



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Wookey, 2021 ONCA 68

DATE: 20210203

DOCKET: C64681

Watt, Trotter
    and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Wookey

Appellant

Joseph Wilkinson and Michael Lacy, for the
    appellant

Kevin Wilson and Sandy Thomas, for the
    respondent

Heard: September 3-4, 2020 in
    writing

On appeal from the convictions entered
    and sentence imposed by Justice Robert G. Bigelow of the Ontario Court of
    Justice on September 7, 2017, and December 21, 2017, respectively.

Trotter
    J.A.:

A.

overview

[1]

Adam Wookey was convicted of two counts of
    trafficking a controlled substance, contrary to s. 5(1) of the
Controlled Drugs and Substances Act
,
S.C. 1996, c. 19

(
CDSA
), and two counts of possession of
    a controlled substance for the purposes of trafficking (
CDSA
,
s.
    5(2)). He received a global sentence of 46 months imprisonment and a $165,000
    fine.

[2]

The appellant advances numerous grounds of
    appeal against his convictions and sentence. In my view, it is only necessary
    to address one of the grounds against conviction  unreasonable delay. The
    following reasons explain why I would allow the appeal from conviction on this
    basis.

[3]

In short, the trial judge erred in his s. 11(b)
    analysis by applying the 30-month presumptive ceiling set out in
R. v. Jordan
,
2016 SCC 27, [2016] 1 S.C.R. 631. Because the appellant was tried in
    the Ontario Court of Justice, without a preliminary inquiry, the case was
    governed by the 18-month ceiling:
R. v. Shaikh
,
2019 ONCA 895, 148 O.R. (3d) 369. The
    net delay far exceeded 18 months.

[4]

The Crown did not discharge its burden of
    justifying the delay in excess of the presumptive ceiling
.
First, the
    moderate complexity of this case could not justify the delay that transpired.
    The Crown did not develop a reasonable plan to move the proceedings forward in
    a timely manner. Second, the parties reliance on the law under
R. v. Morin
, [1992] 1 S.C.R. 771 could
    not transform complacency into reasonable conduct. Although the trial judge
    found the delay to be reasonable under
Morin
, in my respectful view, the combined institutional and Crown delay
    exceeded the
Morin
guidelines for a case in the Ontario Court of Justice. The net delay cannot be justified
    under the exceptions outlined in
Jordan
. I would enter a stay of proceedings under s. 24(1) of the
Canadian Charter of Rights and Freedoms
.

[5]

In light of my conclusion on the s. 11(b) issue,
    there is no need to address the sentence appeal.

B.

OVERVIEW OF THE FACTS

[6]

The appellant was the owner of a business that
    claimed to sell legal alternatives to various narcotics through online stores
    and retail outlets. He marketed a product containing the chemical compound
    known as methylone as a legal alternative to ecstasy (MDMA). He also marketed products
    containing JWH-018 and JWH-073 (JWH) as legal alternatives to cannabis.

[7]

At the time of the offences, these chemical substances
    were not listed in the Schedules of the
CDSA
. However, Schedule I of the
CDSA

lists [a]mphetamines, their salts, derivatives, isomers and
    analogues and salts of derivatives, isomers and analogues, which includes
    Nmethyl-3,4-methylenedioxy-amphetamine (commonly known as ecstasy (MDMA)). Section
    2(1) of the
CDSA

further defines analogue as 
a
    substance that, in relation to a controlled substance, has a substantially
    similar chemical structure.
The Crown alleged that
    methylone was an analogue of ecstasy (MDMA), as defined in s. 2(1) of the
CDSA
,
and
    therefore the appellants products were captured under Schedule I, Item 19, of
    the
CDSA
.
Additionally, at the time of the offences, Schedule II listed
    [c]annabis, its preparations, derivatives and similar synthetic preparations.
[1]
The Crown argued that the JWH compounds
    were similar synthetic preparations to cannabis and were therefore captured
    under Schedule II, s. 1 of the
CDSA
.


[8]

The appellant conceded that he possessed and
    sold these substances; however, he disputed that they were controlled drugs
    within the meaning of the
CDSA
. In other words, he argued that methylone was not an analogue of
    ecstasy and the JWH compounds were not similar synthetic preparations to
    cannabis. The trial judge accepted that the appellant honestly believed that
    these substances were legal.

[9]

The appellant was charged with the methylone
    offences
[2]
in October 2013, along with another individual. The Crown eventually withdrew
    the charges against the appellants co-accused. The appellant and three others
    were charged with the JWH offences
[3]
in March 2014. The methylone and JWH charges proceeded separately, at least in
    the initial stages of the prosecution.

[10]

From the outset, the case against the appellant
    was marred by disclosure delays, missed deadlines, and general indecision about
    how to prosecute the two sets of charges, and against whom.

[11]

As the case slowly crept towards a preliminary
    inquiry, the Crown discontinued charges against the appellants co-accused on
    the methylone offences. In September 2014, the Crown joined the methylone and JWH
    charges against the appellant in a single information.

[12]

It was not until December 17, 2014 that the
    parties were in a position to set preliminary inquiry dates. The preliminary
    inquiry was to start on November 9, 2015 and last for two weeks. It later
    became apparent that two weeks would likely be insufficient. In July 2015, the
    parties reserved further dates in May and June 2016 as a precautionary measure.

[13]

In October 2015, counsel for the appellant and
    the Crown discussed the prospect of the appellant re-electing to be tried in
    the Ontario Court of Justice.

[14]

On November 9, 2015, with the consent of the
    Crown, the appellant re-elected to have his trial in the Ontario Court of
    Justice. The appellant was not asked, nor did he offer, to waive his rights
    under s. 11(b) of the
Charter
in exchange for the Crowns consent to re-election. This was the
    case even though counsel for the appellant had flagged unreasonable delay as an
    issue months earlier. As the parties were not prepared to commence the trial at
    that point in time, the case was adjourned until May 18, 2016 (the date previously
    set aside for the purpose of the preliminary inquiry in the event that two
    weeks proved insufficient).

[15]

Before the outset of his trial, the appellant applied
    under ss. 11(b) and 24(1) of the

Charter
to stay the proceedings due to unreasonable delay. The trial judge
    applied the framework in
Morin
and dismissed the application. Nine days later, the Supreme Court
    of Canada released the
Jordan
decision, which changed the legal landscape for assessing s. 11(b)
    claims. The appellant re-applied to have his proceedings stayed. The trial
    judge held that the 30-month presumptive ceiling applied and dismissed the
    application.

[16]

Thereafter, the appellant brought pre-trial
    applications to exclude evidence pursuant to ss. 8, 10(b), and 24(2) of the
Charter
. The trial judge dismissed the
    applications on December 20, 2016 and April 25, 2017.

[17]

Finally, the appellant sought a declaration that
    the definitions of similar synthetic preparation and analogue in the
CDSA

violated
    s. 7 of the
Charter
because they were impermissibly vague and overbroad. Counsel agreed to deal
    with this matter and the trial on its merits in a blended fashion.

[18]

At trial, two Agreed Statements of Fact addressed
    the bulk of the factual issues that would have otherwise required the testimony
    of many witnesses. To supplement these Statements, counsel adduced expert
    evidence in pharmaceutical chemistry and pharmacology, concerning the
    properties of methylone and JWH and whether they are captured by Schedules I
    and II of the
CDSA
.
    This was the main factual issue at trial.

[19]

Counsel completed their final submissions on
    August 17, 2017. The trial judge addressed the s. 7 issue and the trial on its
    merits in a comprehensive judgment, delivered on September 7, 2017. The trial
    judge dismissed the
Charter
application. He found the appellant guilty on the four
CDSA
counts listed above, but not
    guilty on a single count of possession of the proceeds of crime, contrary to s.
    354(1) of the
Criminal Code
, R.S.C. 1985, c. C-46. The trial judge sentenced the appellant on
    December 21, 2017.

C.

Trial within a reasonable time

(1)

Introduction

[20]

This ground of appeal turns on the correctness
    of the trial judges second s. 11(b) ruling (under
Jordan
), although his findings on the first ruling remain relevant.

[21]

The trial judge released his second s. 11(b) ruling on August 26,
    2016. At that time, it was anticipated that the trial would conclude on
    November 18, 2016. Based on this projected date, the trial judge accepted the
    parties joint position that the total delay on the October 2013 charges (methylone)
    would be approximately 36 ½ months and the total delay on the March 2014 charges
    (JWH) would be 32 months and 18 days. From this, the trial judge subtracted
    defence delay of 4 ½ months because the appellants counsel was not available
    to continue the trial until the fall of 2016. The trial judge concluded that
    the net delays for the October 2013 charges (methylone) and March 2014 charges (JWH)
    were 31.5 months and 27 months
[4]
respectively.

[22]

The trial concluded almost nine months after its
    anticipated end date, on August 17, 2017, when the trial judge reserved his
    decision.
[5]
This was nearly 46 months after the appellants arrest for the October 2013
    charges (methylone), and almost 42 months after his arrest for the March 2014
    charges (JWH).


[23]

Before turning to the analysis, I first
    summarize both of the trial judges s. 11(b) rulings in greater detail.

(2)

The First s. 11(b) Ruling under
Morin


[24]

The trial judge heard the first s. 11(b)
    application on May 18-19, 2016 and released his ruling on June 29, 2016. At
    that time,
Morin
was
    the leading authority, but it would not remain so for long.

(a)

The Commencement of the s. 11(b) Clock

[25]

The parties disputed the appropriate
    commencement date for the purposes of the s. 11(b) timeline. This was
    complicated by the fact that the Hamilton Police had previously laid similar
    charges concerning the trafficking of synthetic cannabinoids against the appellant
    on March 8, 2013 (the Hamilton Charges). On April 24, 2013, with no
    explanation, the Crown stayed those charges. Nevertheless, the Hamilton police
    continued to investigate the sale of these products. In November 2013, the
    Hamilton police executed a number of search warrants at stores that sold the
    appellants products, which were owned and operated by a Mr. Wang. The Hamilton
    police charged Mr. Wang with similar offences in March 2014. Those charges were
    transferred to Toronto
in June 2014 and joined with
    the appellants other charges. Ultimately, the Crown did not proceed against
    Mr. Wang on these charges.

[26]

At trial, relying on
R. v. Milani
,
2014 ONCA 536, 120 O.R. (3d) 641, the appellant submitted that the
    s. 11(b) timeline should commence on the earlier arrest date for the Hamilton
    charges, in March 2013. The trial judge rejected this submission and found that
Milani
only applied to
    scenarios where the police re-laid previous charges; it did not apply where police
    laid similar charges in relation to conduct allegedly committed at a later date,
    at a different location. The trial judge held that the time periods relevant to
    s. 11(b) commenced with the charges laid in October 2013 (methylone), and March
    2014 (JWH).

(b)

The Neutral Intake Period

[27]

Having determined these commencement dates, the
    trial judge turned to the reasons for delay in this case. He first sought to
    identify the appropriate neutral intake period, being the time in which parties
    retain counsel, prepare and review disclosure, meet with and obtain
    instructions from clients, and conduct pre-trial resolution meetings: see
R. v. Tran
,
2012 ONCA 18, 288 CCC (3d) 177, at para. 32, and
R. v. Lahiry
,
2011 ONSC 6780, 109 O.R. (3d) 187, at para. 19. The neutral intake
    period ends when both parties say on the record that they are ready to set a
    trial date:
R. v. Khan
,
2011 ONCA 173, 270 C.C.C. (3d) 1
,
at para. 32;
Lahiry
,
at
    para. 19. In this case, the parties were not in a position to set preliminary
    inquiry dates until December 17, 2014 (almost 14 months after the October 2013
    charges (methylone) were laid and roughly 9 months after the March 2014 charges
    (JWH) were laid).

(i)

October 2013 Charges (Methylone)

[28]

With respect to the October 2013 charges (methylone),
    the trial judge found that it was not an overly complex case and the
    appropriate intake period would typically be in the range of 3 to 4 months. However,
    he found that the intake period ought to be longer for the following reasons: there
    were numerous issues with disclosure; there was a change in defence counsel in
    the spring of 2014; and the Crown was indecisive about how to proceed with
    multiple informations and co-accused at the time.

[29]

Due to the change in counsel, the trial judge
    concluded that the neutral intake period included the nine months between
    October 2013 and July 2014. He attributed the remaining period of time, from
    July 22, 2014 to December 17, 2014 (when the parties set the preliminary
    inquiry dates), to Crown delay. This totalled 4 months and 25 days.

(ii)

March 2014 Charges (JWH)

[30]

As for the March 2014 charges (JWH), the trial
    judge noted that a period of 9 months and 5 days passed between the date of
    charges and December 17, 2014 (again, when the parties were ready to set
    preliminary inquiry dates). He refused to accede to the Crowns request to
    allocate the entire nine months and 5 days to neutral intake period. The trial
    judge pointed to the four-month period between July 10, 2014 and November 10,
    2014 during which the Crown made no disclosure and failed to provide any
    explanation.

[31]

Ultimately, he found that a reasonable intake
    period for this set of charges was approximately four and a half months, spanning
    from the March 2014 charge date to July 22, 2014, the date that was set for the
    first judicial pre-trial. He attributed the remaining 4 months and 25 days that
    passed before the parties would be ready to set preliminary inquiry dates as
    Crown delay. This is the same delay allocated to the October 2013 charges (methylone).

(c)

Delay Caused by the Appellants Re-Election

[32]

There was a delay of 10 months and 24 days
    between December 2014 (when the parties set the preliminary inquiry dates) and
    November 2015 (when the preliminary inquiry was to start). Normally, this
    almost 11-month period would have been considered institutional delay. However,
    the trial judge only attributed 2 months of this period to institutional delay.
    He determined that roughly 8 ½ months of this period should be attributed to
    the appellant because he re-elected to be tried in the Ontario Court of Justice
    shortly before the preliminary inquiry.

[33]

The parties were not in a position to proceed to
    trial on the scheduled preliminary inquiry dates. The case was adjourned until
    May 18, 2016 for the commencement of trial, roughly 6 months later. The trial
    judge attributed 4 months to preparation time and 2 months and 8 days to
    institutional delay.

[34]

In combination, from December 2014 to May 2016, the
    trial judge found only 4 months and 8 days of institutional delay.

(d)

Prejudice

[35]

The trial judge reviewed the evidence relating
    to prejudice. The appellant was released on bail throughout the proceedings, the
    terms of which were varied in his favour from time to time, to accommodate
    relief from his house arrest condition. He was subject to bail conditions and
    then a conditional sentence arising from other proceedings. The trial judge accepted
    that the appellant was subject to the outstanding matters for an extended
    period of time. On that basis, he found that the appellant experienced some
    prejudice.

(e)

Conclusion

[36]

Overall, the trial judge found that the total
    institutional and Crown delay was approximately nine months, which was within
    the
Morin

guidelines of eight to ten months in the provincial court:
Morin
,
at
    p. 773. Although the appellant experienced some prejudice as a result of the
    delay, it was not enough to justify a stay of proceedings. The trial judge
    dismissed the application.

(3)

The Second s. 11(b) Ruling under
Jordan

[37]

Nine days after the trial judge decided the
    first s. 11(b) application, the Supreme Court released its decision in
Jordan
.
Jordan
sought to address a culture of
    complacency within the system towards delay by setting out a new framework for
    deciding s. 11(b) applications:
Jordan
,
at

para. 4.

[38]

The appellant sought to re-open his s. 11(b)
    application to have the trial judge apply the
Jordan
framework. The Crown opposed the re-opening. Nevertheless, the
    trial judge considered the application on its merits.

[39]

The appellant submitted that, because the case
    was being tried in the Ontario Court of Justice without first having a
    preliminary inquiry, the 18-month presumptive ceiling created by
Jordan
applied in the circumstances.
    The Crown urged the trial judge to apply the 30-month ceiling. The trial judge
    agreed with the Crown. At para. 26 of his reasons, the trial judge found that,
    applying the new framework flexibly and contextually, the 30-month
    presumptive ceiling applied.

[40]

Applying
Jordan
,
the trial judge found that the total
    delay less defence delay for the October 2013 charges (methylone) was 31.5
    months, whereas the total delay less defence delay for the March 2014 charges
    (JWH) was 28 months.

[41]

In finding that the delay for the October 2013
    charges (methylone) exceeded the 30-month ceiling, the trial judge considered the
    parties reliance on
Morin
. As he said, at para. 32:

I am satisfied that with respect to the
    October 2013 charges the Crown has met its onus to establish that the delay in
    this matter is "justified based on the party's reasonable reliance on the
    law as it previously existed". In coming to this conclusion I take into
    account in particular the fact that the delay is only 1.5 months above the
    ceiling, the institutional delay in existence at this court at the time that
    the preliminary inquiry was first scheduled and the comment of the court in
Jordan
that:

Ultimately, for most cases that are already
    in the system, the release of this decision should not automatically transform
    what would previously have been considered a reasonable delay into an
    unreasonable one.

[42]

Finally, noting that the March 2014 charges (JWH)
    fell below the presumptive ceiling of 30 months, the trial judge found that the
    appellant failed to establish that the delay of 28 months markedly exceeded
    what was reasonably required. He dismissed the application.

D.

the positions of the parties

[43]

The appellant submits that the trial judge erred
    by failing to anchor the commencement of the s. 11(b) timeline to March 2013, when
    the Hamilton charges were laid. He also submits that the trial judge erred in applying
    the 30-month presumptive ceiling. Finally, the appellant contends that, because
    the net delay substantially exceeds the 18-month presumptive ceiling, neither
    the complexity of the case nor the transitional exceptional circumstance can
    justify the delay.

[44]

The Crown submits that the trial judge made no
    error in determining that the time began to run when the October 2013 charges (methylone)
    were laid. The Crown acknowledges that the trial judge erroneously applied the
    30-month ceiling, citing this courts decision in
Shaikh
.
It further contends that, although the
    net delay clearly exceeded the 18-month ceiling, it was justified because this
    was a complex and transitional case within the meaning of paras. 69-81 of
Jordan
.

E.

analysis

(1)

Introduction

[45]


The first step in determining whether the appellants
s. 11(b)
right was
    infringed is to determine the total delay between the charges and the end of
    trial:
Jordan
,
at para. 66.
As
    I explain below, I agree with the trial judge that the appellants s. 11(b)
    right was engaged when the police arrested him on the methylone charges in
    October 2013. The Hamilton charges were separate and distinct for the purpose
    of the s. 11(b) clock.

[46]

As noted above, the trial judge applied the
    incorrect presumptive ceiling of 30 months. The governing presumptive ceiling
    under
Jordan
was 18
    months because the accused re-elected to be tried in the Ontario Court of
    Justice without a preliminary inquiry.

[47]

The total delay in this case far exceeded the 18
    month ceiling.
[6]
Therefore, the issue is whether the trial judge erred in finding that the Crown
    discharged its burden of rebutting the presumption of unreasonable delay. As
    discussed below, the trial judge erred in finding that the delay was reasonable.


[48]

The moderate complexity of this case did not
    justify the excessive delay. The delay is also not justified by the parties
    reliance on
Morin
. In
    my view, the delay was not justified under
Morin
and the Crown failed in its duty to develop a plan to bring the
    case to trial in a timely manner.

(2)

The Commencement of the
Jordan
Clock

[49]

The appellant maintains the position he advanced
    before the trial judge: the s. 11(b) clock started to run when the Hamilton
    police laid synthetic cannabinoids charges on March 8 2013, well before police
    laid the October 2013 charges (methylone) and the March 2014 charges (JWH).

[50]

The Hamilton information contained two counts,
    alleging that the appellant was trafficking in JWH and methanone
[7]
on March 5, 2013, in Hamilton.
    The Crown stayed the Hamilton charges on April 23, 2013. The Hamilton police
    continued their investigation of the sale of both substances. They subsequently
    charged Mr. Wang with further drug offences in March 2014, in relation to
    search warrants that were executed in November 2013. These charges against Mr.
    Wang were unrelated to the March 5, 2013 transactions that were the subject of
    the stayed information. Eventually, they were transferred to Toronto, but the
    Crown ultimately chose not to proceed on them.

[51]

The Crown submits that the clock did not start
    running when the Hamilton charges were laid. Rather, it argues that there is no
    evidence that the Hamilton charges were re-laid against the appellant, or that
    the Crown ever considered re-laying them, or that Hamilton police continued to
    investigate the appellant.

[52]

As a matter of clarification, the Crown did not
    withdraw the Hamilton charges; it entered a stay of proceedings, presumably
    under s. 579(1) of the
Criminal Code
. Section 579(2) allows for the recommencement of proceedings
    without laying a new information or preferring a new indictment[by] giving
    notice of the recommencement to the clerk of the court in which the stay of
    proceedings was entered That did not occur in this case. Thus, the
    proceedings are deemed never to have been commenced.

[53]

This courts decision in
Milani

addressed
    the appropriate commencement date for s. 11(b) purposes. Mr. Milani was charged
    in 1987 with a series of home invasions and sexual assaults. In 1989, at the
    end of his preliminary inquiry, he was discharged on four counts, and committed
    to trial on a single count. He was later acquitted on the single count.

[54]

Due to improved DNA technology, in 2010, the
    Crown revived the prosecution by preferring an indictment against Mr. Milani in
    relation to four of the home invasion sexual assaults of which he had
    previously been discharged. During the period of time between his discharge and
    the preferred indictment, Mr. Milani was unaware that he was being
    investigated. At trial, he brought a successful s. 11(b) application. The trial
    judge held that the commencement date for s. 11(b) purposes extended back to
    when the original set of charges was laid, in 1987. The Crown appealed.

[55]

In allowing the Crowns appeal, this court
    confirmed, at para. 22, that for s. 11(b) purposes, [t]he period to be
    scrutinized is the time elapsed from the date of the charge to the end of the
    trial. In this context, charge means the date on which an information is
    sworn or an indictment is preferred. Writing for the court, van Rensburg J.A.
    confirmed that delays occurring in the pre-charge period, including in the
    investigatory or pre-charge stage, are not subject to analysis under s. 11(b):
Milani
,
at para. 26, citing
R. v. Carter
, [1986] 1 S.C.R. 981, at paras. 11, 13;
R. v. Kalanj,
[1989] 1 S.C.R. 1594, at
    para. 17;
Morin
, at
    para. 35.

[56]

The narrower question for the court was whether
    the gap between the accuseds discharge in 1989 and the new indictment in
    2010 was delay that could be counted under s. 11(b). Generally, van Rensburg
    J.A. held that s. 11(b) does not apply to persons who are not actively charged
    with an offence:
Milani
,
at para. 47. However, at paras. 48-49,
    she carved out an important caveat that the appellant asks us to apply:

There are circumstances in which unilateral
    state action may control whether or not charges are withdrawn or re-laid. In
    such circumstances,
where the formal charge has been withdrawn with the
    intention of laying a new charge, or an information has been quashed with a new
    information laid, it makes sense to consider the entire period from when the
    first charges were laid as part of the s. 11(b) analysis
. In such
    circumstances, the person, although not formally charged during the
    "gap" period,
remains subject to the judicial process, and his s.
    11(b) interests will continue to be affected by the knowledge or expectation
    that further charges are imminent
.
It is reasonable to conclude that he
    remains subject to the process of the court

For all of these reasons, I would interpret s.
    11(b) as being engaged during any period that an accused person is in fact
    subject to charges, or when a person no longer actively charged remains subject
    to the very real prospect of new charges. [Emphasis added.]

[57]

I agree with the trial judge that the appellant
    is unable to bring himself within the exception in
Milani
,
which
would
    permit the counting of pre-charge delay back to March 8, 2013. The Crown did
    not recommence proceedings against the appellant under s. 579(2) of the
Criminal Code
, nor was there any evidence
    that the Crown ever contemplated doing so.

[58]

Moreover, the police did not re-lay a new
    information to resurrect the March 8, 2013 allegations. The criminal activities
    alleged by the October 2013 charges (methylone) and March 2014 charges (JWH) were
    temporally and geographically distinct from the Hamilton charges. The October
    2013 charges related to conduct occurring on October 29, 2013, whereas the
    March 2014 charges related to transactions occurring between October 25, 2013
    and March 3, 2014. Meanwhile, the Hamilton charges related to conduct that
    pre-dated these allegations, occurring on March 5, 2013. Moreover, both sets of
    charges related to incidents in Toronto, not Hamilton. The charges were also
    substantively distinct in that the Hamilton charges alleged that the appellant
    trafficked in a synthetic cannabinoid called methanone (not to be confused with
    methylone). The October 2013 and March 2014 charges did not include any allegations
    related to methanone.

[59]

Consequently, the time calculation must commence
    with the laying of the October 2013 charges (methylone).

[60]

In concluding this part, I observe that the
    question of whether an individual whose charges have been stayed under s. 579(1)
    remains subject to the process of the court was not addressed in the factums
    of either party. Consequently, it is not addressed in these reasons.

(3)

The Applicable Presumptive Ceiling is 18 Months

[61]

The majority in
Jordan
described the creation of presumptive ceilings as being at the
    heart of the new framework:
Jordan
,
at para. 46. As explained, at para.
    49:

The most important feature of the new
    framework is that it sets a ceiling beyond which delay is presumptively
    unreasonable. For cases going to trial in the provincial court, the presumptive
    ceiling is 18 months from the charge to the actual or anticipated end of trial.
For cases going to trial in the superior court, the presumptive
    ceiling is 30 months from the charge to the actual or anticipated end of trial.
We note the 30-month ceiling would also apply to cases going to trial in the
    provincial court after a preliminary inquiry.
[Footnotes omitted; emphasis
    added.]

See also
R.
    v. K.G.K
.
, 2020 SCC
    7, 61 C.R. (7th) 233, at para. 32 and
R. v. K.J.M
.
, 2019 SCC 55, 381 C.C.C. (3d) 293, at
    para. 44.

[62]

As noted above, at para. 39, the trial judge
    concluded that the determination of the applicable ceiling involved applying
    the new framework flexibly and contextually. Given the circumstances of the
    appellants re-election, he concluded that the 30-month ceiling applied. The
    respondent concedes that the trial judge erred in so finding: the applicable ceiling
    is 18 months. I agree.

[63]

In a footnote to the passage from
Jordan
reproduced above, the majority
    expanded on which presumptive ceiling applies where the accused re-elects to be
    tried in provincial court
after
a preliminary inquiry. The majority wrote:

While most proceedings with a preliminary
    inquiry are eventually tried in the superior court, this is not always the
    case. For example, a case may go to trial in the provincial court after a
    preliminary inquiry if the province in which the trial takes place offers this
    as an option (such as Quebec),
or if the accused re-elects a trial in the
    provincial court following a preliminary inquiry
. In either case, the
    30-month ceiling would apply. [Emphasis added.]

[64]

The majority also alluded to situations like the
    one that arose in this case in the following passage, at para. 62:

Accused persons sometimes,
either before or
    during their preliminary hearing
, wish to re-elect from a superior court
    trial to a provincial court trial for legitimate reasons. To do so, the Crowns
    consent must be obtained (
Criminal Code
, R.S.C. 1985, c C-46, s. 561).
Of
    course, it would generally be open to the Crown to ask the accused to waive the
    delay stemming from the re-election as a condition of its consent
.
    [Emphasis added.]

I return to the issue of waiver upon
    re-election below.

[65]

These passages from
Jordan
lead to the conclusion that the 18-month presumptive ceiling is
    applicable in the circumstances of this case. This is confirmed by this courts
    holding in
Shaikh
; a
    decision that was not available to the trial judge when he confronted this
    nuanced issue.

[66]

Mr. Shaikh was charged with robbery and other
    offences. He originally elected to be tried in the Superior Court following a
    preliminary inquiry. The parties attended court on dates that had been
    scheduled for a preliminary inquiry, but for various reasons the proceeding
    never got off the ground. When the court reconvened more than a month later, Mr.
    Shaikh re-elected to be tried in the Ontario Court of Justice. No s. 11(b)
    waiver was secured from, or offered by, Mr. Shaikh. He subsequently brought two
    s. 11(b) applications  one in advance of the trial, and the second before the
    trial judge. Both applications were dismissed. His appeal to this court was
    allowed and his proceedings were stayed.

[67]

Writing for the court, Paciocco J.A. relied upon
    the passages from
Jordan
cited above to conclude that the 18-month presumptive ceiling
    applied in that case. Paciocco J.A. rejected a case-by-case approach to
    determine whether a re-election occurs late enough to warrant imposing the
    30-month period of presumptive delay:
Shaikh
,
at para. 54. He held that such an
    approach is at odds with the bright line structure for s. 11(b) cases meant
    to displace the
Morin
approach that engendered uncertainty, complexity, and unpredictability:
Shaikh
, at para. 54, citing
Jordan
, at paras. 31-37.

[68]

In
Shaikh
, as in this case, the Crown at trial submitted that it was
    prejudiced by the late re-election. In that case, the re-election was made after
    the preliminary inquiry was originally scheduled to proceed; in this case, the
    accused re-elected on the scheduled commencement date for the preliminary
    inquiry, but it was agreed upon earlier. The complaint is that a late
    re-election unfairly shifted the Crown into a much shorter presumptive ceiling,
    automatically imperilling the case for s. 11(b) purposes.

[69]

The Crown need not be exposed to vulnerability
    in these circumstances. The solution lies in the Crown requiring a waiver by
    the accused person in exchange for consent to re-elect. As Paciocco J.A. said,
    at para. 57 of
Shaikh
:

The bright line approach that I consider
    myself compelled to follow does not enable the defence to manufacture a s.
    11(b) delay by re-electing into a shorter presumptive period of delay. Section
    561(1) of the
Criminal Code
requires Crown consent before the accused
    can re-elect to a trial by a provincial court judge.
Where re-election would
    create the risk of s. 11(b) problems, the Crown has the authority to, and
    should, refuse consent, absent a s. 11(b) waiver.
[Emphasis added.]

See also
Jordan
, at para. 62
    (reproduced in para. 64, above).

[70]

In this case, the appellant did not offer to
    waive any delay, nor did the Crown request it. By November 9, 2015, the time of
    the formal re-election, more than two years had already elapsed from the date
    on which the Toronto police laid the methylone charges. Defence counsel had put
    the Crown on notice that delay was an issue. Moreover,
Jordan
(also a drug prosecution
    conducted by the Public Prosecution Service of Canada) was argued in the
    Supreme Court of Canada on October 7, 2015 and the Court had reserved judgment.
    Still, the Crown required no waiver.

[71]

Neither on appeal, nor at trial, did the Crown
    argue that the appellants re-election was a discrete event capable of
    justifying the excess in delay within the meaning of
Jordan
(discussed below). This makes
    sense: given that the Crowns consent was required to facilitate the
    re-election in this case, as a litigation event, it could not be said to be
    either reasonably unforeseen or reasonably unavoidable:
Jordan
, at para. 69. It was the
    opposite, on both measures.

[72]

Nevertheless, a theme that runs through the
    Crowns submissions on the impact of the appellants re-election is that he was
    the beneficiary of a fortuitous windfall. In its Factum, the Crown asserts:

Shaikh
now
    tells us (at para. 57) that, absent a s. 11(b) waiver, the Crown should not
    consent to such a request in a case where, as here, it can have an adverse
    effect on the characterization of the delay down the road by allowing the
    accused to elect into a more restricted presumptive ceiling. In this case, of
    course, the Crown did not have the benefit of either
Shaikh
or
Jordan
when it consented.

[73]

The Crowns argument proceeds on the faulty premise
    that
Jordan
and
Shaikh
introduced the concept of waiver
    into the s. 11(b) jurisprudence. Waiver has been an integral part of our s.
    11(b) jurisprudence for over three decades. At the Supreme Court level, it was
    first discussed in the dissenting reasons of Lamer J. (as he then was) in
Mills v. the Queen
,
[1986] 1 S.C.R. 863,
at p. 925. It was
    subsequently revisited in
R. v. Smith
, [1989] 2 S.C.R. 1120, and thereafter in
R. v. Askov
, [1990] 2 S.C.R. 1199 and
Morin
. Waivers of periods of delay have
    long been commonplace in circumstances where the defence seeks the Crowns
    consent to agree to delays in moving a case forward.

[74]

The Crowns assertion that
Jordan
and
Shaikh
permit an appellant to re-elect into a more restricted presumptive
    ceiling is true. But it was also true under
Morin
. Although only guidelines, and vulnerable to the shortcomings
    identified by the
Jordan
majority,
Morin
held that 8-10 months applied for trials in the provincial courts,
    whereas 14-18 months applied for cases tried in the superior courts.

[75]

Before
Jordan
changed the landscape, this case was already in potential trouble
    under the
Morin
guidelines, even if the Crown did not think so at the time of re-election. Moreover,
    delay was an issue from early on, especially when disclosure slowed down and
    then dried up for months.

[76]

Therefore, as in
Shaikh
,
the re-election in this case did not
    prejudice the Crown because it could have withheld its consent to re-elect
    under s. 561(1) of the
Criminal Code
.
Nonetheless,
the
    respondent sensibly concedes that the presumptive ceiling in this case was 18
    months. On the trial judges calculations, the total delay less defence delay
    significantly exceeded this ceiling. The question becomes whether the Crown is
    able to justify this additional time.

(4)

Delay Above the Presumptive Ceiling Was Not
    Justified

[77]

If the total delay less defence delay exceeds
    the applicable ceiling, the delay is presumptively unreasonable, and the Crown
    bears the burden of rebutting the presumption of unreasonableness. The Crown
    may do so by establishing exceptional circumstances: see
Jordan
,
at
    paras. 69-81.

[78]

As referenced above, exceptional circumstances may
    arise from delay attributable to discrete events that are reasonably unforeseen
    or reasonably unavoidable:
Jordan
, at para. 69. Such events do not qualify as exceptional
    circumstances if they can be reasonably remedied by the Crown:
Jordan
,
at para. 69. The Crown may also justify excessive delay by showing that the
    case is particularly complex, and that it attempted to develop and execute a
    plan that minimized delay occasioned by such complexity:
Jordan
,
at
    paras. 77, 79. If the Crown cannot establish exceptional circumstances, the
    court will grant a stay of proceedings:
Jordan
,
at para. 47.

[79]

For cases where the charges were laid before
Jordan
was decided on July 8, 2016, but
    the trial concluded after that date, a transitional exceptional circumstance
    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:
Jordan
,
at para. 96. This is a contextual determination
    that recognizes that the parties behaviour cannot be judged strictly, against
    a standard of which they had no notice:
Jordan
,
at para. 96. S
ee also
R. v. Williamson
, 2016 SCC 28, [2016] 1 S.C.R. 741, at
    para. 24;
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 74;
R. v. Picard
, 2017 ONCA 692, 137 O.R.
    (3d) 401, at para. 71, leave to appeal refused, [2018] S.C.C.A. No. 135;
R. v. Powell
, 2020 ONCA 743, at paras.
    9-10.

[80]

Here, the Crown relies upon the complexity of
    the case and the transitional exceptional circumstance as justifications for
    the delay. The appellant contends that neither justification, alone nor in
    combination, can justify the delay between the charges and the anticipated end
    of trial date.

[81]

In his application of the
Jordan
framework, the trial judge found
    that the transitional exceptional circumstance justified the delay that
    exceeded the presumptive ceiling. However, with respect, deference is not
    warranted in the circumstances. Although the trial judge approached the
    application of
Jordan
flexibly and contextually, his frame of reference was distorted by his
    decision to apply the presumptive ceiling of 30 months. He referred to the 30
    month ceiling when he held that the parties reasonable reliance on
Morin

justified
    the delay for the October 2013 charges (methylone), observing that the delay
    was only 1.5 months above the ceiling. He also found that the delay on the
    March 2014 charges (JWH) was three months below the ceiling, placing the onus
    on the accused to show that the delay was unreasonable. The trial judges
    analysis may well have been different when measured against the much shorter
    presumptive ceiling that applied in this case.

[82]

In assessing the delay from the vantage point of
    the 18 month presumptive ceiling, I come to a different conclusion. As the
    following paragraphs will show, this case was not unduly complex such that it
    justified excessive delay, nor did the parties reliance on
Morin

place
    this case within the transitional exceptional circumstance. In particular, as
    explained below, the trial judge erred in the manner in which he allocated
    certain periods of time under
Morin
. Once adjusted, the combination of Crown and institutional delay significantly
    exceeded the eight to ten month guideline for a trial in the Ontario Court of
    Justice.

(f)

The Complexity of the Case

[83]

Under
Jordan
, a case that is sufficiently complex may justify a period of net
    delay that surpasses the applicable presumptive ceiling. It is not sufficient
    for the Crown to simply assert that the case was complex; it must link
    complexity to the delay that ensued and also demonstrate that, despite
    developing a plan to address the complexity and minimize the delay, it was
    unable to do so. In this case, although there was some measure of complexity, the
    Crown did not demonstrate that there was a plan to minimize the delay caused by
    it.

[84]

The majority in
Jordan
held that complex cases require an inordinate amount of trial or
    preparation time due to the nature of the evidence or the issues:
Jordan
,
at para. 77. It elaborated on case complexity in the following passage, at
    para. 77:

As for the nature of the evidence, hallmarks
    of particularly complex cases include voluminous disclosure, a large number of
    witnesses, significant requirements for expert evidence, and charges covering a
    long period of time. Particularly complex cases arising from the nature of the
    issues may be characterized by, among other things, a large number of charges
    and pre-trial applications, novel or complicated legal issues, and a large
    number of significant issues in dispute. Proceeding jointly against multiple
    co-accused, so long as it is in the interest of justice to do so, may also
    impact the complexity of the case.

[85]

In the recent decision of
Powell
, Nordheimer J.A. provided a
    helpful review of the common features of complex cases and of the Crowns
    obligations when complexity is present, at para. 7:

[I]n determining whether a case is
    particularly complex, the following factors are of importance:

 case complexity requires a qualitative, not
    quantitative, assessment:
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659
    (S.C.C.), at para. 64.

 complexity is an exceptional circumstance
    only where the case
as a whole
is particularly complex:
Cody
, at
    para. 64.

 complex cases are cases that, because of the
    nature of the evidence or the nature of the issues, require an
inordinate
amount of trial or preparation time such that the delay is justified:
Jordan
,
    at para. 77.

 if the case is complex, then the court must
    look at whether the Crown developed and followed a concrete plan to minimize
    the delay occasioned by the complexity:
Ontario (Ministry of Labour) v.
    Nugent
, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 31.

[86]

Picking up on the last point, courts have
    stressed the importance of a plan to minimize delay caused by complexity. The
Jordan
majority made this point, at
    para. 79: Where it has failed to do so, the Crown will not be able to show
    exceptional circumstances, because it will not be able to show that the
    circumstances were outside its control.

[87]

In
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 314, Watt J.A. said:
    [A] trial judge should also consider whether the architect of what could
    reasonably be expected to be a complex prosecution  the Crown  has developed
    and followed a concrete plan to minimize the delay caused by the complexity
    that is of the Crowns doing. See also
R. v.
    Saikaley
, 2017 ONCA 374, 135 O.R. (3d) 641, at
    para. 36;
R. v. J.C.P
.
, 2018 ONCA 986, at para. 29.

[88]

Although the principles are clear, whether a particular
    case is complex will often be in the eye of the beholder. These determinations fall
    well within the trial judges expertise:
Jordan
, at para. 79. In this case, the trial judge did not address the complexity
    of the case in his second s. 11(b) ruling; however, he did make factual
    findings in his first ruling that are helpful to the determination of this
    issue.

[89]

In assessing the neutral intake period, which I
    return to below, the trial judge said at para. 54 that, although the October
    2013 charges (methylone) involved search warrants and the seizure of a
    significant quantity of the alleged controlled substance, it was not an overly
    complex case and in my view [an] appropriate intake period in normal circumstances
    would have been in the range of 3 to 4 months.

[90]

The trial judge considered the March 2014
    charges (JWH) to be somewhat more complex. However, he refused to accede to the
    Crowns request to allocate 9 months and 5 days as neutral intake time because
    of delays in disclosure. As he said, at para. 59:

In terms of the complexity of the Crowns case
    this is an investigation involving initially 5 individuals and a number of
    search warrants as well as expert evidence with respect to the nature of the substances
    allegedly being possessed and trafficked.
Given that complexity, there is no
    doubt that a reasonable intake period would be somewhat above that for a simple
    straightforward summary conviction offense.
However, over 9 months is
    clearly not a reasonable period without further evidence as to the reasons for
    the delay. [Emphasis added.]

[91]

There may be room for debate about the
    complexity of the case, at least with respect to the March 2014 charges (JWH).
    The Crown relies on the factors mentioned in
Jordan
, above at para. 84. It stresses the voluminous nature of the
    disclosure, especially in relation to the latter charges. The Crown points to
    the numerous and detailed disclosure requests made by defence counsel.

[92]

In para. 65 of
Cody
, the Supreme Court held that: While voluminous disclosure is a
    hallmark of particularly complex cases, its presence is not automatically
    demonstrative of complexity. The question is whether
the

case
is sufficiently complex such that the delay is justified (
Jordan
, at para. 77). It is the manner
    in which the Crown discharges its disclosure obligations that is key. In this
    case, there were problems from the outset, with no real explanations
    forthcoming. I return to the issue of disclosure below.

[93]

The Crown also relies on the complexity of the
    trial itself. It points to the two s. 11(b) motions, each of which were heard
    over the course of two days. I am not persuaded that it is appropriate to
    include s. 11(b) applications in this metric. Barring cases in which a s. 11(b)
    application completely lacks merit and has no hope of success, an applicant should
    not be dissuaded from asserting this constitutional guarantee for fear of
    having it count against them in the overall delay calculus. Moreover, neither
    motion caused any delay for s. 11(b) purposes. No adjournment was required.
    These applications had no impact on the parties joint estimate of the
    anticipated end of the trial.

[94]

The pre-trial motions to exclude evidence
    brought by the appellant were not out of the ordinary for a drug case. Indeed,
    the Crown observed that this aspect of this case was fairly straightforward
    in a focus hearing in October 2015. The motions to exclude evidence took five
    court days.

[95]

The same could be said about the trial proper.
    The Crown fails to draw a compelling connection between the length of the trial
    and why it took so long to get there.  Two Agreed Statements of Fact dealt with
    most of the evidence, obviating the need to call many witnesses. The trial
    itself occupied 15 days.

[96]

There was a significant expert evidence
    component in this case, dealing with the properties of methylone and JWH. This
    came down to the testimony of two witnesses called by the Crown and two
    witnesses called by the defence. However, the admission of expert evidence
    alone does not necessarily make for a complex case:
Manasseri
, at paras. 344-358.

[97]

Here, the parties were aware of the need for
    expert evidence very early on. The Crown was put on notice that the case would
    be disputed on this basis at the appellants bail hearing on March 28, 2014. Moreover,
    the centrality of expert evidence would have been obvious from the nature of
    the allegations in the first place, even before the appellant was charged. If
    anything, the record suggests that delay related to expert evidence was caused
    by the Crown. Without explanation, the Crown did not disclose one of its
    experts resume or will-say until November 10, 2014. The appellant was not in a
    position to make an informed decision with respect to election and plea prior
    to the receipt of this material because it was essential to a central issue at
    trial 
i.e.
whether the
    appellants products were prohibited under the
CDSA
.
Beyond that, there was no indication
    that the expert evidence meaningfully contributed to the delay or significantly
    elevated the complexity of the case.

[98]

In sum, while this case had some markings of
    complexity, it did not rise to a level that would justify the excessive delay
    that unfolded. The Crown did not implement a strategy to mitigate foreseeable
    delay as the proceedings progressed. Quite simply, there was no plan. Any steps
    taken by the Crown were reactive. It took almost 20 months to decide not to
    proceed against two of the appellants co-accused. And this only occurred as a
    result of the appellants expressed intention to re-elect to be tried in the
    Ontario Court of Justice and the refusal of his co-accused to follow suit. This
    was not planning on the Crowns part; it was improvisation.

(g)

Transitional Exceptional Circumstance

[99]

At trial, as on appeal, the Crown relies on the transitional
    exceptional circumstance  the unfairness of being confronted with a new
    framework of analysis in the middle of the case. In this case, the rules
    literally changed days after the first s. 11(b) motion was decided.
    Nonetheless, I would decline to apply the transitional exceptional circumstance.

[100]

As already noted above, in para. 41, the trial judge relied on the
    following passage from para. 102 of
Jordan
, where the majority said: Ultimately, for most cases that are
    already in the system, the release of this decision should not automatically
    transform what would previously have been considered a reasonable delay into an
    unreasonable one. On appeal, the Crown relies heavily on this passage. However,
    in my view, this is faulty foundation because, in conducting his analysis under
Morin
, the trial judge
    underestimated Crown/institutional delay in this case. Properly adjusted, it clearly
    exceeded the acceptable guidelines of 8 to 10 months for a proceeding in the
    Ontario Court of Justice. Moreover, the Crown failed to demonstrate its
reasonable
reliance on the prior regime.

[101]

The calculation of the time periods in this case was complicated by
    the fact that there were two sets of charges. They were initiated roughly six
    months apart (October 2013 to March 2014). They were not formally joined
    together until September 3, 2014. From that point on, the two sets of charges
    moved
in tandem
. It was not
    until December 17, 2014 that the parties were in a position to set preliminary
    inquiry dates on all charges for November 9, 2015.

[102]

The trial judge helpfully set out the rather complicated chronology
    of events related to both sets of charges. The parties take no issue with the
    accuracy of his rendition. However, they disagree on the extent to which
    certain periods of time should be classified as Crown delay, as opposed to
    neutral intake time. I agree with the appellant that the trial judge underestimated
    Crown delay.

[103]

To repeat, the parties were not ready to set preliminary inquiry
    dates until December 17, 2014  almost 14 months after the October 2013 charges
    (methylone) were laid and roughly 9 months after the March 2014 charges (JWH)
    were laid. He characterized the period of time from July 22, 2014 until
    December 17, 2014 as Crown delay because of a complete lack of disclosure,
    without explanation. This was for good reason: from July 2014 to December 2014,
    the judicial pre-trial was scheduled and then adjourned on multiple occasions
    due to issues properly attributed to the Crown:

·

on July 7, 2014, the parties attended a judicial
    pre-trial that was unproductive largely as a result of the Crown needing to
    make decisions on how to proceed;

·

on July 14, 2014, the judicial pre-trial was
    unproductive because the Crown was still considering how to proceed on these
    charges in relation to other charges before these courts;

·

on July 22, 2014, proceedings were adjourned as
    the Crown had still not decided whether to blend the October 2013 and March
    2014 charges, and significant disclosure issues were identified;

·

on September 4, 2014, the Crown advised the
    court that the pre-trial had been cancelled and rescheduled. Two days earlier,
    the Crown notified defence counsel that it had failed to produce the disclosure
    discussed at the previous pre-trial in July. The Crown indicated that the
    scheduled proceeding on September 4 would not be fruitful. In reply, defence
    counsel expressed concerns about the continuous adjournments since delay is a
    serious issue for my client;

·

on October 27, 2014, the matter was adjourned as
    the Crown advised the court that no additional disclosure was made and that there
    was still outstanding disclosure requested by defence;

·

on November 10, 2014, the Crown provided
    disclosure that would be more than enough for them to understand exactly the
    gist of the investigation but there was still more outstanding, leading to
    another month-long adjournment; and

·

on December 11, 2014, the Crown was still
    finalizing a couple of issues in terms of proceeding in terms of one or
    multiple parties so the matter was put over for another week.

Throughout this time period, the
    Crown continuously conceded that a productive judicial pre-trial could not
    occur either because of its own indecision or due to a lack of disclosure.

[104]

I agree with the trial judges allocation of neutral intake time as
    it relates to the March 2014 charges (JWH). However, the trial judge ought to
    have concluded that a shorter intake period was warranted for the October 2013
    charges (methylone). The trial judge placed great reliance on the appellants
    change of counsel in April 2014. He noted, at para. 54 of his first s. 11(b)
    ruling, that as late as May 8, 2014, new counsel needed time to review
    disclosure. Ultimately, he attributed the entire period from October 2013 to
    March 2014 as neutral due to change in counsel.

[105]

A change in counsel is sometimes considered defence delay (
Cody
, at para. 40), but not always:
see Christopher Sherrin, Understanding and Applying the
    New Approach to
Charter

Claims of Unreasonable Delay (2017),
    22
C
an. Crim. L.R.
1, at p. 12
. That characterization is not
    apt in this case. Even though new counsel needed time to get up to speed, the
    change of counsel did not contribute to the delay. The case was at a standstill
    because of the way that the Crown was conducting its case, as set out in para. 103,
    above. By July 2014, the Crown had still failed to make highly relevant
    disclosure related to the October 2013 charges (methylone), including two
    Informations to Obtain search warrants. Regardless of whether the appellant had
    retained his original counsel, the case could not move forward until proper
    disclosure was made.

[106]

In short, by attributing the same amount of Crown delay to each set
    of charges due to the change in counsel, the trial judges approach obscured
    the need to consider the different trajectories of each set of charges. Put
    another way, it was necessary to compensate for the lesser intake time required
    for the much more straightforward October 2013 charges (methylone). The
    appellants change in counsel in spring 2014 could not account for the delay
    that had already elapsed. The Crowns dilatory approach to disclosure on those
    charges was evidenced months earlier. In all of the circumstances, I would
    attribute two further months for Crown delay during this period to the October
    2013 charges (methylone).

[107]

I am also of the view that the trial judge erred in the manner in which
    he calculated institutional delay as a result of the appellants re-election to
    be tried in Ontario Court of Justice. It bears repeating that, for the reasons
    set out in paras. 68-76 above, there was no unfairness to the Crown arising
    from the re-election.

[108]

The institutional delay leading up to the preliminary inquiry dates
    was 10 ½ months (December 17, 2014 to November 9, 2015). There was roughly 6 ½
    months of delay between the aborted preliminary inquiry and the commencement of
    the trial on May 18, 2015. The trial judge determined that the appellants late
    re-election should erase 8 ½ months of institutional delay leading up to the
    preliminary inquiry, leaving only 2 months outstanding. Accordingly, he
    classified only 2 months as institutional delay. In total, the trial judge
    attributed just under 4 ½ months as institutional delay.

[109]

In my view, the trial judge erred in discounting institutional delay
    in the manner that he did. It took 10 ½ months from the point that the parties
    were ready to schedule two weeks for a preliminary inquiry. After these weeks
    were secured, the parties believed that more time was required. When the
    parties set the dates in December 2014, counsel for the appellant indicated
    that he had a myriad of dates available for a two-week preliminary inquiry,
    as early as January 2015.  Counsel for Mr. Wang, who was still a co-accused at
    the time, also reminded the court that delay was an issue. Further dates could
    not be obtained until May and June of 2016. These dates ended up being used for
    the trial.

[110]

It is clear from the record that neither a preliminary inquiry nor a
    trial could have been conducted within a reasonable period of time. The
    appellants late re-election did not change this reality. Accordingly, I would
    allocate the full 10 ½ month period to institutional delay.

[111]

In terms of the delay between the aborted preliminary inquiry and
    the trial dates, I would maintain the trial judges allocations. On appeal,
    neither party suggested otherwise.

[112]

In total, I would find that the Crown delay in this case was 6 ½
    months and the institutional delay was 12 months and 8 days. Combined, this
    delay of 18 ¾ months was well beyond the
Morin
guidelines of 8-10 months delay for a trial in the Ontario Court of
    Justice. Moreover, the trial judge found that the appellant did suffer some
    prejudice as a result of the delay. This leads to the conclusion that the delay
    cannot be justified under the transitional exceptional circumstance. As the
    Supreme Court observed in
Cody

at para. 74:

Where a balancing of the
    factors under the
Morin
analysis, such as seriousness of the
    offence and prejudice, would have weighed in favour of a stay, we expect that
    the Crown will rarely, if ever, be successful in justifying the delay as a
    transitional exceptional circumstance under the
Jordan
framework.

[113]

In any event, the circumstances of this case do not permit the Crown
    to rely on the exceptional transitional circumstance.
By definition, all transitional cases involve some
    degree of reliance upon the
Morin
framework. Delay that exceeds the
    presumptive ceilings under
Jordan
is not automatically justified by this
    historical fact. As noted above,

Jordan
emphasizes that reliance must be
    reasonable, and assessed contextually, sensitive to the manner in which the
    previous framework was applied:
Jordan
,
at para. 96. See also
Williamson
, at para. 24;
Cody
, at para. 74.

[114]

The transitional exceptional circumstance
    demands
reasonable
reliance on
Morin
, not a habitual dependence on the culture
    of complacency that
Jordan

sought to eradicate. It is not meant to reward a
    casual or lackluster approach to compliance with the
Morin
guidelines in place at the time.

[115]

In
Williamson
, the majority refused to apply the
    transitional exceptional circumstance, and agreed with this courts assessment
    that the Crown did not take seriously the obligation to bring this relatively
    straightforward case to trial in a reasonable time:
Williamson
,
at para. 28; see also
R. v. Williamson
,
2014 ONCA 598, 324
    O.A.C. 231, at para. 67.
[8]
Similarly, in
Manasseri
, Watt J.A. rejected the Crowns claim that
    the case was one of exceptional complexity; instead, the problem lay in the
    Crowns leisurely approach to disclosure, a lack of diligence in scheduling
    preliminary inquiry dates, and a failure to pay any real heed to the
    appellants s. 11(b) interests:
Manasseri
,
at para. 359.

[116]

This case exemplifies these same features.
    The Crown failed to take its disclosure obligations seriously, shrugging off
    multiple delays, sheltered by the expectation that, under
Morin
, there
    would be no meaningful consequences. The case bounced around in the Ontario
    Court of Justice, untethered by any concrete plan as to who would be prosecuted
    along with the appellant. There was little regard to the time wasted, not to
    mention the drain on resources caused, by multiple, pointless appearances.
This is contrasted by the appellants reasonably proactive efforts
    to move the case forward: see
Williamson
, at para. 30. These efforts were evidenced by the appellants
    notice to the Crown that delay was in issue, his re-election, and his consent
    to the admission of comprehensive Agreed Statements of Fact.

(h)

Conclusion

[117]

The delay in this case may have been salvageable with a presumptive
    ceiling of 30 months; it is not when measured against the presumptive ceiling
    of 18 months. Neither case complexity, nor the transitional exceptional
    circumstance, justify the excessive delay in this case. I would allow this
    ground of appeal.

F.

DISPOSITION

[118]

I would allow the appeal from conviction on the basis of s. 11(b) and
    stay the proceedings under s. 24(1) of the
Charter
. As such, there is no need to address the other grounds of appeal,
    both in relation to the appellants convictions and his sentence.

Released: DW February 3, 2021

Gary Trotter J.A.

I agree. David Watt J.A.

I agree. B. Zarnett J.A.





[1]
This provision of Schedule II of the
CDSA
was subsequently
    amended by regulation and then repealed: see
Order Amending Schedule II to
    the Controlled Drugs and Substances Act (Synthetic Cannabinoids)
,
    SOR/2015-192, and
An Act respecting cannabis and to amend the Controlled
    Drugs and Substances Act, the Criminal Code and other Acts
, SC 2018, c 16,
    s. 204(1), respectively.



[2]

The appellant was also charged with various other drug
    offences and a proceeds of crime count. The Crown eventually withdrew those
    other counts against the appellant.



[3]

The appellant was charged with multiple counts of
    trafficking, possession for the purpose of trafficking, production, importing,
    possession of proceeds of crime, and conspiracy related to synthetic
    cannabinoids and methylone. The offences all occurred between October 25, 2013
    and March 3, 2014.



[4]

The parties agree that this calculation was slightly off and
    the actual net delay for the March 2014 charges (JWH) was 28 months. This
    recalculated net delay will be referred to throughout.



[5]

There is no suggestion that the trial judge was dilatory in
    preparing his reasons. Nor could there be  his detailed reasons for judgment
    were released within three weeks following final submissions.



[6]

As noted above,
    at footnote 4 in para.
22,
    counsel agreed that the net delay for the purpose of
Jordan
was 31.5 months for the October 2013 charges
    (methylone), and 28 months for the March 2014 charges (JWH).



[7]

The Crown alleged that methanone, like the JWH compounds,
    was a similar synthetic preparation of cannabis contrary to s. 5(1) of the
CDSA.



[8]
In that case, this courts decision was governed by
Morin
.


