



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Albinowski, 2018 ONCA 1084

DATE: 20181228

DOCKET: C63752

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Marek Albinowski, Wladyslaw Pipien and Robert
    Fitzsimmons

Respondents

Allyson Ratsoy, for the appellant

John Hale, for the respondents

Heard: August 16, 2018

On appeal from the judgment
    of Justice Rick Leroy of the Superior Court of Justice, dated April 20, 2017,
    with reasons reported at 2017 ONSC 2260, 382 C.R.R. (2d) 195.

Roberts J.A.:

Overview

[1]

This is a Crown appeal
    from the trial judges stay of the proceedings against the respondents pursuant
    to their s. 11(b)
Canadian Charter of Rights and
    Freedoms
application.
    The trial judge found that the respondents rights had been violated because of
    the unreasonable delay in bringing their matter to trial.

[2]

The respondents faced
    charges of conspiring to smuggle ten Polish nationals from Canada into the
    United States, contrary to ss. 465(1)(c) and (3) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, and s. 117 of the
Immigration and Refugee
    Protection Act
, S.C.
    2001, c. 27. One of the respondents, Mr. Albinowski, was also charged with the
    possession and proceeds of crime, contrary to s. 355(a) of the
Code
.

[3]

The information was
    sworn November 13, 2014, and the respondents five-week joint trial was
    expected to conclude March 8, 2018. The total delay that the trial judge
    considered on the respondents s. 11(b) application was 39.75 months.

[4]

The trial judge
    determined that almost a third of the delay arose from delay in scheduling the
    judicial pre-trial conferences and preliminary inquiry. He characterized most
    of this delay as institutional delay and held it was not justified by any
    exceptional circumstance or transitional exceptional circumstance under the
    framework set out in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.

[5]

For the reasons that
    follow, I would allow the appeal. In my view, the trial judge erred in his
    application of the
Jordan
framework. In particular, he mischaracterized
    the delays due to defence counsel unavailability as institutional delay.

Basic
Jordan

Analytical
    Framework

[6]


This case was in
    the system some 20 months before
Jordan
ushered in the new framework
    for s. 11(b) applications. As
Jordan
instructs, and as the trial judge
    acknowledged, the new framework applies to any case in the justice system when
Jordan
was released. This court must apply the
Jordan
framework to determine
    whether the application was wrongly decided, as the Crown alleges. It is therefore
    useful at the beginning of these reasons to set out a summary of the now
    well-known
Jordan
framework that governs the s. 11(b) analysis in this
    case. As this court compendiously stated in
R. v. Picard
, 2017 ONCA
    692, 137 O.R. (3d) 401, at para. 26, leave to appeal refused, [2018] S.C.C.A.
    No. 135:

In brief, under
Jordan
a
    delay from the date of the charge to the actual or anticipated end of trial in
    Superior Court (minus defence delay) is presumptively unreasonable if it
    exceeds 30 months. To rebut this presumption, the Crown must establish
    exceptional circumstances. Exceptional circumstances generally fall into two
    categories: (1) discrete events, and (2) particular complexity arising from the
    evidence or the issues. The Crown may also rely on a transitional exceptional circumstance
    for cases that were already in the system pre-
Jordan
. A transitional
    exceptional circumstance will apply if the Crown can establish that the time
    the case has taken is justified based on the parties reasonable reliance on
    the law as it previously existed.

The Trial Judges Reasons on the s. 11(b) Application

[7]

Applying the
Jordan
framework in this case, the trial judge began his analysis by noting that the delay
    from the swearing of the information to the anticipated end of the trial was
    39.75 months. He then turned to consider two specific periods of delay, which the
    Crown sought to characterize as defence-caused delay because they arose from
    the inability to coordinate the schedules of three defence counsel: (a) the
    2.75-month delay in scheduling three judicial pre-trials prior to the
    preliminary inquiry; and (b) the approximate 8-month delay in scheduling the
    three-week preliminary inquiry.
[1]


[8]

These two periods of
    delay are set out in detail below.

(1)

Delay Related to the Scheduling of the Judicial Pre-Trials:

(a)

April 10, 2015 to May 8, 2015: One Month of Delay

[9]

The court offered April
    10, 2015 for the first judicial pre-trial. On that day:

·

Mr. Miller, counsel for
    Mr. Pipien, was unavailable due to another trial matter for another client.

·

The Crown and the other
    two defence counsel were available and ready to proceed.

[10]

The parties ultimately
    scheduled the first judicial pre-trial for May 8, 2015.

(b)

June 5, 2015 to June 25, 2015: Three Weeks of Delay

[11]

The court offered June
    5, 2015 for a second judicial pre-trial. On that day:

·

Mr. Miller was again unavailable
    due to another trial matter for another client.

·

The Crown and the other two
    defence counsel were available and ready to proceed.

[12]

The parties ultimately
    scheduled the second judicial pre-trial for June 25, 2015.

(c)

August 21, 2015 to September 25, 2015: One Month of Delay

[13]

The courts offered
    August 21 and 28, 2015 for a third judicial pre-trial. On those days:

·

Mr. Johnson, counsel
    for Mr. Fitzsimmons, was unavailable.

·

The Crown and the other
    two defence counsel were available and ready to proceed.

[14]

The parties ultimately
    scheduled the third judicial pre-trial for September 25, 2015.

[15]

On the s. 11(b)
    application before the trial judge, the Crown submitted that this entire period
    of 2.75 months ought to be attributed to the defence as a whole.

[16]

The trial judge
    disagreed. In his view, the 2.75 months of delay in scheduling the judicial
    pre-trials ought not to be attributed to the defence because this delay
    related solely to scheduling and [a]ll parties were ready to proceed. He
    held it was [t]he Courts schedule [that] could not accommodate the reasonable
    availability and reasonable cooperation of defence counsel any sooner than it
    did: at para. 22.

(2)

Delay Related to the Scheduling of a Three-Week Preliminary Inquiry:
[2]


(a)

January 11, 2016 to September 12, 2016: Eight Months of Delay

[17]

Trial coordination
    offered the parties five consecutive weeks in which to schedule the three-week preliminary
    hearing: January 11-15, 18-22, and 25-29, and February 1-5 and 8-12, 2016. For those
    weeks, availability was as follows:

·

Messrs. Johnson and
    Miller were unavailable from January 11-15.

·

Mr. Miller was
    unavailable from January 18-22.

·

Mr. Johnson was
    unavailable from January 25-29.

·

The Crown and Mr.
    Sheard, counsel for Mr. Albinowski, were available on all dates offered in
    January.

·

All defence counsel
    were unavailable on all dates offered in February.

·

The Crown was available
    on all dates offered in February.

[18]

Trial coordination also
    offered the following dates in the summer: July 25-29, and August 15-19 and
    22-26, 2016:

·

Mr. Johnson and Mr. Sheard were
    unavailable on all those dates.

·

The Crown and Mr. Miller were
    ready and available on all those dates.

[19]

Finally, the court
    offered September 12-16, 19-23, and October 17-21, 2016. All counsel were
    available and the preliminary inquiry proceeded on September 12, 2016.
    Ultimately, the parties only required 10 out of the 15 days set aside for the
    preliminary inquiry.

[20]

The trial judge
    rejected the Crowns submission that the responsibility for the delay in
    scheduling the preliminary inquiry should be ascribed to the defence. The trial
    judge accepted the defences submission that the January and February 2016
    preliminary hearing dates, which were offered in the days leading up to the
    remand appearance on October 6, 2015, did not permit sufficient time to
    prepare for a multiple week preliminary hearing: at paras. 23, 28. He noted
    that, [a]t the time, the institutional time lapse once the parties were ready
    to proceed to preliminary hearing was twelve to fifteen months and the earlier
    dates had opened up
ad hoc
exceptionally: at para. 24.

[21]

The trial judge found
    that defence counsel had scheduled court work as long beforehand as October
    2014 and could not free up the same 3-week time window for January/February
    2016 in October 2015: at para. 26. He held this was consistent with the
    Courts expectation of a twelve to fifteen-month interlude between readiness
    for the preliminary hearing and the hearing and [t]he dates set for the
    hearing accorded with practice in that court at the time: at para. 26.

[22]

Determining that
    defence counsel were locked into these delay expectations when the earlier
    dates were offered, the trial judge concluded that pre-
Jordan

counsel
    availability expectations were operative in October 2015: at para. 27.
    Therefore, he characterized the period from January 11 to July 25, 2016 as
    institutional delay. This left 1.6 months of delay from July 25 to September
    12, 2016, which he attributed to the defence collectively.

[23]

After deducting the
    delay that he attributed to all the respondents, the trial judge calculated
    that the remaining delay was 38.15 months.

[24]

The trial judge did not
    find any exceptional circumstances that could rebut the presumption of
    unreasonable delay. In particular, he found, at para. 33, that this
    prosecution does not fall into the category of a particularly complex
    prosecution. He also found that the transitional exceptional circumstance did
    not apply to justify the delay. The trial judge stayed the charges.

Issues

[25]

The Crown submits that
    the trial judge made the following errors:

(1)

He mischaracterized delay due to
    defence counsel unavailability as institutional delay;

(2)

He found that the case was not
    complex and did not give rise to exceptional circumstances; and

(3)

He failed to apply the
    transitional exceptional circumstance.

[26]

In my view, this appeal
    turns on the first ground. It is therefore unnecessary to consider whether the trial
    judge erred in his assessment of the other factors in the
Jordan
analysis.

Analysis

(1)

Standard of Review

[27]

It is well-established
    that while deference is owed to the trial judges underlying findings of fact, the
    characterization of the periods of delay and the ultimate decision as to
    whether there has been unreasonable delay are reviewable on a standard of
    correctness:
R. v. Jurkus
, 2018 ONCA 489, 363 C.C.C. (3d) 246, at
    para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.

(2)

Did the Trial judge Mischaracterize Delay due to Defence Counsel
    Unavailability as Institutional Delay?



[28]

The Crown submits that
    the trial judge erred in characterizing delay due to defence counsel
    unavailability as institutional delay because he relied on the
dicta
from
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, that asserts defence
    counsel need not hold themselves in a state of perpetual availability for the
    purpose of scheduling steps in a proceeding, and are therefore not required to
    accept the first available date offered (the
Godin
principles). The
    Crown argues that the analytical framework in
Jordan

has overtaken

the
Godin
principles, and requires courts to attribute delay to
    the defence from the first date the Crown and court are ready to proceed, but
    the defence is not. In the alternative, the Crown submits that the
Godin
principles, which arose in the particular circumstances of that case, do not
    apply here because several dates were offered to and rejected by defence
    counsel due to their unavailability.

[29]

The respondents submit
    that the
Godin
principles are still good law and were appropriately
    applied by the trial judge.

[30]

In my view, the trial
    judge erred in his characterization of delay due to defence counsel
    unavailability as institutional delay. His reliance on the
Godin
principles
    was misplaced.

[31]

The
Godin
principles
    applied by the trial judge appear in para. 23 of the Supreme Courts decision,
    as excerpted below:

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
.
    Here, there is no suggestion that defence counsel was unreasonable in rejecting
    the earlier date. Indeed, his prior conduct in seeking earlier dates for
    the preliminary inquiry  efforts which were ignored  suggests that he
    wished to proceed expeditiously. I respectfully agree with Glithero R.S.J.,
    dissenting in the Court of Appeal, at para. 53, that: 
To hold that the
    delay clock stops as soon as a single available date is offered to the defence
    and not accepted, in circumstances where the Crown is responsible for the case
    having to be rescheduled, is not reasonable
. [Emphasis added.]

[32]

It is important to
    recall the circumstances under which Cromwell J. for the Supreme Court made these
    statements. The determination in
Godin
,

that defence counsel
    was not responsible for one month and a half of delay because he was not
    available on the earliest date offered for the rescheduled preliminary inquiry,
    was grounded firmly in the circumstances of that case  specifically, the Crowns
    responsibility for the need to reschedule and the attempts by the defence to
    expedite the proceedings.

[33]

That is not the present
    case. Here, defence counsel rejected multiple dates offered for the scheduling
    of the judicial pre-trials and the preliminary inquiry.  The reason for their
    unavailability was clear: they were engaged with previously scheduled
    professional commitments. Their unavailability was not related to defence
    actions legitimately taken to respond to the charges, such as preparation
    time and defence applications and requests that are not frivolous:
Jordan
,
    at para. 65. Thus, as
Jordan
further directs, at para. 64, their
    unavailability, when the Crown and court were available, fell squarely within
    the category of delay that counts against the defence:

As another example, the defence
    will have directly caused the delay if the court and the Crown are ready to
    proceed, but the defence is not. The period of delay resulting from that
    unavailability will be attributed to the defence.

[34]

This court in
Picard
,
    at para. 113, similarly recognized the inapplicability of the
Godin
principles
    when more than one single available date is offered. This court upheld the trial
    judges attribution of delay to the Crown because of Crown counsels
    unavailability on any of the dates offered in a five-month period:

Furthermore,
    the situation in
Godin
is
    not comparable to what occurred in this case and does not stand for the
    proposition advanced by the Crown. In
Godin
, the court held that it was an error to attribute
    delay to the defence as soon as a single available date is offered to defence
    counsel and not accepted. The court noted that s. 11(
b
)
    requires reasonable availability and cooperation, but does not require defence
    counsel to hold themselves in a state of perpetual availability. In the
    present case, the delay in question did not arise from Crown unavailability on
    a single date, but from Crown unavailability on any of the dates offered in a
    five-month period.


[35]

The trial judge in the
    present case erred by failing to undertake the analysis of defence delay
    required under the
Jordan
framework and by applying the
Godin
principles, which have no application to the circumstances of this case. As a
    result of these errors, his analysis is not owed deference and must be
    undertaken anew.

[36]

How then is delay to be
    assessed in this joint trial? The trial judge did not have the benefit of this
    courts decision in
R. v. Gopie
, 2017 ONCA 728, 140 O.R. (3d) 171,
    which sets out an analytical framework for the assessment of delay in joint
    trials with multiple accused.
Gopie
instructs that an individualized
    approach must be taken to the attribution of defence-caused delay in cases of
    jointly-charged accused:
Gopie
, at para. 128. This approach avoids 
attributing to an accused the delay caused by the
    actions or inactions of a co-accused [which] is inconsistent with the approach
    and language of
Jordan
:
Gopie
, at para.
136.

[37]

In my view, however, the
    individualized approach in
Gopie
does not apply in this case because
    the delay was common to all respondents who proceeded as a collective in this
    joint trial. Here, the actions or inactions of a co-accused did not cause the
    delay. Rather, the delay at issue was entirely due to scheduling challenges,
    which arose directly and inevitably from the respondents joint situation.

[38]

Not only is it common
    ground that joint proceedings were justified in this case (especially in light
    of the coordinated nature of the allegations), all parties accepted that
    severance was never an option. As Mr. Albinowskis counsel submitted before the
    trial judge on the s. 11(b) application, a severance application would have
    amounted to the kind of defence conduct decried under the
Jordan

framework.
    In essence, the defence presented a united front. For example, during the s.
    11(b) application, counsel for Mr. Pipien commenced his submissions by stating
    he was speaking on behalf of the two other defence counsel. Moreover, each
    defence counsel largely endorsed the others submissions on the application.
    Because the defence proceeded through the system as a collective, the delay
    caused by scheduling challenges must be analyzed in the same manner  that is, communally.

[39]

I acknowledge that
    [t]here may come a time when the interests of justice are no longer served by
    proceeding jointly, including where s. 11(b) rights are in jeopardy:
Gopie
,
    at para. 171. But that is not this case. None of the respondents were held
    hostage by his co-accuseds counsels unavailability:
Gopie
, at
    para. 171; see also
R. v. Vassell
, 2016 SCC 26, [2016] 1 S.C.R. 625,
    at para. 7;
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at
    para. 323, leave to appeal refused, [2016] S.C.C.A. No. 513. Rather, the
    interests of justice favoured proceeding against the respondents jointly:
Gopie
,
    at para. 174. Further, as discussed below, the Crown made reasonable, though
    unsuccessful, efforts to expedite the proceedings.

(a)

The 2.75-Month Period in Scheduling the Three Judicial Pre-Trials

[40]

In my view, the trial
    judge erred in ascribing the 2.75 months of delay to institutional delay. The
    entire period should have been characterized as defence delay because of the
    unavailability of defence counsel in a joint trial, where the defence proceeded
    as a collective.

[41]

The trial judge
    concluded that the 2.75-month delay resulting from the scheduling of the three
    judicial pre-trials was accounted for in the presumptive ceiling under
Jordan
because
    [a]ll parties were ready to proceed during this time period but [t]he
    Courts schedule could not accommodate the reasonable availability and
    reasonable cooperation of defence counsel any sooner than it did: at para. 22.
    Respectfully, this is not accurate.

[42]

First, it is necessary
    to put into perspective that generally speaking, it is unusual for a case to
    require three judicial pre-trials prior to the preliminary inquiry, yet the
    court was able to offer seven dates for these pre-trials within a 2.75-month
    period. This reflects a flexibility in court scheduling that belies
    complacency.

[43]

Second, while the Crown
    and court were available on all these dates, the three defence counsel were not
    available on all the same dates. The trial judge made an overriding and
    palpable error in holding that [a]ll parties were ready to proceed during
    this time period: at para. 22.

[44]

As a result, after
    deducting the defence delay, the net delay at this point in the analysis for
    all the respondents was 37 months.

(b)

The 8-Month Period in

Scheduling
    the Preliminary Inquiry

[45]

As already noted, the trial
    judge characterized the approximate 6.4-month period from January 11 to July
    25, 2016 as institutional delay, and the 1.6-month period from July 25, 2016 to
    the start of the preliminary inquiry on September 12, 2016, as defence delay.
    In my view, the trial judge erred by mischaracterizing the initial 6.4 months
    of defence delay as institutional delay.

[46]

Crown counsel argues
    that all the delay following the very first date offered for the preliminary
    inquiry must be assessed as defence delay. I disagree with such a categorical
    approach. It is necessary to consider the circumstances of this case. The Crown
    and court demonstrated the requisite scheduling flexibility demanded by
Jordan
to accommodate the three-week preliminary inquiry. Specifically, eight sets of
    dates were offered over a short period of eight months but not all defence
    counsel were available on the same dates. The trial judge properly
    characterized as defence delay the July and August dates when defence counsel
    were unavailable. However, he erred in failing to characterize the period of
    delay resulting from the rejection of the January and February dates as defence
    delay.

[47]

In the circumstances of
    this case, it is appropriate to characterize as defence delay the period from January
    11, 2016 to September 12, 2016. This was not a question of fitting in one or
    two days, but of the court and the Crown accommodating a three-week preliminary
    inquiry requested by the respondents. Moreover, these dates were offered to the
    parties three months in advance.

[48]

The trial judge erred
    when he accepted the defences position that [t]he dates offered in January
    and February 2016 did not permit proper preparation and thus should not be
    counted against the defence: at paras. 23, 28. As I read his reasons, the trial
    judges starting point was that, because defence counsel expected a delay of 12
    to 15 months before conducting a preliminary inquiry, they could not be
    expected to have dates available earlier, as they needed time to prepare for or
    conduct the hearing should earlier dates become available. The trial judge
    described the commitments counsel had made as being consistent with the courts
    expectation of the interlude between readiness for the preliminary hearing and the
    hearing, and that the dates ultimately set for the hearing accorded with the
    courts practice at the time: at para. 26. On this basis, the trial judge
    refused to characterize this period as defence delay.

[49]

First, as already
    noted, these dates were offered three months in advance. Second, three judicial
    pre-trials had already been conducted, presumably fleshing out the issues to be
    addressed at the preliminary inquiry. Third, the witness list had already been
    settled. The Crown planned to call five necessary witnesses plus ten witnesses
    at the request of the defence. Expecting defence counsel to be available in
    these circumstances does not amount to insisting that they hold themselves in
    a state of perpetual availability, particularly in the post-
Jordan

era. Here, the plain fact is, as stated in
Jordan
, the court and
    the Crown [were] ready to proceed, but the defence [was] not:
Jordan
,
    at para. 64.

[50]

In my view, the trial
    judges analysis ignores
Jordan
s call for [a] change of direction and
    the need to break the culture of complacency towards delay [that] has emerged
    in the criminal justice system:
Jordan
, at paras. 5, 40.
Jordan
imposes
    an obligation on all actors in the criminal justice system, including defence
    counsel, to alleviate the delays that have plagued the criminal justice system.
    As I have already noted,
Jordan
holds that the defence will have directly
    caused the delay if the court and the Crown are ready to proceed, but the
    defence is not:
Jordan
, at para. 64. That is precisely what happened
    in this case. Post-
Jordan
, counsel  both the Crown and defence  are
    not entitled to rely on the way things have always been done.
Jordan
demands
    change. While the dates may have been unexpected, the fact is that the court
    was able to offer dates allowing a reasonable time for the defence to prepare
    for and conduct the preliminary inquiry in this case. The Crown was ready to
    proceed on those dates but not all three defence counsel were  at least at the
    same time.

[51]

I can certainly
    understand why, in the circumstances of this case, it might have been difficult
    for three busy defence counsel to coordinate their schedules in order to conduct
    a multiple-week preliminary inquiry in three months time. The preliminary inquiry
    was scheduled before
Jordan
was decided and everyone was working under
    the framework and state of affairs that existed pre-
Jordan
.
    However, the respondents cannot insist on the strict application of the
Jordan
ceiling, and at the same time, excuse the delay they caused because they were relying
    on pre-
Jordan
conditions.
Jordan
holds, at para. 96, that the transitional
    exceptional circumstance [exception] will apply when the Crown satisfies the
    court that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed. If the delay
    occasioned by defence counsels refusal of earlier available dates for the
    judicial pre-trials and preliminary inquiry does not constitute defence delay
    because they relied on pre-
Jordan
scheduling practices, then the
    transitional exceptional circumstance should apply.

[52]

Accordingly, I would
    characterize the entire eight months as defence delay.

[53]

This leaves a remaining
    delay of 29 months for all the respondents.

Remaining Delay

[54]

Jordan
instructs that when the remaining delay is at or
    under the 30-month presumptive ceiling, the defence bears the onus of
    demonstrating that the delay is unreasonable. To do so, the defence must show
    that it took meaningful steps that demonstrate a sustained effort to expedite
    the proceedings, and the case took markedly longer than it reasonably should
    have. Absent both these factors, the s. 11(b) application must fail. Stays
    beneath the presumptive ceiling should be granted only in clear cases. See:
Jordan
, at
    paras. 82-83.

[55]

The respondents do not
    argue that if the remaining delay is at or under the
Jordan
ceiling,
    it is therefore unreasonable. While there were no defence delay tactics, the
    evidence does not reveal any meaningful steps that the respondents took to
    expedite the proceedings, nor that the case took markedly longer than it
    reasonably should have. The respondents appeared content with the pace of the
    joint proceedings.

[56]

In contrast, Crown
    counsels efforts to expedite the proceedings were in keeping with the guidance
    provided by
Jordan
as to the kind of reasonable steps that are expected
    from the Crown to attempt to avoid delay. While not an exhaustive list, these might
    include prompt resort to case management processes to seek the assistance of
    the court, or seeking assistance from the defence to streamline evidence or
    issues for trial or to coordinate pre-trial applications, or resorting to any
    other appropriate procedural means:
Jordan
, at para. 70. Certainly, Crown counsels
    endeavours in this case of proposing a paper preliminary inquiry, offering to
    fragment the trial, and seeking various admissions fell well within the
Jordan
description of reasonableness. And, as
Jordan
directs, at para. 70, [t]he Crown, we
    emphasize, is not required to show that the steps it took were ultimately
    successful  rather, just that it took reasonable steps in an attempt to avoid
    the delay.

[57]

For these reasons, I
    conclude that had the trial judge applied the correct approach, he would have determined
    that defence delay amounted to 10.75 months of delay in this case and that the
    remaining 29 months of delay were reasonable.

[58]

As a result, I would
    dismiss the respondents s. 11(b) applications.

Disposition

[59]

For the reasons given,
    I would allow the appeal and order that the charges against the respondents
    proceed to trial.

Released: December 28, 2018 LR

L.B. Roberts J.A.

I agree.  Robert J. Sharpe J.A.

I agree.  R.G. Juriansz J.A.





[1]
I have calculated the delay in scheduling the preliminary inquiry by counting
    the time between when the preliminary inquiry could have started (January 11,
    2016) to when it actually did start (September 12, 2016). This results in a
    delay period of eight months.



[2]

The record reveals that the defence requested three weeks for
    the preliminary inquiry. At the final judicial pre-trial, the judge recommended
    setting two weeks in a row and an additional week at a later date in the event
    that the defence required the third week.


