



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Florence, 2014 ONCA 443

DATE: 20140606

DOCKET: C56549 and C56740

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derrick Florence

Appellant

and

Terry Carder

Appellant

Matthew Gourlay and Kathleen Heap, for the appellants

Rick Visca and Aaron Shachter, for the respondent

Heard: March 14, 2014

On appeal from the convictions entered on March 19 and March
    22, 2012 by Justice Christopher Bondy of the Superior Court of Justice, sitting
    without a jury, and from the dismissal of s. 11(b) applications on March 15,
    2012 by Justice Renee M. Pomerance of the Superior Court of Justice, with
    reasons dated April 11, 2012.

Rouleau J.A.:

OVERVIEW

[1]

The appellants, Terry Carder and Derrick Florence, were among 70 people
    arrested in connection with drug trafficking, following an undercover police
    operation in the Leamington area. The appellants were arrested and charged on
    October 28, 2009, and their trials were ultimately set for March 19, 2012 and March
    22, 2012, respectively, a period of just under two and a half years between
    arrest and trial. Prior to trial each appellant filed an application asking for
    a stay of proceedings under s. 24(1) of the
Canadian Charter of Rights and
    Freedoms
, on the ground that the delay violated his right under s. 11(b)
    of the
Charter
to trial within a reasonable time.

[2]

The applications were dismissed and the appellants were subsequently
    convicted and sentenced. They now appeal on the basis that the application
    judge erred in dismissing their s. 11(b) applications. Mr. Carder also appeals
    his six-month sentence.

FACTS

[3]

As part of the Leamington-area sting operation conducted by the OPP and
    Leamington Police Service, Mr. Carder was charged with three counts of
    trafficking cocaine and two counts of possession of the proceeds of crime,
    offences allegedly committed between August 5, 2008 and August 26, 2009. Mr.
    Florence was charged with one count of trafficking marijuana, two counts of
    trafficking oxycodone, and two counts of possession of the proceeds of crime,
    offences allegedly committed between May 29, 2009 and July 14, 2009.

[4]

On December 3, 2009, the Crown produced disclosure and Mr. Marley,
    representing both Mr. Carder and Mr. Florence at trial, requested adjournments
    until January 7, 2010, in order to review disclosure with the appellants. On
    January 7, Mr. Marley requested adjournments for a further two weeks,
    indicating that he was still waiting for disclosure in Mr. Florences case and
    still needed to meet with Mr. Carder, who had not been able to make a scheduled
    meeting with Mr. Marley.

[5]

On January 21, 2010, an agent for Mr. Marley offered several dates for
    the preliminary inquiry of Mr. Florence, the earliest being April 20, 2010. The
    Crown was available that day, but not Constable Flewelling, whose earliest
    availability was July 8, 2010. That date was selected for the preliminary inquiry
    as it was acceptable to both Mr. Marley and the Crown.

[6]

Meanwhile, Mr. Carder had been arrested on other charges and appeared in
    court on January 22, 2010 to request that a bail hearing be set for the
    following week. On January 27, 2010, that bail hearing was adjourned until
    February 2, 2010, because Mr. Carders surety was not available. On February 2,
    2010, Mr. Carder was granted bail and his next court appearance was set for
    February 4, 2010. On February 4, 2010, Mr. Marley asked for an adjournment
    until March 4, 2010, for Mr. Carder to consider a resolution proposal from
    Crown counsel.

[7]

Early in the proceedings, the Crown had notified Mr. Marley that it
    intended to conduct the preliminary inquiries in a streamlined fashion by
    seeking to introduce witness statements and notes in accordance with s. 540(7)
    of the
Criminal Code
, R.S.C. 1985,
    c. C-46 (
Code
),
rather than calling
viva voce
testimony. On February 4, the Crowns
    intention to proceed in this manner was confirmed to Mr. Marley.

[8]

On February 5, 2010, Mr. Marley wrote to Dean J. indicating that he was
    seeking an order under s. 540(9) of the
Code
to compel the Crown to
    produce Constable Johnston.

[9]

On March 4, 2010, Mr. Carders case was set over to March 15, 2010 (for
    reasons unclear from the transcript).

[10]

On
    March 15, 2010, Mr. Marley argued his application under s. 540(9) to have the
    court order the Crown to produce Constable Johnston for cross-examination at
    either the preliminary inquiry or at a discovery-style examination. This
    application covered a number of cases including those of Mr. Florence and Mr. Carder.
    Justice Dean ruled in favour of the appellants and thereafter adjourned all of the
    cases until April 1, 2010 to set preliminary inquiry dates.

[11]

On
    March 22, 2010, Mr. Marley faxed a message to Crown counsel, Mr. Leardi,
    indicating that he was open to discussing, prior to April 1, the possibility of
    conducting discoveries of the witness (Constable Johnston) without having a
    Justice present. Apparently Crown counsel never responded to this request and,
    when contacted by Mr. Marley, indicated simply that he was instructed to oppose
    the request. In the faxed message of March 22, Mr. Marley also asked for
    disclosure that he had, according to the fax, previously requested.

[12]

On
    March 23, 2010, Mr. Leardi wrote to Mr. Marley asking to adjourn Mr. Florences
    preliminary inquiry, set for July 8, 2010, because the courtroom was
    over-booked with a trial guaranteed to proceed on that date.

[13]

On
    April 1, 2010, Constable Flewelling indicated that he had a number of preset
    dates for the preliminary inquiries, including February 24, 2011. The court
    accepted that date and scheduled Mr. Carders preliminary inquiry for February
    24, 2011. On the same date, April 1, 2010, Mr. Marleys agent for Mr.
    Florences case had received unclear instructions as to dates for the
    preliminary inquiry and Mr. Florences matter was adjourned until April 15,
    2010. The transcript from April 15, 2010 is missing, but the one from April 29,
    2010 indicates that the preliminary inquiry had already been set for March 8,
    2011. It appears, therefore, that it was on April 15 that the preliminary inquiry
    date was set.

[14]

There
    is no transcript of the preliminary inquiries on February 24, 2011 and March 8,
    2011, respectively.

[15]

On
    March 4, 2011, Mr. Carders case was in the Superior Court of Justice (no
    transcript) and judicial pre-trial was set for July 6, 2011.

[16]

On
    April 8, 2011, Mr. Florences case was in the Superior Court of Justice and
    judicial pre-trial was set for July 6, 2011.

[17]

On
    July 6, 2011, judicial pre-trial was completed in both cases.

[18]

On
    July 8, 2011, the trial date for Mr. Carder was set for March 19, 2012. The
    court offered February 27, 2012, but Mr. Marley was not available. He was also
    unavailable on March 12, 2012. The third date offered was March 19, 2012, which
    was acceptable to both Mr. Marley and the Crown.

[19]

Apparently
    also on July 8, 2011, the trial date for Mr. Florence was set for March 22,
    2012, although the record does not contain the transcript of the court
    appearance at which the date was set.

APPLICATION JUDGES DECISION

[20]

The
    application judge issued a joint ruling on the s. 11(b) applications of Mr.
    Carder and Mr. Florence, and of three other defendants who are not appellants
    herein. The application judge found it to be a close call, but ultimately
    dismissed the applications, noting that the delay in this case, while
    technically in excess of the guidelines, is not so excessive as to infringe s.
    11(b). Although it is not always clear from her reasons, the application judge
    seems to have attributed periods of delay as follows:

Mr. Florence:



From

To

# of days

Application judges attribution of this period



October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake/inherent time requirements



December 3, 2009

(disclosure produced)

April 1, 2010

(setting of preliminary inquiry date)

119

Neutral intake/inherent time requirements and perhaps
          (though not entirely clear from reasons) partly Crown delay



April 1, 2010

(setting of preliminary inquiry date)

March 8, 2011

(preliminary inquiry)

341

Institutional delay (though, again, the reasons are not
          entirely explicit on this point)



March 8, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

122

Neutral/inherent time requirements



July 8, 2011

(assignment of trial date)

April 2, 2012
[1]

(trial date)

269

Institutional delay



[21]

The
    application judge therefore found 341 days,
[2]
or 11.2 months, of institutional delay in the Ontario Court of Justice and 269
    days, or 8.8 months, of institutional delay in the Superior Court of Justice,
    for a total of 20 months of delay, 2 months beyond the outer limit of the
Morin
guidelines:
R. v. Morin
, [1992] 1 S.C.R. 771. She therefore determined
    that the length of the delay necessitated a consideration of prejudice to the
    accused and weighing any such prejudice against countervailing interests in
    seeing the case tried on the merits.

Mr. Carder:



From

To

# of days

Application judges attribution of this period



October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake/inherent time requirements



December 3, 2009

(disclosure produced)

April 1, 2010

(setting of preliminary inquiry date)

119

Neutral intake/inherent time requirements and perhaps
          (though not entirely clear from reasons) partly Crown delay



April 1, 2010

(setting of preliminary inquiry date)

February 24, 2011

(preliminary inquiry)

329

Institutional delay (though, again, the reasons are not
          entirely explicit on this point)



February 24, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

134

Neutral/inherent time requirements



July 8, 2011

(assignment of trial date)

March 19, 2012

(trial date)

255

Institutional delay



[22]

The
    application judge therefore found 329 days, or 10.8 months, of institutional
    delay in the Ontario Court of Justice and 255 days, or 8.4 months, of
    institutional delay in the Superior Court of Justice, for a total of 19.2
    months of delay, 1.2 months beyond the outer limit of the
Morin
guidelines. She therefore determined that the length of the delay necessitated
    a consideration of prejudice to the accused and weighing any such prejudice
    against countervailing interests in seeing the case tried on the merits.

[23]

Weighing
    the factors, the application judge concluded as follows:

This is a close case. Mr. Marley, on behalf of the accused,
    took positive steps to expedite the hearing of the preliminary inquiry. While
    there was some complexity at the outset of the prosecution, it largely
    evaporated once the cases were set for preliminary hearing. The preliminary
    inquiry involved one witness testifying for one hour. Similarly, the trials
    were set for 1-2 days of court time. These factors favour the position of the
    defence on the s. 11(b) application.

On the other hand, as noted above, the defence has demonstrated
    no prejudice, above and beyond the inferred [prejudice] flowing from the delay.
    In addition, the seriousness of the offences must weigh in the balance. In
Tran
,
    the court observed that: while not the most serious of drug offences, the
    allegations in this case include commercial trafficking in marijuana and a
    hydro bypass in a residential area. In this case, the charges allege trafficking
    of various substances such as crack cocaine and oxycodone. There is a public
    interest in seeing that these charges be tried on the merits.

On balance, having regard to all of the factors, the delay in
    this case is not so outside the acceptable range or guideline that a judicial
    termination of the proceedings is appropriate.

[24]

In
    the end, neither appellant had a fully contested trial. Mr. Carder invited the
    trial judge to make findings of guilt based on acknowledged facts introduced by
    the Crown, resulting in Mr. Carder being convicted. Mr. Florence eventually
    negotiated a resolution with the Crown and pleaded guilty to a single charge.

ISSUES

[25]

On
    appeal, the appellants submit that the application judge committed the
    following three distinct but related errors in her ruling on the s. 11(b)
    applications:

1.

she did not
    penalize the Crown for its unexplained tactical decisions that delayed the
    proceedings;

2.

she erred in her
    allocation of the various periods of delay as among the Crown, the defence,
    institutional and neutral; and

3.

she
    mischaracterized the seriousness of the charges and gave decisive weight to the
    seriousness of the charges in her final balancing exercise.

[26]

Mr.
    Florence also seeks to set aside his guilty plea to the extent necessary to
    consider his appeal of the application judges dismissal of his s. 11(b)
    application. He has submitted fresh evidence to support his claim that he
    entered a guilty plea on the understanding  communicated without objection to
    trial Crown counsel  that his right to challenge the decision on the s. 11(b)
    application would be preserved.

[27]

Mr.
    Carder also appeals his six-month sentence.

ANALYSIS

[28]

Before
    turning to the issues raised by the appellants, let me briefly set out the
    framework for a s. 11(b) analysis and the standard of review on appeal.

Framework of a s. 11(b) analysis

[29]

In
Morin
, the Supreme Court of Canada set out the factors a court must
    consider when assessing the reasonableness of delay for purposes of s. 11(b).
    Writing for the majority, Sopinka J. stated, at pp. 787-88:

While the Court has at times indicated otherwise, it is now
    accepted that the factors to be considered in analyzing how long is too long
    may be listed as follows:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a)

inherent time
    requirements of the case,

(b)

actions of the
    accused,

(c)

actions of the Crown,

(d)

limits on
    institutional resources, and

(e)

other
    reasons for delay;

and

4. prejudice to the accused.

[30]

At
    p. 788, Sopinka J. explained that the judicial process referred to as
    balancing requires an examination of the length of the delay and its
    evaluation in light of the other factors. A judicial determination is then made
    as to whether the period of delay is unreasonable.

[31]

In
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18, the Court
    gave a succinct summary of the balancing required under s. 11(b): Whether
    delay has been unreasonable is assessed by looking at the length of the delay,
    less any periods that have been waived by the defence, and then by taking into
    account the reasons for the delay, the prejudice to the accused, and the
    interests that s. 11(
b
) seeks to protect. In
Godin
, at para.
    18, the Court also reiterated Sopinka J.s warning in
Morin
, at p. 787,
    that the general approach  is not by the application of a mathematical or
    administrative formula but rather by a judicial determination balancing the
    interests which [s.11(
b
)] is designed to protect against factors which
    either inevitably lead to delay or are otherwise the cause of delay.

[32]

The
    issues raised in this appeal relate principally to the application judges
    categorization of the delay periods into the types of delay identified in
Morin
.
    A brief description of the different categories is set out in the following
    paragraphs.

Reasons for the delay

(a)

Inherent time requirements

[33]

The
    inherent time requirements are to be assessed on a case-by-case basis, though
    they include activities such as retention of counsel, bail hearings, police
    and administration paperwork, disclosure, etc.:
Morin
, at p. 792.

(b)

Actions of the accused

[34]

Actions
    of the accused falling short of a waiver may also be relevant to assessing the
    reasonableness of delay. In
Morin
, at p. 793, Sopinka J. described the
    significance of the accuseds actions to this factor:

There is no necessity to impute improper motives to the accused
    in considering this factor. Included under this heading are all actions taken
    by the accused which may have caused delay.  Actions which could be included
    in this category include change of venue motions, attacks on wiretap packets,
    adjournments which do not amount to waiver, attacks on search warrants, etc.

(c)

Actions of the Crown

[35]

In
Morin
, at p. 794, Sopinka J. characterized this factor as follows:

As with the conduct of the accused, this factor does not serve
    to assign blame. This factor simply serves as a means whereby actions of the
    Crown which delay the trial may be investigated. Such actions include
    adjournments requested by the Crown, failure or delay in disclosure, change of
    venue motions, etc. An example of action of this type is provided in
Smith
,
supra
, where adjournments were sought due to the wish of the Crown to
    have a particular investigating officer attend the trial. As I stated in that
    case, there is nothing wrong with the Crown seeking such adjournments but such
    delays cannot be relied upon by the Crown to explain away delay that is
    otherwise unreasonable.

(d)

Institutional delay

[36]

In
Morin
, at p. 794, Sopinka J. described institutional delay as the
    most common source of delay and the most difficult to reconcile with the
    dictates of s. 11(
b
) of the
Charter
. The period of time to
    be ascribed to limits on institutional resources is the period that starts to
    run when the parties are ready for trial but the system cannot accommodate
    them:
Morin
at pp. 794-95. At p. 799, Sopinka J. found it

appropriate for this Court to suggest a period of institutional
    delay of between 8 to 10 months as a guide to Provincial Courts. With respect
    to institutional delay after committal to trial, I would not depart from the
    range of 6 to 8 months that was suggested in
Askov
.

[37]

However,
    as noted, the Court has stressed the need for a flexible approach to weighing
    each of these reasons for delay, and in particular that the courts should not
    treat the guidelines on institutional delay with mathematical precision.

[38]

Where
    the guidelines are exceeded, therefore, the court must weigh various factors
    including the prejudice to the accused caused by the delay and the publics
    interest in seeing the charges tried on the merits.

Standard of review

[39]

On
    appeal, a correctness standard of review applies to an application judges
    characterization of the various time periods between the date the accused was
    charged and the date of his trial. As Rosenberg J.A. stated in
R. v. Ralph
,
    2014 ONCA 3, at para 5:

The characterization of periods of delay and the ultimate
    decision on an application for a stay of proceedings on the basis of
    unreasonable delay are reviewable on a standard of correctness:
R. v. Tran
,
    2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19. The underlying facts are
    reviewed on a standard of palpable and overriding error:
Tran
, at
    para. 19.

[40]

I
    turn now to the issues raised on the appeal.

(1)

Did the application judge err in not penalizing the Crown for its
    unexplained tactical decisions that delayed the proceedings?

[41]

The
    appellants argue that the Crowns application under s. 540(7) of the
Code
,
    the Crowns insistence that Constable Johnston not be produced at the
    preliminary inquiry, and the Crowns unexplained refusal to consent to a
    discovery-type cross-examination in lieu of a preliminary inquiry all caused
    delay. In the appellants submission, the application judge should have:

(a)

attributed some of the period before
    April 1, 2010 to Crown delay; and

(b)

determined that delay caused by
    the Crown because of its tactical decision to try to avoid having Constable
    Johnston testify at the preliminary inquiry should weigh more heavily in the s.
    11(b) balance than ordinary institutional delay.

[42]

In
    support of this latter point, the appellants rely on cases such as
R. v.
    Brown
, 2005 ONCJ 201 and
R. v. Yun
, 2005 CanLII 13454 (ON SC). In
    these cases the court held that delay attributable to Crown actions should
    weigh more heavily in favour of finding a s. 11(b) violation than mere
    institutional delay.

[43]

In
    the appellants submission, the application judges treatment of the delay
    caused by the Crowns decision to invoke s. 540(7) of the
Code
is
    unclear. The application judge first notes, at para. 19 of her reasons, that
    the decisions taken by the Crown caused some delay, but that she is not
    prepared to attribute all of that delay to the Crown for purposes of s. 11(b).
Some of it
is more properly characterized as neutral time arising out
    of the inherent time requirements of the case (emphasis added).

[44]

However,
    in the same paragraph, the application judge appears to attribute the entire
    delay caused by the ss. 540(7) and (9) dispute to inherent time requirements of
    the case. After acknowledging that the Crown application under s. 540(7) was a
    tactical decision that was ultimately challenged successfully by the defence,
    she goes on to find that the Crowns decisions was on its face, authorized by
    the Criminal Code, and that from the perspective of s. 11(b), the merits of a
    legal application are usually beside the point. Where there is a legitimate
    point to be debated, the debate becomes part of the inherent requirements of
    the case. As a result, she appears to have concluded that the whole of the
    delay flowing from these Crown actions is properly characterized as part of the
    cases inherent time requirements. None of it was attributed to Crown or
    institutional delay.

[45]

In
    the appellants submission, the application judge erred both in not
    specifically allocating some of the delay caused by these tactical decisions to
    Crown delay and in not weighing that delay more heavily than ordinary
    institutional delay because it is avoidable delay for which there is no
    acceptable excuse: see
Yun
at para. 42.

[46]

In
    my view the application judge erred in her reasoning for attributing all of the
    delay to inherent time requirements. The fact that the Crown is under no legal
    or constitutional obligation to call a witness in a venue other than a
    courtroom, as the application judge notes at para. 22, does not mean that any
    delay caused by its refusal to do so will be neutral time in the s. 11(b)
    analysis. As Sopinka J. explained in
Morin
, at p. 794 (quoted more
    fully above), many Crown actions that are perfectly legal may count against the
    Crown for purposes of calculating s. 11(b) delay:

Such actions include adjournments requested by the Crown,
    failure or delay in disclosure, change of venue motions, etc.
An example of
    action of this type
is provided in
Smith
,
supra
, where
    adjournments were sought
due to the wish of the Crown to have a particular
    investigating officer attend the trial
. As I stated in that case, there is
    nothing wrong with the Crown seeking such adjournments but such delays cannot
    be relied upon by the Crown to explain away delay that is otherwise
    unreasonable. [Emphasis added.]

[47]

It
    must be remembered that the onus rests on the Crown to ensure that a matter
    proceed expeditiously to trial:
R. v. Askov
,
[1990] 2 S.C.R. 1199, at p. 1225. In my view, therefore,
    to the extent that the Crowns decision to invoke s. 540(7) of the
Code
rather than produce Constable Johnston for cross-examination at the preliminary
    inquiry (until ordered to do so by the court) contributed to delay beyond the
    usual delay encountered in scheduling a preliminary inquiry, this delay should count
    against the Crown in the s. 11(b) analysis.

[48]

I
    do not, however, agree with the appellants submission that the Crown should be
    further penalized for its decision to invoke s. 540(7) of the
Code
.
    The Crowns decision to invoke the procedure in s. 540(7) and its subsequent
    decision to refuse to produce Constable Johnston for a discovery-type
    cross-examination were within the Crowns exercise of discretion in choosing the
    manner of proceeding with the prosecution. Although it would have been
    preferable for the Crown to have explained on the record why it chose to proceed
    with a preliminary inquiry rather than agree to produce Constable Johnston for a
    discovery-type cross-examination, I see no basis to infer any improper motive
    or bad faith on the Crowns part.

[49]

The
    situation in these appeals is quite different from the facts in both
Yun
and
Brown
. Those cases involved the simple failure of the police to do
    their job,
Brown
at para. 48, or the police or Crown fail[ure] to do
    what they are expected to do [with] no acceptable excuse for the delay,
Yun
at para. 42. In other words, the court in those cases found the conduct of the
    police or Crown particularly worthy of blame or condemnation. The Crowns
    tactical decisions in the present case do not warrant any such condemnation. As
    a result, I would give the delay caused by the Crowns decisions the same
    weight as institutional delay.

[50]

I
    acknowledge that there may well be cases where the Crowns refusal to cooperate
    with the defence to accelerate a proceeding will be considered a form of Crown
    delay that weighs more heavily at the final balancing stage of the s. 11(b)
    analysis. In the normal course, however, a delay in the setting of a
    preliminary inquiry date caused by an unsuccessful tactical decision by the
    Crown will be considered Crown delay and given the same weight as institutional
    delay. There may also be cases where the Crowns explanation for such a
    decision will warrant considering the delay as neutral. I expect, however, that
    such cases will be exceptional in nature.

[51]

I
    turn now to the analysis of the various periods of delay encountered in both
    the Carder and Florence cases.

(2)

Did the application judge err in her allocation of the various periods
    of delay?

[52]

On
    appeal, the appellants and the Crown both argue that the application judge erred
    in her characterization of the various periods of delay encountered. However,
    they adopt, unsurprisingly, contrasting views as to whether the application
    judge attributed too much or too little time to Crown and institutional delay.

[53]

Specifically,
    the appellants argue that at least part of the period prior to April 1, 2010 (when
    the preliminary inquiry dates were set) should count as Crown delay. They argue
    that the period from, at the latest, February 5, 2010, when Mr. Marley wrote to
    Dean J. to seek an order compelling the Crown to produce Constable Johnston, up
    until April 1, 2010, should count as Crown delay. This adds two months to the
    delay and puts the overall institutional and Crown delay beyond what is
    reasonable and acceptable.

[54]

As
    I have explained, I agree that, to the extent that the Crowns tactical
    decisions in this case added to the time it would have taken to set the
    preliminary inquiry dates, that time should be counted against the Crown.
    Determining the impact of the Crowns tactical decisions on the calculations,
    however, is not as straightforward as suggested by the appellants. The impact
    on Mr. Florences case is different from the impact on Mr. Carders and it is
    not as simple as adding two months to the period of delay. In addition, the
    Crown points to other errors committed by the application judge which resulted
    in her overstating the length of the institutional delay. In the Crowns
    submission, if all of the application judges errors are corrected, including
    the addition to Crown delay proposed by the appellants, the period of
    institutional and Crown delay is in fact shorter than the period calculated by
    the application judge.

[55]

The
    focus of the Crowns submissions is the application judges finding that all of
    the time between setting the dates of the preliminary inquiries and the holding
    of the preliminary inquiries had to be characterized as institutional delay. As
    explained by Rosenberg J.A. in
Ralph
, at least some of the delay
    following the fixing of a date for a preliminary inquiry should be considered
    neutral delay, as it is time necessary for the defence to review the disclosure
    and prepare for the preliminary inquiry. In
Ralph
, at para. 8,
    Rosenberg J.A. determined, in the context of that cases drug trafficking and
    related charges, that at least four months of the delay from the end of the
    intake period until the first date for the preliminary inquiry must be
    considered either neutral or defence delay.

[56]

I
    will first set out the adjustments that are appropriate in Mr. Florences
    matter and then will deal with Mr. Carders matter.

(a)

Adjustments in the Florence matter

[57]

In
    the Florence matter, intake covers the period from October 28, 2009 to January
    21, 2010. I would then attribute a period of three months following the setting
    of the preliminary inquiry date to neutral inherent delay. A three-month period
    of neutral inherent delay is justified given the size of the undercover
    operation and the number of arrests made as well as the fact that Mr. Marley
    represented many of the accused. Counsel would need time to prepare for the
    preliminary inquiry. In February 2010, Mr. Marley explained that he planned a
    vigorous defence based on possible
Charter
violations and other common
    law defences. He made similar submissions on March 15, 2010 attesting to the
    complexity of the case.

[58]

I
    have selected three months as appropriate for this period of inherent delay,
    rather than four as was decided in
Ralph
,
because the record in this case discloses that on January
    21, 2010, Mr. Marleys agent offered April 20, 2010 as the earliest date for
    the holding of a preliminary inquiry for Mr. Florence.

[59]

In
    Mr. Florences case, therefore, the breakdown is as follows: disclosure took
    until December 3, 2009, followed by a period of neutral intake until January
    21, 2010 during which Mr. Marley reviewed disclosure and met with his clients,
    followed then by three months of neutral preparation time, i.e. inherent time
    requirements of the case, until April 20, 2010, by which point Mr. Marley was
    in a position to proceed with the preliminary inquiry of Mr. Florence.

[60]

The
    dispute concerning the Crowns attempt to avoid having Constable Johnston
    testify at the preliminary inquiry did not ultimately cause any delay in
    proceeding with the preliminary inquiry. This is because the parties had set
    the preliminary inquiry date before that dispute arose. As Mr. Florence points
    out, the progress of his case might have been expedited had the Crown accepted
    defence counsels proposal to conduct a discovery-type cross-examination of
    Constable Johnson in place of the preliminary inquiry. However, the time that
    might have been saved through such a procedure has in any case been attributed
    to institutional delay, as it was by the application judge. For reasons
    explained above, whether such period of time is attributed to institutional delay
    or re-characterized as Crown delay does not, in the circumstances of this case,
    make any difference. This is because, as explained above, I see no basis for
    placing greater weight on Crown versus institutional delay in the final
    balance.

[61]

The
    period from April 20, 2010 to the preliminary inquiry on March 8, 2011 is then,
    with one adjustment, attributed to institutional delay. This is institutional
    delay because Mr. Marley was prepared to proceed as early as April 20, 2010, but
    the preliminary inquiry could not be scheduled before July 8, 2010. It was
    subsequently adjourned at the Crowns request and ultimately rescheduled for March
    8, 2011.

[62]

The
    one adjustment to the length of the institutional delay period is a 14-day
    reduction. This is because on April 1, 2010, when the parties attended court to
    set a new date for Mr. Florences preliminary inquiry (because the July 8, 2010
    date originally set was no longer available), Mr. Marleys agent had received unclear
    instructions as to dates for the preliminary inquiry. An adjournment until April
    15 was therefore necessary to allow the agent to obtain proper instructions. Had
    the defence been prepared to set a date on April 1, the date offered by the
    court would, arguably, have been earlier than March 8, 2011, the date ultimately
    selected for Mr. Florences preliminary inquiry. For this reason, I would
    attribute a 14-day delay to the defence.

[63]

The
    Crown argues that a further adjustment is necessary to the application judges
    calculation of institutional delay. I agree. The application judge attributed
    the entire period from the assignment of the trial date until the trial itself to
    institutional delay. Again following
Ralph
, I would attribute some of
    that time to neutral preparation. The defence could not be expected to be ready
    to start the trial immediately. Some time following the setting of a trial date
    is necessary to prepare. There is little in the record to assist as to the
    appropriate length of time for that preparation. In
Ralph
, Rosenberg
    J.A. considered one month to be a reasonable length of time. I will do the same.

[64]

I
    note that Mr. Florence accepts the application judges classification of the
    four-month period from the preliminary inquiry until the assignment of his
    trial date as inherent delay. This is the time it took to transfer the matter
    to the Superior Court, schedule and hold the judicial pre-trial and set the
    date for trial. In appropriate cases, it may be open to accused to argue that
    for at least part of such period they were prepared to move forward with
    proceedings but the system was not able to accommodate them.

(b)

Adjustments in the Carder matter

[65]

Mr.
    Carders situation involves somewhat different considerations. Because Mr.
    Carder was arrested on other charges before a preliminary inquiry date could be
    set, additional delay was incurred. This additional delay is attributable to
    either neutral or defence delay.

[66]

As
    explained earlier in these reasons, delay was caused by Mr. Carders bail
    application following his second arrest and by Mr. Marleys request for
    additional time in order to consider the Crowns resolution proposal. This
    delay extended the intake period until March 4, 2010. From March 4, 2010
    forward, the reasons for delay are not altogether clear. Some of the delay is
    certainly due to the Crowns decision not to produce Constable Johnston for
    cross-examination at the preliminary inquiry and Mr. Carders successful
    challenge of this decision. For reasons that are not apparent from the record,
    it seems that neither the Crown nor Mr. Carder sought to set a date for the
    preliminary inquiry until after this matter was resolved. Had they done so
    pending resolution of the matter no delay would be attributable to the Crown.
    However, because there was delay in setting the date for the preliminary
    inquiry from March 4, 2010 to April 1, 2010, I consider this period to be properly
    characterized as Crown delay.

[67]

From
    April 1, 2010 forward, I would, in accordance with the reasoning of this court
    in
Ralph
, make the same three-month and one-month adjustments as I
    made in the analysis of the delay incurred in Mr. Florences matter. That is,
    the three months from April 1, 2010 until July 1, 2010 are neutral preparation
    time forming part of the inherent time requirements of the case, as is the
    month following the assignment, on July 8, 2011, of Mr. Carders trial date.

[68]

One
    further adjustment is necessary. Arguably, the delay in Mr. Carders trial from
    February 27, 2012 to March 19, 2012 should be characterized as defence rather
    than institutional delay. This is because the court offered the date of
    February 27, but Mr. Marley was not available. The court also offered the date
    of March 12, which Mr. Marley refused because he was again unavailable. In my
    view an adjustment is appropriate but not for the entire period. As the Supreme
    Court of Canada stated in
Godin
, at para 23: Scheduling requires
    reasonable availability and reasonable cooperation; it does not, for s. 11(
b
)
    purposes, require defence counsel to hold themselves in a state of perpetual
    availability. I would not, therefore, attribute the entire period from
    February 27, 2012 to March 19, 2012 to defence delay. I will attribute only
    half, i.e. 10 days, to defence delay. I also reject the Crowns submission
    that, because Mr. Marley was not available on February 27, 2012, the first date
    offered, we should attribute all of the period from July 8, 2011 to March 19,
    2012 to defence delay. This is simply unreasonable. Nothing in the record
    suggests that Mr. Marley would not have been available prior to February 27,
    2012 had dates been offered.

[69]

Finally,
    I note that, like Mr. Florence, Mr. Carder accepts the application judges
    classification of the approximately four-month period from the preliminary inquiry
    until the assignment of his trial date as inherent delay. Again, in appropriate
    cases, it may be open to accused to argue that for at least part of such period
    they were prepared to move forward with proceedings but the system was not able
    to accommodate them.

[70]

The
    results of my calculations are as follows:

Mr. Florence:



From

To

# of days

Attribution of this period



October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake



December 3, 2009

(disclosure produced)

January 21, 2010 (first setting of preliminary inquiry date)

49

Neutral intake



January 21, 2010

(first setting of preliminary inquiry date)

April 20, 2010

(date first offered by defence for preliminary inquiry)

89

Neutral inherent / preparation time



April 20, 2010

(date first offered by defence for preliminary inquiry)

March 8, 2011

(preliminary inquiry)

322

308 days of institutional delay; and 14 days of defence
          delay



March 8, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

122

Neutral intake / inherent time requirements



July 8, 2011

(assignment of trial date)

March 22, 2012

(trial date)

258

227 days of institutional delay;

31 days neutral preparation



[71]

The
    total delay for Mr. Florence is 535 days, or 17.6 months, of institutional and Crown
    delay, which is within the range set by the
Morin
guidelines, though
    near their outer limit.

Mr. Carder:



From

To

# of days

Attribution of this period



October 28, 2009

(arrest)

December 3, 2009

(disclosure produced)

36

Neutral intake



December 3, 2009

(disclosure produced)

March 4, 2010

91

Neutral intake and defence delay due to additional charges



March 4, 2010

April 1, 2010

(setting of preliminary inquiry date)

28

Crown delay



April 1, 2010

(setting of preliminary inquiry date)

July 1, 2010

91

Neutral inherent / preparation time



July 1, 2010

February 24, 2011

(preliminary inquiry)

238

Institutional delay



February 24, 2011

(preliminary inquiry)

July 8, 2011

(assignment of trial date)

134

Neutral intake /  inherent time requirements



July 8, 2011

(assignment of trial date)

March 19, 2012

(trial date)

255

214 days of institutional delay;

31 days neutral preparation;

10 days defence delay



[72]

The
    total delay for Mr. Carder is 480 days, or 15.8 months, of institutional and Crown
    delay, which is within the range set out in the
Morin
guidelines.

(3)

Did the application judge mischaracterize the seriousness of the charges
    and give decisive weight to the seriousness of the charges in the final
    balancing exercise?

[73]

The
    adjustments I have made to the application judges calculations bring the delay
    incurred in both matters within the
Morin
guidelines and well below
    the delay that the application judge considered acceptable in the
    circumstances. As a result, even if I were to accept the appellants
    submissions that the application judge mischaracterized the seriousness of the
    charge, I see no basis to interfere with the application judges decision.

(4)

Should Mr. Florence be allowed to set aside his guilty plea?

[74]

Mr.
    Florences submissions indicated that he sought to have his guilty plea set
    aside only to the extent that this was necessary in order to challenge the
    application judges ruling on his s. 11(b) application. In light of the
    conclusion I have reached on Mr. Florences appeal of the application judges
    s. 11(b) ruling, I need not deal with this issue.

(5)

Mr. Carders sentence appeal

[75]

Mr.
    Carder seeks a reduction in his sentence from six months to time served. He
    argues that, although the sentence was fit at the time it was set, he was
    granted bail pending appeal and has now been on bail without incident since
    March 2013. He is 61 years old and, in his submission, the interests of justice
    would not be served by re-incarcerating him at this time.

[76]

The
    Crown, for its part, maintains that there is no basis to interfere with Mr.
    Carders sentence. The sentence imposed was entirely fit, especially in light
    of Mr. Carders significant criminal record and admission that he had been
    dealing drugs regularly as a job for a purely commercial motive.

[77]

I
    agree with the Crowns submission, and see no basis to interfere with the
    sentence imposed.

CONCLUSION

[78]

For
    these reasons, I would dismiss the appeals.

Paul Rouleau J.A.

I agree Robert J.
    Sharpe J.A.

I agree E.E. Gillese
    J.A.

Released: June 06, 2014





[1]

The application judge took the trial date for
    Mr. Florence to be April 2, 2012, by all appearances because Mr. Florences
    application record mistakenly included the transcript of a court appearance by
    another defendant represented by Mr. Marley. That defendants trial was set for
    April 2, 2012, while Mr. Florences trial was set for March 22, 2012.




[2]

The application judge calculates 342 days for this
    period, presumably by counting both the start date (April 1, 2010) and the end
    date (March 8, 2011). I have included the end date, but not the start date, in
    calculating the length of each period, so as not to double-count days.


