



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coulter, 2016 ONCA 704

DATE: 20160928

DOCKET: C58703

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Coulter

Appellant

Richard Litkowski, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: April 20, 2016

On appeal from the convictions entered on April 10, 2014,
    by Justice Neil L. Kozloff of the Ontario Court of Justice, sitting without a
    jury.

Gillese J.A.:

[1]


This appeal against conviction is founded on s. 11(
b
) of
    the
Canadian Charter of Rights and Freedoms
.

[2]

In the recent case of
R. v. Jordan
, 2016 SCC 27, a majority of the
    Supreme Court of Canada created a new framework to be applied where a breach of
    s. 11(
b
) is alleged.  The new framework is applicable to any case that
    was in the justice system when
Jordan

was released. 
    Consequently, this court must apply the new framework, with its transitional
    features, to resolve the appeal.

OVERVIEW

[3]

In November of 2011, James Coulter (Mr. Coulter or the appellant)
    was arrested and charged with a number of child pornography offences.  He was
    convicted of those offences almost 29 months later.  He applied for a stay of
    proceedings, arguing that his rights under s. 11(
b
) of the
Charter

had been infringed (the Application).  The trial judge assessed less than
    2 of the 29 months as delay attributable to the Crown and limits on
    institutional resources.  He dismissed the Application.

[4]

Mr. Coulter brought an appeal to this court in which he contended that
    the trial judge erred in dismissing the Application.  He raised two grounds of
    appeal:  (1) that the trial judge incorrectly assessed much of the delay in the
    proceeding as neutral; and (2) that the trial judge failed to give sufficient
    weight to the prejudice that he suffered as a result of the delay.  The
    appellant argued that once those errors were corrected, a balancing of the
    interests that s. 11(
b
) is designed to protect led to the conclusion
    that a stay should be ordered.

[5]

The Crown accepted that some of the time that the trial judge had
    assessed as neutral was properly attributed to institutional or Crown delay.
    However, it argued that the delay was not unreasonable, given the nature of the
    case and the reasons for the delay.  Accordingly, it submitted, the appeal
    should be dismissed.

[6]

Oral argument on the appeal was heard on April 20, 2016.  At that time,
    counsel agreed that this court should reserve its decision in this matter until
    after the Supreme Court of Canada had released its decision in
R. v.
    Williamson
, 2016 SCC 28, then under reserve.
Williamson

was
    released contemporaneously with
Jordan
and shortly after
R. v.
    Vassell
, 2016 SCC 26.  After the release of those three Supreme Court decisions,
    counsel were invited to  and did  provide this court with written submissions
    on the impact of those decisions upon the resolution of this appeal (the further
    written submissions).

[7]

Applying the new framework established in
Jordan
, I conclude that
    the appeal should be dismissed.

BACKGROUND IN BRIEF

[8]

The appellant taught high school in Ontario and also lectured at an Ontario
    university.  He was arrested on November 17, 2011, and charged the following day
    with five counts of accessing, attempting to access, and possessing child
    pornography.

[9]

Certain items in Mr. Coulters home were seized, pursuant to a search
    warrant.  An analysis of those items disclosed a collection of child
    pornography showing young boys engaged in sex acts with adult males.  The
    following items were located:

·

34 stories containing child pornography;

·

110 child pornography movies on a laptop, including 5 that were
    downloaded from the Internet, 109 of which were accessible;

·

2 child pornography images, including an image of an adult male
    performing fellatio on a prepubescent boy; and

·

a DVD containing 3 child pornography movies.

[10]

The
    appellant made his first appearance in court the day following his arrest (i.e.
    November 18, 2011).  The information was sworn that same day.  After his first
    court appearance, the appellant appeared in set-date court a further six times between
    November 2011 and the end of March 2012.

[11]

Between
    April and July 2012, judicial pre-trials took place on three occasions: April
    10, June 8 and July 16.  The matter appeared likely to resolve.  However, the
    officer in charge  Detective Constable Dayna Boyko  continued her investigations
    until mid-April of 2012.  These investigations led to a further charge of
    making child pornography being laid on June 8, 2012.

[12]

Apart
    from the judicial pre-trials, the matter was adjourned on July 24, 2012, to
    allow for further disclosure and resolution discussions.  The matter proceeded
    on the path of resolution until August 7, 2012, when the appellant informed the
    court that he had decided to go to trial.  Another judicial pre-trial was
    scheduled for August 27, 2012, to make a trial time estimate.

[13]

At
    the August 27 appearance, defence counsel indicated that he would be bringing the
    Application.  The Application was scheduled to be heard on March 20, 2013.  Trial
    dates were set for June 5 and 6, 2013.  The matter was adjourned to October 2,
    2012, for the appellant to make his election for trial.

[14]

On
    October 2, 2012, the appellant elected trial in the Ontario Court of Justice and
    the matter was remanded to March 20, 2013, when the Application was scheduled
    to be heard.

[15]

A
    number of events caused both the Application and the trial to be rescheduled
    more than once.

[16]

The
    Application was eventually heard over three days: March 28, May 8 and May 17,
    2013.

[17]

The
    trial did not take place on June 5 and 6, 2013, as scheduled.  It was moved
    first to August 9, 2013, then to January 27, 2014, and finally to February 14,
    2014.  The only evidence led at trial on February 14, 2014, was an Agreed Statement
    of Facts.

[18]

The
    trial judge acquitted the appellant of the charge of making child pornography
    but convicted him of the other counts (attempting to access, accessing and
    possessing child pornography).  He stayed two of the five counts pursuant to
Kienapple
    v. R.,
[1975] 1 S.C.R. 729.

[19]

On
    April 10, 2014, the trial judge dismissed the Application.  He then sentenced the
    appellant to six months in custody, concurrent on each count, followed by three
    years of probation.

THE RULING ON THE APPLICATION

[20]

The
    trial judge decided the Application based on the then-governing legal
    principles in
R. v. Morin
, [1992] 1 S.C.R. 771.  He found that 874
    days had elapsed between the swearing of the information on November 18, 2011,
    and the completion of trial on April 10, 2014.

[21]

The
    trial judge began by reviewing the events leading up to the trial, relying on
    the transcripts from the appellants court appearances, affidavit evidence
    about scheduling matters, and affidavit and
viva voce
evidence from the
    appellant and Detective Constable Boyko.  The appellants evidence was
    primarily about the prejudice caused by the delay in the proceeding.  Detective
    Constable Boykos evidence focused on the specifics of her investigation,
    including the amount of material that had to be reviewed, the nature of that
    review, and the time required to conduct the review.

A.

The Time Period Assessments

[22]

The
    trial judge assessed the 874 days that elapsed from the time the first
    information was sworn to the conclusion of trial as follows:

·

November 18, 2011 to April 16, 2012  150 days  inherent delay
    required by the intake process.  The trial judge made this assessment based on
    the specifics of the investigation, including the substantial amount of
    material seized and the time it took the investigating officer to analyze it.  He
    found that the investigation was thorough, appropriate, and for the most part
    timely.

·

April 16, 2012 (when Detective Constable Boyko completed her
    investigation) to June 8, 2012 (when the final charge was laid)  53 days of delay
    due to the Crown.

·

June 8, 2012 to July 16, 2012 (express defence waiver); July 16,
    2012 to August 7, 2012 (implied defence waiver); and February 14, 2014 to April
    10, 2014 (express defence waiver)  together, 116 days of delay waived by the
    defence.

·

August 7, 2012 to August 27, 2012  20 days of delay for intake
    inherent time requirements.

·

August 27, 2012 to February 14, 2014  535 days  neutral.

[23]

The
    trial judge acknowledged that the delay he attributed to limits on
    institutional resources and the actions of the Crown totalled less than two
    months.  However, he stated, even if he had wrongly assessed some of the delay
    as neutral, rather than due to limits on institutional resources, he would
    still find that the relevant portion of the delay fell well within the applicable
    guidelines.

B.

Prejudice to the Appellant

[24]

The
    trial judge found that the most significant effect of the charges on the
    appellant related to his occupation as a school teacher.  The appellants
    employment as a school teacher was suspended when he was charged and, as a
    result of the charges, it was unlikely that he would ever be able to return to his
    chosen profession.

[25]

The
    trial judge stated that although he had no doubt that the appellant had
    suffered some prejudice as a result of the delay between his arrest and the
    conclusion of his trial, the prejudice he suffered was largely due to the
    nature of the charges he faced and not from delay in the proceedings.

[26]

The
    trial judge also noted that the inferred prejudice associated with the stress
    of living with unresolved criminal charges strengthens with each day that
    passes between arrest and trial.  He found that the conditions of the appellants
    release from custody  in particular, the requirement that he reside in
    comparative discomfort with his surety and the prohibition against use of the
    computer  were evidence of actual prejudice.

[27]

The
    trial judge found some evidence of an effort to ameliorate the release terms because
    defence counsel had approached the Crown about the matter.  However, he found
    no evidence of efforts by the appellant to expedite proceedings once the trial
    dates were set.

[28]

He
    noted that the trial co-ordinator had informed defence counsel on December 6,
    2012, that the Application could not proceed on the scheduled date of March 20,
    2013.  Subsequently, on January 7, 2013, the trial co-ordinator advised the defence
    to bring the matter forward to secure another date for the Application.  Then,
    on February 12, 2013, the trial co-ordinator advised defence counsel that
    earlier dates had become available for trial.  Defence counsel did not avail
    himself of the earlier trial dates, despite his apparent availability and the
    offer of the Crown to accept short service of materials.  The trial judge also
    noted that defence counsel was otherwise engaged in a different trial in
    Superior Court on the original trial dates.

[29]

The
    trial judge stated that the defence conduct, including action not taken, informed
    his assessment of the weight to be accorded to the prejudice suffered by the
    appellant and the balancing of the various factors.

C.

Conclusion on the Application

[30]

The
    trial judge concluded that, given the length of the delay he had attributed to
    the Crown and limitations on institutional resources, the actual prejudice to
    the appellant could not be said to outweigh societys interest in the trial on
    the merits.  Accordingly, the trial judge found that there was no breach of the
    appellants right to have a trial within a reasonable time.

THE LEGAL FRAMEWORK FOLLOWING
JORDAN

[31]

The
    majority in
Jordan

stated that the
Morin

framework
    for s. 11(
b
) applications had given rise to both doctrinal and practical
    problems that contributed to a culture of delay and complacency.  Consequently,
    it established a new framework to be applied where a breach of s. 11(
b
) is
    alleged.

[32]

At
    the heart of the new framework lies a ceiling, beyond which delay is presumptively
    unreasonable.  The presumptive ceiling is 18 months for cases going to trial in
    the provincial court and 30 months for cases going to trial in the superior
    court or cases going to trial in the provincial court after a preliminary
    inquiry (
Jordan
, para. 46).

[33]

A
    summary of the new framework is set out below, with the key elements
    highlighted in bold.  An explanation of how each key element of the new
    framework is to be determined follows.  See also this courts judgment in
R.
    v. Manasseri
, 2016 ONCA 703, released contemporaneously with this
    judgment.  The explanation of the new framework in these judgments is
    consistent.

A.

The New Framework Summarized

[34]

Calculate
    the
total delay
, which is the period from the charge to the actual or
    anticipated end of trial (
Jordan
, at para. 47).

[35]

Subtract
defence delay
from the total delay, which results in the 
Net Delay

    (
Jordan
, at para. 66).

[36]

Compare
    the Net Delay to the presumptive ceiling (
Jordan
, at para. 66).

[37]

If
    the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. 
    To rebut the presumption, the Crown must establish the presence of
exceptional
    circumstances
(
Jordan
, para. 47).  If it cannot rebut the
    presumption, a stay will follow (
Jordan
, para. 47).  In general,
    exceptional circumstances fall under two categories:
discrete events
and
particularly complex cases
(
Jordan
, para. 71).

[38]

Subtract
    delay caused by discrete events from the Net Delay (leaving the 
Remaining
    Delay
) for the purpose of determining whether the presumptive ceiling has
    been reached (
Jordan
, para. 75).

[39]

If
    the Remaining Delay exceeds the presumptive ceiling, the court must consider
    whether the case was particularly complex such that the time the case has taken
    is justified and the delay is reasonable (
Jordan
, at para. 80).

[40]

If
    the
Remaining Delay falls below the presumptive ceiling
, the onus is on
    the defence to show that the delay is unreasonable (
Jordan
, para. 48).

[41]

The
    new framework, including the presumptive ceiling, applies to cases already in
    the system when
Jordan

was released (the 
Transitional Cases
)
    (
Jordan
, para. 96).

B.

Key Elements in the New Framework

(1)

Defence Delay

[42]

Defence
    delay has two components: (1) that arising from
defence waiver
; and (2) delay
    caused solely by the conduct of the defence (
defence-caused

delay
)
    (
Jordan
, paras. 61 and 63).

[43]

Waiver
    can be explicit or implicit but, in either case, it must be clear and
    unequivocal.  The accused must have full knowledge of his or her rights, as
    well as the effect waiver will have on those rights (
Jordan
, para.
    61).

[44]

Defence-caused
    delay is comprised of situations where the acts of the defence either directly
    caused the delay or are shown to be a deliberate and calculated tactic employed
    to delay the trial.  Frivolous applications and requests are the most
    straightforward examples of defence delay (
Jordan
, para. 63).  Where
    the court and the Crown are ready to proceed but the defence is not, the
    defence will have directly caused the delay (
Jordan
, para. 64).

(2)

Exceptional Circumstances

[45]

If
    the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to
    rebut the presumption of unreasonableness based on the presence of exceptional
    circumstances.

[46]

Exceptional
    circumstances lie outside the Crowns control in that: (1) they are reasonably
    unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably
    remedy the delays emanating from the circumstances once they arise.  Such
    circumstances need not be rare or entirely uncommon (
Jordan
, para. 69).

[47]

An
    exceptional circumstance is the only basis upon which the Crown can discharge
    its burden to justify a Net Delay that exceeds the ceiling.  The seriousness or
    gravity of the offence cannot be relied on.  Nor can chronic institutional
    delay or the absence of prejudice to the accused (
Jordan
, para. 81).

[48]

The
    list of exceptional circumstances is not closed but, in general, exceptional
    circumstances fall under two categories: discrete events and particularly
    complex cases (
Jordan
, para. 71).

(a)

Discrete Events

[49]

An
    illustration of a discrete event that will generally qualify is a medical or
    family emergency on the part of the accused, important witnesses, counsel or
    the trial judge (
Jordan
, para. 72).

[50]

The
    period of delay caused by any discrete event must be subtracted from the Net Delay
    for the purpose of determining whether the presumptive ceiling has been
    reached.  However, any portion of the delay caused by a discrete event that the
    Crown or system could reasonably have mitigated may not be subtracted (
Jordan
,
    para. 75).

(b)

Particularly Complex Cases

[51]

Particularly
    complex cases are cases that, because of the nature of the evidence or issues (or
    both), require an inordinate amount of trial or preparation time such that the
    delay is justified (
Jordan
, para. 77).  The seriousness or gravity of
    the offence cannot be relied on to establish that the case is particularly
    complex (
Jordan
, para. 81).

[52]

Where
    the trial judge finds that the case was particularly complex such that the time
    the case has taken is justified, the delay is reasonable and no stay will
    issue.  No further analysis is required (
Jordan
, para. 80).

(3)

Remaining Delay is Below the Presumptive Ceiling

[53]

If
    the Remaining Delay falls below the presumptive ceiling, the onus is on the
    defence to show that the delay is unreasonable (
Jordan
, para. 48).  To
    do so, the defence must establish two things: (1) it took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings (
defence
    initiative
); and (2) the case took markedly longer than it reasonably
    should have.  Absent both of these two factors, the s. 11(
b
) application
    must fail (
Jordan
, para. 82).

[54]

Stays
    beneath the presumptive ceiling should be granted only in clear cases (
Jordan
,
    para. 83).

(4)

Transitional Cases

[55]

The
    new framework applies to cases currently in the system (
Jordan
, para.
    94).  The analysis of transitional cases differs depending upon whether the
    Remaining Delay exceeds or falls below the presumptive ceiling.

(a)

Remaining Delay Exceeds the Presumptive Ceiling

[56]

Where
    the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional
    circumstance may arise where the charges were brought prior to July 8, 2016,
    the date that
Jordan

was released.  This transitional
    exceptional circumstance will apply when the Crown satisfies the court that the
    time the case took is justified based on the parties reasonable reliance on the
    law as it previously existed.  This requires a contextual assessment, sensitive
    to the manner in which the previous framework was applied, and to the fact that
    the parties behaviour cannot be judged strictly against a standard of which
    they had no notice.  Considerations of prejudice and the seriousness of the
    offence can inform whether the parties reliance on the previous state of the
    law was reasonable (
Jordan
, para. 96).

[57]

Moreover,
    the Remaining Delay may exceed the ceiling because the case is of moderate
    complexity in a jurisdiction with significant institutional delay problems. 
    Judges in jurisdictions plagued by lengthy, persistent and notorious institutional
    delays should account for this reality, as Crown counsels behaviour is
    constrained by systemic delay issues (
Jordan
, para. 97).

(b)

Remaining Delay Falls Below the Presumptive Ceiling

[58]

For
    cases currently in the system in which the Remaining Delay falls below the
    ceiling, the two things that the defence must establish (i.e. defence
    initiative and whether the time the case took markedly exceeds what was
    reasonably required) must also be applied contextually, sensitive to the
    parties reliance on the previous state of the law (
Jordan
, para. 99).

[59]

Further,
    institutional delay that was reasonably acceptable in the relevant jurisdiction
    under the
Morin

framework will be a component of the reasonable
    time requirements (
Jordan,
at para. 100).

THE ISSUES

[60]

Jordan

fundamentally changed the way that the courts are to decide s. 11(
b
)
    applications.  Because it applies to cases currently in the system, it also fundamentally
    changed the issues that must be resolved on this appeal.  In light of
Jordan

and the parties further written submissions, in my view, those issues are:

1.

What is the period of defence delay?

2.

What delay is attributable to exceptional circumstances?

3.

How does the framework apply to this transitional case?

FOUNDATIONAL POINTS

[61]

Before
    analyzing the issues, two foundational points must be made.

[62]

First,
    the period of total delay in this case runs from November 18, 2011, when the information
    containing the first five counts was sworn, to April 10, 2014, when the trial
    concluded.  Thus, the total delay is 29 months.

[63]

Second,
    as the case was tried in provincial court and there was no preliminary inquiry,
    the presumptive ceiling is 18 months.

ISSUE #1     WHAT IS THE PERIOD OF DEFENCE DELAY?

[64]

In
    my view, 6 months are properly assessed as defence delay: the defence expressly
    waived 3 months of delay and an additional 3 months of delay was caused solely
    by the conduct of the defence.

A.

Waiver

[65]

I see no basis on which to interfere with the trial judges findings
    that the defence expressly waived 3 months of delay, comprised of two periods:

1.

June 8  July
    16, 2012 (1 month); and

2.

February 14 
    April 10, 2014 (2 months).

(1)

June 8  July 16, 2012

[66]

On June 8, 2012, the appellant appeared by way of designation for a
    continuing judicial pre-trial conference.  The Crown was ready to set a trial
    date but noted that the matter was likely headed towards a resolution.  The
    Crown explained to the court that the defence had requested an adjournment,
    pending release of an anticipated Ontario Superior Court of Justice decision
    that could, in the defences view, affect resolution discussions.  The defence
    agreed to continue the judicial pre-trial on July 16, 2012.

[67]

There is some ambiguity in the appellants position on how to treat this
    period.  In his factum, at para. 28, he acknowledges that this period can
    fairly be said to have been waived by the defence.  However, in the summary
    table in his factum, he classified it as neutral time.  The appellant did not
    address the issue of how much time should be treated as defence waiver in his further
    written submissions.

[68]

The trial judge found that the defence had expressly waived this
    period.  In the circumstances, including the appellants concession at para. 28
    of his factum, I see no basis on which to interfere with the trial judges
    finding.

(2)

February 14  April 10, 2014

[69]

On February 14, 2014, the parties filed an Agreed Statement of Facts. 
    The trial judge heard submissions on the allegation of making child pornography
    and found the appellant not guilty on that count.  The trial judge convicted
    the appellant on the first five counts.

[70]

The defence then asked that the court apply the principle in
Kienapple
. 
    The matter was adjourned to allow the Crown to consider its position.  The
    trial judge asked if the parties had agreed to a date.  Defence counsel
    responded with the agreed-on date of April 10, 2014, and said that 11(
b
)
    from todays date until that date
is waived
. (emphasis added)

[71]

Again, I see no basis for interfering with the trial judges finding
    that the defence expressly waived this period.

B.

Defence-Caused Delay

[72]

The 3 months of delay in this category is comprised of three periods:

1.

August 22  27,
    2012 (1 week);

2.

May 17  June 5,
    2013 (3 weeks); and

3.

June 5  August
    9, 2013 (2 months).

(1)

August 22  27, 2012

[73]

On August 7, 2012, the appellant appeared to schedule a further judicial
    pre-trial conference to arrive at an estimate for trial duration.  The court
    and the Crown were ready to proceed on August 22, 2012, but counsel for the defence
    was unavailable until August 27, 2012.  In accordance with para. 64 of
Jordan
,
    the defence directly caused the delay as the court and the Crown were ready to
    proceed, but the defence was not.

(2)

May 17  June 5, 2013

[74]

The parties are agreed that this period is defence-caused delay, in
    accordance with
Jordan
.  I accept this.

[75]

On August 27, 2012, the parties set trial dates of June 5 and 6, 2013.  The
    trial judge found that the defence did not put earlier trial dates on the
    record (although he had indicated earlier dates for the s. 11(
b
)
    application, scheduled for March 20, 2013).  On February 12, 2013, the trial
    coordinator advised the parties that earlier dates had opened up and the
    two-day trial could be rescheduled for various two-day periods in February,
    March and April, in addition to May 10, 17, 29 and 30.  Although the defence
    estimated that it would be prepared for trial by May, it declined to accept
    dates earlier than June.  Defence counsel offered to keep the original June
    trial dates and to take responsibility for the delay between the May dates and
    the June dates already set for trial.

(3)

June 5  August 9, 2013

[76]

Both parties submit that this period is defence-caused delay within the
    meaning of
Jordan
.  Again, I accept this and for the same reason: both
    the court and the Crown were ready to proceed but defence counsel was
    unavailable.

[77]

On June 5, 2013, the defence appeared by way of an agent to explain that
    defence counsel was occupied with a jury trial and was not available to conduct
    the trial as scheduled.  The defence counsel gave the Crown one days notice of
    the conflict by way of e-mail.  Knowing that the trial would not proceed, the
    Crown did not arrange for its witnesses to attend court on June 5, 2013.  The
    agent for the defence agreed that the Crown would have been ready to conduct
    the trial but for the e-mail warning of defence counsels scheduling conflict. 
    The court directed the parties to the trial coordinator to reschedule the
    trial, resulting in the date of August 9, 2013.

ISSUE #2     WHAT
    DELAY IS ATTRIBUTABLE TO EXCEPTIONAL CIRCUMSTANCES?

A.

Introduction

[78]

Under the
Jordan

framework, the 6 months of defence
    delay must be subtracted from the 29-month period of total delay.  Accordingly,
    the Net Delay is 23 months.

[79]

Because the Net Delay exceeds the 18-month presumptive ceiling, it is
    presumptively unreasonable.  It falls to the Crown to rebut the presumption of
    unreasonableness based on the presence of exceptional circumstances.

[80]

It
    will be recalled that, in general, exceptional circumstances fall under two
    categories: discrete events and particularly complex cases.  In this case, as I
    explain below, I need only analyze the category of discrete events.

B.

Discrete Events

[81]

The
    trial was scheduled to continue on August 9, 2013.  Unfortunately, Crown counsel
    was involved in a car accident that very morning.  The trial had to be
    rescheduled, resulting in the date of January 27, 2014.  Further, as the trial
    judge noted, defence counsel advised the court that the defence would not have
    been ready to proceed that day.

[82]

At
    para. 72 of
Jordan
, a medical emergency on the part of counsel is
    offered as one example of a discrete event that would qualify as an exceptional
    circumstance.  Thus, this event clearly constitutes a discrete event.

[83]

In
    accordance with para. 75 of
Jordan
, the court must consider whether any
    portion of the delay caused by a discrete event could have been reasonably
    mitigated by the Crown or system.  If so, that portion of the delay caused by
    the discrete event cannot be subtracted.

[84]

Counsel
    for both parties agree that the period from August 9, 2013, to January 27, 2014,
    is a discrete event within the meaning of
Jordan
.  Neither counsel suggests
    that the Crown or system could reasonably have mitigated any portion of the
    delay.  I agree, with the result that 6 months of delay was caused by the
    discrete event.

C.

Particularly Complex Cases

[85]

Jordan
dictates that delay arising from discrete events is to be subtracted from the Net
    Delay for the purpose of determining whether the presumptive ceiling has been
    reached.  As explained above, the Net Delay is 23 months.  After subtracting 6
    months of delay attributable to the discrete event, the Remaining Delay of 17
    months falls below the 18-month presumptive ceiling.

[86]

The
    majority in
Jordan

wrote that, for cases in which the Remaining
    Delay falls
above

the presumptive ceiling, it is open to the
    Crown to prove that the case was particularly complex such that the trial
    occurred within a reasonable time.  In this case, as the Remaining Delay falls
below

the presumptive ceiling, it is unnecessary to consider whether this was a
    particularly complex case within the meaning given to that phrase by
Jordan
.

ISSUE #3     HOW DOES THE framework APPLY
    TO THIS TRANSITIONAL CASE?

A.

Introduction

[87]

Because the Remaining Delay of 17 months falls below the presumptive
    ceiling, the appellant bears the onus of showing that the delay is unreasonable
    (
Jordan
, at para. 82).
To show that
    the delay is unreasonable, the appellant must establish two things: (1) that
    the defence took meaningful steps that demonstrate a sustained effort to
    expedite the proceedings; and (2) that the case took markedly longer than it
    reasonably should have (
Jordan
,

para. 82).  The court must also be mindful that stays for cases in which
    the delay falls below the presumptive ceiling are rare and limited to clear
    cases (
Jordan
, para. 48).

[88]

A
s the charges against the
    appellant were brought prior to the release of the Supreme Court decision in
Jordan
,
    this is a transitional case (
Jordan
,

para. 94).  Thus, in determining
    whether the appellant has met his onus, this court must apply the new framework
    contextually and flexibly (
Jordan
, para. 94).

[89]

While there are a variety of reasons for why the framework must be
    applied contextually and flexibly to transitional cases,
Jordan

stresses
    two in particular.  First, the administration of justice cannot tolerate a
    recurrence of what transpired after the release of
R. v.

Askov
,
    [1990] 2 S.C.R. 1199 when a myriad of charges were stayed in Ontario as a
    result of the abrupt change in the law (
Jordan
, paras. 92 and 94). 
    Second, it is not fair to strictly judge participants in the justice system
    against standards of which they had no notice.  Thus, the court must remain
    sensitive to the parties reliance on the previous state of the law (
Jordan
,

paras. 94 and 99).

B.

The Appellants Submissions

[90]

In his further written submissions, the appellant took the position that
    even after defence delay and delay caused by the discrete event were subtracted
    from the total delay, the Remaining Delay still exceeded the 18-month
    presumptive ceiling.  (I note that the appellants position is largely
    attributable to the fact that in his further written submissions he did not
    address delay due to defence waiver.)  Consequently, the appellant did not make
    direct submissions on the basis that the Remaining Delay falls below the
    presumptive ceiling.

[91]

However, in his further written submissions, the appellant did submit
    that the following factors are relevant to a consideration of the transition
    period: (1) the appellant attempted to move the case along by retaining counsel
    immediately and by trying to narrow the issues; (2) seven months for disclosure
    of the forensic report was not reasonable; (3) the Crowns decision to add a
    making pornography charge, some seven months after the original charges were
    laid, delayed the progress of the case; and (4) the appellant experienced
    specific and real prejudice that the trial judge failed to take into account.

C.

Analysis

[92]

A consideration of these factors does not assist the appellant in
    rebutting the presumption that the Remaining Delay, which falls below the
    presumptive ceiling, was reasonable.  The trial judge made findings against the
    defence on each of these factors and I see no basis on which to interfere with
    those findings.

[93]

The appellants first factor is that the
    defence took meaningful steps to expedite the proceedings.  As the majority
    wrote in
Jordan
, at para. 99,
    for a transitional case in which the Remaining Delay falls below the
    presumptive ceiling, the criteria of defence initiative, although relevant, is
    not dispositive of the s. 11(
b
) application.

[94]

However, while t
he trial judge
    found some evidence that the defence attempted to ameliorate the appellants
    release terms  defence counsel had approached the Crown about the matter  he
    found no evidence of defence efforts to expedite proceedings once the trial
    dates were set.

[95]

In his ruling on the Application, the trial judge explained that the trial
    co-ordinator informed defence counsel on December 6, 2012, that the Application
    could not proceed on the scheduled date of March 20, 2013.  Then, on January 7,
    2013, the trial co-ordinator told the defence to bring the matter forward to
    secure another date for the Application.  And, on February 12, 2013, the trial
    co-ordinator advised defence counsel that earlier dates had become available
    for trial.  Defence counsel did not avail himself of the earlier dates, despite
    his apparent availability and the Crowns offer to accept short service of
    materials.

[96]

The trial judges findings on the matter of defence initiative are fully
    justified on the record.  I have considered them on a contextual basis that is
    sensitive to the previous state of the law and cannot conclude that the defence
    took meaningful steps demonstrating a sustained effort to expedite the
    proceedings.

[97]

The appellants second and third factors are related.  They, too, fail
    on the findings of the trial judge.

[98]

The trial judge found that, although the intake period of approximately
    five months was lengthy, it was not unreasonable.  He made that finding based
    on: the specifics of the investigation, including the substantial amount of
    material seized; the lengthy period of necessary post-charge investigation and
    analysis; and his determination that Detective Constable Boykos investigation
    was thorough, appropriate and largely timely.

[99]

The trial judge expressly considered that the appellant had promptly
    retained counsel and had been diligent in pursuing disclosure.  He also acknowledged
    that delay occurred because of the Crowns ongoing disclosure obligations (as
    the investigation continued) and the need for numerous judicial pre-trial
    conferences.

[100]

But,
    as the trial judge found, the period between the appellants arrest and the
    first judicial pre-trial was insufficient to allow Detective Constable Boyko to
    complete her investigation.  In his view, the detective needed time to
    determine whether there was evidence to support the making charge.  On April
    11, 2012, Detective Constable Boyko found, on one DVD among 439 discs seized
    from the appellants home, the child pornography that led to the making
    charge.  She concluded her investigation, having reviewed all of the discs, on
    April 16, 2012, about five months after the appellants arrest.

[101]

Although
    the trial judge found Crown delay of almost two months in relation to the
    laying of the new charge, his overall finding was that the investigation was
    timely.

[102]

Given
    the findings of the trial judge, the appellant has not persuaded me to accept
    as valid either his second or third factor.

[103]

Similarly, the appellants fourth factor  that the appellant
    experienced specific and real prejudice that the trial judge failed to take
    into account  fails on the findings of the trial judge.

[104]

The
    trial judge found that the appellant experienced minimal prejudice as a result
    of the delay.  The prejudice that he did suffer arose from: (1) the appellants
    restrictive bail conditions, requiring him to live with his father in
    Collingwood while maintaining his own home in Toronto and commuting to Toronto
    for therapy; and (2) the condition barring the appellant from accessing the Internet,
    which had restricted his efforts to find new employment.  However, the trial
    judge found that the vast bulk of the prejudice to the appellant came from the
    nature of the offences and its impact on his occupation as a teacher.  This is
    not prejudice flowing from delay.

D.

Conclusion

[105]

The majority in
Jordan

cautions that given the level of
    institutional delay tolerated under the previous approach, a stay of
    proceedings [where the Remaining Delay is] below the ceiling will be even more
    difficult to obtain for cases currently in the system (para. 101).  It also
    warns that the contextual approach to Transitional Cases is necessary to ensure
    that the post-
Askov

situation, where tens of thousands of cases
    were stayed in Ontario alone, is not repeated (
Jordan
, paras. 92-94).

[106]

The Remaining Delay of 17 months is below the presumptive ceiling.  The
    figure of 17 months was arrived at without a consideration for the particular
    complexity of the case (if any) or for the level of tolerance for institutional
    delay in the jurisdiction in which this case was tried.  The trial judges
    findings  reviewed with due recognition for the parties reliance on the
    then-existing state of the law  do not assist the appellant.

[107]

In the circumstances, as informed by the cautions stressed by the
    majority and discussed above, I have no difficulty in concluding that the appellant
    has not rebutted the presumption that the Remaining Delay was reasonable.

DISPOSITION

[108]

For
    these reasons, I would dismiss the appeal.

Released: September 28, 2016 (G.R.S.)

E.E. Gillese
    J.A.

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

I
    agree. G. Pardu J.A.


