Supreme Court of Canada Hearings

You can sit. So good morning, everybody. In the case of Dia Edin Anan against His Majesty the King, Saman Uyghur Musiqa, and Pam Birgil for the appellant, Mr. Anan, Tracy Kozlowski, and Andrew Otkey for the respondent, His Majesty the King. You can proceed.

Our client Mr. Hanan had a right to a timely trial, he had a right to a fair trial, and he received neither because of judicial error. We are asking this court to intervene. I'm going to take the first 20 minutes to deal with the 11b ground, and Mr. Gill will address the WD ground with the remaining 10. We will rely on our factum and our outline on issues we can't get to. On the 11b ground, I'll restrict my submissions to the application of the transitional exceptional circumstance. I'll wait to hear what the respondent says in their oral submissions regarding the misattribution of defence delay that they raised in their factum, and I'll address it in reply if necessary. The central issue on the 11b ground is whether the trial judge incorrectly applied the transitional exception to justify five months of delay above the 30 month ceiling. We say the trial judge did.

Your judge is well placed to determine whether a transitional exceptional circumstance applies. So is it your position that, of course you say that he made an error, but is it your position that he made an error of law? Yes. He caused the writing of P Ce柏惹evel error.

We're saying that he made an error of law because he misapplied the framework set out in Jordan on how to apply the transitional exception contextually and flexibly. And the Court of Appeal endorsed the trial judge's erroneous approach. In our view, the trial judge considered the transitional exception in what amounts to a time warp. That distorted his application of the transitional exception. He did not apply the contextual and flexible approach to the transitional exception determined in this court in order to justify the extra delay in this case above the ceiling.

So I'll speak loud Mr. Wickram Singe. I'm interested in the post-Jordan portion of the delay. Yes. And in particular the consequences of what the Crown itself acknowledges was a misstep in respect of the re-election. Right. And I'm looking at paragraph 45 of the Crown's factum where the Crown says that the dissent placed almost singular focus on the Crown's misstep. And the Crown acknowledges that this was an important factor. It goes on to say, and this is where my question, what my question to you is, in the penultimate sentence of paragraph 45, and the defence embraced the delay for months. I wonder if you would comment on that. Right. Characterization by the Crown.

Okay. It's my submission that the defence did not embrace the delay. If what my friend what the respondent is suggesting, because the trial council for the appellant could not accommodate a trial on June 3rd, which was a date offered, that doesn't signal that he embraced the delay. But in a jurisdiction and the trial judge found that expecting a trial date before June 3rd was highly unlikely. After June 3rd, during the summer sitting, it was also highly unlikely to accommodate a jury trial. I expect my friend is suggesting that the defence didn't take any proactive steps, but that doesn't translate into embracing the delay, especially in circumstances where there was no way to accommodate a jury trial. Okay. Thank you.

The other thing, I can't tell whether this thing is on or not, is that the other thing is that recalling the last scene of Hamlet, Fortinbras says, I embrace my fortune when he becomes the king because everyone else is dead. There's nothing wrong with embracing your fortune. In a sense, the crown gave the defense a gift. Well, you can say, I will avail of this gift. There's nothing wrong with the defense doing that, it seems to me.

I'm not sure there's anything wrong with it, but classifying it as a gift, I'm not sure because it, I mean, what the record shows is that the appellant tried to have his trial under the ceiling, three months under the ceiling when it was initially set on November 5th, 2018. Did it allow him to bring an application that ultimately failed? Yes, it did. So I wanted to make two points and Justice Cassidy, you helped introduce the first point. With respect to the trial judge's error, I want to cover two points. One is the trial judge did not properly account for the Crown's action on November 5th and confirmed on November 6th, 2018. Because of his failure to apply the appropriate contextual and flexible approach in Jordan. The second point I want to address is that the trial judge's misapplication of the factors to the entirety of the delay led him to misapply the transitional exception. So with respect to the first point, the judge didn't apply the proper context to the Crown conduct after Jordan's release. That skewed the trial judge's analysis of the transitional exception and its applicability. The appellant had a trial date on November 5th that was three months under the Jordan deadline, ceiling. That showed that since Jordan's release, the jurisdiction could accommodate Jordan requirements. On November 2nd, three days before the trial, the Crown advised that there are complications arising from disclosure and an uncooperative witness. The trial judge found that neither of those circumstances constitute exceptional circumstances and the trial could not proceed on November 5th in order to be fair to the defence. The defence under Jordan reelected a judge alone trial to preserve the November 5th trial dates. The Crown said that they weren't inclined to agree to that on November 5th. They would take time. They went and discussed it with higher ups in the local Crown Attorney Office and ultimately refused to consent, preferring to adjourn the trial knowing that there was an 11b application on the horizon, knowing that the next available trial date was October, in October 2019, well above the ceiling and two years, it did this two years after Jordan's release. That conduct is what delayed the trial well beyond the 30 month ceiling. The trial judge did not ignore the trial.

But because he misapplied the transitional exception, he didn't give proper effect to it. You'll see at paragraph 74 of his decision, and his decision can be found at tab 1 of the respondent's compendium. We didn't include it because we received the respondent's compendium first. And that's at paragraph 274 of his decision. The trial judge says, I cannot and do not ignore the Crown's major misstep. The Crown was aware of the section 11b problem and did not react well. But the analysis here is not limited to one misstep by one party. Rather, it must be contextual in consideration of all the circumstances. I don't disagree with the trial judge that he ought to look at the Crown's step in context. But he didn't. He didn't look at it the way Jordan and Cody tell us to look at Crown conduct when applying or when considering the transitional exception in the post-Jordan period.

we can anticipate the Crown's gonna say the account you've just given is is not complete in that there was also a dimension of the defense unavailability post following that that Crown decision the so-called misstep

And so my question is what are the consequences of that? Because the Crown's taking quite a strong position on that, the consequences of defense unavailability. I'd like to hear you on that. Okay.

So the defence unavailability that you're referring to was the trial council's unavailability for six weeks commencing June 3rd. The trial judge attributed that six months to the defence and discounted it in the net delay calculation. The Crown is suggesting that the entire period from June 3rd to October 19th ought to be discounted. In my respectful submission that's against your ruling in Boulanger, your recent ruling in Boulanger, the trial judge and the court of appeal endorsed that finding that the six weeks was the appropriate deduction. Beyond that, I'm not sure what more the defence could have done. And it goes back to my answer to your previous question in these circumstances. So the defence was, there's no evidence that defence was dilatory in any way in that period of time. He had a trial already set. I mean, who knows whether there were 11b issues in that case. The other thing I'd ask the court to keep in mind is that the, what prompted the need for new court dates, for a new trial date was the Crown conduct. So that is a contextual factor the court ought to take into account when deciding whether defence conduct in some way may have contributed to this delay.

I'm here and ask you this question. In relation to the Crown conduct, some speak of this as an unreasonable decision by the Crown to not allow reelection. The trial judge refers to it as a misstep. Do we even have to get into a characterization of that conduct or do we just focus on the consequences for the timeline set by Jordan and Cody? Right.

Well, I think to the extent that we can characterize the Crown conduct as unreasonable, I'm not sure we need to look at it as unreasonable. I think we need to, it's better looked at through the lens of this court in Jordan where the majority, sorry, if I could just, where the majority looks at Crown conduct as the exercise of Crown discretion as necessarily having to be exercised with the accused 11b right in mind. It must conform to the accused 11b right. And in that sense, I think we can characterize the Crown's decision as not conforming in this case. They had, again, over two years to read that paragraph in Jordan, to apply it. They also had the decision of Justice Dougherty in Gordon which came out in 2017 which was about Crown discretion. In that case, Justice Dougherty found the exercise of Crown discretion to not consent to a reelection by a judge alone trial okay because the Crown had taken multiple steps but more importantly there was, the Crown was aware that the Moran guidelines, the upper limit of the Moran guidelines were much farther away in time and the Crown took that into account. In this case, the Crown knew that the earliest available trial date was in October and they still decided to gamble with the accused right to a trial within a reasonable time. And it can't be characterized as any other way, maybe even charitable in characterizing it as a gamble but that gamble involved ignoring what this court had directed the Crowns to think about and the way to behave post Jordan.

is getting at is that the Crown's discretion is the Crown's discretion. It isn't something that's supervised by the court, but that if you exercise your discretion in a certain... whatever manner you exercise your discretion as the Crown, there are going to be consequences. So you just have to accept that there are consequences. That's right.

No one is taking issue with the fact that the crown can exercise their discretion. The issue is from a Jordan lens did they apply their discretion the way Jordan directed them to apply their discretion. And that actually just it's a paragraph 79 of Jordan where the court says that crown council must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused 11B right. Had the trial judge asked questions like did the crown have sufficient time to adjust its behaviour before deciding to refuse to elect which is the question this court directed that they ask in Jordan and in Cody. To post Jordan delay what matters is did the parties when the crown is trying to justify delay under the transitional exception did the crown behave in a way that honoured the Jordan framework. They had two years to process it and do that and they didn't. Had he asked was two years enough time for the crown for crown council to adjust its behaviour to this court's direction had he asked that question he could only have concluded that the crown's decision to refuse to reelect flew in the face of Jordan's direction and gambled with the accused right. That kind of behaviour especially in a case like this where 3% of the case was pre Jordan and 3% of the ceiling of the net delay was Jordan was pre Jordan. The bulk of the case happened post Jordan where the court is asked to look at the behaviour and whether they had enough time to adjust it. No court could weigh the pre Jordan goings on in any way against what happened on November 5th in a way to justify the delay. We have to bear in mind we were below the ceiling at the time. And arguably

It goes a bit further than that too, doesn't it? It says that even if you get into the weighing, you do it under the principles established in Jordan and Cody and not in Moran.

That's right. That's right. Once you apply the Jordan and Cody framework to pre-Jordan delay, which is looking at the party's conduct and asking yourself, is it reasonable? Did they reasonably rely to govern that conduct under Moran? That analysis, the Moran factors to assess behaviour ends after Jordan. It ends after Jordan kicks in. So I'm just going to quickly deal with the second point, which is the trial judge's misapplication of the Moran factors. The trial judge took the Moran factors and applied them to assess the entirety of the case, the delay in the case, pre and post Jordan. That was wrong. It was wrong under Jordan. It was wrong under Cody. The trial judge looks at decisions from this court and the appellate court, this court including Williamson and Jordan and even Cody, and decisions from the Ontario Court of Appeal, which frame his analysis with respect to the Moran factors and their relevance. Those cases like Gopi, Picard, I think, those cases all deal with pre-Jordan delay. The entirety of the proceedings dealt with pre-Jordan delay. That's why the Moran factors were important. The trial judge, even though he cites paragraph 96 of Jordan and 71 of Cody, that alert everyone to this distinction that the Moran factors should only apply to assess behaviour pre-Jordan, because after that the law is changed, even though he alerts to that, he doesn't meaningfully give it any effect in his analysis. The whole point of the transitional exception is to allow the Crown to justify excess delay by showing that it reasonably relied on Moran factors pre-Jordan. The trial judge ignored that. He conducted a full Moran analysis, taking dozens of paragraphs and applied it to the entirety of the delay to determine the period of delay under the Moran guidelines. In my submission, I'm not even sure how that would be relevant. In this case, six and a half months, using the total delay, of the case lived under Jordan.

for you because time is flying. Yes. If, and don't assume anything from my question, if we decide to follow you regarding that first ground of appeal, the remedy you're seeking is a state of proceedings.

I take for granted that Mr. Hannon is incarcerated for the time being.

He stepped into custody today, yes.

So if we decide, for instance, to issue a steel proceeding, does it mean that your client will be released? So, if we decide, for instance, to issue a steel proceeding, does it mean that your client

My understanding is yes.

quickly. Sorry? That or you'll bring a habeas corpus very quickly.

Um, justices, I'm going to step down, um, and I'm going to let my friend take over with respect to the WD ground.

Justices, good morning. I'm going to be addressing WD ground of appeal. But before I do, Justice Kisira, I just wanted to address one question that you asked about the Crown's factum, where they noted that the defense embraced delay. That characterization is respectfully incorrect. The trial counsel that represented Mr. Hanan stepped in in August of 2016, about eight months after charges were laid. He reviewed thousands of pages of disclosure within two months. He set a JPT within a month. When the prelim dates were to be set, he accepted the earliest available dates. And when the initial trial dates were to be set, he accepted the earliest available trial dates. There is no embrace of delay by the defense. A visualization of that that may help you is found at tab two of our condensed book. It's the Jordan chart. And what you'll see in that chart is from the time defense counsel steps in to the end of trial, it's about a three year period, the defense is responsible for about three months of delay. Three months of delay on the defense over 36 months. That's not consistent with the suggestion that the defense embrace delay. And what you'll see in that chart is from the time defense counsel steps in to the end of the court, there is delay. Second point, Justice Kaseera, you asked about what happens if the delay after June 2019 is deducted, if the Crown may be right about that. We suggest they're not because of your decision in Boulanger. But even if they are, it's important to note that the net delay remains above the ceiling. So even if the defense is responsible for that, we're still in the territory of presumptively unreasonable delay. Final point on Jordan. The question is, did the parties have sufficient time to adapt? That's the question in this case. 97% of remaining delay is post-Jordan. What is dispositive of the appeal in our submission is the fact that the parties were able to set trial dates under the ceiling. January 2018, the trial dates were set. Everybody agreed February 2019 was the Jordan ceiling. And they managed to set the dates in November of 2018, three months under. The parties had sufficient time to adapt. That fact disposes of the appeal in our submission. So thank you for that. I'm going to shift now to the WD error. And with the time I have left, I'll probably just get to my first two points. But I do want to address the error, the impact of the correct instruction on the error, and the impact of defense counsel's failure to object. This court in WD said that where a jury is misdirected on the burden of proof, a new trial is required unless the charge, when read as a whole, quote, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply. That is a very high bar. And it is a very high bar for a very good reason, which is that errors like this one compromise trial fairness and create a risk of wrongful convictions. So these are errors that necessitate new trials. In this case, a new trial is required because there is a real risk that the jury misunderstood how to apply the burden of proof to the elements of self-defense. The risk arose from three passages in the jury charge. You can find them excerpted at tab 12 of our condensed book. In these passages, the trial judge told the jury that its decision on self-defense would be driven by or depend on or hinge on which version of events it accepted, the appellant's version or the surviving witness Henriquez's version. These instructions are wrong because they suggest that the jury had to accept one version or the other in order to decide an ultimate issue, namely self-defense. in order to decide an ultimate issue, namely self-defense.

Let's take for assume that you're right, that this juxtaposition of two versions looked like a credibility contest being set up which is which would be a mistake in law. What import do you give to the fact that later in the charge the wd instruction was properly made? Does that not resolve the problem?

It doesn't, Justice Kaseera, and the reason is that the incorrect instructions conflict with the correct WD instruction. So this is not a case where we're criticizing the instructions for omitting a proper approach on how to deal with conflicting versions. This is an error of commission. The trial judge is telling them affirmatively this is how you decide between two versions of events, and it's wrong. It is a contradiction of WD, and where you have a contradiction, you cannot safely conclude that the jury followed the correct instruction and disregarded the incorrect instruction. So in my submission, there's no way to be given to the correct instructions in the unique circumstances of this case. This is not a case where we're criticizing the instructions for omitting a proper approach on how to deal with conflicting versions.

if the point is dealt with on multiple occasions. Like it's dealt with 12 times. And 11 of the 12 times, it's bullseye. And one time, it's off, the mark. And you say, you know, realistically, is this jury... Is it applying the right yardstick? I mean, there comes a point where, you know, the rest of the charge can make up for an error. Agreed, I accept your point that this is an error of a particularly sensitive nature.

Right. I agree, Justice Rowan, if the ratio was 12 to 1, I think I'd have a harder time prevailing on this ground. But there are three errors made in this charge, and they are adopted in the judge's instructions on count three and four. So effectively, we're talking about five errors on how the jury should decide ultimate issues. And that's something that we just can't countenance because it creates a risk of wrongful convictions. I see my time is up. Thank you very much.

Thank you. We will now hear the respondent.

Yes, good morning, justices. I'll speak firstly to the question with respect to the deduction arising from defense unavailability in the instant case, second to the application of the transitional exception, and third, my colleague Mr. Hotkey will speak to the WD jury charge ground. Turning then to the first issue, it was an error in the Crown submission to have treated only the six-week period starting June 3, 2019, that the defense could not accept for trial as the only deductible period in relation to defense unavailability. Instead, what ought to have been deducted was the full period between June 3, 2019 and October 28, when the trial was ultimately scheduled to begin. And this is so in our submission because it cannot be that this honorable court intended that where the Crown can offer the defense dates and the defense is not available to accept those dates, that the period immediately following is properly treated as institutional delay and counted towards the ceiling. That is to say that the system must be in a position to immediately offer dates that accord with counsel for the defense's schedule, failing which the delay counts against the state and towards the ceiling. And this is what occurred in the instant case. And in the Crown submission, it arises from a misreading of paragraph 64 of this honorable court's decision in Jordan. It's exited at tab 3C of the condensed book. In light of the time, I can read that out as well. That segment reads as follows, quote, the defense will have directly caused the delay if the court and the Crown are ready to proceed, but the defense is not. The period of delay resulting from that unavailability will be attributed to the defense. However, periods of time during which the court and the Crown are unavailable will not constitute defense delay, even if defense counsel is also unavailable. This should discourage unnecessary inquiries into defense counsel availability at each appearance. And I note that both the trial judge and the Ontario Court of Appeal relied on this passage in their determination that the proper deduction in the instant case was only a period of the six weeks the defense could not take starting June 3rd. And treating the rest as institutional delay. And that can be found at paragraph 27 of the trial ruling, paragraph 53 of the Ontario Court of Appeal judgment. With respect, again, this is a misunderstanding of this passage from Jordan. All that paragraph 64 conveys is that if trial dates or continuation dates are offered by the court and the Crown can't accept those, that the defense was also not able to accept them because they were not available is no longer relevant. Under Jordan, we need not, as we used to do, have defense counsel stand up and place on record what dates she could have accepted where the Crown can't take those dates anyway. It no longer matters because if the state wasn't able to take the dates, the delay to those dates doesn't count against the defense. And I would note that this is precisely how this Honorable Court treated the delay that arose from defense unavailability, both in Jordan and in Cody. I'll simply give the page references to this but summarize what occurred. I note that Jordan's at tab C3. And I'm making reference to paragraphs 121 through 123 of Jordan. Firstly and importantly, at paragraph 122, this court would not attribute delay arising from defense counsel's inability to accept earlier dates because, quote, there was no evidence that had the defense responded, the Crown and court would have been able to accommodate an earlier trial. And so this is important because it can be taken from this passage that had the Crown reached out to the defense in Jordan not just with a vague offer to attempt to get some early dates but with actual dates in hand and the defense had to decline them for unavailability, this would have been properly treated as defense caused delay. Second, in Jordan, where the defense was not available to accept a date for closing submissions at the preliminary hearing in Jordan, again due to unavailability, this was attributed to defense caused delay. And that's similarly what occurred in Cody, which is exited at tab C6. And what occurred in Cody is that where just prior to the start of the first pretrial motion, it arose that one of the investigating officers was now subject to misconduct allegations. Those motion dates were lost in order to await McNeil disclosure. And so this was a discrete exceptional circumstance, of course. That was provided in June of 2013. The court could not accommodate a summer hearing date. So of course, that portion was treated as institutional. The court and the Crown, though, could take September hearing dates, but the defense could not. And the next dates that were offered that the defense could accept were for dates offered in October. And at paragraph 55, this honorable court attributed the delay as follows. Again, the McNeil issue being a discrete exceptional circumstance, two months of that had to go to preparation time. That portion was not deducted, therefore. And because the court was simply not offering any dates at all until September, all of that went to either the discrete event, to institutional delay, or to prep time. However, and no.

Pardon me. What do you say to Mr. Wickramson's argument that the first cause of the delay, though, was the Crown's unreasonable exercise of discretion? Because of course, that seems to color the analysis in what's stated in paragraph 64 of Jordan, but that's his argument. The first cause was actually the Crown's unreasonable exercise of discretion.

Well, Justice Jamal, in the instant case, the first cause of the delay with respect to this period of defense unavailability was in fact the discrete exceptional circumstance that arose when new technology allowed the phone to be opened and when there was an issue with respect to the crown witness being unavailable for trial. And contrary to what my friend indicated, the judge at trial did find that this was a discrete exceptional circumstance. And so that's the first point that I would make. The second point that I would make is that the cause of the need for more dates is irrelevant with respect to whether or not the delay was in fact caused with respect to defense unavailability. There's a distinction to be made there that's a very important one and one that was aptly made by Justice Fenlin of the British Columbia Court of Appeal, which is instructive. It's paragraph 38 of that decision and I'd like to read that now because it's very important to this analysis. She says, quote, it is convenient to address here Mr. Villog's argument that the determining factor, even under the Jordan analysis, is the cause of the adjournment, with the party causing the adjournment to be responsible for all delay until a new date is set. In my view, the premise is unsound because it fails to distinguish between the cause of the adjournment and the cause of the delay, which will not always coincide. Although it was the unavailability of the judge which caused the adjournment of the third trial date, the state was prepared to set a date within a few months and should only be held responsible for the delay between the third trial date and October 2015 when the court and Crown were ready to proceed to trial, but defense counsel was not. Thereafter, it was only the unavailability of defense counsel that precluded the trial from proceeding. And so too in the instant case, I would submit that this is correct. This is a correct application of the Jordan analysis and having regard to this court's repeated instruction that where the Crown and the court are ready to proceed, but the defense is not, the delay to the next date set is defense cause delay. And I note that this court reiterated that this is so in its decision in Boulanger at paragraph eight of that decision. This court emphasized that only the particular circumstances in that case warranted the apportioning of delay that occurred there. It must be recalled that in Boulanger, even though the need for continuation dates became apparent early on in the proceedings, with the parties indeed seeking to add further dates, the trial court declined to allow them to do that until some months later. And not only that, then leapfrogged over a series of dates so that it was unable to, the court was unable to parse between a delay that was attributable to the Crown's unavailability and delay that was attributable to the defense's unavailability because no inquiries were made as to court availability through that period. So it was a very unusual scenario where it simply wasn't clear what the quantum of delay was that was caused by unavailability of the defense in that case, though this court gave a little over half of the delay to defense unavailability. Again, very unusual circumstances and circumstances which this Honorable Court made clear should not happen again in the post-Jordan era.

Excuse me, what do you say to Mr. Gill's submission that even taking into account the proposition you're putting forward it's still outside the Jordan timelines?

Well, that would bring the count down to 31 and a half months. And so I agree with my friend's submission in that regard. But what I would also submit, and I'll turn to the transitional exceptional circumstance argument shortly, but that certainly informs in my submission the Crown's reasonable reliance with respect to the state of the law, it having been a transitional exceptional circumstance, a murder, which was only one and a half months over the applicable ceiling in those circumstances. But before I turn to that, I'd like to conclude on this ground by identifying any shared possibility at allcethersin your presidential

Excuse me. Yeah, sorry. You didn't know what was one and a half months when the Crown refused the re-election. I mean, at the time, you know, Mr. Pratt understands and is told by the trial judge that if the re-election is not made, that there are going to be Jordan problems. And from a reading of the transcript, it looks like the Crown said, well, we'll defend vigorously and your friend opposite says that was a gamble, that you'd be able to tuck it into one of the exceptions in Jordan, but knew that you were running risks. How do you respond to that?

I don't deny for a moment that the Crown was running that risk in the regard, but the Crown was taking a step that was informed by the various circumstances that would be relevant to the transitional exception when that determination was made. And the Crown can be forgiven for having done that, actually having regard to the Ontario Court of Appeals decision in Gordon. As in Gordon, what Justice Doherty indicated there was that to refuse to re-elect under what he called the hard cap approach of Jordan, to refuse to allow for that re-election in those circumstances may well result in a stay. But where the transitional exceptional circumstance applied in Gordon and where the Crown took particular steps, steps that the trial Crown in the instant case also took, which is to say finding earlier trial dates and making efforts to shorten the trial. In Justice Doherty's estimation, to have refused to consent to re-election was no misstep at all.

Miss Koslowski, I realize you want to move on, but one of the perplexing things is that both you and the appellant are relying on Boulanger for your respective positions. And while you've averted to paragraph 8 in Boulanger, you haven't spoken to paragraph 10 in which the court says that in the particular circumstances of that case, that the court was of the view that is fair and reasonable to apportion responsibility in the way that it had been done. And you're proposing what might be perceived to be a rather more bright line approach to attributing delay to the defence, which seems to be out of step with Boulanger. How would you answer that?

Again, the particular facts of Boulanger were such that it simply wasn't possible to determine what the quantum of delay was that was attributable to defense unavailability. But again, I do advance that there is a bright line rule, one that this court has indicated again and again applies and is the case, including in Boulanger. And in response to that as well, I'd like to point to four different reasons, or rather four different problems that arise on the approach to defense unavailability that was taken in this case, which is to say, a kind of fluid contextual approach. Firstly, in my submission, there's no basis to treat delay for unavailability any different than how it is treated at the front end where trial dates are initially set, then from new dates needed mid trial due to an adjournment or the need for continuation dates. And this is particularly for cases where the Crown does what it's supposed to do in the circumstances where something sends the proceeding off the rails, and then the Crown endeavors to find earlier dates as it did in the instant case. And most particularly for cases where the court and the Crown look for earlier dates and pro offer dates that would have seen the matter conclude before the ceiling was reached, if only the defense had been able to accept them. And so that's the first point. It simply doesn't make analytical sense to treat it differently. The Crown's second point is that to hold that the system must be able to offer immediate dates after a set date has already been offered and declined. Otherwise, the delay to the next set of dates is institutional, is to incentivize delay causing conduct at the very front end of a matter. It incentivizes underestimation of the dates needed for a hearing, for example, a failure to indicate whether a defense might be called, or to run the clock in various ways in the conduct of the defense. Because once the original trial dates are inevitably exhausted, and new dates are needed, so long as the defense is unavailable for what the court offers, further delay towards the net has now been added in at the back end as institutional. And so this is a scenario where what occurs is precisely what this honorable court has indicated both in Cody and Jordan should not occur, which is to say benefiting from delay causing conduct.

How is that fair? I mean when a defence council says I can come in these dates and then says I can't come in these six weeks but on week seven I can start. Why should that be defence delay?

because for the same reason that was indicated in Balog, which is to say, but for the defense unavailability, the trial would have been completed. And I note that there's a really a practical problem and an implication with respect to that as well, because to approach the quantum of the deduction for defense cause delay in this way is to reintroduce a malleable and contextual assessment this court disavowed in Jordan into an important segment of the framework. And in particular, to cases where to treat them in this way would have the most profound effect, which is to say in the most lengthy and serious of trials, for example, jury trials that require weeks of sequential dates.

But Ms. Kozlowski, you'll explain if I've got this wrong, but the defense counsel was unavailable because he was already scheduled for a trial on another matter for an in-custody accused. But for the Crown's changes, an adjournment would not have been necessary. So why should this be defense delay? You say it's not analytically, it strikes me that it's the very context that suggests the reverse answer to what you're proposing.

And Justice, in my submission, it should be precisely the opposite, because what you'll have then is uneven treatment, a contextual assessment that undermines the predictable nature of the framework, and that will cause more stays in cases where they're more lengthy, where they're more likely to be an instance of a discrete exceptional circumstance, for example, that might throw a matter off the rails, but are also more likely to be defended by skilled, experienced, and therefore the most booked and busy defense counsel. And so the most serious and complex of cases are more likely to be saved for delay, where there's some instance or some hiccup or some misstep on the Crown's part that contributes to further delay. And I'd like to...

I would just make a very simple comment. In Jordan and the case law that has followed, the court, this court and other courts, have sought to minimize the contextual, highly contextualized approach that was in Moran and substitute something that was more clear-cut and definite. You can't escape having to take into account context. You can minimize it. You can limit it, but you can never eliminate it because if you have a rule which is totally inflexible, you will lead to arbitrary decisions. So it's a kind of a false dichotomy to me to say Jordan has achieved a degree of certainty such that context is no longer considered. Context will always be considered. It is the manner in which it is considered and what it is relevant to. So it's, perhaps I'm dancing on the head of a pin here, but you can't escape it.

I don't suggest that it ought to be escaped in every instance. And there may be, for example, an instance where when the date being rescheduled is offered so far out, for example, when the defense declines dates, that some portion of that must be attributed to institutional delay, for example. But it's a rare circumstance. And the difficulty is that a consideration of whether delay arising from defense unavailability ought to be parsed out as between various factors in my submission would be to muddy the assessment at the 11B application stage and to complicate the litigation. It would also have the effect of denuding the predictability of the outcome of the Section 11B application. And this is important because the predictability of the framework was something that this court made clear in Jordan was intended to incentivize the parties to move matters along with haste, reschedule where necessary, permits the courts to manage delay by triaging and prioritizing cases that are becoming dated, and to shuffle their schedules in order to offer more dates to accommodate a trial that has gone off the rails as both the court and the Crown did in the incident case. And I would just close on this point very quickly by making reference to this court's recent decision in Kirkpatrick wherein this court noted that Jordan overturned Moran because lower courts had not been applying Moran's framework consistently. The application of Section 11B had become something of a dice roll and accused 11B rights turned in large part on the views of the judge hearing the case rather than on a consistently applied framework. This undermined the rule of law. With respect to there's a tension here between the right to counsel of choice and the right to trial within a reasonable time. And again, in my submission, it can't be that where defense counsel is busy and booked and something like this should occur that now the delay that arises from that should be counted as institutional delay because it's not that either. I'll turn to the second issue very quickly and it's the respondent's position that the transitional exception was properly applied. Jordan made clear that the exception was conceived of not just because it would be unfair to hold the parties to a standard of which they had no notice, but also an acknowledgement that change takes time. The appellant's contention that the Crown ought to have known that to refuse to consent to reelect would count against the Crown relies on an interpretation of Cody that I submit is not correct at law. At paragraph 68 and 69 of Cody, this court emphasized again the contextual nature of that assessment. And at paragraph 69 in particular indicated that for cases currently in the system, these considerations, that is the Moran factors, can inform whether any excess delay may be justified. So I note that Cody was released nearly a year after Jordan and indicated that for those cases that were still in the system at the time of Jordan's release, the factors that were relevant pursuant to Moran could remain relevant, not withstanding that the whole of the prosecution did not take place prior to Jordan. And following that at paragraph 70, the court identified the party's general level of diligence as also a factor. And then in the last line of that paragraph indicated, the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstance. And it's only in this context that the passage of the judgment that my friend relies on is provided. And I note just that this court said that when considering the applicability of the exception, quote, that trial judges should be mindful of what portion of the proceedings took place before and after Jordan was released. The Cody decision does not say that the relevant factors the court had just reviewed pursuant to Moran became irrelevant for delay that happened after July 8th, 2016, only that the court should keep it in mind as part of the contextual assessment. The reference to shifting focus was intended to convey in my submission that the extent to which the Moran factors remain relevant for the period of the prosecution following the release of Jordan must be weighted having regard to the time that had passed since then. Ms. Koslowski, do you?

A ydych chi'n ddysgu â'r cyfle ymddygiadau Mr Wickramsing, y 97 a'r 3, oherwydd ymddygiadau pre a post Jordan? A ydych chi'n ddysgu â'r cyfle ymddygiadau?

I do disagree. There was six and a half months prior to the release of Jordan. So what that percentage works out to, I can't recall, but it's ultimately six and a half months into the prosecution. They're still in the Ontario Court of Justice at the date that Jordan was released.

And then the second question, do you disagree with his claim that if hypothetically the appeal were allowed on the 11b grounds that the appellant would be entitled to be released?

We agree with that. He'd be entitled to a stay.

Excuse me, I'm going to, Ms. Kozlovski, ask you to pursue your parsing of Jordan and address the key sentence in paragraph 71 that was fixed upon in the Court of Appeal, and the appellant draws attention to, and the word instead. That is to say, for delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt, referencing back to Jordan 96. Did the court misspeak when it used the word instead? Perhaps you can explain it.

The court did not misspeak in that regard. The point that I'm making, Justice, in that respect is that having regard to paragraphs 68, 69, 70, and 71, that line must be taken in context. It doesn't indicate that everything after July 8, 2016 is that none of the Moran factors are relevant anymore. In particular, having regard to Jordan's acknowledgement that change takes time. And I suggest having regard to the decision in Gordon, which suggested that there was no mistake with respect to refusing to consent to re-election. But instead, in that context in my submission, is not that this Honourable Court misspoke. It's that there's a calibration here. That is the extent that the Moran factors remain relevant for the period of the prosecution following the release of Jordan should be weighted having regard to the time that it passed since then. So lesser weight ought to be given to those factors. And focus ought to be put on the extent to which time had passed since Jordan's release. And I'm going to suggest that the trial judge as the Ontario Court of Appeal also found, very much so put his focus on the extent to which time had passed since Jordan's release. And that can be found at paragraph 296, or rather 276 of his ruling and following. I note the time, my colleague Mr. Hockey will address the remaining crown.

Yes, thank you, Justices. In the brief time that I have, I'm just going to address what the Crown submits as the most significant reason that the appellant's arguments with respect to the jury charge ground of appeal should be dismissed. The first reason and the most important reason that we rely on is that on a contextual review of the whole of the charge, there can be no reasonable likelihood that the jury would have believed that it should decide the case by choosing between Mr. Henriquez's version of events and the appellants. A contextual review of the whole of the charge shows that the trial judge gave important and correct instructions that removed any reasonable likelihood of the jury being left with the misconception that it should decide the case that way based on the passages the appellant relies on. In particular, Crown submits that the whole of the charge...

Excuse me, I have a question on that. There seems to be two different behavioral assumptions behind the Court of Appeals decision about reasonable likelihood. One is that if you ever say it correctly, maybe I'm overstating it, but if you say it correctly in certain instances and don't say it fully in others, it's still okay. We can assume behaviorally the jury will know what to do. And Justice Nordheimer seems to say no. If you say it correctly in a general way and fail to say it correctly and set up a credibility context on the specifics, we can't assume that the jury will be able to deal with the tension between what is right and what may be problematic. So what is, on what basis do we make an assessment about reasonable likelihood? What behavioral assumption do we go with?

Well Justice Martin, I don't think we have to make any fine conclusions about that in this particular case. I'm not trying to dodge the question, I'm just going to say that in this particular case, you do have a trial judge who told this jury twice on two specific occasions in his charge, both at the outset following his charge on the burden and standard of reproof, and later, that the jury was not to decide the case by choosing which version of events it preferred. It specifically told them that. And that specific and correct instruction both would have told the jury that they couldn't do that, but also the later impugned passages in my submission have to be read in that context. And that's what I see the majority doing. It's saying that it's in that context that the impugned instructions are given, and that informs that context, and it just can't be said at the end of the day that there's any reasonable likelihood of misdirection because of those passages. But it's not just those passages, and very quickly I'm mindful of the time, there's also a correct instruction to the jury that they can believe some, all, or none of the, of each witness's evidence, which is completely inconsistent with an either or contest. And the jury is also told, very importantly, that a reasonable doubt can arise from the accused evidence, even if they don't believe it, which again is completely inconsistent with an either or contest. I'm mindful of the time, so I'm just going to leave my submissions there, subject to any questions.

Thank you. Any reply?

Just very quickly with respect to the, the, my friend, the respondents' submissions on the proper use of boulanger. In my submission, this court interpreted paragraph 64 of Jordan properly and definitively in paragraph eight of that decision, which is found at tab one. It also correctly and fairly pronounced on how delay might be interpreted and apportioned in a fair and reasonable way in paragraph 10, and it's my respectful submission that's precisely what the Ontario Court of Appeal did and agreed with when they agreed with the trial judge's allocation of delay or appropriation of delay, allocation of delay. My friend in response to Justice Martin's question says it goes to crown reasonable reliance on the state of the law at the time citing the seriousness of the offense. That is precisely the mistake that we say the trial judge made and the Ontario Court of Appeal made. The time, the time period was post-Jordan delay and there's no room for any more analysis in that regard, as my colleague Mr. Gill said. At that point, we're looking at whether the Crown behaved in law, had enough time to digest Jordan and behave accordingly. Oh, yeah, actually I should mention one more thing that Mr. Gill asked me to mention. Going back to the Boulanger point, if we hypothetically say that defense counsel isn't available because of a particular, he's got a trial or she's got a trial, and then the following, the only available court date is two years away, should the defense have to eat that delay, it would be entirely unreasonable to suggest that because the courts have an obligation under Jordan to accommodate and the Crown's approach is not only approaching a micro counting, but it's also endorsing an approach that's contrary to the spirit of what Jordan was hoping for. My friend suggested the cause of the delay from November 5th, 2018 to October 19th, 2019, was really a discreet event. No, that event prompted the Crown to exercise its discretion and it did so contrary to the spirit of Jordan. With my respect for submissions in reply.

much. The court will retire but we will ask you to remain at our disposal. Court, the court. Court, the court. Court, the court. Please be seated. So, we thank counsel for their very able submissions and the court is ready to render its decision. We are all of the view to allow the appeal on the first ground relating to section 11B of the charter. This first ground is dispositive so we decline to address this again. As the Crown considered, in view of this section 11B breach, a stay of proceeding is warranted. Reasons to follow shortly. We therefore allow the appeal, set aside the convictions and order a stay of proceedings. So, the court is adjourned to tomorrow morning, 9.30.