R. v. Thomson

2017 BCSC 2151 R. v. Thomson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Thomson, 2017 BCSC 2151 Date: 20171123 Docket: 25464 Registry: Quesnel Regina v. Robert Bernardt Thomson & Trevor Wishart Before: The Honourable Madam Justice Church Oral Reasons for Judgment Counsel for the Crown: A. Murray Counsel for the accused, Robert Bernardt Thomson: Counsel for the accused, Trevor Wishart: C.L. Webster A. Zipp Place and Date of Hearing: Quesnel, B.C. September 25, 26 & 27, 2017 Place and Date of Judgment: Quesnel, B.C. November 23, 2017 Introduction [1] On August 29, 2013, the accused Robert Bernardt Thomson and Trevor Wishart were arrested near Quesnel, B.C. in connection with an alleged outdoor grow op. They were held in custody for a short while and then released on an undertaking and promise to appear on the first scheduled court date of October 29, 2013. The day prior to their first appearance, an information was sworn alleging that the two co-accused (1) unlawfully produced a controlled substance, namely marihuana, (2) that they possessed a controlled substance for the purposes of trafficking and (3) that the accused, Wishart, operated a motor vehicle while disqualified. All of these offences are alleged to have occurred on August 29, 2013. [2] On April 15, 2014, both accused elected to be tried in Supreme Court before a judge alone and requested a preliminary inquiry. The preliminary inquiry eventually began in Provincial Court on September 22, 2016 and concluded on March 23, 2017, when both accused were committed for trial. [3] This matter is now scheduled for a 5-day jury trial commencing on January 22, 2018 and will therefore conclude on or about January 26, 2018 - 51 months after the information was sworn and 53 months after the date of the alleged offences. [4] On August 25, 2017, the two co-accused filed a notice of application seeking a judicial stay of proceedings on the grounds that their right to a trial within a reasonable time pursuant to s. 11(b) of the Charter had been violated. [5] The hearing of the notice of application took place over three days between September 25-27, 2017 and I reserved my decision to today's date. Calculating Delay under Section 11(b) [6] The starting point for calculating delay is described by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. The court must determine the total delay between the charges and the end of trial. Delay that is attributable to or waived by the defence is deducted from the total delay. The remaining delay is then measured against the presumptive ceiling, which in this case is 30 months. [7] If the delay exceeds the presumptive ceiling, the delay is presumptively unreasonable and the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown's control and the list of what might constitute exceptional circumstances is not closed. For cases in the system prior to the Jordan decision, such as this one, a transitional exceptional circumstance may apply where 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: see R. v. Morin, [1992] 1 S.C.R. 771. If the Crown cannot rebut that presumption, a stay of proceedings will follow. [8] The Crown and defence counsel agree that the total delay in this case is 51 months. Perhaps not surprisingly, Crown and defence counsel do not agree as to the analysis and characterization of defence caused delay in this case. They do, however, agree that the proper approach to calculating delay where there are co-accused is to analyze defence-caused delay individually with respect to each accused, rather than collectively. On this latter point, the Ontario Court of Appeal has recently weighed in on this issue in the case of R. v. Gopie, 2017 ONCA 728 and the majority agreed that the approach to analyzing defence-caused delay where there are co-accused should be individualistic. The court noted at para. 136 that: In my view, attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded jointly against multiple accused is irrelevant to the s. 11(b) assessment under Jordan. As I discuss below, delays arising in the case of jointly-charged accused can give rise to exceptional circumstances under the Jordan framework. [9] Following that decision, I have analyzed defence delay individually for each of Mr. Wishart and Mr. Thomson. The extent to which there is delay caused due to proceeding against them jointly is considered in my analysis of exceptional circumstances which will follow. Delay Attributable to Mr. Wishart [10] The Crown takes the position that approximately 29 months and 15 days should be deducted from the total delay as delay caused by Mr. Wishart over the following time frames: TIME PERIOD AMOUNT OF TIME December 10, 2013 - April 15, 2014 4 months, 5 days May 1, 2015 - November 3, 2015 6 months, 2 days March 4, 2016 - May 26, 2016 2 months, 23 days January 9, 2017 - March 23, 2017 2 months, 24 days July 14, 2017 - January 26, 2018 6 months, 11 days October 27, 2016 - November 2, 2016 6 days December 19, 2016 - January 13, 2007 25 days July 14, 2017 - January 26, 2018 6 months, 12 days TOTAL 29 months, 15 days [11] The last line of the table set out at page 3 of the written submissions provided by Crown counsel includes June 14, 2017 to January 26, 2018 which appears to be a duplicate of another entry further up the table and thus it appears that this time frame has been counted twice. For the purposes of my analysis, I have deducted the 6 months and 11 days that was counted twice, which leaves the Crown submission that the delay caused by Mr. Wishart is 23 months, 4 days. [12] The Crown also asserts that Wishart waived delay of 4 months between May 26, 2016 - September 23, 2016 when he opposed the Crown application for severance. The Crown submits that the severance application was brought in an attempt to reduce the delay caused to Wishart by the limited calendar of counsel for Thomson and by opposing the application (which was ultimately dismissed by the Provincial Court Judge) Wishart waived the delay to the preliminary inquiry date, a total of four months. By my calculation, this would bring the delay attributable to Wishart to 27 months 15 days according to the Crown analysis. [13] Counsel for Wishart disputes this analysis. He submits that the first time period from December 10, 2013 to April 15, 2014 constitutes defence intake, during which time defence counsel were receiving disclosure and were addressing a conflict that ultimately required Mr. Wishart to get separate counsel from Mr. Thomson. With regard to the second time frame, May 1, 2015 - November 3, 2015, while he acknowledges that these were dates offered to counsel for a preliminary inquiry and counsel for Mr. Thomson was available on those dates, he submits that the evidence does not support the Crown position that Crown was available on those dates and he therefore submits that this time period should not be deducted for defence delay. [14] With respect to the March 4 - May 26, 2016 time frame, counsel for Wishart points out that counsel for Thomson was not available during this time frame "so it is academic to attribute delay to Wishart for this." He also submits that the Crown would not have been ready to proceed on those dates as one of the police witnesses was not available. [15] With respect to the January 9 - March 23, 2017 time frame, counsel for Wishart submits that he was available on dates prior to January 9, 2017 for continuation of the preliminary inquiry, although counsel for Thomson was not. He therefore submits that since he was available before January 9, 2017, the delay after January 9 cannot be attributed to Wishart. He relies on the principle enunciated in the case of R. v. Godin, 2009 SCC 26, where Justice Cromwell wrote at para. 23 that: Scheduling requires reasonable availability and reasonable cooperation; it does not for s.11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. [16] He submits that despite the new framework for analysing delay under s. 11(b) under Jordan, the principle set out in Godin survives and must be considered in determining what is defence-caused delay. [17] Finally, with respect to the period from July 14, 2017 to the end of trial on January 26, 2018, counsel for Wishart attributes this delay to decisions made by the Crown not to schedule the delay application until ordered to do so by Skolrood J. [18] Counsel for Wishart also takes issue with the Crown submission that the delay of 4 months between May 26, 2016 to September 23, 2016 was delay that was waived by Wishart. He submitted that the decision with respect to denying severance was made by the Provincial Court Judge and it would be speculative for this court to conclude that the learned Provincial Court Judge would have ordered severance even if Wishart had consented or taken no position. [19] Defence counsel for Wishart submits that there is no period delay caused by Wishart and the net delay of 51 months is above the presumptive ceiling of 30 months and is therefore presumptively unreasonable. [20] After consideration of the affidavit material before me, the book of transcripts and counsel's submissions, I have concluded that the delay attributable to Mr. Wishart is 6 months and 2 days for the period from May 1, 2015 to November 3, 2015. I agree with the Crown submission that the court, the Crown and counsel for Thomson were all available for preliminary inquiry dates in May 2015 but counsel for Wishart was not and his earliest availability was November 2015. In my view, the plain reading of the Crown response to the email chain in Exhibit 18 of the affidavit of Virginia Kaun is that the Crown was available for all of the dates offered by the judicial case manager, including the May dates. This reading is also consistent with all of the other Crown correspondence in which the Crown indicated that it was available on any of the dates offered by the court. The only reason that the preliminary inquiry could not be scheduled for May 2015 was the calendar of counsel for Wishart and in my view, this delay is attributable to him. [21] For the purposes of calculating defence-caused delay, I do not agree that the period from December 10, 2013 - April 15, 2014 should be characterized as defence caused delay. It is apparent from the affidavit evidence that defence counsel Webster, who was counsel for both accused as at December 10, 2013, had only received Crown disclosure a few days prior to this appearance and it was not unreasonable that he would require further time to review the disclosure. Having conducted that review by the next appearance date on January 28, 2014, it had become apparent that there was a potential conflict and that the co-accused would each require separate counsel. The process of securing new counsel for Wishart and obtaining a complete copy of Crown disclosure from former defence counsel and from the Crown took an additional 3 months, with the last flash drive sent to counsel for Wishart on March 27, 2014, shortly before the April 15th hearing for election. In R v Cody, 2017 SCC 31, the Court emphasizes in para. 29 that: " not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case." In my view, this period of delay falls squarely within this principle and should not be deducted as defence-caused delay. [22] With respect to the delay of 2 months and 23 days from March 4 - May 26, 2016, I note that it appears that counsel for Wishart was available for the dates offered for a preliminary inquiry during this period but counsel for Thomson was not available until September 2016. Paragraph 28 of the affidavit of Virgina Kaun notes that "Crown was available any date for preliminary inquiry. Mr. Zipp advised that if the dates were in Quesnel he was available." This is not delay caused by Mr. Wishart. [23] With regard to January 9 - March 23, 2017, a delay of 2 months, 24 days, the evidence before me is not clear. Counsel for Thomson was not available to continue the preliminary inquiry until January 2017. Counsel for Wishart was not available for a continuation between January and March 2017. Exhibit 30 to the affidavit of Virginia Kaun is a file memorandum of Crown setting out what had occurred at the preliminary inquiry dates in September 2016 and discussions with the judicial case manager about setting continuation dates. The third page of that exhibit is a handwritten list of continuation dates with various notations indicating when counsel would not be available. Towards the bottom of that page, there is a notation that reads as follows: Only day Crown not available Jan 3 - Mar 3 March 23 & 24 first day both defendants available. [24] There is no reference to Crown availability for the dates offered by the judicial case manager and there is no explanation for this notation in the balance of Exhibit 30 or the affidavit of Virginia Kaun. It is therefore not clear that Crown counsel was available on the earlier dates offered during this time frame and I therefore cannot conclude that this is delay caused by Wishart. [25] Even if I were satisfied that the Crown was available during this time frame, in my view the main reason for this delay was institutional. Had this matter been heard over the course of two full days on September 22 and 23, 2016, without interruption from other matters in Provincial Court, it is very likely that the preliminary inquiry could have been concluded, without the need for a continuation date. I am not prepared to attribute this delay to Wishart. [26] With respect to the Crown assertion that Wishart waived the delay between May 26 and September 23, 2016 by opposing the Crown application for severance, I do not agree that this constitutes either waiver by Wishart or defence-caused delay. In my view, this is not a clear and unequivocal waiver of his s. 11(b) rights by Mr. Wishart: Jordan, at para 61; Cody, at para 27. There is also no evidence that this was a deliberate and calculated tactic aimed at causing delay: Jordan, at para 63. [27] Even if defence counsel had consented to the Crown application or taken no position, the decision with respect to severance was not his. A court may order that an accused be tried separately from another accused only where it is satisfied that the interests of justice so require and in this case, the Provincial Court Judge concluded that it was not in the interests of justice to sever the accused. It is entirely speculative to say that his decision would have been different, had counsel for Mr. Wishart not opposed the application. In my view this delay is not attributable to Wishart. [28] Finally, with respect to the delay between July 2017 and January 2018, in my view, a portion of that delay is attributable to Wishart. Although defence counsel submits that the delay was due to the Crown's failure to schedule the delay application until ordered to do so, it is clear from a review of the court file that the defence application was not formally filed or served on the Crown until August 25, 2017, although there had been discussion about such an application much earlier. The exhibits to the affidavit of Virginia Kaun indicate that the court and Crown were available and ready to proceed to trial on any of the assizes between July and September 2017. Counsel for Wishart had limited availability in June and July for only 2 days each assize, which likely would have been sufficient to hear the defence delay application in advance of the September assize. In my view, the delay between September 27, 2017 and January 26, 2018, a period of 4 months, is attributable to Wishart. [29] Having concluded that the delay attributable to Wishart is 10 months, 2 days, the net total delay after deduction of defence delay is approximately 41 months. The delay is well above the presumptive ceiling of 30 months and therefore presumptively unreasonable. [30] Although I have reached that conclusion, I wish to comment about a period of delay from November 3, 2015 to March 4, 2016, which the Crown and counsel for Wishart have characterized as institutional delay or delay arising from a lack of court time. This delay arose because counsel for Wishart had double booked himself with two preliminary inquiries on the same court dates in Quesnel. Crown counsel and counsel for Thomson were present and ready to proceed with the preliminary inquiry in this matter on those scheduled dates. Counsel for Wishart asserts that the decision to adjourn the preliminary inquiry was made entirely by the Provincial Court Judge and arose due to the practice in Provincial Court of double and triple booking hearings, particularly in smaller locations. [31] I have ultimately concluded that the delay caused by the adjournment of the preliminary inquiry was indeed due to lack of institutional resources. However, although counsel for Wishart was ostensibly ready to proceed, his decision to agree to double book himself for two pressing matters on the same dates left the Provincial Court Judge in an impossible position in terms of determining which matter would proceed, particularly when the other matter involved an accused who was in custody. Counsel for Wishart advised me that he acts as defence counsel for approximately 75% of the accused persons who come before the court in Quesnel and he is thus pressed by court scheduling to double and triple book trials and hearings in Provincial Court due to his busy calendar. Counsel for Wishart is entirely correct that the decision as to which matter would proceed first on the November preliminary inquiry dates rested with the Provincial Court Judge, although one could posit that even if another courtroom and judge had been available on those dates, counsel for Wishart could not have been in two places at once and that one of his matters would not have been able to proceed, resulting in delay to one of his clients. [32] It may well be that this is part of the culture of complacency towards delay that the Supreme Court of Canada was striving to change with its approach in Jordan and Cody. As the Supreme Court noted, real change will require the efforts and coordination of all participants in the criminal justice system and thus this kind of practice will almost certainly be subject to much closer judicial scrutiny in the future. Delay Attributable to Thomson [33] The Crown takes the position that approximately 21 months and 6 days should be deducted from the total delay as delay caused by Mr. Thomson over the following time frames: Time Period Amount of Time December 10, 2013 - April 15, 2014 4 months, 5 days January 22, 2015 - May 25, 2015 4 months, 3 days March 4, 2016 - September 15, 2016 7 months, 11 days October 7, 2016 - January 9, 2017 3 months, 2 days July 10, 2017 - September 25, 2017 2 months, 16 days TOTAL 21 months, 6 days [34] The Crown asserts that delay during the period from December 10, 2013 until April 15, 2014 was caused entirely by counsel for Thomson (who was also counsel for Wishart for much of that time) adjourning the election hearing to review the Crown disclosure, identifying the potential conflict with representing both accused and arranging to have new counsel appointed for one of the co-accused. The Crown submits that all of the adjournment requests during this time frame were at the request of defence counsel. [35] With respect to the period of 4 months and 3 days between January 22, 2015 and May 25, 2015, the Crown submits that this delay was due entirely to counsel for Thomson seeking to adjourn the preliminary inquiry dates due to being ordered to appear in Supreme Court in Vancouver on another matter. Alternatively, the Crown asserts that Thomson waived this period of delay on the record during the adjournment application. [36] With respect to the period from March 4, 2016 to September 15, 2016, the Crown submits that counsel for Thomson was not available for the preliminary inquiry dates offered by the Court during this time and for which the Crown was available. She submitted that this delay was caused by Thomson. [37] After the preliminary inquiry did not conclude in September 2016, the Court offered dates as early as October 7, 2016 and through into January. The Crown was available for those dates, while counsel for Thomson was not. The Crown submits that this delay of 3 months and 2 days was caused by Thomson. [38] Finally, the Crown submits that the delay between July 10, 2017 and September 25, 2017 was delay attributable to Thomson, as the Crown was ready for trial commencing on the July 2017 assize, while counsel for Thomson was not available until the September assize. [39] Counsel for Thomson disputes the Crown analysis. He submits that the first time period from December 10, 2013 to April 15, 2014 constitutes defence intake, during which time defence counsel were receiving disclosure and were addressing a conflict that ultimately required Mr. Wishart to get separate counsel from Mr. Thomson. [40] With regard to the second time frame, January 22, 2015 to May 25, 2015, counsel for Thomson acknowledges that this delay was waived by Thomson and should be deducted from the overall delay [41] With respect to the March 4 - September 15, 2016 time frame, counsel for Thomson acknowledges that he was not available to schedule a preliminary inquiry during this time frame due to another trial commitment. He made no submission with respect to attributing this delay to Thomson. [42] With respect to the October 7, 2016 - January 9, 2017 time frame, counsel for Thomson submits that his lack of availability for dates for a continuation of the preliminary inquiry only two weeks after the hearing was adjourned was not unreasonable, given his busy practice. He acknowledges that some attribution of delay to Thomson during this time frame might be reasonable but not to the extent sought by the Crown. [43] Finally, with respect to the period from July 10, 2017 to September 25, 2017, counsel for Thomson made no submission with respect to attribution of this period of delay to Thomson. [44] Defence counsel for Thomson submits that even after subtracting defence delay that was either waived or caused by Thomson, the total delay is still well above the 30-month ceiling and is therefore presumptively unreasonable. [45] Calculation of defence caused delay in the case of Mr. Thomson is slightly more straightforward than his co-accused. There is no doubt that Thomson waived the delay of 4 months and 3 days during the period from January 22, 2015 to May 25, 2015 that occurred due to the defence application to adjourn the first scheduled preliminary inquiry dates. [46] It is also clear that there were preliminary inquiry dates and trial dates offered by the Court and for which the Crown was available but counsel for Thomson was not during time periods March 4 to September 15, 2016 and July 10, 2017 to September 25, 2017. This delay, totalling 9 months and 27 days, is attributable to Thomson. [47] With respect to the delay during the period from October 7, 2016 and January 9, 2017, I do not agree that this delay is attributable to Thomson. While there were some issues with defence counsel availability, in this case the main reason for the delay was institutional. The Provincial Court dealt with numerous other matters before it on September 22 and 23, 2016, which significantly reduced the time available for the preliminary inquiry. It was likely as a result of these interruptions, that the Crown released its final police witness due to another investigation, only to discover that there was court time available to complete his evidence, by which time it was too late to call him back. In Exhibit 31 to the affidavit of Virginia Kaun, Crown counsel acknowledged that when the preliminary inquiry reconvened on March 23, 2017, she got through the officer's testimony "fairly quickly". Had this matter been heard over the course of two full days without interruption from other matters in Provincial Court, it is entirely likely that the preliminary inquiry could have been concluded, without the need for a continuation date. [48] The total defence delay attributable to Thomson is therefore 14 months. After deducting defence delay from the total delay of 51 months, the net delay is 37 months. As with Mr. Wishart, the actual delay is above the 30-month ceiling and is therefore presumptively unreasonable. Rebutting the Presumption [49] The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para 47. Exceptional circumstances include discrete events and particularly complex cases. [50] In this case, there are no discrete exceptional events that give rise to the delay in this case. [51] With regard to the complexity of the case, the Crown acknowledges that the nature of the evidence, the amount of disclosure and the period of time covered by the charges do not suggest that this is a particularly complex case. The Crown does, however, submit that the presence of two co-accused and the difficulties with scheduling due to the calendars of two busy defence counsel has added a layer of complexity to this case. The allegations against the co-accused are that they were engaged in the criminal offending together and it was in the interests of justice to proceed against them jointly. [52] When it became clear, however, that the presence of two co-accused was causing delay to Wishart, the Crown applied to sever the accused on the grounds that it was no longer in the interests of justice to proceed against the accused jointly. This step was undertaken by the Crown prior to the release of Jordan. While the severance application was ultimately unsuccessful, as the Court noted in Jordan, the Crown is required to show that it took reasonable available steps to attempt to avoid the delay. It is not required to show that the steps it took were ultimately successful. [53] The Crown relies on the decision of the BC Court of Appeal in R. v. Singh, 2016 BCCA 427, where it stated that proceeding jointly against multiple accused may impact the complexity of a case. The Crown submits that the fact that there were two co-accused and two counsel added sufficient complexity to this matter to rebut the presumption of unreasonableness. The Crown submits that neither accused made extensive effort to move this matter along and much of the delay was caused by defence counsels' limited calendars. [54] Counsel for each of the accused submit that the Crown has failed to rebut the presumption in this case that the delay is unreasonable. Counsel agree with the Crown assessment that this case is not particularly complex. Neither the evidence nor the issues are difficult and the matter does not require an inordinate amount of trial time or preparation time. The disclosure was not voluminous and indeed most of the disclosure was completed by April 2014 when the co-accused made their elections. Defence counsel submit that the presence of two co-accused, with busy counsel did not add sufficient complexity to this matter in terms of scheduling to be an exceptional circumstance and rebut the presumption of unreasonableness. [55] It is clear on the evidence before me that this case did not possess any of the usual hallmarks of complexity such as voluminous disclosure, large numbers of witnesses, extensive expert evidence or numerous pre-trial applications, During the severance application by the Crown on December 8, 2015, Crown counsel made submissions to the Provincial Court Judge that this case was not complex, as the evidence was straight forward and not particularly extensive and there are only five Crown witnesses. While there were clearly scheduling challenges caused by the presence of two co-accused with busy counsel, those challenges did not, in my view add a sufficient layer of complexity to rebut the presumption that the delay in this case was reasonable. In Singh, the presence of multiple accused created complexity due to the three co-accused being arrested at different times, one of the three co-accused being arrested in Ontario, complications in transporting that co-accused back to British Columbia and delays in scheduling a bail hearing for that accused after he was returned to British Columbia, which defence counsel wanted to address prior to arraignment. [56] In Singh, as in this case, the Crown made severance applications that were rejected by the trial judge on the grounds that it was in the interest of justice that the accused persons be tried together. As the Court of Appeal noted, severance is not necessarily the answer when delay arises in multi-party indictments and delay caused by proceeding against multiple co-accused is simply a fact of life that must be considered in deciding what is a reasonable time for trial. [57] In the case at bar, the only complication arising from the presence of co-accused was the limited availability of counsel for Thomson due to his involvement in a lengthy criminal trial in Vancouver. In all other respects, this is a relatively straightforward case. The presence of co-accused by itself does not make this case sufficiently complex to justify such a delay and rebut the presumption that the delay is unreasonable. [58] Having reached that conclusion, I must turn to the final step of the analysis and consider the transitional exceptional circumstance. [59] The Crown also submits that because this case was already in the system prior to the release of Jordan, the framework must be applied flexibly and contextually, with "sensitivity to the parties' reliance on the previous state of the law". The Crown submits that, as set out in the decision of Cody, the final step of the analysis is the transitional exceptional circumstance, a consideration of that portion of the proceedings that took place prior to Jordan and a consideration of the factors set out in Morin. [60] The Crown acknowledged that one of the factors contributing to the delay with this matter was a lack of institutional resources. That was a direct cause of the adjournment of the second preliminary inquiry date in November 2015 and requirement for a continuation date when the preliminary inquiry did not conclude on September 23, 2016. [61] The Crown submits that transitional exceptional circumstances exist which make the delay in this case reasonable. [62] With regard to the transitional exceptional circumstance part of the analysis, defence counsel submit that even on an analysis under the pre-Jordan framework, the delay in this case is unreasonable. [63] The Cody decision provides considerable guidance with respect to this step of the analysis. [64] In Cody, it was noted that the Crown may rely on the transitional exceptional circumstance if it can show that the time the case has taken is justified based on the parties' reasonable reliance on the law as it existed prior to Jordan (at paras 68-69). This is a qualitative exercise and requires the Court to recognize that Crown would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay would have been assessed under Morin. As the Supreme Court noted in Jordan, this determination must be undertaken contextually and with due "sensitiv[ity] to the manner in which the previous framework was applied" (at paras. 96 and 98). [65] When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice: Cody at para 71. 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. I note that in Cody, the Court upheld the trial judge's decision to enter a stay of proceedings with respect to very similar charges as in this case, where the case against Mr. Cody was relatively straightforward and the net delay was 36.5 months, all of which had accrued prior to the release of Jordan. [66] In this case, approximately 2/3 of the total delay pre-dated the release of Jordan and 1/3 of the total delay occurred after the release of Jordan. [67] There is little doubt that the charges that Mr. Wishart and Mr. Thomson face on this indictment are serious and there is a clear societal interest in having a trial on its merits. [68] With respect to the issue of prejudice to the accused arising from the delay, prejudice may be inferred, or it may be actual, or a combination of both, as established by the evidence. The longer the delay, the greater the likelihood of an inference of prejudice. [69] Both of the accused have filed affidavits setting out the actual prejudice to each of them. In the case of Mr. Thomson, this included being on restrictive bail conditions for more than four years, which require him to report to his bail supervisor in person every second month, sometimes having to fly to Edmonton from the Kootenays just for the purposes of reporting. He has been unable to work in his prior seasonal employment as an assistant hunting guide due to the bail conditions that prevent him from possessing a firearm. He also suffers ongoing financial hardship of having to travel to Quesnel, B.C. from his residence in Edmonton for the purpose of court appearances, resulting in missed work and occasional job loss. He also reports anxiety and insomnia due to stress from these proceedings. [70] With respect to Mr. Wishart, he now resides in Rossland, B.C. approximately 950 kilometers from Quesnel and he has to miss work and incur significant financial costs in order to appear in court on these charges. He suffers from eczema, which is exacerbated by stress and deposes in his affidavit that his eczema flares up every time he has to appear in court. He has foregone employment opportunities because this matter has been continuing so long and he is required to be "perpetually available", which impedes his ability to make plans for the future. He too has been on restrictive bail conditions for more than four years. [71] As the Court noted in Godin at paras. 30 and 31: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. [31] The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn". Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Further, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. [72] In this case, the net delay for Mr. Wishart is 41 months and the net delay for Mr. Thomson is 37 months. It is clear from the material before me that Crown counsel had concerns about delay from a fairly early date. There were concerns expressed in 2014 about delay in setting preliminary enquiry dates in 2015 due to the delay in finalizing the Provincial Court rota in Quesnel because of the impact of the Canada Winter Games in Prince George. By the date of the second scheduled preliminary inquiry in November 2015, Crown counsel expressed concerns about the age of the file and delay in the trial. The transcript of the proceedings on November 2, 2015 indicates that the Provincial Court Judge was alive to the issue of delay and he indicated on the record that at that point, the file was 734 days old. The Crown specifically referred to the age of the file and her readiness and wish to proceed on that date. [73] Despite those concerns, the Provincial Court Judge chose to proceed with the other matter involving an accused who was in custody, which necessitated a further adjournment of the preliminary inquiry. It was shortly after this adjournment that the Crown filed its application for severance that was eventually dismissed. Crown counsel certainly made efforts to move this matter forward to trial but it appears that a lack of institutional resources contributed significantly to the delay in this case. In my view, the delay in this case was excessive, given the straightforward nature of this case. [74] Based on their respective affidavits, I have also concluded that there is evidence that both Mr. Wishart and Mr. Thomson have suffered, and continue to suffer, actual prejudice as a consequence of the delay. This prejudice arises as a result of the restrictions on their liberty over the past four years, specifically in relation to their restrictive bail conditions. They have both lost employment opportunities as a consequence. They both have suffered and continue to suffer stress and the emotional strain of having these charges remain outstanding for a prolonged period and their ability to move on with their lives and make future plans has been seriously impaired. [75] The purpose of s. 11(b) of the Charter is to ensure a fair trial within a reasonable time, an essential part of our criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their liberty interests and their security of person. The court should consider action or non-action by the accused which is inconsistent with a desire for a timely trial. There is no evidence before me to suggest that either Mr. Wishart or Mr. Thomson have been deliberately delaying matters so as to avoid a speedy trial. There were no frivolous pre-trial applications by either party and counsel for both accused were pro-active in seeking early court dates, subject only to their calendar availability, which was not unreasonable. I am not aware of anything in the conduct of Mr. Wishart or Mr. Thomson that is inconsistent with the desire for a timely trial, such as to undermine any prejudice they might have suffered. [76] The Crown has not demonstrated that the 41 month delay for Mr. Wishart and the 37 month delay for Mr. Thomson was justified based on its reliance on the previous state of the law. Mr. Wishart's and Mr. Thomson's right to a trial within a reasonable time under s. 11(b) has been infringed. They have suffered actual prejudice as a result of that infringement. After balancing the seriousness of the offence and society's interest in bringing them to trial and the actual prejudice to both accused, in my view the balance weighs in favour of a stay proceedings. [77] The application by both accused is granted and stay of proceedings is entered. "The Honourable Madam Justice Church"