay only arose
    because the appellants conduct during the guilty plea proceedings caused his
    third counsel to ask that she be removed from the record. The
Rowbotham
application
    that followed delayed a judicial pre-trial because of the uncertainty of
    whether the appellant would have counsel or be self-represented. In the end,
    the motion was abandoned when a compromise was reached that involved the
    appointment of
amicus
.

[127]

The final period
    the respondent contends should be characterized as defence delay is one of 4.75
    months attributable to the impact of the appellants unreasonable estimate of
    the length of trial.

[128]

In order to establish
    the trial date in the Superior Court of Justice, the supervising judge asked
    for estimates about the length of trial. The appellants
Rowbotham
application
    had not yet been heard for lack of material, but
amicus
was present.
    The Crown estimated two weeks if the appellant were represented by counsel.
Amicus
said six weeks. The appellant insisted that the trial would take 12 to 14
    weeks with his testimony-in-chief alone occupying four weeks. A six-week trial
    could have been held in November, 2012, but a 12 to 14 week trial could not begin
    until April 1, 2013. The period between the proposed trial dates should be
    charted as defence delay.

[129]

To take the case
    below the presumptive ceiling of 30 months set by
Jordan
, the
    respondent relies on transitional exceptional circumstance  reasonable
    reliance on the
Morin
analysis.

[130]

The respondent
    says that there was no prosecutorial or institutional complacency here, nor any
    indifference to the appellants right to be tried within a reasonable time. For
    example, after the first committal for trial had been quashed, the Crown successfully
    invoked s. 540(7) of the
Criminal Code
to have the complainants prior
    testimony admitted as her evidence-in-chief at the second preliminary. The
    motion judges
Morin
analysis found only three months of Crown delay
    and no institutional or systemic delay. Any prejudice to the appellant was a
    direct result of his own approach to litigation. Constant delays. Frivolous
    motions. An inflexible and erroneous insistence on approving every question to
    be asked by appointed counsel. This was a simple case that the appellant tried
    to portray as complex by piling on pointless motions barren of legal merit and
    evidentiary support.

The Governing Principles

[131]

It is common
    ground that the
Jordan
framework, including the presumptive ceiling of
    30 months for trials in the Superior Court of Justice, applies in this case
    subject to certain qualifications:
Jordan
, at paras. 5, 46 and 95.

[132]

To determine the
    period of delay to which we apply the
Jordan
framework, we begin with
    the period between charge and the end of the trial. From that number, we
    subtract defence delay to arrive at a net period that we compare to the
Jordan
presumptive ceiling to determine whether the delay is presumptively
    unreasonable as beyond the ceiling:
Jordan
, at para. 47.

[133]

Defence delay
    has two components.

[134]

The first is
    delay
waived
by the defence. The waiver can be explicit or implicit.
    But it must always be clear and unequivocal. This requires that the accused
    have not only full knowledge of his or her rights, but also of the effect
    waiver will have on those rights. The waiver is not of the s. 11(b) right
    itself, rather only the inclusion of specific periods in the overall assessment
    of reasonableness:
Jordan
, at para. 61.

[135]

The second
    component of defence delay is delay
caused
solely by the conduct of
    the defence. This takes in situations in which an accuseds acts either
    directly caused the delay or were not legitimately taken to respond to the
    charges, but rather are shown to be a deliberate and calculated tactic to delay
    the trial:
Jordan
, at para. 63. Frivolous applications and requests,
    as well as the failure of the defence to be ready when the Crown and court are
    prepared to proceed, fall into this category:
Jordan
, at paras. 63 and
    64.

[136]

The presumption
    of unreasonableness that follows from the net delay exceeding the presumptive
    ceiling is rebuttable. The onus of rebuttal is settled on the Crown and is
    discharged where the Crown establishes the presence of exceptional
    circumstances. The failure of the Crown to discharge this onus leaves the delay
    as unreasonable and entry of a stay of proceedings as its consequence:
Jordan
, at para. 47.

[137]

For the purpose
    of rebutting the presumption of unreasonableness that follows from net delay
    that exceeds the
Jordan
ceiling, exceptional circumstances are those
    that lie outside the Crowns control in the sense that:

i.

the circumstances are reasonably unforeseen
or
reasonably
    unavoidable;
and

ii.

the Crown cannot reasonably remedy the delays emerging from the
    circumstances once they arise.

Jordan
, at para. 69.

[138]

The Crown does
    not establish exceptional circumstances simply by pointing to a past
    difficulty. More is required. And that more is a showing that the Crown took
    reasonable and available steps to avoid and address the problem
before
the delay exceeded the ceiling. This includes, but is not limited to resort to
    available procedural devices to move the case forward:
Jordan
, at
    para. 70.

[139]

By their very
    nature, exceptional circumstances are not conducive to a closed list. That
    said, at least as a general rule, exceptional circumstances fall into two
    categories:

i.

discrete events; and

ii.

particularly complex cases.

Jordan
, at para. 71.

[140]

Particularly
    complex cases are prosecutions that, because of the nature of the
evidence
,
    the nature of the
issues
, or both, require an inordinate amount of trial
    or preparation time:
Jordan
, at para. 77.

[141]

Since the
Jordan
framework applies to cases such as this where the s. 11(b) decision preceded
    the release of
Jordan
, a transitional exceptional circumstance may
    apply where the delay exceeds the ceiling, provided the Crown can satisfy the
    court that the time the case has taken is justified on the basis of the
    parties reasonable reliance on the law as it existed prior to
Jordan
.
    This assessment is contextual:
Jordan
, at para. 96.

[142]

Three brief
    further points.

[143]

First, for most
    cases already in the system prior to
Jordan
, the release of the
    decision in
Jordan
should not automatically transform what would
    previously have been considered a reasonable delay into an unreasonable one:
Jordan
,
    at para. 102;
R. v. Baron
, 2017 ONCA 772, at para. 43:
R. v. Gordon
,
    2017 ONCA 436, at para. 23.

[144]

Second, defence
    delay includes not only acts, but also omissions; substance as well as
    procedure:
R. v. Cody
, 2017 SCC 31, 349 C.C.C. (3d) 488, at paras.
    32-33.

[145]

Third, a
    relevant factor in assessing the reasonableness of any delay is the absence of
    any interest on the part of an accused about moving the case along:
R. v.
    Pyrek
, 2017 ONCA 476, 349 C.C.C. (3d) 554, at para. 26;
R. v. St.
    Amand
, 2017 ONCA 913, at paras. 104-106.

The Principles Applied

[146]

As I will
    explain, I would not give effect to this ground of appeal. In my view, the
    combined effect of defence delay, exceptional circumstances and transitional exceptional
    circumstances results in a net delay that is below the presumptive ceiling in
Jordan
,
    one that the appellant cannot establish is unreasonable.

[147]

This case, as
    have others, demonstrates the difficulties involved in reviewing a
Morin
-based
    decision under
Jordan
principles. The focus of
Morin
was on
    institutional delay. Other categories of delay, including but not limited to
    defence delay, could not be laid at the doorstep of the Crown. Not so under
Jordan
,
    where defence delay and delays caused by discrete events are critical.

[148]

Further, this
    case demonstrates the disastrous consequences for trial economy, integrity and
    continuity that follow when a self-represented litigant hijacks the trial
    process, bent on converting it to a trial of his accuser rather than an
    assessment of the adequacy of the evidence to establish his guilt.

The Total Delay

[149]

The first
    information was laid on October 15, 2008. The appellant pleaded guilty to and
    was convicted of five counts in the indictment on which he was to be tried on
    April 11, 2013. I reject the submission of
amicus
that the total delay
    should extend to the anticipated completion date of the trial based on the
    appellants extravagant estimate of its anticipated length. Although this may
    be appropriate where a motion to stay proceedings under s. 11(b) is argued well
    before the commencement of the trial, and trial proceedings remain outstanding,
    there is no need to do so here where the conclusion of the trial is a date
    certain.

[150]

The total delay
    from commencement of the proceedings until the conclusion of the trial is 54
    months.

The Net Delay

[151]

Under the
Morin
framework, a regimen focused on Crown and institutional delay, the motion judge
    assigned nine months to defence delay. The motion judge did not reach a final
    conclusion about another period which he acknowledged could have been found to
    be defence delay. Within the
Morin
framework, the motion judge did not
    need to make an affirmative finding in this respect since it was clear that the
    period in issue could not be characterized as either Crown or institutional
    delay.

[152]

I would allocate
    22.75 months to defence delay, leaving a net delay of 31.25 months, slightly
    more than the presumptive 30-month ceiling fixed by
Jordan
.


i.

The Third Party Records Application

[153]

To begin, I
    would assign 7.25 months, from April 6, 2010 until November 12, 2010 to defence
    delay.

[154]

About two months
    before the trial date, the appellant, with the assistance of counsel appointed
    under s. 486.3, filed a third party records application. The mandate of
    appointed counsel was expanded to include providing assistance to the appellant
    on the motion since success on the motion might possibly yield information upon
    which counsel may wish to cross-examine the complainant. April 6, 2010 was the
    date set to commence the third party records application.

[155]

The third party
    records application sought a broad range of records relating to the
    complainant, the great bulk of which would seem unlikely to have any reasonable
    prospect of meeting any likely relevant threshold, let alone any more
    stringent requirements necessary to justify disclosure. The motion was not
    prepared by the peremptory trial date or on any other occasion when the parties
    appeared. The only reason the trial did not proceed on the scheduled trial date
    was the outstanding third party records motion. Appointed counsel, who
    displayed an unwavering commitment to do the appellants bidding, also filed a
    disclosure application seeking several items. Much of what was sought was
    either not in the possession of the Crown or well beyond the scope of the
    Crowns disclosure obligations.

[156]

The nature of
    the third party records sought, together with the failure of the defence to
    pursue the motion with even an atom of effort, leads irresistibly to the
    conclusion that this was anything but a motion pursued with a
bona fide
intention
    of making full answer and defence to the charges. It would be better described
    as a fishing expedition with the singular purpose of delaying the trial and
    humiliating the complainant. In the end, on November 12, 2010, it was
    abandoned. When raised again by the appellant,
amicus
said that he
    could see no basis for it, and it was discarded again.

[157]

The period from
    April 6, 2010 until November 12, 2010  7.25 months should be deducted from
    the total 54-month period as defence delay.


ii.

The Second Preliminary Inquiry

[158]

As I will
    explain, I would also deduct a total of 5.5 months as defence delay during the
    period from December 23, 2010 until October 5, 2011 when the second preliminary
    inquiry took place.

[159]

The second
    preliminary inquiry was rendered necessary as a result of a successful motion
    by the appellant to quash the committal ordered at the conclusion of the first
    inquiry. I have already explained why I consider the decision to quash the
    committal erroneous, but that is not the reason I have concluded that part of
    the time taken to conclude the second preliminary should be chalked up to
    defence delay.

[160]

The manner in
    which the appellant and appointed counsel conducted the second preliminary
    inquiry demonstrated a marked inefficiency and indifference to delay, which
Cody
recognizes may constitute defence delay.

[161]

At the outset of
    the inquiry, three days were taken up with arguments about legal issues and
    objections advanced by the appellant. The arguments were at best marginal, but
    in the main, frivolous. The appellant also sought an adjournment for one month
    to review transcripts.

[162]

Recall the
    charges  criminal harassment and failure to comply with a recognizance. Yet
    appointed counsel, in lock step with the appellants view that he (the appellant)
    had to approve the questions counsel would ask, cross-examined the complainant
    for nine days. Appointed counsel then sought to re-open the cross-examination
    to ask a further list of over 700 questions the appellant had developed and
    wanted asked. The appellant testified for three days. He was not
    cross-examined. He then called defence witnesses over a period of five days. Their
    evidence was more confirmatory of the case for the Crown than exculpatory. What
    is more, the appellants conduct was so abusive that the presiding judge
    terminated two of the examinations before they were completed.

[163]

To reach a
    conclusion that 5.5 months should be assigned as defence delay, I have deducted
    from the total period three months of Crown delay where Crown counsel was not
    available because of an earlier scheduled homicide trial; the time taken by the
    presiding judge to prepare his reasons for committal; and an estimate of a
    reasonable time to conduct a preliminary inquiry on the charges contained in
    the information.


iii.

The
Rowbotham
Application

[164]

On December 1,
    2011 the appellant was ordered to stand trial at the end of the second preliminary
    inquiry. But it was not until May 7, 2012 that a judicial pre-trial in the
    Superior Court of Justice could be completed, because it was only then that it
    could be determined whether the appellant would be self-represented or have
    counsel. In the absence of knowledge of the nature of the appellants
    representation, no realistic estimate could be made about the trial length or
    the availability of counsel. Otherwise, the case was ready for trial.

[165]

I am satisfied
    that this period of 5.25 months should be charted as defence delay.

[166]

The necessity
    for a
Rowbotham
application was attributable, wholly and exclusively,
    to the appellants conduct.

[167]

In the
    beginning, the appellant had counsel funded by Legal Aid Ontario. He discharged
    the first lawyer. He retained a second. He discharged the second lawyer. Legal
    Aid Ontario agreed to fund a third counsel on the appellants undertaking that
    he would not be allowed a fourth lawyer if he discharged the third, or if the
    third was required to remove herself from the case. When a favourable
    resolution reached between the third counsel and the Crown failed because the
    appellant refused to acknowledge an essential element of an offence to which he
    had pleaded guilty, the third counsel, a very experienced and respected criminal
    lawyer, asked to be removed for ethical reasons. And thus it was that the
    appellant sought a
Rowbotham
order to have the state pay for his
    counsel.

[168]

During this
    period, the appellant took considerable time to perfect the
Rowbotham
application. It was not until May 7, 2012 that the issue was settled by the
    withdrawal of the application when an accommodation had been reached to provide
amicus
. A further complication arose from the appellants re-arrest,
    leaving it unclear whether he would be in or out of custody during his trial.


iv.

The Trial Estimate

[169]

After the
    appointment of
amicus
, judicial pre-trials continued in an effort to
    set a date for trial. According to the estimates of the Crown and
amicus
,
    a trial date could have been set for November, 2012 for a trial of up to six
    weeks in length.

[170]

The appellant
    insisted that the trial on a 17 count indictment containing counts of criminal
    harassment and failure to comply with a recognizance would take 12 to 14 weeks,
    with a bare minimum of 8 to 10 weeks. The appellant claimed that his
    testimony-in-chief would require four weeks. The supervising judge set a trial
    date of April 1, 2013, but promised to try to find an earlier trial date if
    estimates of the length of trial became shorter. Pre-trial motions continued.

[171]

The appellant
    did not order the transcripts necessary for the s. 11(b) motion he wanted to
    bring before trial until after
amicus
had been appointed at the end of
    May, 2012. The motion was not perfected until January, 2013, two months after
    the courts available November dates for a shorter trial had passed. On one
    appearance, Crown counsel advised that the trial could be completed in two
    weeks.

[172]

It follows from
    what I have said that I would categorize the period from November 12, 2012 to
    March 25, 2013 as defence delay. This is a period of 4.75 months.

[173]

From a total
    delay of 54 months, I would deduct a total of 22.75 months as defence delay,
    leaving a period of 31.25 months of delay, slightly above the
Jordan
ceiling of 30 months for trials in the Superior Court of Justice.

Transitional Exceptional Circumstances

[174]

I would also
    rely upon the transitional exceptional circumstances to justify the delay in
    completing the appellants trial. In doing so, I am mindful that the onus on
    this issue rests upon the Crown and the analysis is qualitative, not
    quantitative. Of the essence in this analysis is the avoidance of unfairness to
    the parties caused by their reliance on the institutional delay-focused
    approach of
Morin
.

[175]

Relevant
    considerations informing the transitional exceptional circumstance are:

i.

the complexity of the case;

ii.

the period of delay in excess of the
Morin
guidelines;

iii.

any response by the Crown to institutional delay;

iv.

any defence efforts to move the case along; and

v.

prejudice to the accused.

See,
R. v. Gopie
, 2017 ONCA 728, at para. 178;
R. v. Williamson
, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 26-30.

[176]

To begin, the
    trial judge properly applied the
Morin
framework. He divided the
    entire period from the commencement of proceedings until trial into 11 discrete
    time periods. For each period, he examined what happened and provided cogent
    reasons for the conclusions that he reached. He found no institutional or
    systemic delay and only three months of Crown delay. As I have observed
    earlier, he could have assigned a further period to defence delay although his
    failure to do so made no difference to his ultimate conclusion.

[177]

Second, the
    complexity of the case. The case for the Crown was straightforward. One principal
    witness  the complainant  to prove the counts of criminal harassment. The
    same evidence, coupled with an admission or formal proof of the recognizance
    and its terms, would satisfy the Crowns burden on the several counts of breach
    of recognizance. The indictment contained 17 counts. One of the many lawyers
    whom the appellant engaged described the disclosure as voluminous.

[178]

On the other
    hand, case complexity is not a sole proprietorship, the exclusive business of
    the Crown. In this case, the appellants approach to the litigation injected a
    degree of complexity to the proceedings that extended well beyond the usual
    requirements of proof. A proliferation of motions seeking disclosure and third
    party records on subjects of doubtful relevance. Repeated requests for lengthy
    adjournments. Failure to adhere to filing deadlines. Lack of preparation.
    Pointless and repetitive cross-examination.

[179]

The motion judge
    found, and I agree, that the period of delay was well under the
Morin
guidelines. It follows that there was no delay that exceeded the
Morin
guidelines.

[180]

Third, Crown
    response to institutional delay. Despite the absence of institutional delay, it
    is worth notice that the Crown resisted many of the appellants requests for
    lengthy adjournments, for example to review materials in preparation for an
    application to re-open cross-examination of the complainant who had already
    been cross-examined for nine days. Further, after the committal for trial had
    been quashed, the Crown ensured that the appellant was summoned to re-appear at
    the second inquiry which was scheduled to commence about three weeks after the
    committal had been quashed. And the Crown expedited completion of its case at
    the second preliminary inquiry by obtaining an order under s. 540(7) of the
Criminal
    Code
permitting the complainants evidence at the first inquiry to be
    admitted at the second.

[181]

In addition,
    case management judges conducted pre-trial conferences in both the Ontario
    Court of Justice and the Superior Court of Justice to set dates and monitor
    compliance with filing requirements for the various motions initiated by the
    appellant.

[182]

Fourth, defence
    efforts to move the case along. Although the appellant was self-represented
    after discharging counsel or having counsel withdraw, he had the benefit of
    counsel appointed under s. 486.3 (with an expanded mandate) and
amicus
to assist him, in addition to his own legal training. His approach to the
    prosecution belied any real interest in moving the case forward. Persistently,
    he sought adjournments and failed to comply with filing requirements for
    motions he sought to advance. He was often disrespectful of the presiding
    judicial officer and of counsel for the Crown. He seemed more interested in
    harassing the complainant, the Crown, and the judges before whom he appeared
    than in proceeding to trial, much less advancing any viable defence.

[183]

Finally,
    prejudice. To the extent that the appellant experienced any prejudice, he was
    its principal architect.

[184]

I would not give
    effect to this ground of appeal.

conclusion

[185]

For these
    reasons, I would dismiss the appeal.

Released:  DW Feb 23 2018

David
    Watt J.A.
I agree. Grant Huscroft J.A.
I agree. G.T. Trotter J.A.


