R. v. Virk

2019 BCSC 1271 R. v. Virk IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Virk, 2019 BCSC 1271 Date: 20190610 Docket: 31366 Registry: Williams Lake Regina v. Manjit Singh Virk Before: The Honourable Mr. Justice Armstrong Oral Reasons for Judgment on Delay Application Counsel for the Crown: R. Smith Counsel for the Accused: A.H. Zipp Place and Date of Trial/Hearing: Williams Lake, B.C. July 9‑11 & 13, August 7 & 8, November 14 & December 11, 2018 and March 15, 2019 Place and Date of Judgment: Prince George, B.C. June 10, 2019 [1] THE COURT: These reasons address an application by Manjit Virk for a judicial stay of proceedings under s. 24 of the Charter because his right to be tried on these offences within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been breached. If a transcript should be required of these reasons, I reserve the right to edit that transcript to ensure that it correctly reflects my intentions and reasoning. Any editing will not change the reasoning or the result. In particular, there may be minor adjustments to calculations or arithmetic that may need correction, but nothing in those corrections will affect the result. [2] On April 6, 2018, Mr. Virk was convicted of two counts of indecent assault, one count of sexual assault, and one count of engaging in sexual intercourse without the consent of the victim. This application was filed April 6, 2018, without supporting application material. Argument on the application began July 9, 2018, and concluded on March 15, 2019. [3] There is an exceedingly long history to this prosecution. The complainants made their first reports to the RCMP concerning the charges sometime in 2007 and gave statements in November of that year. The statements were taken from some of the complainants with additional statements taken in February 2011. [4] The information was sworn April 11, 2011, and the evidence in the trial concluded October 27, 2017, with submissions concluding December 22, 2017. The time elapsed from swearing the information until conviction was 83.9 months or 2,552 days. [5] Mr. Virk had emigrated from India to Williams Lake in 1980. He lived in a residence occupied by the complainants in that city. He moved to the City of Edmonton in Alberta sometime in early 1985 and has lived there since. He was and is a truck driver. [6] The information charging him with the offences was issued April 11, 2011. A warrant was also issued for his arrest, but was not executed until September 1st of that year. Mr. Virk was driving his truck for work into British Columbia when stopped at a vehicle inspection point near Fort St. John, B.C., in a coordinated effort by members of the RCMP and Department of Transport officials to stop and arrest him. [7] On his arrival in Canada Mr. Virk's command of the English language was poor. By the time of his arrest, he was able to speak some English in a limited way. At the time of his arrest, the arresting police officer spoke to him in his native Punjabi language. Mr. Virk was taken to Fort St. John detachment of the RCMP where he was interviewed by a second Punjabi‑speaking RCMP officer, and before that interview, a translator retained by the RCMP had explained the arrest warrant to Mr. Virk in the Punjabi language over the telephone. [8] During the interview between Mr. Virk and the police, he made some inculpatory remarks, part of which were admitted into evidence following a voir dire. [9] Mr. Virk remained in custody after his arrest until September 7, 2011, when he was released on a recognizance and the matter was adjourned to October 12, 2011. As of September 12, 2011, he was represented by a Ms. Patricia Smith‑Gander, who would appear on his behalf until April 2016. Between October 12 and December 21, there were several adjournments and disclosure requests. Mr. Virk's arraignment was delayed until December 21. After some further delay related to the preliminary inquiry process, the inquiry was scheduled to begin February 4, 2013. It began then and ended March 7, 2013. Mr. Virk was committed to trial in the Supreme Court with a fix date scheduled for April 15, 2013. [10] Many months passed and on April 10, 2014, two weeks were set aside for one defence application and the Crown's voir dire concerning the accused's statements. Those applications were to commence January 19, 2015 but the dates were lost due to defence counsel's illness and further dates were set for July 13 to 31, 2015. [11] Early in the process, the accused had estimated the trial would take eight weeks' time, whereas the Crown estimated its case could be finished in five to seven days. [12] Early on, defence counsel had indicated the accused wished to apply for various third‑party records, including counselling records for the complainants and for a translation transcript of his statement to the police. [13] After the trial was adjourned in January 2015, the accused was directed to bring any applications for third‑party records by May 31, 2015. He was also directed to deliver a Charter application to exclude his statement at the trial, also by May 31, 2015. He did not follow either of those directions. [14] In mid‑June, the accused brought an application for third‑party records and gave notice of his Charter challenge regarding the statement. In part because of the late delivery of the third‑party document application, the trial did not proceed on July 13. Mr. Virk's application for the complainants' counselling records began in late June and was finished during the first scheduled week of trial. The voir dire itself began the next week, July 21, and addressed the voluntariness of Mr. Virk's statement and his Charter challenge to its admissibility. The voir dire was complete, concluded over the next two weeks. [15] By September 10, 2015, new trial dates had been arranged commencing March 7 to 21, 2016, April 11 to 24, 2016, and May 30 to June 6, 2016. At the March 7, 2016, date, the accused appeared and expressed an interest in negotiating a resolution to the charges. The trial was adjourned for one week to permit the parties to discuss the terms of a plea. [16] Negotiations were unsuccessful and at the March 17 resumption of the trial, Mr. Virk reported being too ill to attend court and the trial was again adjourned to April 8, 2016. On that date, Ms. Smith‑Gander informed the court she had been discharged as counsel for Mr. Virk. At that point, it was also clear that Mr. Virk would require financial assistance to obtain new counsel, and a Rowbotham application would likely be necessary. [17] In May 2016, Mr. Virk's Rowbotham application was discussed and by August 15, 2016, he had resolved that issue with the Attorney General and Mr. Zipp had been appointed as counsel. By August 15, 2016, Mr. Zipp also raised concerns over the translation of Mr. Virk's statement given to the RCMP. [18] The trial continued on dates from November 14, 2016, to November 30, 2016, with evidence in chief from the complainants. It reconvened March 17, 2017, to March 22, 2017, and then from June 19 to June 22, 2017. The next trial dates were July 20 to 28, 2017, October 16 to October 27, 2017, and argument took place December 18 to 21, 2017. [19] Mr. Virk was convicted of the four offences noted above on April 6, 2018, which was the same day he made this application, which he did prior to the decision being rendered. [20] Mr. Virk subsequently provided affidavit evidence concerning the prejudice he had suffered during his ongoing prosecution up to July 6, 2018. He contends that he suffered financially due to the costs of attending in Williams Lake and Prince George with counsel. He also said he had mental and physical health problems. He suffers enduring depression, which has progressively worsened over time, to the extent where at times he has been confined to his bedroom due to this depression and the despair emanating from the uncertainty of the duration of this case. [21] He said that the extended duration of the proceedings have cost him lost wages and increased scrutiny from his employer. He contends that the prolonged duration of the proceedings increased his financial stresses and drained his personal finances. [22] Over time, he contends his physical health suffered and, as an example, pointed to his 2016 hospitalization as evidence of the effects he suffered at the time. He believes that continued attendances at Williams Lake and Prince George limited his ability to work and have caused him physical, emotional and financial prejudice. [23] There are substantial disagreements between the parties concerning the reasons and fault for the amount of time that elapsed from the charge to conviction. It will be necessary to summarize details of these disagreements in the analysis of the alleged breach of Mr. Virk's rights to the trial within a reasonable time. I will do so incorporating the framework set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 [Jordan], which includes consideration of the framework in R. v. Morin, [1992] 1 S.C.R. 771 [Morin]. [24] Mr. Virk contends there were no defence delays that should be deducted in the Jordan analysis. He contends that taking into account the Jordan framework and the Morin factors, the delay created severe prejudice and deprived him of his trial within a reasonable time. He argues that the Crown was obstreperous in responding to his requests for disclosure, and in particular, in its resistance to producing a copy of a translation of the statement he gave to the police, and the Crown's refusal to agree to a joint meeting of the parties' translators to explore common ground on the different interpretations of the statement. [25] The accused contends the Crown's approach to these issues exacerbated the delay bringing this case to trial. Mr. Virk was also frustrated in the length of time it took to secure Mr. Zipp's appointment as counsel. Mr. Virk also takes issue with the length of time taken to secure funding commitments from the Legal Services Society and the assistance necessary in resolving the statement translation issues which had not been dealt with by Legal Services between September 2016 (his initial request) and March 2017. [26] Mr. Virk offered three written submissions outlining his positions and reply to Crown argument. After outlining the various court appearances, the accused addressed his submissions to the Jordan analysis, which I will summarize: · He said the seven‑year delay from swearing of the information was well above the presumptive ceiling and the onus is on the Crown to establish defence delay or exceptional circumstances. · Mr. Virk was responsible for no delay. · Two incidents of illness to participants were exceptional circumstances. · His defence counsel's 2015 illness resulted in a loss of 186 days. · 118 days were lost between his hospitalization and Mr. Zipp's appointment. · Crown's insistence on a "paper preliminary inquiry" between December 21, 2011, January 24, 2012, and January 3, 2013, also constituted Crown delay. He contends the Crown failed to cooperate in efforts to streamline or shorten the trial. · Crown's repeated unrealistic time estimates caused delay. · Crown wanted Mr. Virk to have counsel (and mentioned his appointment or the need for amicus if Mr. Virk had remained unrepresented), and thus the time period for the accused's Rowbotham application should count towards the presumptive ceiling. [27] The Crown argued that Mr. Virk was responsible for much of the delay, including his trial. In any event, the Crown contends that during most of the time after the charge was laid, the parties operated under the principles outlined in R. v. Morin, [1992] 1 S.C.R. 771 [Morin], and if the time exceeded the limits set out in Jordan, the delay was not sufficient to justify a stay of proceedings under the law in Morin as it was relied on by the parties. The Legal Framework [28] This trial began well before the decision in R. v. Jordan, 2016 SCC 27 [Jordan], and the analysis is informed by the Jordan principles concerning the treatment of delays affecting Charter rights of accused individuals in criminal trials. In this application, the parties have provided extensive argument touching on 126 pretrial conferences, trial dates, and other court appearances. The Crown's written presentation covered 220 pages and 2,550 references concerning the treatment of delays in this case. Defence arguments and reply were also extensive. [29] The decision in Jordan brought into focus the systemic issues and complacent approaches to criminal prosecutions from the laying of information to the verdict that were extant up to that time. The Jordan decision addressed the practical and ongoing problems that had been allowed to interfere with the rights of accused persons to trials in timely ways. The court noted that a culture of delay and complacency had infected the criminal prosecution process. [30] Section 11(b) provides the accused's right to be tried within a reasonable time and an accused's s. 11(b) right is infringed where there is unreasonable delay. The new Jordan framework for determining 11(b) rights infringements applies to all criminal cases, including those that entered the system before the decision was rendered. The framework must be applied flexibly and contextually with sensitivity to the parties' reliance on the previous state of the law: see Jordan at para. 105. [31] Prosecutions running in excess of 30 months are presumptively unreasonable for cases in superior courts: see Jordan at para. 57. Cases exceeding the 30‑month ceiling may not be unreasonable if delayed due to defence actions or defence waiver or exceptional circumstances causing delay, but prejudice is presumed where the case exceeds 30 months. The presumption of prejudice is not rebuttable: see Jordan at para. 54. [32] The first step requires the court to calculate the total delay from the date of the charge to the end of the trial. "End of the trial" is the date the verdict is rendered: see R. v. S.C.W., 2018 BCCA 346 at paras. 25-27. [33] Regarding the presumptive ceiling, the Supreme Court of Canada in Jordan at paras. 53 to 56 wrote the following: [53] Second, the presumptive ceiling also reflects additional time to account for the other factors that can reasonably contribute to the time it takes to prosecute a case. These factors include the inherent time requirements of the case and the increased complexity of criminal cases since Morin. In this way, the ceiling takes into account the significant role that process now plays in our criminal justice system. [54] Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin, "prejudice to the accused can be inferred from prolonged delay" (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one. [55] Fourth, the presumptive ceiling has an important public interest component. The clarity and assurance it provides will build public confidence in the administration of justice. [56] We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached. [34] After the 30‑month ceiling is reached and subject to the time consumed by defence delay or discrete events or exceptional circumstances, we must take into account that the burden shifts to the Crown to justify time taken in cases that exceed those time limits. [35] For cases already moving through the criminal system before July 2016, the court has said "slightly more relaxed rules apply to judicial changes": see Jordan at para. 93. Defence Delay [36] The second step after considering the total delay is to subtract the defence delay from the total time that has elapsed from charge to the end of trial. "Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable": see Jordan at para. 68. This remains the approach even in transitional cases: see R. v. Serban, 2017 BCSC 17 at para. 14 [Serban]. [37] There are two species of defence delay: waiver and delay solely or directly caused by conduct or inaction of the defence: see Jordan at paras. 61, 63. [38] Any delay attributed to or waived by the defence is deducted from the total delay before the Crown is obliged to rebut the presumption of unreasonableness: see Jordan at para. 68. In its rebuttal, the Crown may rely on exceptional circumstances outside its control. Defence Waiver [39] "Defence waived delay" is a waiver concerning specific periods of delay, not the s. 11(b) right itself: Jordan at para. 61 citing R. v. Conway, [1989] 1 S.C.R. 1659 at 1686 [Conway]; see also R. v. Cody, 2017 SCC 31 at para. 27 [Cody]. [40] The accused must have knowledge of his or her rights, as well as the effect waiver will have on those rights, before waiver can be found: see Jordan at para. 61. In Jordan, the court found the accused had waived a four‑month delay by changing counsel at the last minute, which necessitated an adjournment: see Jordan at para. 120. The accused may waive delays either explicitly or implicitly. In both instances, waiver "must be clear and unequivocal": see Jordan at para. 61. [41] In explicit waiver, the court need not determine if the time waived is in fact delay: see R. v. Tummillo, 2018 MBCA 95 at paras. 40-45. An implicit waiver must be no less clear and unequivocal: see R. v. Klassen, 2018 ABCA 258 at paras. 78-87 [Klassen]. [42] Just because the defence consents to certain procedural steps does not mean the defence impliedly waives unanticipated delays flowing from such procedural steps. "Informed, clear, and unequivocal waiver cannot be based on that which was not anticipated": see Klassen at para. 84. Delay Caused Solely by the Conduct of the Defence [43] Delay caused solely by the conduct of the defence includes "those situations where the accused's acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial": see Jordan at para. 63, citing R. v. Askov, [1990] 2 S.C.R. 1199 at 1227-1228. [44] As such, this species of defence‑caused delay includes both innocent instances of defence unavailability to appear, and frivolous applications made as deliberate and calculated delay tactics: see Jordan at paras. 63 to 64. [45] Defence's unavailability is not attributed to the defence where required for reasonable preparation time. Regarding counsel unavailability of relevance, see R. v. Vitalis, 2018 ONCJ 43 [Vitalis], citing R. v. Godin, 2009 SCC 26 [Godin]: R. v. Lai, 2018 BCSC 867 at para. 58 [Lai]. [46] In Vitalis, citing the Supreme Court of Canada's decision in Godin, the court held that only the specific dates which the Crown and the court are available, but the defence is not, should be deducted as defence delay and not the entire period from one date to when the hearing could be scheduled, regardless of the Crown's availability in the interim. There must be actual evidence of the Crown's and the court's availability and the defence is not required to hold themselves in a state of "perpetual availability" in scheduling trial dates. Critically, the delay clock does not stop as soon as a single date is offered to the defence and not accepted. In a post‑Jordan analysis R. v. Wu, 2017 BCSC 2373 applied this aspect of Godin. In Wu Madam Justice Watchuk noted that neither the defence nor the Crown was required to maintain themselves in such a state. [47] Delays caused solely by the conduct of the defence include some defence inaction. The Supreme Court of Canada in Cody wrote at para. 33: [33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently" (Jordan, at para. 138). [48] To reiterate, the Crown bears the burden of showing that delay was caused solely by the conduct of defence: R. v. Curry, 2016 BCSC 1435 at paras. 121,140; R. v. Eremenko, 2018 BCSC 1138 at paras. 66-72 [Eremenko]. [49] If the net total exceeds the presumptive 30‑month ceiling, the onus has shifted to the Crown to show that the delay was reasonable by establishing there are other exceptional circumstances. This process involves a contextual assessment, taking into account the previous framework and the parties' behaviour cannot be assessed on the basis of the decision in Jordan. The assessment will consider the circumstances in the context of the Morin framework. If, following the release of Jordan, the parties had taken time to correct their approach to the prosecution, delay and acted accordingly delay after July 2016 will be taken into account: see Jordan at para. 96. [50] In R. v. Reinbrecht, 2019 BCCA 28 [Reinbrecht], the Court of Appeal recently summarized the change brought in by Jordan and the process that this Court should adopt: [4] Jordan changed the focus of s. 11(b) Charter applications from institutional delay to defence delay. The new analytical framework fixed presumptive ceilings for unreasonable delay of 18 months for cases proceeding to trial in the provincial court, and of 30 months for those proceeding to trial in the superior court or going to trial in the provincial court after a preliminary inquiry (at para. 46). Total delay (minus defence delay) that exceeds the relevant ceiling is now presumptively unreasonable (at para. 47). The burden then shifts to the Crown to justify the delay. The Crown may discharge its burden by establishing exceptional circumstances. These arise where a discrete event is reasonably unforeseeable or unavoidable and the Crown "cannot reasonably remedy the delays emanating from those circumstances" (at para. 69) and are deducted from the total delay. Delay that continues to exceed the presumptive ceiling may then also be justified based on the complexity of the case (at para. 81). [5] If after deducting delay that arises from a discrete event, the net delay exceeds the presumptive ceiling and the delay above the ceiling is not justifiable based on the complexity of the case, Jordan adds a third form of exceptional circumstances to consider, namely "transitional exceptional circumstances", for cases that were still "in the system" when Jordan was decided. (See also, more recently, R. v. Cody, 2017 SCC 31 (CanLII) at para. 46). The transitional exceptional circumstance involves a qualitative assessment of the presumptively unreasonable delay based on the parties' reasonable reliance on the law as it previously existed under Morin (Jordan at para. 96). [51] On the question of the accused's role and the right to trial within a reasonable time, it was the view of the Supreme Court of Canada in Jordan that: [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [66] To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. [Emphasis added.] [52] The court in Cody further clarified the reason for deducting defence delay from the overall is to prevent accused persons from benefiting from their own actions causing delay or inaction exacerbating delay. Deductions from the total delay will not be allowed where defence has been the sole cause: see Cody at para. 28. [53] Delays caused by exceptional circumstances that are either unforeseen or reasonably unavoidable by the Crown will be deducted from total delay where Crown cannot reasonably remedy the delays once they arise: see Jordan at paras. 69-70. In general, there are two kinds of exceptional circumstances: discrete events and particularly complex cases. The approach applies to transitional cases as well: see Serban at para. 14. [54] Discrete events capture life's emergencies, including medical or family, by participants involved in the trial, unforeseeable and unexpected developments at the trial, among others: see Jordan at paras. 72-73. The court subtracts the amount of time attributable to these discrete events from the total period of delay: see Jordan at para. 75. [55] The Crown "must always be prepared to mitigate the delay resulting from the discrete exceptional circumstance": see Jordan at para. 75. If the Crown and the court fail to mitigate delay from a discrete event when it was reasonably possible to do so, the court will not subtract those amounts of the time attributable to the discrete events from the total period of delay: see Jordan at para. 75; R. v. Manasseri, 2016 ONCA 703 at paras. 308, 310, and 343. [56] If, after subtracting the delay attributable to the discrete exceptional events from the delay, the delay exceeds the ceiling, the delay remains unreasonable and the court will enter a stay of proceedings, after taking into account any issues that relate to the complexity of the case: see Jordan at para. 76. [57] Particularly complex cases require more trial preparation time because of the evidence or issues: see Jordan at para. 77. Trial preparation for ordinarily complex criminal cases is already accounted for in the 30‑month ceiling: see Jordan at para. 53. [58] Cases requiring inordinate trial or preparation time are not reflected in the 30‑month ceiling and therefore considered exceptional circumstances on the basis of which a trial may run longer. [59] If a case is particularly complex and the time taken is justified, the delay is reasonable and will not result in a stay: see Jordan at para. 80. Exceptional Circumstances as the Crown's Only Basis [60] Proving that circumstances causing delay are circumstances is the only way for the Crown to meet its burden of showing delay exceeding the 30‑month ceiling is nonetheless reasonable. The court's comment in Jordan at para. 81 bears repetition: [81] To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. As discussed, an exceptional circumstance can arise from a discrete event ... Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay. [Emphasis in original.] [61] If the Crown does not show exceptional circumstances and the delay exceeds the presumptive ceiling, the court must issue a stay of proceedings. [62] Importantly, factors relevant to determining reasonableness of the delay under the old regime are no longer available to the Crown: in Eremenko at para. 5, citing R. v. D.N., 2018 BCCA 18 at para. 33. The court said: [33] Significantly, Jordan provides that the Crown may no longer rely on the seriousness or gravity of the offence, inherent time requirements and chronic institutional delay, or the absence of prejudice to justify delay that has exceeded the presumptive ceilings. Once the presumptive ceiling is breached, prejudice is inferred and the delay is unreasonable absent exceptional circumstance. [63] These factors retain some relevance if transitional circumstances apply. [64] The court in Cody cautioned that the defence has some responsibility in dealing with delay. [30] The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64). [31] The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [32] Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently" (Jordan, at para. 138). [65] On the question of defence waiver , the court in Jordan referred to Conway in which, Mr. Justice Sopinka writing in dissent said: The court, therefore, has a duty to ensure to its satisfaction that the waiver of time is clear, unequivocal, and informed as regards the right and the effect waiver will have on the right. Waiver cannot, therefore, be inferred from silence, whether the accused be represented or not, except in cases where delay is caused by an accused. It must be express and informed. Furthermore such waiver does not affect the right but merely excludes such time as is waived from the calculation of reasonable time. [66] In deducting delay based on accused's waiver, the court must conclude that the accused consented to the delay; the burden is on the Crown to prove that waiver was unequivocally and freely given. [67] As was noted by Mr. Justice Sopinka for the court in R. v. Smith, [1989] 2 S.C.R. 1120, when an accused agrees to a date, it can be inferred on the circumstances that he or she has waived the right to subsequently allege that the period from the agreement to the actual date will not be construed as unreasonable delay. Silence does not constitute waiver, but agreement to a future date will usually constitute waiver. [68] However, merely agreeing to a date will not constitute waiver if the accused has simply acquiesced in the inevitable: see R. v. Giles, 2017 BCSC 73 at paras. 8‑9: [8] Consents to adjournments by the defence will usually amount to waiver unless the consents amount to "acquiescence in the inevitable": Adam at para. 135. Where no real choice or option exists there can be no waiver: Askov at 1246. Agreement to a date within the proceeding in question does not constitute waiver where the agreement can be reasonably and fairly characterized as mere acquiescence in the inevitable: R. v. Morin, 1992 CanLII 89 (SCC), [1992]1 S.C.R. 771 at 790. [9] However, acquiescence to dates and adjournments cannot always be construed as simple resignation to the inevitable. It has also been observed that "[a]greement to suggested dates cannot be characterized as acquiescing in the inevitable in the absence of evidence to that effect": R. v. Nuosci, 1993 CanLII 40 (SCC), [1993] 4 S.C.R. 283 at 284, per Sopinka J.; R. v. Brassard, 1993 CanLII 42 (SCC), [1993] 4 S.C.R. 287 at 287, per L'Heureux-Dubé J. [69] If delay has exceeded the presumptive ceiling, those cases in the system before the Jordan decision but continuing after engage a further consideration of waiver in the transitional circumstances that may have justified the delay under the old law. [70] The transitional circumstances require qualitative assessments of the presumptively unreasonable delay based on the parties' reliance on the pre‑Jordan law. In Reinbrecht, the court directed that the process follow the steps where the delay is calculated to the end of trial. Delay waived or caused by the defence is deducted. If the total exceeds the presumptive 30‑month ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by showing exceptional circumstances, i.e., discrete events or particularly complex cases. [71] If a case is particularly complex, such that the time taken is justified, the delay is reasonable and will no longer be in issue. The First Step [72] The Jordan framework begins with the calculation of the time elapsed between swearing the information and conclusion of the trial and, if that delay exceeds 30 months, it is presumptively unreasonable and the burden shifts to the Crown to rebut the presumption. In this case, the total delay was 2,552 days or 83.9 months. The amount of delay is more than 2.5 times the presumptive ceiling. [73] The next step is to determine if there is delay that is should be deducted because of waiver by the defence or caused by his own conduct. This delay is deducted from the total delay where it was solely or directly caused by the accused and/or flows from illegitimate defence inaction concerning responding to the charges. [74] Legitimacy is informed by reliance on old practices that are incompatible with the accused's Charter right to a trial within a reasonable time. Defence inaction may amount to defence conduct. [75] In this case, the time between swearing the information and the verdict is grossly in excess of the presumptive ceiling. Important Events [76] It is important to remember in this case that the positions and decisions taken by each party before Jordan that delayed the setting of more timely trial dates must be considered under the Jordan principles and that analysis takes into account that the Crown must prove that any defence delay to deducted from the total length from charge to verdict was solely caused or waived by the accused. [77] Further, the Crown may prove that some delay was caused by exceptional circumstances and this delay may also be deducted from the total. 2011 [78] I begin with a consideration of time beginning with the swearing of the information. [79] The information was sworn April 13, 2011, and the accused arrested on September 1. This delay of 140 days was not caused by the accused and is taken into account as part of the overall delay. The Crown contends this was an exceptional circumstance outside the Crown's control and should be deducted under Jordan. [80] The Crown contends that this was an exceptional circumstance outside the Crown's control and should be deducted. The defence contends the Jordan timeline runs from the date of the information to arrest and represents 143 days of delay that should be counted in that delay. Alternatively, the Crown contended that the time between the swearing of the information was intake time described in Morin, which I will deal with later in these reasons, at this time would not count towards an 11(b) breach, unless the accused showed prejudice. The Crown said that it did nothing to delay the arrest and contends that the police had specific reasons for postponing Mr. Virk's arrest. Crown spent some considerable time on this question. Alternatively, the Crown argues the gap was an exceptional circumstance that was beyond its control. [81] The Crown relied on R. v. Thind, 2018 ONSC 1337 [Thind], for the proposition that delay between charge and arrest was an exceptional circumstance and should not be counted under Jordan in a case with international dimensions requiring extradition. In Thind, the court quoted Mr. Justice Frankel in R. v. Singleton, 2014 BCCA 232 [Singleton]. It said on the view of the record: [99] In my view, on the record of this case, it cannot be said that the police failed to act with reasonable diligence. Attempting to locate someone in a country as vast as the United States without any idea of where to look is akin to trying to find the proverbial needle in a haystack. Although the police could have located Mr. Singleton earlier had they known where to look, they did not know where to look until Sergeant Quenneville spoke with Ms. Singleton. There is nothing in the evidence to suggest that Mr. Singleton could have been located before Sergeant Quenneville learned of his possible connection to Peck, Kansas. [100] Further, I do not accept that it falls to Crown to establish that had the police taken other steps to locate Mr. Singleton, those steps would have failed. In effect, Mr. Singleton's argument would result in an impossible burden being placed on the Crown. The Crown would first have to prove what the police might reasonably have done at any particular time to attempt to locate an accused and then prove that doing those things would not have made a difference. [82] The Crown also referred to R. v. Moosomin, 2017 SKQB 182 at paras. 47-49. This decision was not based on transitional provisions in Jordan, but did take into account inherent delays caused by multi‑accused indictments. There the court concluded it was not necessary to decide the issue on a transitional exceptional circumstance or other considerations. [83] On a review of the evidence cited by the Crown, there is no support for the submission that the reason the accused's arrest was delayed stemmed from any fear he was a flight risk or any need to coordinate the arrest with a Punjabi‑speaking officer. This was the foundation of the Crown's explanation for the delay. [84] While the police may have needed a Punjabi‑speaking officer to arrest the accused, nothing in the evidence quoted by the Crown explains why the arrest was delayed for almost five months due to that or any other reason. The evidence cited by the Crown suggests that there was nothing in the minds of the police that delayed their decision to wait until September to arrest. There was no urgency in arresting the accused. The court's comments in Singleton highlight the differences in the instant case. The police were always aware of the accused's residence in Edmonton and his frequent work‑related trips to British Columbia. Nothing in the evidence suggests that the police could not have accomplished the same arrest in April of 2011 as occurred in September of 2011. It would have been a simple matter to have had Mr. Virk arrested at his home in Edmonton. [85] In statements taken from the complainants years before, they had speculated some concern that the accused, although living in Edmonton, had family in India and feared if he found out about a warrant, he might decide to leave. In my view, this speculation was not founded on any fact, nor was it mentioned by any of the officers as an explanation why the arrest did not take place earlier. I cannot accept that the failure to act on the warrant had anything to do with a chance that the accused might have fled Canada. That makes no sense in all of the circumstances. [86] I am satisfied that the police decision to wait until September 2011 to arrest the accused was animated by their own non‑urgent approach to these charges, and I cannot say this decision is a discrete or an exceptional circumstance. [87] Under the Jordan principle, the delay must be considered from the swearing of the information and is included in part of the overall delay: see Thind; see also R. v. Boima, 2018 BCCA 297 at para. 54 [Boima]. [88] Further, I am not satisfied that this event was beyond the control of the Crown. Although the police may not have engaged Crown counsel in their decision to delay arrest, it is clear that the Crown had approved the charge and had obtained the arrest warrant. The Crown does not disclose what, if any, communications it had with the police regarding the hiatus after the charges were laid, and overall the delay was part of the state's role in prosecution and was animated by actions of the police that were invigorated by the Crown. It must be also taken into account that the police and Crown failed to take into account s. 511(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 [Code], that required an accused be arrested forthwith. [89] Further, in my view, the Crown has simply not proven that the delay between charge and arrest should be deducted as transitional circumstance. These charges related to events that transpired over 30 years beforehand and the delay in arresting the accused was not, on the evidence, explained or justified. The complaints had been made four years before the information and the arrest warrant were issued. The Crown contended that having approved the charges, it was not able to do anything to mitigate the delay; but there is no evidence that the Crown could or could not have taken steps to encourage or facilitate the execution of the warrant in a timely fashion. [90] Therefore, the passage of that 140 days between swearing the information and Mr. Virk's arrest was not a discrete event and is included in calculating the delay in the Jordan analysis. [91] After his arrest, the accused was released from custody on September 7 (after 6 days) and required to appear on October 12. On that day the accused had counsel but failed to appear and his next appearance was October 26, 2011. In this timeframe from September 1, there was 13 days of delay that is attributable to the accused and 42 days are included in the Jordan calculation and not deducted. [92] At his appearance on October 26, 2011, Mr. Virk's counsel requested an adjournment and his appearance next was on November 23, 2011. On November 23, the matter was adjourned for preparation of an arraignment report. Without the arraignment report, Mr. Virk was not prepared to plead. [93] There was some confusion regarding the accused's representation. However, at his next appearance on October 12, Ms. Smith-Gander was confirmed as counsel. No one appeared at this first appearance and the matter was adjourned over and a bench warrant was issued. The 13 days attributable to this non‑appearance is attributable to the accused's non‑appearance and his delay is to be deducted due to his actions. [94] On October 26, the October 12 bench warrant was vacated and the accused requested an adjournment to November 23, and then to December 21. The request to adjourn to November 23 appears have been necessary to enable the accused to instruct counsel and the delay appears appropriate. Some of the delay to October 26 occurred because of ongoing disclosure requests and responses from the Crown; the 27 days delay were not brought about by unreasonable defence action and should not be deducted from the Jordan delay. The delays to November 30 and December 21 were at the accused's request and should be deducted. [95] I note that on this point, the Crown views this time as intake time in the Morin analysis; that language does not apply in a Jordan analysis. [96] The accused was arraigned on December 21, and the Crown informed the court that the accused was seeking disclosure of matters and material that it refused to disclose. It was agreed and a defence application to compel disclosure would be necessary. [97] At the November 23 appearance, the arraignment hearing was adjourned for one further week. This represents six days of delay due to the defence being unprepared for the hearing. That time would be deducted from the Jordan calculation. [98] The Court of Appeal discussed the issue of arraignment reports in R. v. Baldini, 2012 BCCA 206 at paras. 48-49. [48] During the arraignment hearing, both Mr. Welsh and Mr. Swanson referred to arraignment reports. Those reports are required to be filed by Crown and defence counsel by virtue of the Provincial Court of British Columbia Criminal Caseflow Management Rules, SI/99-104, made pursuant to s. 482 of the Criminal Code, R.S.C. 1985, c. C-46. Crown counsel's report requires an estimate of how long "the prosecution's case is expected to take" (Rule 7(1)(a), Form 1). Defence counsel's report requires a time estimate for "a trial of the matter" (Rule 7(1)(b), Form 2). The reports filed in this case were not included in the material filed on this appeal. However, it is clear from what was said that Mr. Welsh's arraignment report estimated that three days was sufficient for the trial and that Mr. Comer agreed with that estimate. [49] It is noteworthy that the Criminal Caseflow Management Rules also require counsel to either confirm their previous time estimates or provide revised estimates, in trial readiness reports that must be filed in advance of the trial date. Again, the Crown's estimate is to be based on how long "the prosecutor's case is expected to take" (Rule 9(1)(a), Form 3), while defence counsel's report deals with "the time estimate for this matter" (Rule 9(1)(b), Form 4). The purpose of a trial confirmation hearing is, as one would expect, to ensure that a case is ready to proceed as scheduled and that sufficient time has been allocated for it. [99] Thus the matter was put over to November 30, to December 21 and then to January 4, 2012 to ensure both Crown and defence had turned their mind to the trial estimates. The delay from November 23 was attributable to the defence request for an adjournment. Similarly, the November 30 date was adjourned at the defence request and seems, in my view, to fall within the characterization of defence waiver. [100] On November 30, the Crown had delivered disclosure and defence counsel needed time to review that disclosure before proceeding. The accused had not filed an arraignment report and did not attend, but his counsel attended and agreed to adjourn to December 21. This represents a 21‑day delay caused by the defence due to the failure to file an arraignment report and will be deducted. [101] On December 21, the election and arraignment proceeded, although the defence had delayed filing its report until that day. An adjournment went to January 4 at the request of the accused, thus 13 days is deducted due to the defence waiver/delay. [102] The defence requested these latter adjournments because he was unprepared to deal with the arraignment. The adjournment requests by the accused to January 4 totalled 74 days less the days that I have indicated have been required for him to instruct counsel (34 days),. By that day there had been 255 days of delay from swearing the information; 209 of those days are included in the Jordan totals of delay. 2012 [103] On January 4, the matter was adjourned to January 30, with a focus hearing scheduled February 13. Nothing indicates this was a defence adjournment by consent and the Crown conceded that this is time included in the Jordan delay calculations. This 25 days to January 30, 2012, will not be deducted. [104] The parties agreed to reschedule the focus hearing because the Crown was pursuing a paper preliminary inquiry and the case of R. v. Rao, 2012 BCCA 275 [Rao], was pending in the Court of Appeal, and ultimately decided the issue of paper preliminary inquiries in June of that year. [105] On January 30, 2012, the parties agreed to put the matter over to March 14, the next appearance which was after the next February 8 scheduled appearance. The March 14 day was to reschedule the focus hearing, but also to allow time for the decision in Rao to be made. The transcripts do not reveal whether the adjournment of January 30 was by consent or waived by the accused in any way. The adjournments were made necessary by reason of the Crown's wish to have a paper preliminary inquiry and they specifically agreed to in letters between the defence and the Crown and, as such, in my view, are deductible from the time. [106] Defence counsel spoke to the adjournment on March 14 to fix the focus hearing for April 25, 2012. The defence wrote to the Crown and said, "It made sense to reset our focus hearing for a date subsequent to the hearing of the above‑noted appeal on the basis of the resolved issues in R. v. Rao." [107] This decision by the accused and the Crown resulted 85 days delay from January 30 to April 25; this was delay waived by the accused. In my view, the delay was caused in part by the Crown's desire to proceed with a preliminary inquiry, that is, a paper preliminary inquiry, and the delay to April 25, 2012, may have been something in the nature of inevitable consequence. However, the record reveals that the accused actively participated in the discussions and agreement concerning the delay of the focus hearing, and this played a significant part in deferring the setting of that hearing until mid April. [108] I am satisfied that the tenor of the letter from defence to Crown supports the suggestion that the gaps from January 30 to April 25 were delays waived by the defence. Thus, the period from January 30 to April 25 is deducted from the Jordan total. [109] Next, on April 25, the preliminary inquiry dates were scheduled for November 12, for a focus hearing on November 12, hearing dates February 4 to 7, 2013, and March 5 to 6, 2013. The focus hearing was scheduled for November 21, but it did not take place. Crown contends that this period of time from April to February was 316 days and should be deducted from the total, the Jordan totals. [110] The Crown contends that the delay was waived by the accused and that the setting of the preliminary hearing dates was, in fact, an act to which the accused had concurred. It is significant to note that neither party appeared in the provincial court on the dates that the preliminary hearing dates were set. [111] The April 25 appearance is not recorded and there is no indication that the accused waived any earlier dates or waived the setting of that date in February and, as such, there should be no deduction for those dates. In my view, the period from April 25 to the start of the preliminary inquiry on February 4, which was 293 days, and the days to the completion of the preliminary inquiry totalling 316 days are days that should not be deducted. Crown has argued that the accused waived the delay to the next fixed date. Agreement by an accused to future dates can be taken as waiver for the purposes of this analysis only if the waiver has been with full knowledge of his or her rights; it can only inferred where the decision is expressly informed by the accused, with the accused's recognition of the rights and he has made a conscious intention to waive those rights. The crown bears the burden of proof on this point. [112] In my view, waiver of time by necessity implies a decision to abandon rights either to a hearing at earlier date, on the basis that earlier dates were available, or that the accused accepted a later date for some other reason. For waiver to have meaning, an accused must have made a choice to either abandon his right to raise a breach of Charter rights in the final analysis or to abandon the right to have a step in the proceeding occur on an earlier date. Otherwise, waiver has little meaning. In this case, none of these things have been proved to have happened. Most importantly, there is simply no evidence that the accused waived his rights when the preliminary hearing date was set, and nothing in the evidence indicates the type of knowledge or conscious intention required by the authorities to justify finding a defence waiver caused delay. [113] Crown conceded in its submission under the Morin framework that this full 316 days was an institutional delay. The Crown said that once the case went beyond the relevant Morin timeframe, i.e., eight to nine months, the institutional delay became unreasonable, except for the exceptional circumstances. [114] The Crown also conceded that under the Jordan framework, the time is counted towards the presumptive ceiling unless it is waived. The Crown argues it was a reasonable inference that the accused had waived the setting of the preliminary inquiry date 316 days away, in light of the fact that at the time the parties would have known that the Morin guidelines had been exceeded. [115] As noted, there is no evidence that the accused's acceptance of this date was a clear and unequivocal choice made by Mr. Virk and the 316 days to the completion of the preliminary inquiry is not deducted on the Jordan analysis. [116] On June 21, 2012, the decision Rao confirmed the accused's right to pursue cross-examination at preliminary inquiries. However, I am satisfied that the decision to wait up to April of 2012 to fix preliminary inquiry dates, as the parties had done, was not frivolous and nor accompanied by a conscious understanding that Mr. Virk was waiving his rights to that point in time. Nothing turns on this delay once the preliminary inquiry was scheduled. [117] November 21, 2012, the scheduled date for a focus hearing did not happen. The case was adjourned and the hearing took place on January 3, 2013. The Crown at that time declined to provide a synopsis to the defence on the basis that synopses were not required at that stage in the proceeding. There were, at the time, continuing requests for disclosure that were not answered before the preliminary inquiry. The inquiry proceeded on February 4, 2013, and the accused was subsequently committed to trial. 2013 [118] On January 3, 2013, the Crown informed the defence that it would not be proceeding with a paper preliminary inquiry; nothing turned on this decision. [119] On March 7, 2013, the accused was committed to trial with a fix date in Supreme Court scheduled for April 15, 2013. The Crown does not seek a deduction of that interval of 38 days from the Jordan totals. [120] On April 15, there was discussion between the parties concerning disclosure and trial time estimates. Crown was suggesting a pretrial conference be convened in the face of the accused's concern about disclosure. The defence was not inclined to fix a trial date until disclosure was completed, and the matter was put over to April 29. This delay stemmed from the defence opinion that further disclosure was necessary before trial dates should be set. It was not framed as a complete refusal to set those dates. This delay to April 29 was 13 days and is not deducted. [121] April 29, the parties appeared at a pretrial conference but further pretrial conferences were suggested for May 8, 9, 28, or 29. Defence counsel was not available until May 28. Crown seeks to deduct the 19 days of delay caused by defence unavailability (from May 8-27). [122] I am satisfied that the delay should not be deducted. As has been said, counsel cannot always be available on extremely short notice and it is unreasonable to expect to deduct delay due to brief adjournments, such as 19 days for rescheduling a pretrial conference. [123] Defence counsel raised the prospect of a change of venue application at the May 28 appearance, but no date was fixed at that time. On May 28, a new Crown assumed conduct of the prosecution. At this point, the Crown had not provided a synopsis but wanted to proceed to fix trial dates, and had not responded to some of the defence requests for disclosure. The Crown was seeking a summary of the accused's outstanding claims for disclosure and the matter was adjourned to July 2. The Crown argued that the accused's reluctance to fix the trial pending outstanding disclosure was not warranted. The Crown argued that the accused had a responsibility to avoid unreasonable delay and should have actively advanced his interests to have a trial within a reasonable time, referring to Cody at para. 33. [124] Crown also contended that the accused's request for ongoing disclosure without making an application demonstrated a lack of bona fides in his desire for disclosure; thus, he cannot complain of delays related to alleged inadequate disclosure. It is clear at this hearing, the accused did not have a copy of the new indictment or a copy of the Crown's synopsis, and the new Crown had not addressed some of the defence concerns communicated to her office regardless of the merits of those requests. It was in face of the Crown's failure to respond that the court adjourned the hearing to permit Crown "to respond quickly to your [being the defence] requests." The matter was adjourned to July 2, 2013. [125] The Crown seeks to attribute 34 days to defence by reason of inaction. I am satisfied that, based on the evidence of the May 28 hearing, the delay of 34 days from that date was not caused by defence inaction, it was caused by the Crown and will remain part of the Jordan total. [126] The next appearance, July 2, 2013, was before Mr. Justice Verhoeven. The Crown indicated that almost all disclosure had been completed with the exception of a few matters the Crown was expecting to be resolved by the RCMP. The defence disagrees that disclosure was all but completed at that point. The Crown was obtaining a new translation of the accused's statement that it intended to rely on at trial. At that appearance, a new certified translation of the accused's statement had not been provided to defence; in fact, it had not been prepared. [127] The Crown indicated that the outstanding disclosure was not a bar to fixing a trial date but, nevertheless, the matter was adjourned over to July 10. The Crown's synopsis and disclosure issues remained outstanding for the accused. Prior to August 2013, the Crown was still seeking an earlier trial date and the defence held to the view that disclosure was an impediment to fixing a date. Crown contends that the next delay resulted from defence inaction. The adjournment was not caused solely by the accused and this seven days is not to be deducted. [128] The Crown responsible was not present on that date. Nevertheless, it contended that the seven days was due to defence inaction. In the circumstances, the absence of Crown at the application and the issues involving her were necessary to be dealt with, the seven days is not deducted. [129] On July 10, 2013, the court canvassed counsel for trial time estimates. Crown indicated six to eight days would be sufficient, but the accused argued that eight weeks was her best estimate, although she was unsure. The matter was again put over to August 19. This delay of 39 days to August 19 is not deducted. The defence argues that without full disclosure, he could not properly make an intelligent analysis of the anticipated time for trial. Eventually the defence offered eight weeks as the best trial estimate she had at the time. The Crown concedes that a 39‑day delay is not to be deducted under Jordan, but under Morin the delay was reasonable. [130] On August 19, 2013, the accused announced his intention to change the venue of the trial. Crown argued forcefully in favour of fixing a trial date that had been directed by the court on the previous appearance. The accused suggested that fixing the trial date ought to wait and vigorously opposed setting the trial date at that time until after the venue application had been completed. The court adjourned the pretrial application to September 9 for the purpose of fixing the date for the venue application. Crown wished to argue the change application in the same week, in September, but the court adjourned the pretrial conference and the parties eventually settled on dates that would occur in November. [131] At the September 9, 2013, appearance, the court reiterated its concern regarding the trial date and delay. The accused's non‑appearance was noted. At the next day's appearance, defence counsel opposed fixing the date until the venue application was heard and the Crown argued that the accused could well have applied for this change of venue application long before the August 19 appearance, and that the delay in doing that had simply put off the potential hearing date for the venue application. [132] The pretrial conference was put over for another 14 days to September 23. Defence counsel provided the Crown a witness list and had estimated four weeks for trial. The conference was adjourned to an October 4 (11 days) pretrial conference thatalso included a discussion about materials for the venue application and the matter was then adjourned to the assize of November 18, 2013. [133] The application was scheduled for that date but was argued on November 26 and 27. The venue application was dismissed on November 27, and the next pretrial conference scheduled for January 8 and then January 16, 2014. [134] In my view, the delay from August 19 until January 16, 2014, was attributable in part to the accused's application for a change of venue, at least up until the hearing of that application. The Crown argued that from August 19, 2013, to January 16, 2014, that 149 days should be deducted due to defence inaction. [135] Leading up to the change of venue application, the Crown was unsuccessfully pressing the defence for trial dates and the adjournments to the pretrial conferences were opposed by Crown. But as of November 28, 2014, the parties were still pursuing an eight‑week trial date from scheduling and had requested the assignment of a trial management judge. I am satisfied that the entire delay brought by the applicant to change venue should not be deducted from the total delay calculated under Jordan. A different treatment of that delay might be possible under Morin. [136] In this case, although the application was defeated, it cannot be said that the application was an illegitimate step taken by the accused. The evidence before me on this application addressed nothing about the merits of the application and, in my view, it would be inappropriate to assess all of that delay to the accused. [137] Nonetheless, there were two intervals in this period, August to January, that were brought about by the inability of both counsel to appear on the application. The accused's counsel was not available immediately in September of 2013, and Crown was also not available for one month in October 2014. Thus, the delay to the actual hearing date is really a shared responsibility and, in my view, the delay attributable to the accused is at least 30 days, and I make a deduction of 30 days from that time period. The balance of 119 days is not deducted. 2014 [138] At the January 8, 2014, pretrial conference, Crown was concerned that the defence had not yet brought its O'Connor and Mills applications that had been talked about for some time. This was a recurring theme throughout, as the accused had always intended to bring these applications but had, by this point, not done so. Mr. Justice Romilly declined to recommend a trial management judge at that time, preferring to have a single trial judge assigned. He informed the parties that the issues connected with the Mills application and the O'Connor application were usually dealt with before the trial dates and offered encouragement, in my view, to that strategy. [139] By January 16, 2014, Mr. Justice Silverman had been assigned as the trial judge and the application adjourned for 10 days. Defence counsel indicated her availability for eight weeks for a trial that would begin in March of 2015. On January 16, 2014, there was no update on the defence indication that her availability for an eight‑week trial would be in March of 2015. [140] On January 16, 2014, the matter was put over again to January 27, this time due to the judge's unavailability. This 10 days cannot be deducted from the delay. [141] At the January 27 pretrial conference, Mr. Justice Silverman confirmed eight weeks was required by the defence and that the Crown believed that six to seven days would be sufficient for the Crown's case. The defence says the primary issues in the interim were third party records and voluntariness of the accused's statement. There was considerable disagreement concerning Crown's disclosure obligations and the s. 278 applications contemplated by the accused. There were discussions concerning the translation of the accused's statement from the Punjabi language. The Crown said it was expecting to receive a new translation for trial purposes. The Crown said it did not have a duty to provide this statement to the accused and maintained its previous stance that providing the statement would be a decision that the Crown could make at or around the time they intended to call the evidence, and that there was no urgency or pressure to provide a copy of this document to the accused. [142] Mr. Justice Silverman directed the accused's counsel to provide the Crown a list of outstanding issues. The defence was speaking about a huge number of applications made to obtain disclosure, but as Crown pointed out, no disclosure applications had been brought by the defence. [143] This conference ended with the court encouraging counsel to make inquiries and obtain information concerning third party records and the Crown's translation of the accused's statement. The defence was looking for the translation. Crown did not have it at the time and Mr. Justice Silverman said that preparation and delivery of that new translation must be disclosed to the defence, so that the defence could properly prepare. [144] Crown contends she was not given a fair opportunity to argue the Crown's obligations concerning the translation of the accused's statements. However, I am satisfied that a pretrial conference judge was adequately informed and entitled to give directions to the Crown, notwithstanding her difference in opinion concerning the Crown's obligation. [145] The proceedings were adjourned to February 17, 2014. The Court cannot conclude that the delay from January 27 to February 17 was caused solely by the accused. It appears to involve mutual failings. The amount of time, 21 days, will not be deducted. [146] At the February 17, 2014, pretrial conference, defence counsel informed the court she had not delivered a list of disclosure requests as previously discussed. The court ordered this document to be delivered. The court warned that a 60 to 90‑day delay in providing the defence with a copy of the accused's translated statement might be significant in a subsequent delay application. The court confirmed that the accused could not assess his need for trial applications concerning the statement without receiving a certified copy of the statement. The court eschewed fixing a trial date until the statement had been provided to the defence. The conference was set over to March 17. It is clear that the court was not prepared to fix trial dates without the resolution of the statement issue, notwithstanding that the trial dates were eventually fixed shortly after. [147] The failure of the accused to provide a listing of his outstanding disclosure issues was also a problem. In the result, the time from February 17 to March 17, the next appearance, is not defence‑caused or defence‑waived delay and those 27 days are not deducted. [148] On March 17, the court discussed several issues concerning disclosures, translations, and fix dates. At this point, the Crown again argued it was not required to provide a translation to the accused. She argued a trial date could be set without the statement. Silverman J. said he totally disagreed with the crown's position , and added, "I do agree [he said] with the part about how the dates are going to be out far enough in the future that if it's going to take you 60 days . . . to have that ready and just so it's clear, Ms. Smith-Gander, I would fully expect both translations to be part of any pretrial motions [149] The court directed the defence to set dates for the O'Connor and the s. 278 involuntariness questions to be heard in two weeks, to be scheduled by April 10. The pretrial conference was adjourned to April 10 for a further pretrial conference. The court said it cannot set a trial date until the defence applications have been heard, based on the directions of the trial judge concerning statements and other documents. The 23‑day gap from March 17 to April 10 is not due to defence inaction or delay. [150] On April 10, the first two weeks scheduled for this proceeding in this court were set for January 19, 2015. They were to address the statement issues and the Crown voir dire on the question of voluntariness. It was to address the accused's Charter argument and the accused's request for third‑party documents. The statement voir dire was scheduled for this date, subject to Crown witnesses' availability. In the end, Crown witnesses were available and the Crown had suggested some tentative dates in August, but the Crown was not available in June, October, or November. Defence counsel was not available until January 2015, and the court was only available in mid‑September and mid‑October, and not in January of 2015. [151] In the exchanges between counsel and the court on April 10, there was no clarity or certainty when the trial could have been scheduled, if at all, before January 2015. Trial dates had not been provided by trial scheduling and the parties were looking to dates that would accommodate all three participants. Mr. Justice Silverman was not going to be available for the January date and said a new trial judge would need to be appointed. Although the evidence is not strong, it seems that the two‑week voir dire could have been scheduled for August 2014, or earlier than January 2015, but the evidence is simply not sufficient for me to determine that any delay over that time period could be ascribed to the accused. [152] The Crown contends that the 295 days from April 10, 2014, to January 2015 should be attributed to defence by reason of implicit waiver. Based on the limited exchange reflected in the transcript, I am not satisfied that the accused's acceptance of January dates was anything more than a recognition of the inevitable. I do not interpret the exchanges to indicate that the accused was consciously or waiving his right to a trial in a reasonable time, or that he was unequivocally prepared to surrender those rights in the face of the exchange that happened. [153] There were several pretrial conferences between April 2014 and January 2015. At no time during this interval, though, did the accused deliver application materials for third party records, nor did he issue the Charter notice concerning his statement. As late as November 21, 2014, the accused discussed giving notices concerning her applications, but with assurances only that notices would be given within the required time limits. Up to January 15, 2015, no notices were given. [154] Having reviewed the transcripts and the positions of the parties, I conclude that the time between April 10 and January 15 did not constitute conscious waiver by the accused, but the question of delay changed as of January 2015. [155] At the September 9, 2014, appearance defence counsel confirmed that she had in fact received a copy of the certified transcript of the accused's statement. She had asked for a further adjournment of that conference to enable her to read and digest the statement and to receive instructions. Defence counsel suggested at that point that a meeting could be convened between the Crown's translator and the accused's translator to resolve differences in their work. The defence had been highlighting differences between the Crown's original translation previously given to the accused and his translator's opinion. When those differences were brought to the Crown's attention, the defence suggested that the two translators could meet and possibly resolve some of the differences that existed between their understandings of the accused's actual words in an effort to shorten the trial. Crown refused to take any steps or incur any expense to resolve differences in the translations. Crown refused to facilitate a meeting between the experts. [156] There was discussion about the upcoming applications for January 2015. The Crown was concerned that the defence materials for the third party production had not been received, and the defence said that it would be providing those notices within the required time. [157] In any event, the defence argued that in September 2014, counsel had informed the court and the Crown that she had had a recently scheduled trial collapse and that she had six weeks available. Defence counsel argued that the failure of the Crown to obtain some of those dates and begin the trial earlier was a problem that could have resulted in a much earlier completion of this trial. [158] In my view, it was not reasonable that this matter could have proceeded in the six weeks suggested by defence counsel, in part because the defence had not yet given any notices of his s. 278 application or his Charter notice concerning the statement. Until the defence had taken those steps, nothing further could have transpired. If the defence had presented a s. 278 application within the six weeks mentioned by defence, it is possible that that part of the trial set for January 2015, might have completed sooner. As time moved on, the defence simply did not turn her mind or make that application and events then proceeded to January and unfolded from there. [159] There was no discussion concerning the setting of other trial dates between April of 2014 and November of 2014. 2015 [160] The next appearance was a pretrial conference scheduled for January 12, 2015. The accused had not given any Charter notice nor had he made any application for third party documents. Counsel said she had been ill and was under the advice of a doctor not to work. She eventually asked for an adjournment of the trial based on her health concerns and the Crown consented. [161] The actual application to adjourn was made three days later on January 15, 2015. The court acceded to the accused's request for an adjournment with some conditions. There was a discussion about further trial scheduling and the matter was adjourned to February 2. By February 2, the parties had not agreed on new trial dates. At that stage, the only discussion concerned defence counsel's availability for one week in June and several weeks in November, one week in August, one week in mid‑November, and then a date in the end of November, and February of 2016, all of which dates had been supplied by trial scheduling. [162] There were earlier dates from April 2015 to the end of the year but defence counsel was not available. Crown was not available in May and September, but was available for the weeks of April 7 to 28. Defence counsel had a substantial number of other matters proceeding to trial and was eventually persuaded to agree on three weeks for the resumption of the trial on July 13, 2015. No other dates could be fixed at that time. [163] The accused agreed to bring his O'Connor application and provide any Charter application materials by May 31, 2015. The court directed the accused to bring those applications by that date and to provide the Charter notice concerning the upcoming voir dire. The voir dire and the trial were re-scheduled to commence July 13, 2015, and the Crown was considering the order in which it was intending to call witnesses. [164] On June 11, 2015, Crown was informed by the accused's counsel that she was filing an application for third party counselling records scheduled to be heard on July 13, 2015; this was the day the trial scheduled to begin. Crown objected on the basis that the defence had not brought an application within the time as directed by the court. Crown also pointed out that the draft defence application contained substantial flaws that needed to be corrected before it could proceed. The accused's flawed application for third party records compromised the trial date and was contrary to the February direction. The court rejected this proposal because it risked losing one week from the trial schedule. As a result, the court abridged the time requirements for the s. 278 application in an effort to ensure that the application could be argued by or before the end of June and save the July trial dates. [165] . The pretrial conference was put over to June 16 and, by that time, the complainants had still not been served with the material for the 276 application. The court had directed that application be heard June 23, 2015. Cognizant of the risk to the impending trial, the court abridged the time for serving the complainants in an effort to ensure the application was completed in time. The June 23 argument began, but was not completed that day and adjourned to June 30. [166] On June 30, various parties to the applications had been served and were represented by counsel. The O'Connor applications could not be completed on that day. Because of the late delivery, counsel for the complainants was not able to represent all three complainants; counsel needed further instructions and the applications, including the O'Connor application was put over to the first scheduled day of trial. [167] Thus, the first week was lost due to the defendant's dilatory approach to her obligations to meet the court's directions concerning the O'Connor application from February. In addition to the time lost due to counsel's illness, six more days were lost at this point and must be deducted from the total delay representing the one week of trial actually lost, i.e. the trial would have concluded well before the December 2017 date but for the loss of this week. [168] In my view, the accused's failure to meet his obligations in terms of the s. 278 applications had a more serious impact on the delay in this case. But for the loss of the one week, the trial could have concluded five days earlier than the April 6, 2018, date. In my estimation, the evidence and submissions could have been completed by October and, at the latest, a verdict issued by February. [169] The Crown argued that the gap from January 2015 and the commencement of the trial on July 13, 2015, a total of 173 days, was a discrete exceptional event to be deducted from the overall delay due to counsel's illness. I agree, but in addition the accused's dilatory actions in not bringing the pretrial applications comprise the delay six days from July 13 to July 20, and those days were lost not simply due to the defence counsel's illness, but due to inaction and failure to follow the court's directions. [170] The trial began with a voir dire commencing on the accused's statement and continued from July 20 to July 31. and the delay from July 20th to 30th is delay that is deducted from the Jordan due to counsel's illness. [171] On July 31, the voir dire concluded with submissions to follow. The court expressed serious concerns regarding scheduling of the trial. The parties were directed to obtain trial dates and present the trial schedule to the court on September 9, 2015. Defence counsel explained to the court that she had contemplated bringing a second change of venue application because of her personal circumstances. She said the defence would require up to eight more weeks of trial. She had earlier indicated that she was a sole practitioner, found it difficult to be away from her office, and it would be too difficult to be away for eight consecutive weeks. Her practice was in the Lower Mainland of B.C. and she felt other clients' work would suffer if she were absent for prolonged periods. [172] She reiterated that the cost of the accused bringing witnesses to Williams Lake was significant and that she could be available a week here or a week there, or two weeks in a row, as long as she could maintain her law practice. She went on to explain that her schedule involved a long trial in December 2015, but explained she had one week in February 2016, and March 22, 2016, and it would be better if the trial could be finished in the Lower Mainland. The Crown indicated it would oppose any new change of venue application. [173] At this point, the Crown repeated its position that it required five to seven days to tender evidence of the complainants. The court asked counsel for their availability between October 30 and December 14, 2015, and the court directed the parties to find trial dates for the conclusion of the trial prior to the September 2015 pretrial conference. [174] Thus, from July 31 to September 10, 38 days was used by the parties to attempt to identify new trial dates and is not to be excluded. Crown contended this was systemic delay under Morin. Under Jordan, the delay was not deducted, as neither Crown nor defence were prepared to address new dates at that time. [175] The accused's counsel did not appear on September 9, but was available September 10. No trial dates had been settled on by the parties. The court eventually obtained agreement from counsel to set the trial dates commencing the weeks of March 7, 8, continuing April 11, and from May 30 to June 10, for a total of six weeks. The Crown conceded that 178 days between September 10 and March 7 was to be counted towards the presumptive ceiling under Jordan, but also represented some systemic delay under Morin. [176] Overall the delay from January 19 to July 20, 2015, due in part to the accused's actions and in part to exceptional circumstances related to counsel's illness, was 178 days is to be deducted. [177] August 1, 2015 to September 9, 2015 was 38 days; crown conceded this time is not deducted under Jordan. [178] On September 10, the next trial dates were set for March 7, 2016; Crown conceded this interval from September 10 to March 7, 2016 of 178 days is not deducted under Jordan. 2016 [179] On March 4, 2016, reasons were delivered concerning the voir dire. On March 7, the date scheduled for the resumption of the trial, the accused indicated a willingness to resolve the charges. He requested an adjournment of the trial to facilitate these discussions and the trial was adjourned to resume March 14. [180] After negotiations failed, the trial was set over to March 17. This delay of nine days was expressly waived by the accused. On March 17, Mr. Virk became ill and was hospitalized. He did not attend court. After several pretrial conferences on March 21, 22, 23, the matter was eventually adjourned to April 8 due to Mr. Virk's absence. [181] On April 8, defence counsel informed the court she had been discharged as Mr. Virk's lawyer and he was seeking new counsel, and he would require a Rowbotham application to secure funding for his ongoing representation. The process began immediately. The Crown contends that 22 days from March 17 to April 8, 2016, represented a discrete exceptional event due to the accused's illness and/or was expressly waived by the accused. This amount of time is deductible from the overall delay. [182] By June 1, 2016, Mr. Virk had made funding arrangements with the Attorney General and withdrew his Rowbotham application. Crown argued that the time required to retain new counsel and obtain funding represented discrete events. Crown also suggested it was important that Mr. Virk have counsel. [183] On July 13, 2016, Mr. Zipp informed the court that he had been appointed as counsel, but some details of his appointment depended on the length of the trial and part of his retainer arrangements. The Crown repeated its suggestion that five to seven days would be required for the Crown's case. The court requested the parties set a trial date, notwithstanding differences in estimates. Mr. Zipp informed the court if another matter did not proceed in November, he would be available for three weeks. Those dates became open to him and the trial adjourned to November 14 for 13 days to November 30. The trial was then adjourned on November 30. The Crown contends that the delay from April 8 to November 14, a total of 219 days, was caused by the accused's change of counsel and is deducted. [184] The reasons of this court in R. v. McConnell, 2018 BCSC 2258 at paras. 209-211 and the decisions cited therein confirm that time taken by applications brought without merit are deducted from delay and not deducted as meritorious, and concluded that time taken to obtain Rowbotham funding is something that can be deducted. [185] In Reinbrecht, 2019 BCCA 28, the court discussed the whole question of Rowbotham applications that, in that case, had caused an unduly protracted process created by the accused's change of counsel and funding requirements. The Reinbrecht decision reinforces the principle that Rowbotham applications that are delayed by reason of the accused's conduct will be deducted because the discrete event was beyond the Crown's control. [186] In the circumstances, that the delay caused by the accused's termination of counsel and engagement of Mr. Zipp should be deducted. However, there was a brief period from April 8 to June 15 that should not be deducted. This is the interval during which time Mr. Virk made his efforts to obtain funding and the appointment of new counsel, and that the time taken for a Rowbotham application of this sort is not illegitimate conduct on the part of the accused. In fact, the accused having counsel was an important factor for the Crown. [187] On July 16, Mr. Zipp had confirmed his appointment and the Crown was anxious to set trial dates due to the funding limitations. Due to funding limitations, Mr. Zipp required more information and an extended period of time in order to secure the arrangements and relationship with the funder who was standing as agent for the Attorney General in the circumstances. The court said that, due to the extraordinary delay, the trial dates would be fixed in expectation that he would resolve those issues with the funding agency, and thus the November 2016 dates were arrived at. [188] Crown indicated this was not a complex case and that the Crown's part of the trial would involve four or five witnesses. The Crown said it would object to some witnesses anticipated by the defence, and by implication did not agree that six to eight weeks would be necessary. Mindful of these delays and difficulties in counsel's calendars, they came to a compromise of setting the continuation for the November 14, 2016, dates, but did not fix the dates for the entire length of the trial as anticipated by the defence. The evidence on this stage of the trial concluded on November 30, 2016 and the next appearance was for a pre-trial conference on February 1, 2017. [189] The delay up to the commencement of the November trial is deducted. The actual trial time of the November 2016 trial dates is not deducted, and the time from November 30 to February 1 is not deducted. 2017 [190] On January 27, 2017 defence counsel informed the Crown his earliest date for continuations at that time was October of 2017. Crown and the court were available at several times in January and February. An effort was made to find earlier dates in another court registry, and Crown brought a change of venue application to have the trial continue in Prince George. This was consented to by the defence. [191] Then the defence was offered dates in February, several dates in mid‑March, June, and July. On February 1, continuation dates for the trial were fixed, five days commencing March 17 at Williams Lake, five days commencing June in Prince George, and six days commencing July in Prince George. On March 17, the trial continued, but on March 23, the trial was interrupted due to a defence witness' unavailability. [192] The Crown contends there was delay of 140 days from February 20 to July 23 attributable to the defence and seeks to deduct most of those days from the overall delay because of the unavailability of defence counsel between February 20 and March 16, between February 23 and June 18, and between June 24 and July 23. Trial scheduling could have accommodated this trial on February 20, March 17, and June 30. The crown concedes that after other dates were scheduled for July with defence assistance and, the overall defence caused delay from February 2017 should be reduced to 136 days. [193] I accept that defence counsel could not reasonably be available on the February dates, given the short timeframe between the suggestion of the fix date opportunity and those trial dates; defence counsel could not have been expected to be ready to resume the trial without reasonable notice. However I find the times in March to June and June to July that were available to the Crown and the court but not the defence should have been dates that the accused was ready to proceed, notwithstanding the fact that Mr. Zipp's calendar at the time was extremely strained and that he was making great efforts to be available for trial dates. The fact is the accused's inability to be represented at those dates resulted in some delays, and the balance of 114 days of the 136 days claimed by the Crown should be deducted due to the defence counsel unavailability. [194] I do not agree that the 24 days of delay should be deducted for defence unavailability from February 20 to March 16. It was not reasonable to expect counsel to be standing by on relatively short notice to resume the trial and be in a position to take up trial dates on such short notice. [195] From June 19 to June 22, the trial continued and on June 24 trial was adjourned to July 20 and continued until July 28. Mr. Zipp had been able to provide additional dates trial in that interval. On that date, defence counsel estimated 15 additional trial days were necessary and the parties agreed to resume the trial in October 2017, after the conclusion of the July dates. [196] On October 16, 2017, the trial continued with final submissions scheduled for December 18, 2017. [197] The December 18 argument was interrupted by one day due to the court's unavailability, and argument continued and concluded on December 22, 2017, with judgment being given on April 6, 2018. [198] During the 2017 trial days, there was some difficulty securing the attendance of the defence translator, Ms. Kahlon. The Crown accepts that six days between June 19 and June 24 are included in the delay calculation, but contends that 25 days between June 24 and July 20 constituted delay because of the late notice of Ms. Kahlon's testimony. I am not satisfied that the defence delay due to unavailability of Ms. Kahlon or its witnesses or lack of notice caused any significant delay in the completion of the trial. [199] Ms. Kahlon testified, was extensively cross-examined on her credentials without objection in the end, and returned for further testimony. Because of the importance of the issue concerning discrepancies between the translations, Mr. Virk's testimony in chief was interrupted pending receipt of Ms. Kahlon's translation at one time. Ms. Kahlon. was cross-examined on her report and one day was lost from trial due to her scheduling. Overall, I am not satisfied this delay was caused by the accused. He was constrained by the witness's availability and overall one day lost to her scheduling will not be deducted. [200] From July 20, 2017 to the conclusion of the evidence on October 17, the Crown concedes 87 days as the time elapsed should be counted towards the Jordan ceiling, with the exception of one day in October. Further, October 17 to October 27, the end of the evidence, is 10 days, represents 10 days that should be added to the Jordan calculation. [201] The Crown contends that from October 28, 2017, to the conclusion of final submissions, 50 days is attributable to defence delay because defence counsel did not have in his possession copies of transcripts that he needed to review before making his final submissions. [202] The defence delay concerning final submissions in the transcripts was brought about because Mr. Zipp did not have approval from Legal Services Society to obtain transcripts of the evidence or to review copies of the court transcripts, and the delay in that process was necessary for him to be briefed. The mechanism by which this problem was met was for Mr. Zipp to have access to the original transcripts in the court file, which he accessed in the interval and was able to present his final submissions in December. [203] I am not satisfied that the delay from October 28 to December 18 was caused solely by the defence. October 28 to December 6 should be deducted from the total delay, that is 38 days due to defence delay or a discrete exceptional event beyond Crown's control. [204] During the interval, the parties agreed that Mr. Zipp would provide further written argument and the Crown would be given a specific time limit within which to respond to Mr. Virk's written submissions. Thus part of this delay reflected an interest the Crown had in having some time to respond to Mr. Virk's submissions. [205] Thus, of the total amount of delay from October 28 to December 18, 38 days will be deducted from the Jordan ceiling but the12 days following were not solely caused by the defence and should not be deducted. [206] The Crown contends that the time from judgment from December 22 to April 6 should not be included in the delay calculation. I am satisfied that the weight of the authorities now in place regarding the gaps between the end of trial and the issuing of verdicts is against the Crown's argument and those days are not excluded from the calculation of the Jordan timeline. [207] Although this case had some complexity, there were no apparent problems with the court's availability, that raised such explanationsas notorious institutional delays as referred to in Jordan at paragraph 97. The complexity of this case is exemplified by the Crown's statement in 2017 that it was not a complex case. Exceptional complexity might also justify delay in excess of the presumptive ceilings. In this case the Crown expressed its view that the case was not complex although the voir dire was not completed within six or seven days or within the earlier Crown estimate for its case. [208] In the end, the testimony from the Crown's witnesses, not including the voir dire witnesses, occupied 13 days of trial time. The trial involved the testimony of the complainants for the Crown, in addition to one other civilian witness, and evidence concerning the accused's statement. [209] The issue in this case was whether prohibited sexual contact between the accused and the victims had been proved beyond a reasonable doubt. There were a limited number of witnesses testifying for the Crown, in addition to the police officers. The central question was whether the court held any reasonable doubt concerning the accused's statement wherein he denied the allegations, and whether the complainant's testimony established beyond a reasonable doubt the accused's guilt. The Crown's case was straightforward. The accused's only defence was that the complainants' allegations that he had touched them sexually or engaged in sexual contact with them was not true. [210] The voir dire occupied nine days in 2015, and the preliminary inquiry was eight days. The Crown's case in the trial proper was 19 days in 2016 and 2017, and the defence case occupied 16 days in 2017. Submissions were three days. [211] In preparing for this trial, the accused was focused on obtaining a copy of a translation of a statement to the police that was critical to his understanding or to his defence of the charges. [212] The Crown intended to rely on this statement and obtaining the translated statement at an early stage was important to the accused. Also obtaining third party records from counsellors and other organizations in contact with the victims at relevant times was an important feature of the case. In fact, those records, some of those records were ordered to be produced to the court but were not produced to the parties. [213] The Crown resisted disclosure of some information because it was not in the Crown's possession and the complainants had declined to make some documents available to the Crown. At some points, Crown also insisted it had no obligations regarding a new translation of the accused's statement, unless and until it tended the statement. As I have mentioned, Mr. Justice Silverman disagreed and eventually the statement was produced as far back as September 2014. [214] The accused's O'Connor application was not complicated. It was based on responses by the complainants at the preliminary inquiry. Counsellors' records, as I say, were ordered but not produced to the accused. [215] I conclude that neither the length of the trial, the level of disclosure, the interim applications, or the substantive issues made this a complex trial. Considerations of complexity involve qualitative not quantitative assessments of the reasonableness and accounting of the delay in excess of the Jordan guidelines. In my view, the complexity of this case did not reasonably warrant delay in excess of the Jordan criteria. [216] Where the net delay exceeded the Jordan ceilings, the court must also take into account exceptional circumstances and the complexity of the case in arriving at the final calculations, and in this case the discrete exceptional circumstances, including the illnesses of the parties, did not bring the delay in this matter below the level set out in Jordan for definition of unreasonable delay. In total, the attributions of delay in this application I have used 30.4 days for calculations of days into months. [217] By my calculations, 12.1 months' delay was caused by the accused, 2.8 months' delay waived by the accused, 2.4 months' delay caused by the Crown, discrete exceptional circumstances involving the two periods of illness, 6.5 months. The remaining balance is 59.5 months. I have used 30.4 as the calculation turning days into months. Application of the Transitional Exceptions [218] The transitional exceptional circumstances do not simply determine reasonableness of the delay or the availability of a stay based on the law relied upon by the parties, that is Morin. "Jordan makes it clear that the question in a transitional case is whether the delay is excused by the parties' reliance on the law as it stood" however, "one does not simply ask whether the case would have been stayed under Morin": see Lai at para. 30. Jordan requires more to be taken into account. The court must consider "if the parties have had time following the release of [Jordan] to correct their behaviour, and the system has had some time to adapt": see Jordan at para. 96. [219] In effect, the court is asked if the parties found themselves at the juncture of the changing law, whether beginning a case under s. 11(b) regime that radically changed part way through the process amounts to an exceptionality, whereby it is reasonable that the case took more than 30 months. [220] In my view, the analysis should progress as follows: (1) did the parties rely on the pre‑Jordan state of law as inferred when the trial began and reasonable inferences based on how the parties conducted their case? See e.g., Serban at paras. 74-79; (2) if so, were the time periods taken reasonable under Morin, even if they were unreasonable under Jordan? And (3) notwithstanding the delay being reasonable under the more flexible Morin framework, did the parties comply with the new obligations suggested in Jordan at para. 96? Specifically, did the parties respond, correct their behaviour, adjust timelines, or otherwise adapt to taking into account the challenges as court institutions endeavoured to do the same? [221] The court described the transitional exceptional circumstances in paras. 96‑98 of Jordan: [96] First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This 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. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. [97] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay -- even if it is significant -- will not automatically result in a stay of proceedings. [98] On the other hand, the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. [Emphasis added.] [222] The Supreme Court of Canada's decision in R. v. Williamson, 2016 SCC 28 [Williamson], represents an application of Jordan. The court addressed the transitional exceptional circumstances and considered the level of complexity of the case, the relationship of the net delay to the previous guidelines in Morin, the respective efforts of the Crown and defence to move the case forward, and the presence of any prejudice to the accused: Williamson at paras. 26-30. [223] In Cody, the Court clarified that Williamson "should not be read as discounting the important role that seriousness of the offence and prejudice play under the transitional circumstances": Cody at para. 70. [224] Crown cannot rely on the transitional circumstances where the reason for delay was the Crown's indifference: see Cody at para. 70, referring to Williamson at paras. 26-29. The Supreme Court in Cody remarked that Williamson highlighted "that the parties' general level of diligence may also be an important transitional consideration": Cody at 70. [225] Jordan encourages "all participants of the justice system to cooperate in achieving prompt justice", whether or not old law applied at the time the case began and ran: see Jordan at para. 5. A key part of transitional exceptional circumstances, therefore, appears to be the extent to which the parties have heeded the Jordan call to move more efficiently. 1. Reasonable reliance on the law as it existed [226] Did the parties rely on the pre‑Jordan state of law as referred to when the trial began? Past courts have referred to cases entering the system to conclude that parties must have relied on the law as it existed. In Serban, the court looked at what the parties did and inferred that they relied on Morin, because it would have been unlikely they would have proceeded in such a way allowing long delays to otherwise occur: see e.g., Serban at paras. 74-79. 2. Were the time periods taken "reasonable" under Morin, even if they are unreasonable under Jordan? [227] The transitional exceptional circumstances do not simply determine if the delay was unreasonable under the law relied upon by the parties, i.e., Morin. However, the Morin factors are useful for gleaning what the parties' understanding of what the law would have been based on and what level of reliance might have been reasonable in light of what the law provides. [228] The Supreme Court of Canada in Godin noted the nature of the analysis when applying the Morin framework at para. 18. It said: [18] The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach . . . is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay." [Emphasis added.] [229] Under Morin, the reasonableness of delay was determined by balancing a number of factors, including the length of delay, waiver of the time periods, reasons for the delay, including inherent time requirements, actions of the accused, actions of the Crown, limits on institutional resources, and other reasons for delay, and prejudice to the accused. [230] The Morin framework was summarized in R. v. Regan, 2018 ABCA 55 [Regan]: [35] Prior to Jordan, the test for assessing whether an accused's s 11(b) rights were breached was set out in Morin. Under the "Morin framework," the reasonableness of the delay was determined by balancing a number of factors, including: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, (e) other reasons for delay; and 4. prejudice to the accused. [231] In Regan, the Alberta Court of Appeal went on to provide direction on how to approach each factor in the Morin framework, at paras. 36-39: [36] The first step under the Morin framework was to calculate the total delay from charge to anticipated end of trial to determine whether the total delay was prima facie unreasonable. If the delay was prima facie unreasonable, the court then deducted from the total delay, any time waived by the defence. If subtracting any "waived time" did not resolve the issue of reasonableness, the court proceeded to allocate the remaining time to the factors set out in (a) to (e), above. [37] Inherent time requirements "consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc.": Morin at 792. The inherent time requirements of a case "will reflect the complexity of the case, and will also include intake requirements, including a longer period for cases which go through a pre-trial": Picard at para 78. Under Morin, the inherent time requirements of a case were treated as a neutral factor. [38] Institutional delay "starts to run when the parties are ready for trial but the system cannot accommodate them": Morin at 794-795. Delay caused by the Crown weighed towards finding a delay unreasonable, while delay caused by the defence did not. While stressing that it did not intend to establish either "a limitation period" or "a fixed ceiling on delay", the Court in Morin set out administrative guidelines for the length of institutional delay that is generally tolerable in light of limits on court resources - eight to ten months in the provincial court, plus six to eight months in the superior court: 794-800. Although the Morin guidelines were expressed in terms of institutional delay alone, Crown delay was typically included when considering whether delay exceeded the guidelines: R. v. Austin, 2009 ONCA 329 at paras 60-68, 245 CCC (3d) 284; Picard at para 74. [39] The final step under the Morin framework was to balance "the reasons for the delay, the prejudice to the accused, and the interests s 11(b) seeks to protect": Picard, at para 79. Prejudice could be inferred from prolonged delay, but the parties could also introduce evidence to demonstrate prejudice or a lack of prejudice: Morin at 801-802. The seriousness of the underlying charge was also an important part of the balancing under Morin, because courts recognized that as "the seriousness of the offence increases so does the societal demand that the accused be brought to trial": Morin at 787. [232] The courts apply each one of the Morin factors sometimes in analogizing and distinguishing past cases when determining how seriousness of the offence and complexity of the case weigh in the balance. 3. Did the parties acknowledge Jordan? [233] Notwithstanding the delay being reasonable under the more flexible Morin framework, did the parties comply with the new obligations suggested at Jordan at paras. 5 and 96, placed upon them? Specifically, did the parties respond, correct their behaviour, adjust timelines, or otherwise adapt, taking into account the challenges as court institutions do the same? [234] Even if a stay would not have been issued under Morin, the delay may still be unreasonable and not in compliance with Jordan. The reasonableness of the delay under the Morin framework is not determinative of the issue. It appears to me that the court must also consider if the parties did or should have adapted to the changing law. The fine point here is this: notwithstanding the reasonableness of the delay under Morin, did the parties adequately adjust? See Cody at para. 71: [71] 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. 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 (Jordan, at para. 96). [235] The reason for this is because Jordan requires the court to consider whether the parties had time to do what is necessary to adapt and correct things after the decision came out. If the parties did not adjust their approach, move the case along, nor remedy missteps taken based on old law, they will have failed to do what was required by Jordan to assess the culture of complacency. Defence and Crown Positions Mr. Virk's Position [236] Mr. Virk made submissions on transitional exceptional circumstances with reference to the decisions in Askov and Morin. He said the lengthy delay is a factor to be taken into account, albeit a threshold requirement. In this case, the lengthy delay cannot be justified for any reason. Delay brought about by Crown actions included the delay in executing the warrant and insisting on proceeding with a preliminary inquiry. Crown declined to provide some requested disclosure, including names of the complainants' therapist, birth documents, previous allegations made by complainants, and receipt of the accused's translated statement. [237] The Crown was dilatory, it says, in preparation of a synopsis and failed to provide reasonably accurate estimates concerning the trial. Although the Crown made some attempts to invite the defence to set trial dates, those efforts were not pursued with the type of vigour that showed the Crown was discharging its duty to bring the accused to trial within a reasonable time. [238] The defence also suggests that the Rowbotham process and impediments to his preparation of full answer and defence were triggered by Legal Services Society's failure to respond to requests for approvals and these all contributed to the institutional delay. He contends there was no point at which the accused waived any delay. [239] The Crown obstructed a cooperative approach to the trial when it refused to authorize a meeting between the parties' translators with a view to resolving differences between their opinions on the translations. There were five days of trial that eventually resolved this question. He contends that fixing trial dates was frustrated by the Crown's refusal to deal with the translation question in July of 2014, resulting in 5.5 months of delay, failing to produce the synopsis in May of 2013, resulting in 4.1 months' delay, insisting on a preliminary inquiry resulting in 12.46 months' delay, and miscalculating the time required for trial, 36.26 months. [240] Further, the delay between the information and Mr. Virk's arrest and release was said to be 6.04 months. [241] The accused also highlighted that from January 2013, the date of the focus hearing scheduled, the Crown failed to provide the names of therapists attended by the complainants. This was an important aspect of the accused's interest in obtaining third party documents under s. 278. The accused complains that if the Crown had agreed to set early dates for a trial in May of 2017, shortly after Mr. Zipp became counsel, nine weeks of trial could have been scheduled by July 2016, and this trial would have completed by May 5, 2017, or 7.5 months earlier than occurred. As things progressed, the trial continued into November 2016, without dates being proposed by the Crown to complete the trial until early 2017. [242] The Crown's earlier estimates of five to seven days for its part of the case were underestimated by almost 100 percent, that is 13 days as opposed to five to seven days. [243] Last, he contends there was significant prejudice, both actual and inferred, because of the gap between his arrest and trial. Crown's Position [244] The Crown contends that the Jordan principles apply to this hearing, and if the time exceeded the Jordan ceiling, then transition provisions must be considered and all of the deductions should be taken into accordance within the Jordan decision. [245] The Crown concedes that under Jordan, prejudice is not necessary but inferred. After Mr. Virk's submissions on this matter, the Crown took the opportunity to provide something of an overview on its position in response. She contended at that time that: a) The Crown completed its disclosure obligations by 2011. b) The accused's disclosure complaints were unsubstantiated, as the Crown had met its Stinchcombe obligations without an application to force disclosure and cannot excuse the accused's delay in setting the trials. c) Regarding the Crown's failure to produce the translation of the accused's statement and to put it from Punjabi into English, that it was incumbent on the accused to bring an application to compel the production of that document and that it had no obligation to produce the document until shortly before the trial was to begin. d) The Crown delivered the translation of the accused's statement, in any event, well before the voir dire scheduled in 2015. e) In this case, the accused never applied for disclosure orders for any of the information he was requesting. [246] Although disclosure had been completed by 2011, the Crown notes the accused made three requests for disclosure at pretrial conferences for documents that had already been produced. It was apparent to the Crown that defence counsel had received documents but simply failed to uncover them. [247] Concerning the statement, the accused had been given an audio‑visual copy of the statement recording, and when defence counsel told the Court she had not received the document, she was in error. Crown relied on R. v. Dixon, [1998] 1 S.C.R. 244, for the proposition that an accused must apply to compel disclosure and cannot lay in the weeds after making requests that have gone unanswered with claims that delay has been unreasonable. [248] The Crown confirmed that it intended to use the accused's statement in the trial, but having delivered the audio recording, was not obliged to provide further translation. She said that under s. 530 of the Code, the accused could require a translation be produced, but there would be conditions to that and that application was never made. She indicated that other minorities can request translation of their statements from the Crown for purposes of consulting with counsel. Nevertheless, the Crown had no obligation to provide the subject translation of the statement given to the police before trial. [249] She contends that Mr. Justice Silverman's direction to the Crown to provide a translation to defence was not fully argued and I should not accept that any delay after that pretrial conference should be deducted due to the Crown's failure to produce the document until July or August of 2014. [250] The Crown said it was up to the accused to prove that full answer and defence could not occur without the translated copy of the statement. The defence did not meet that burden. The Crown suggests that the statement issue should not have delayed the setting of the trial and, in particular, the translation was in the defence hands by September 2014, and no trial dates were set. [251] The Crown said it was obliged to provide translation of the statement at the voir dire only to prove the statement at the trial. The Crown contends the accused unreasonably refused to set trial dates until he had received full disclosure and a copy of the statement. The Crown says that this position of the defence was not supported by the law and the trial dates should have been set on that basis. [252] The Crown conceded that it did not challenge the direction of Mr. Justice Silverman to provide defence with a copy of the statement, but remained adamant that the obligation was not legally enforceable. The Crown made several other arguments regarding Mr. Justice Silverman's comments regarding the production of the statement. Most importantly, she said Crown had not been given full opportunity to make submissions on that issue. [253] The Crown contends that the court will need to consider the disclosure issues in light of the fact of the accused's failure to make application, and overall, she said lying in the weeds as a strategy to achieve greater delay cannot be tolerated. [254] In any event, the Crown says it was active in pushing this matter toward trial. She said the Crown asked for the appointment of a case management judge because the accused was not responding to requests to set trial dates. She said the trial should have been set in 2013, but was delayed because of the accused's desire to have a change of venue and other applications heard. [255] The first trial set in this proceeding was for two weeks commencing January 2015. That date was adjourned due to defence counsel's illness the defence waived the delay following the application for the adjournment and the accused also waived further delays of the trial in 2016. [256] The Crown argued that the accused was late in bringing applications for third party records and late in delivering his Charter notice, and she says that this dilatory behaviour was symptomatic of the defence reliance on the old law. [257] Crown argued that from the time of swearing the information until the accused's arrest in September, the 140 days should be deducted from the total as intake time or due to a discrete event. The Crown must explain what delayed the arrest of the accused, and if adequately explained, this delay should not count in the delay calculation. She alluded to the fact that the police had good reasons for executing the warrant for the accused's arrest in Alberta. She said that under Jordan, intake time is included in the ceiling, unless it is a discrete event and, in the circumstances, the delay in arrest was akin to the delays caused by illness. She said the police could not arrest the accused without a Punjabi interpreter, and the Crown contended the accused was a flight risk and that the police were cautious before proceeding to arrest him. This is surprising because the accused was always residing in Alberta, and the Crown had no difficulty contacting the police in Alberta to check on the accused when he failed to show for trial in March of 2017. [258] In any event, I have dealt with the Crown's position concerning the delay between charge and arrest and rejected the argument it was delay beyond the control of Crown. [259] The Crown argues that after September 2011, except for the accused's non‑appearance on one day resulting in a 14‑day delay, any applications made by him were part of the calculation of time toward the presumptive ceiling except when the accused delayed making his election after October 26 and toward the end of 2011. She said the paper preliminary hearing issue did not contribute to any delay and the Crown, in fact, had pursued a paper preliminary hearing in an effort to economize on time. Although the Crown acknowledges abandoning the paper preliminary hearing and proceeding with a conventional preliminary inquiry, it argues that that process did not cause delay. [260] The Crown argues that the accused consented to an adjournment of the scheduled preliminary hearing until the Rao issues were decided, and during this time, the preliminary hearing dates were previously set, so no delay arose as a result of waiting for Rao to be decided. [261] There were 22 months between the swearing of the information and the committal to trial. Crown contends that the accused acquiesced on a number of those adjournments and thus waived delays stemming from them. The Crown concedes that none of the accused's applications for relief were frivolous; however, the Crown contends that the accused was complacent and dragging his feet in order to build a record to support a delay application. [262] Crown says that the accused's 2013 application to change the venue delayed the setting of the trial, and that such delay must be defence‑caused delay. [263] Although the accused's s. 278 application was legitimate, the accused's failure to bring it within time created delay and should not be deducted from the total. [264] At the end of the voir dire, the court directed the parties to arrange a trial date by September 15, 2015. Crown said that it went to the trial coordinator in August, but the accused's counsel never dealt with a new date. Defence counsel actually missed the pretrial conference on September 9, but appeared the next day. [265] The Crown argued that the accused had opportunity to challenge the translation before Mr. Zipp became counsel and did not. The Crown and defence had the translated statement since 2014, but it was not until after the Rowbotham application that he sought the approval from Legal Services to pay the costs to obtain a new translator to explore the question of the accuracy of the Crown's translation at the time. That delay, she said, was caused by the accused alone. [266] In short, the Crown argues the accused could have obtained a better transcript of his statement long before Ms. Smith‑Gander ceased to represent him. She contends the accused did not have a right to funding from Legal Services Society or the Attorney General to obtain the second opinion on the translation and the Crown should not bear the burden of the accused's changing trial strategy in challenging that document. [267] The Crown also argued that there was defence delay caused by the late involvement of Ms. Kahlon, the accused's translator, and her scheduling difficulties. However, the Crown accepted that in over 30 instances, its translator had erred and deferred to Ms. Kahlon's opinions. [268] The Crown argued that the reserve time of 104 days was not unreasonable given the circumstances of the case and should not be deducted against the Morin analysis. [269] The evidence in this case was not complicated, but the fact that the trial had been broken up into so many segments over three years, complicated by the translation issue raised by the accused, meant that the overall duration of the trial warranted a more detailed and lengthy consideration by the court. The Crown said it was always ready to book an eight‑week trial, and its original estimates of five to seven days predicated on no Charter challenges being advanced by the accused. Thus until the Charter notice was given by the accused in June 2015, it could not have anticipated the additional witnesses necessary to measure against the Morin framework when applying the transitional circumstances. Transitional Exceptional Circumstances [270] Excessive delay in this case is sufficient to establish reasonableness of delay as an issue. This is a threshold for the court to embark on a deeper inquiry into the question of transitional exceptional circumstances. In Cody, the Court said: [68] Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes "the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice" and that "change takes time" (Jordan, at paras. 96-97). 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 previously existed" (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin. [69] To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due "sensitiv[ity] to the manner in which the previous framework was applied" (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence "often played a decisive role in whether delay was unreasonable" (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96). Analysis Delay Relative to the Morin Guidelines [271] The net delay of 59.5 months was substantially in excess of the guidelines set out in Jordan and Morin. [272] There is an inherent delay in every prosecution, including the time necessary for lawyers to obtain disclosure or review disclosure, find suitable dates, and prepare preliminary inquiries. Under Morin, institutional delay does not become a factor until the parties are ready for trial but cannot be accommodated by the Crown and trial scheduling. [273] Jordan applies to all cases but a rigid application of Jordan may not be appropriate for cases in the system pre-Jordan. For those cases, Jordan applies "flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law": Jordan at para. 105. [274] The onus is on the Crown to satisfy the Court of a transitional exceptional circumstance. The Crown must show "the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed (or because the case is of moderate complexity in a jurisdiction with significant institutional delay problems)": Serban at para. 14; see also Manasseri at para. 362. [275] I have dealt with the accused's waiver of time periods above and in particular the requirement that waiver requires advertence to the active release requiring the mind of the accused or to his counsel be turned to the issue of waiver to the rights that are being abandoned. [276] I will review the chronology from a Morin perspective and what the parties might have considered based on the pre‑Jordan law. In the transitional case analysis, the Court must consider the complexity of the case. Cases of moderate complexity can influence considerations of reasonableness of delay under Morin: see R. v. Pyrek, 2017 ONCA 476. [277] The Crown's case involved five civilian witnesses, four of whom were complainants, and the issues in the case were narrow; namely, whether any reasonable doubt existed as to the accused's testimony or the complainant's testimony. Although there were issues concerning the translation of the accused's statement that required expert witnesses, those questions did not significantly impact the complexity of the case. Examination and cross-examination of those witnesses was important, but did not elevate the complexity of the issues to a level that was more than modest. [278] The question of the accused's statement was repeatedly discussed at pretrial conferences, and although the subject of frequent discussion between counsel and comments by the assigned trial judge, the quality of the translation was the subject of testimony over six days of the trial, during which the Crown translator agreed to the better accuracy of the accused's expert on many points. However, this aspect of the trial complexity did not cause significant delay. [279] The inherent time requirements, including intake requirements, reflect the complexity of the case and cases going through preliminary inquiries will take more time. On the question of delay between swearing the information and the arrest, the Crown argued that this gap was justified under the heading of complexity or exceptional event beyond its control. Crown relied on R. v. Millar, 2016 BCSC 1887 where the court concluded that because there was complexity in serving the accused with legal process, the time taken should be deducted from the overall delay. [280] In this case, I have rejected the suggestion there was any complexity in arresting the accused or serving the information. No persuasive evidence on this point assists the Crown and I would not deduct that time due to complexity. [281] Further, this issue has been addressed by the British Columbia Court of Appeal in R. v. Boima, 2018 BCCA 297 where the court held, as I have said previously, that the date is calculated from the date of the information and not the date of arrest. [282] The accused was in custody for seven days until his release on September 7. His arraignment did not happen until December 21 and disclosure remained an issue, and overall I am satisfied that the intake from April 11 to December 25 was reasonable, subject to the deductions that I have earlier mentioned concerning the accused's instruction of counsel. [283] The Crown concedes that 25 days from January 4 to January 30 was institutional delay. It contends that 85 days from January 30 to April 25 was delay waived by the accused, and for the purposes of the analysis, I accept that the 85 days can reasonably be construed as waived by the accused. There is no indication in the correspondence that the accused formally agreed to the delay. Although there was no indication in the correspondence that the accused formally agreed to delay, that process has an inevitability: see R. v. Brassard, [1993] 4 S.C.R. 287 at 287. [284] The Crown concedes that from April 25 to the commencement of the preliminary inquiry in 2013, 9.5 months of delay is characterized as institutional delay. There was no evidence concerning the parties' preparedness for the preliminary inquiry. Although there may have been time required for fixing that date, I am not able to speculate on that point and I accept the concession made by the Crown that this in fact was institutional delay. Accordingly, the amount of 9.5 months is not deducted. [285] The Crown had contended this delay was waived by the defence. The appearance was not recorded and, taking into the account the comments in Jordan, I conclude that the gap between fixing the date and the preliminary inquiry was not waived by the accused to the extent that he was prepared to abandon his right to a trial within a reasonable time with full knowledge of those rights and the effect of waiver on those rights: see Jordan at para. 61. Waivers must be clear and unequivocal and implicit waivers must also be unequivocal: see Klassen at paras. 78-87. [286] The preliminary inquiry proceeded from February 4 to 7 and from March 4 to March 6. This was inherent delay. The period between the end of the preliminary inquiry on February 7 and the end on March 7 was also institutional delay. That is time when the parties were ready to attend to trial, but were unable to secure those dates. [287] It should be noted that when this matter was in Provincial Court, the Provincial Court judge acknowledged that a continuous preliminary inquiry of seven days was not possible in that court and was thus completed in separate blocks of time. [288] The next period, 36 days from the committal at the preliminary inquiry to first appearance in Supreme Court on April 15, was, in part of the second intake, as described in Morin. From April 15 to the 29, Crown contends the delay was part of the additional intake. I am not satisfied that this additional period was necessary, although defence counsel was continuing to request disclosure from the Crown. Delay from April 29 to May 27 is part of institutional delay, except for the 19 days due to defence counsel's unavailability. Thus, nine days' delay is attributed to institutional delay and is included in the delay calculation. [289] On May 28, new counsel for the Crown was on the file. The pretrial conference was adjourned for 34 days to allow the Crown to respond. I conclude that this delay can be traced to the conduct of the Crown and should be attributed accordingly. [290] At the July 2, 2013, pretrial conference, ongoing disclosure was requested and a further seven days' adjournment transpired; this was inherent delay. [291] The Crown contends that 39 days' delay from July 10 was part of the second level of intake described in Morin. In my view, because the pretrial conference was directed by the court and necessary to schedule the trial, this time was institutional delay. [292] August 19 began a 149‑day delay due to the accused's intention to bring the change of venue application. I have dealt with this largely in the earlier part of these reasons concerning the inclusion of the delay under Jordan. This was not a defence delay under Jordan and it was a legitimate application, thought to be appropriate at the time. The delays are to be attributed partly to the accused whose counsel was not available and partly to Crown, who was not available at different times. [293] The result is that one month's unavailability of the Crown is included in the delay and one month of the accused's delay is taken out. [294] The delay from January 8, 2014, to January 16, 2014, resulted in the appointment of a trial judge. This seven-day delay should be considered inherent delay. From January 16, a 10‑day delay required to accommodate the new judge was not part of the second level of intake. In my view, that was institutional delay brought about by the availability of the court. [295] The next date was January 27 and that was adjourned to April 10. Seventy‑two days were punctuated by pretrial conferences. In my view, these conferences were not resulting from defence action, but were inherent time requirements. [296] On April 10, 2014, dates were set for defence applications and a Crown voir dire. The Crown concedes that institutional delay ran until the scheduled commencement of the application on January 19, 2015. Absent evidence on the parties' preparedness, I accept that the parties were ready to address the voir dire by the time the date was set. The burden of proof under this aspect of the application rested with the Crown and if any time should have been deducted, I would have expected evidence on that point. Thus, I accept the Crown's concession. [297] The next period to be dealt with is commences in January 2015. At that time, defence counsel was ill and unable to proceed with the scheduled voir dire and s. 278 application seeking third party documents. The matter was adjourned for one week and then to July 13, 2015 [298] Thus, the Crown contends 190 days from January 2015 to July 13, 2015 should be deducted from delay calculations due to the accused's counsel's illness. A further seven days delay resulted from defence counsel's failure to prepare the s. 278 application documents as directed by the Court. [299] After the 2015 voir dire concluded, the matter was adjourned to September 2015. The Crown concedes 38 days of systemic delay from August 1 to September 9 should be counted. The Crown attributes one day to the defence delay in September. The Crown then concedes a further 178 days of institutional delay happens after September 10, 2015. That time covered the interval between the September date and the scheduled March 2016 trial dates. [300] The trial March 7, 2016 was adjourned and delayed due to the exceptional circumstances of the accused's illness followed by his decision to change counsel. The Crown contends that the entire time up until the resumption of the trial on November 14, 2016, was defence‑caused delay, and that 219 days should be attributed to him. [301] The trial was actually re-scheduled on August 15, 2016. Thus, 90 days from the fix date to the commencement of the trial in November should be construed as institutional delay, and 129 days should be ascribed to the defence‑caused delay from March 2016. The trial time from November 14 to November 30 is, of course, inherent time. [302] Eventually new dates were scheduled for March, June, and July 2017, with the defence being offered earlier dates in February and March and, as I have indicated in the Jordan part of this analysis, some of the delay is attributable to the accused because his counsel was unavailable. I have determined that the first dates that the accused's counsel was unavailable (the February dates) are not days to be attributed to the defence, but that the dates in March, from March 23 to June 19 and the July dates, June 24 to July 10, would be deducted due to defence unavailability. That is a total of 85 days would be deducted due to defence unavailability. [303] From July 20, until resumption of the trial October 16, 87 days was noted to be institutional delay. The delay from October 28, 2017, to final submissions on December 18, 2017, was 50 days. This was brought about by defence counsel's inability, in part, to review transcripts. As I have said the delay up until December 8 was due to defence delay and the balance of 12 days was not due to defence delay as it was time available for the Crown to respond. Finally, reserve time of 104 days is, without question now on the authorities, institutional delay. [304] Thus the delays that I have calculated involve systemic and institutional delays of 35.8 months, delays caused by the accused and counsel's illnesses, seven months, intake delays I have at 10.7 months, defence‑caused delay and waiver was 16.8 months, and Crown delay was 2.1 months. Inherent delay operated at 13.4 months. [305] The length of the delay to the end of this trial grossly exceeded the time that should have been necessary to achieve a verdict. It was a relatively straightforward case, taking into account the s. 278 application and the necessity of a two‑week voir dire. The trial and all of the other time requiring 83.9 months was well beyond any reasonable time estimate that could or should have been tolerated in practice. [306] Under the Jordan analysis, I have considered the defence waiver. From the overall perspective, I am satisfied that the record does not support all of the waivers claimed by the Crown. I have commented already on the complexity of the case and dealing with the reasons for the delay. [307] I have considered the positions of the parties and the further the analysis of the inherent time requirements, the absence of complexity in the trial, the actions of the accused, the time waived by the accused, and the actions of and delay by the Crown. Overall, the institutional delay and systemic delay account for 35.8 months. [308] I have taken that into account exceptional circumstances beyond the control of the parties, including defence counsel's illness and the accused's illness. [309] I accept that many decisions in this case resulted in the postponement of certain events some of which caused delay in the ultimate resolution of the matter. In this case, the decision to delay the preliminary inquiry because of the outstanding decision in Rao was and brought about by the Crown's decision to pursue a paper preliminary inquiry to achieve an abbreviated process; although consented to by the defence. [310] I have accepted that those 85 days were consciously waived by the accused and that the parties were, in large measure, relying on the Morin principles when accepting and consenting to that delay pending appeal. [311] On November 30, 2011, defence counsel commented on the need to bring her application to resolve disclosure issues and that she was not prepared to rush into an arraignment hearing. This reflects a posture on the part of the defence of being complacent, in the words of the court in Jordan. [312] December 30, 2011, Crown informed defence counsel that it did not have information requested by the defence concerning the deceased brother, and did not possess records relating to the psychiatric and psychological counselling of any of the complainants, did not have information concerning similar complaints by the complainants. He had no information about one of the complainants' abortion. He did not have any cellphone or credit records. Did not possess information about a hotel room used by one of the complainants in the late 1990s. The Crown argued that intake requirements to deal with all of these requests involved time to instruct counsel, to achieve this disclosure, and the related activities. There was no guideline for intake times set out in Jordan. Intake times were expected to be reasonably longer when preliminary inquiries are conducted or where cases are more complex, or where extensive disclosure is required. Those were not factors in this case. [313] In my view, the intake requirements in this case should not have involved more than six months, including the initial intake, and three more months for the secondary intake. In this case, Crown placed great emphasis on the intake at the first and second stages. In this case, I have concluded that much of the time elapsing between April 2011 and May 2012 was influenced by the request for a paper preliminary inquiry, but that request did not involve significant delay insofar as the parties set the date for the preliminary inquiry in April of 2012 and the decision in Rao was not released until June of that year. Thus, no delay can be attributed to that timeframe up to April 2012. [314] There is no record of the appearance when the preliminary inquiry date was fixed. There was no evidence of earlier dates that were available or that either party had been able to attend at an earlier date. The delay between the fix date and the start of the preliminary inquiry exceeded the Morin guidelines of eight to 10 months in the Provincial Court. The 9.5 months from April 2012 to the commencement of the preliminary inquiry certainly reached the upper limits of Morin. [315] The delay from the date of charge to the beginning of the preliminary inquiry was almost double the time referred to in Morin. The question is not whether the charges would have been stayed under Morin, but whether the parties appear to have relied on the prior state of the law in the manner in which they approach the prosecution of the accused. The focus is on counsel's reliance on factors articulated in the Morin framework. [316] The Crown argued that this delay was tolerated under the Morin framework and should be deducted from consideration of total delay because the parties were presumed to be relying on the law as it stood and that the law as it stood would not lead to a stay of proceedings based on the parties to approach the prosecution in a leisurely fashion. [317] In considering the passage of time up to the conclusion of the preliminary inquiry, the Crown argued that intake requirements, including the time between charge and arrest, should be neutral in the analysis. It was also argued that the defence delayed and waived the passages of time. In performing a qualitative analysis the court should consider whether, in doing so, the parties were relying on the Morin framework in allowing 22 months to pass before the preliminary inquiry began would work no prejudice to the accused and would not breach his s. 11(b) rights to trial within a reasonable time. The Crown argues that the parties would have known that the delay was exceeding the Morin guidelines and would not have consented to such delay in the absence of reliance if there was not a joint expectation that such delays would not be taken as breaching the accused's s. 11(b) rights. [318] The evidence is not helpful on this point, because it is unknown whether the gap between setting the inquiry date and the date itself could have been shortened if the parties were concerned about delay. In the absence of evidence, I accept the dates were chosen when the parties were ready to proceed with the inquiry, but dates chosen were the earliest that could be accommodated by the court. The Provincial Court judge commented at the time the court could not make a single block of time available and the preliminary inquiry proceeded over two blocks rather than a single block of time. [319] Certain features of the history of this case should have affected the parties' reliance on the law in Morin. In the overall context, the charges related to events that were well over 30 years in the past. The complainants were known to the police from 2007 when they obtained statements, and the delay between the charge and arrest, although not causing the accused any direct prejudice, certainly extended the potential end point of the trial unnecessarily, with the possibility of further erosion of witness memories. [320] In my view, a considerable amount of intake could have occurred between charge and arrest but was not. Nevertheless, the exchanges between Crown and defence and the adjournments from October until April 25, 2012 (fixing of the preliminary inquiry date) reflected a relaxed or complacent attitude towards the passage of time. When the parties agreed to the preliminary inquiry, the interval to that event was already testing the guidelines set out in Morin. [321] After the committal for trial, the parties failed to find a trial date that would accommodate their joint trial estimates that would have required nine to 10 more weeks. Issues concerning disclosure, production of translation of police statements, the records, the requested details concerning the complainants' affairs were, for the most part, rebuffed by the Crown. Between March of 2013 and January 2014, no dates were fixed. On April 10, 2014, two weeks were set aside, but only for the third party document application and a voir dire eight months into the future. Although the Crown had requested trial dates, it appears no focused effort was made to obtain or set dates for trial. At no time were dates obtained from scheduling to accommodate an additional nine or 10 weeks anticipated by counsel before January 201. The defence acknowledged to his third party document applications needed to be made in a timely way before the trial, but he just did not do it. [322] It is hard to imagine what, if anything, after conclusion of the preliminary inquiry prevented the parties from securing dates for the balance of the trial. [323] The defence contends the Crown would not accept a trial schedule proposed by the defence (eight weeks) because of their differing time estimates. On August 13 and 18, the Crown requested trial dates for an eight‑week span. This request was not followed up because defence then applied for a change of venue and would not cooperate in setting trial dates until the venue application had been resolved. [324] The Crown again wrote to the trial coordinator seeking an eight‑week trial date and by January 15, 2014, defence counsel said she was not available for trial until March 2015. There is no evidence concerning when an earlier date might have been available to the Crown and no evidence concerning any effort to set other trial dates beyond that request. It was clear that the trial management judge had stipulated for the two weeks in March 2015 for the voir dire and defence applications, but nothing in the evidence explains why other dates were not fixed at that time, except for the trial judge's comments that the accused's statement was necessary and would have been essential for the defence to be able to prepare for the voir dire. [325] The fact is that the length of a trial is largely determined by the defence, in that defence will have some inclination as to the length of cross-examination of Crown witnesses and the witnesses it intends to call. However, throughout 2014 and up to September 2015, there appears to have been no concerted effort by either party to secure trial dates available to the court and the Crown, and to obtain defence availability with respect to those dates. [326] The Crown repeatedly asserted its interest in fixing trial dates, but nothing concrete was achieved by Crown or defence, in spite of directions from the court on July 31, 2015. Thus, it is difficult to know when and if both parties were in a position to obtain earlier trial dates. [327] The complexity of the prosecution and the inherent requirements of the case would not have significantly merited trial times exceeding the nine to 10 weeks, and in the final analysis, the trial was actually concluded in 49 days (10 weeks) including argument. [328] When the dates for the voir dire and the defendant's s. 278 application scheduled for 2015, there was no indication what other efforts the parties could make or had intended to make in order to secure other dates. After the accused's lawyer's illness derailed the applications in January 2015, the court pressed her to provide further dates for the trial. She was reluctant to give those dates, but eventually was persuaded to agree to three further weeks in July 2015. This theme concerning the accused's counsel unwillingness to do more than repeat her trial estimates of at least eight to 10 weeks continued. [329] The analysis requires a qualitative assessment focusing on the parties' reliance on the reasonable law as it existed. While I recognize that intake requirements include all of the pretrial activity, the time between fixing the preliminary inquiry date (April 25, 2012) and the committal of the accused (March 7, 2013) some 9.5 months away was problematic. [330] The gap between fixing the dates for the defence s. 278 application and the voir dire (April 10, 2014) was 9.7 months. When those dates were fixed, the only discussion about fixing actual trial dates was the Crown's comment as follows: "If we get these motions out of the way," (that is the January 2015 motions), "we will be able to fine tune the time and it will be actually easier setting the dates than finding an eight‑week sitting and crossing our fingers." [331] This was not a complex case and the inherent time requirements should not have been more than six months to the conclusion of the preliminary inquiry. Similarly, inherent time requirements for intake after committal to trial should not have exceeded three months on this case. [332] When the accused changed counsel on the eve of trial scheduled for six weeks, significant additional time was made necessary for his new counsel to become properly instructed. The delay between Mr. Zipp's confirmation as counsel and trial dates arranged for the fall of 2016 was quite reasonable. Nevertheless, the parties again failed to arrange sufficient dates for a conclusion of the trial, even knowing that 13 days scheduled for 2016 would not be sufficient. Jordan had been decided in July. [333] The delays were compounded by ongoing and inadequate efforts to obtain sufficient dates, and then compounded further by inadequate estimates. In my view, the balance of time from October 2016 to the conclusion of the trial, 17 months later, includes some inherent delay and other parts are institutional delay; not all of the delay between the trial dates was institutional delay. Some delay reflected counsel's schedule, and a discrete calculation of the institutional delay is not possible; this delay was not responsive to the new framework and considerations set out in Jordan. [334] Institutional delay occurs when the parties are ready for trial or preliminary inquiries, but cannot be accommodated by the system. In this case, there was a paucity of evidence concerning the availability of dates to conclude the trial after the parties became ready for trial. It is clear that defence counsel was not motivated to set aside a single block of time within which the trial could be completed, but nothing in the evidence suggests that there was ever a single block of time presented by the Crown or scheduling, and when the court, Crown and defence were available. [335] Overall, except for the comments above concerning the defence availability, waiver, and other actions, institutional delay was significant. As indicated, the actions of the accused resulted in delay of many months. The Crown's insistence on pursuing the paper preliminary inquiry was the only direct Crown action that delayed progress towards certain scheduled trial dates or inquiry dates, but in my view the reliance on the plan to pursue a paper preliminary inquiry was justified in the circumstances. The Rao decision was issued in June of 2012, but the preliminary inquiry had been scheduled in April several months before. Thus, Crown delay arising from the decision on the preliminary inquiry and the Rao decision could not have exceeded more than three months and, in my view, was not a significant factor in the delay. [336] In this case, Mr. Virk's first defence counsel seems to have relied on the law as existed at the time of Morin. She said she preferred not to schedule continuous dates for conclusion of the trial because of her own circumstances. She was casual and dilatory in following the court's directions in 2015. This caused loss of some trial time. She spoke at trial conferences about Crown's failure to disclose certain information and her client's intention to apply for production of third party records but did not bring those applications as directed by the court, and in the second instance, only on the eve of the trial dates scheduled for July 2015. [337] Moreover, Mr. Virk's first counsel did not take the opportunity available in the fall of 2014 or any time in 2015 to advance the third party document requests when her schedule had opened sufficiently to accommodate that work. She repeatedly informed the court of her intention to bring those applications. Disingenuously, Mr. Virk argued on this application that the Crown had failed to avail itself of the change in Ms. Smith‑Gander's schedule in September 2014 to convene a trial. Overall based on defence counsel's submissions, there was ample time for Ms. Smith‑Gander to bring her s. 278 application in the weeks after September 2014, as she had time available to do that work. She did not and the January 2015 dates were lost due to her illness. [338] Overall, I am satisfied that the defence was complacent and complicit in the ongoing failure of the parties to secure adequate trial dates earlier in the proceeding. Nevertheless, underscoring this analysis is the fact that it was the Crown's obligation to bring a person to trial. [339] Mr. Justice Schultes addressed the reasonable reliance issue in a sexual assault case in R. v. Lai, 2018 BCSC 867: [239] While stays of proceedings for delay in sexual assault cases of this notable degree of seriousness were not unknown under Morin, I think the parties would have reasonably expected them to be a fairly rare occurrence, unlikely to arise in the absence of a really appalling delay period or some combination of significant Crown negligence or blatant disregard for the usual urgency that should attach to serious criminal prosecutions. [240] Balancing these factors, and more importantly assessing how the parties would have expected them to be balanced, once this case got out of its disclosure morass (which I repeat was the product of an inadequate response to the volume and pace of what was received from the police, rather than repeated mistakes or complacency by the prosecutor), it proceeded with reasonable efficiency, despite the prevailing amount of institutional delay in each court and the defence decision to re‑elect. I think the parties were quite unlikely to have contemplated the possibility of a successful s. 11(b) application being made in relation to it during the significant pre‑Jordan period that it encompassed. [340] The charges faced by Mr. Virk were extremely serious. They involved sexual misconduct involving four children between the ages of 11 and 15. Society has a compelling interest in having charges of this significance resolved in the criminal justice system based on the merits of the cases. This was not a complicated case and should have been resolved within the timeframe set out in Morin, subject to other events and the accused's actions. However, serious charges cannot overtake an accused's constitutional right to a trial within a reasonable time: see Williamson at paras. 34-36. [341] In discussing the guidelines in Morin, the court observed that presence or absence of prejudice influences the length of tolerable delay. Prejudice to the accused decreases reasonableness of delay. Prejudice can be inferred from the length of delay, and with lengthy delays an inference of prejudice can be drawn. In this case, Mr. Virk gave affidavit evidence of the impact and the prejudice he has experienced while under the cloud of these charges. He said that he had suffered depression, health problems, interference in his employment, and financial stresses due to the prolonged course of the prosecution. Moreover, delay can deleteriously affect the memory of witnesses. Although the accused had some role in the delay, it is important to note that the incidents occurred, as I say, more than 30 to 35 years before the offences were charged and 27 years before the complaints were made to the police. [342] I accept Mr. Virk's testimony that he suffered some measure of prejudice. I can also infer that he has experienced prejudice because of the inordinate length of time it has taken these charges to come to conclusion. [343] I accept that Mr. Virk demonstrated the actual prejudice in the recounting of his life circumstances since arrest. Albeit at the lower end of any prejudice spectrum, the delays in this case have been significant and prejudice has been established. [344] Under Morin, the Crown had the obligation to bring the accused to trial and accused persons must be reasonably diligent and inaction may be a factor in measuring the degree of prejudice an accused might suffer as a result of delay. [345] Overall, balancing the factors, there is no evidence to support a suggestion that the accused was deliberate in any steps taken or not taken to avoid trial. Although Mr. Virk made repeated requests disclosure, in the face of Crown's refusal to make disclosure, his continued request for disclosure in the absence of an application was curious. Mr. Virk was making disclosure requests, it does not appear that those requests resulted in any substantial or unreasonable delay in setting the preliminary inquiry dates. Between the first appearance in this court and the fixing of dates for January 2015, the accused continued to request information from time to time and it was of the opinion of the case management judge that there was merit in some of his requests. Certainly Mr. Justice Silverman seemed to concur with the Crown's obligation to provide the translation and the accused needed to pursue his s. 278 application before a trial could be set. The court also noted that Crown's delay in providing the translation might be a factor in a future s. 11(b) application. [346] It is significant that the preliminary inquiry was set before the decision in Rao was decided and the s. 278 application and the voir dire were scheduled before that decision was made and the new transcript was actually received by the defence in the summer of 2014. [347] There was much criticism by the Crown of the defence concerning the failure to make his application for disclosures. Other than the defence failure with the court's direction made in February 2015 and his change of counsel, I could find no specific evidence that the defence failure to pursue disclosure caused significant delay. It always remained a topic of conversation at pretrial conferences, but the accused's reluctance to set the matter for trial until discovery was completed dissipated over time. [348] Defence counsel opined to the Crown her reluctance to set a trial without full disclosure in place. The Crown did not obtain trial dates from the schedulers that were refused by the defence. Crown said it was looking for eight weeks of trial time but, based on the record, never obtained or identified eight weeks until much later in the proceeding. By March 14, 2014, the court and the parties were focused only on scheduling the voir dire and the third party document application. At this stage, the Crown did not seek trial dates for the main body, having accepted that resolution of the two issues at the 2015 hearings might resolve significant issues and might have shortened the need for the trial time. [349] I must consider that 21 months passed from Jordan decision to the verdict in this case. Nothing in the transcripts reflects efforts by the Crown or the accused to accelerate the setting of the trial beyond the efforts made by Mr. Zipp to interrupt his schedule in order to obtain certain of the dates that were used. Nonetheless scheduling continued to follow the pattern of setting shorter times than required on multiple occasions without setting sufficient time to eventually conclude the matter. [350] Mr. Zipp argued that his busy law practice severely restricted his ability to dedicate larger blocks of time to conclude the matter. On the other hand, there appears to have been little Crown effort to identify larger blocks of time or earlier blocks of time at which the matter could have been concluded before December 2018. [351] Adopting a qualitative and contextual approach, the question is whether, in all the circumstances, the parties were reasonable in relying on the law as it existed before Jordan and whether the delay is justified by the that reliance (a transitional circumstance). Some aspects of the facts Williamson, were apposite to this prosecution; in Williamson the accused had been charged with historical sexual offences against a minor and the prosecution was not a complex case. Although the accused had been reasonably active in attempting to move the case along, the Crown's initiative in expediting the proceedings was lacking. There were 25 months of inherent time requirements and reasonable institutional delay against a total delay of 35.5 months. The accused's responsibility for delay was two months. [352] The court assessed Mr. Williamson's application under the transitional circumstances, finding they did not apply. The court took into account that there were 13 days of trial, and the case was not complex. [353] The trial judge estimated the total inherent time requirements of the case as being approximately eight months. The court found the 25‑month institutional delay described by the Court of Appeal exceeded the upper end of the Morin guidelines by approximately seven months. There had been considerable difficulty in the Provincial Court and other scheduling troubles in Superior Court: see paras. 27-28. [354] As in this case, the record did not show whether the Crown could have had success in expediting the trial: at para. 28. [355] The court said: [30] Ultimately, we agree with the Court of Appeal that, while the s. 11(b) question in this case is "very difficult" (para. 64), looking at the big picture, the previous state of the law cannot justify the nearly three years it took to bring Mr. Williamson to trial on relatively straightforward charges. As the Court of Appeal observed, while the crimes committed by Mr. Williamson are very serious, "the balance weighs in favour of [his] interests in a trial within a reasonable time, over the societal interest in a trial on the merits" (para. 68). Although Mr. Williamson did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay that plagued the prosecution, and Mr. Williamson was reasonably proactive in attempting to move the matter along. Not even the absence of significant prejudice to Mr. Williamson's Charter-protected interests can stretch the bounds of reasonableness this far. [356] In this case, after the accused was committed for trial, no dates were obtained from the registry or proposals made by the Crown to move the case to trial other than requests for the accused's counsel to provide her available dates. Crown wrote two letters to the trial schedulers asking for dates and to the defence; no dates were proposed but the defence. The evidence did not reveal if dates were obtained by the Crown or what the Crown did to secure dates in the absence of dates from trial scheduling. One of Crown's letters was written on August 28, 2013, a full 28 months after the charges were laid. [357] The Crown contended it was not complacent arguing saying it had expressed interest in fixing a trial dates. However, it did not take the types of steps necessary to obtain dates and communicate with the court or the accused concerning available dates. It would have been a simple matter, it seems to me, for the Crown to establish reliance on the old law it should have presented trial dates sufficient to accommodate the estimate length of trial and request the court to set those dates. It cold have directed the accused's counsel to be ready subject to defence availability. [358] Until the matter was dealt with by Mr. Justice Silverman in January 2014, no concrete steps had been taken to schedule dates. Mr. Justice Silverman indicated that the Crown had responsibilities to the defence concerning the statements and some disclosure issues that had not been met. Whether or not the defence was reasonable in declining to set trial dates until the translation issue was resolved is unclear at that stage but remained a concern for the Court. [359] Eventually the court directed the parties to fix the two weeks for January 2015 to enable the defence to bring its s. 278 application and conduct a voir dire. [360] On July 31, 2015, the court directed the parties to attend a pretrial conference on September 9 and to have agreed on dates for trial. At that conference, no dates were agreed on and the court. The court eventually persuaded the parties to fix dates in March and April 2016. These dates were eventually lost due to Mr. Virk's illness and decision to discharge counsel. [361] The parties eventually worked on a proposal to fix trial dates in the fall of 2016 after which dates were set for six weeks commencing March 2017 to July 2017. Once the 2017 trial continuation began and was found to be insufficient, new dates were added for evidence up to and including October 2017. [362] Although Mr. Virk's first counsel did little to move the matter along while he was represented by her, when Mr. Zipp became counsel, I am satisfied he did take steps to move matters along at some personal expense to his clients. Although the parties did not turn their minds to scheduling the trial in one or sufficient blocks to complete the trial by the end of 2016 or mid‑2017, they did become more proactive than had been previously the case and the Crown had agreed to setting trial for two or three weeks at a time. [363] Neither party appears to have been focused on scheduling this matter to a speedier conclusion before or after the Jordan decision was given. Eighteen months had passed after the Jordan verdict was given and submissions were completed. Twenty‑one months passed before verdict was given in this case. [364] I observed that as early as 2014, the defence counsel had suggested to the Crown that the parties' translators meet to determine if a mutually‑acceptable translation statement could be resolved between them. The Crown adamantly refused that opportunity. She said the Crown was not prepared to spend any further money to authorize its translator to meet with the accused's translator. Had there been a meeting of translators, I am satisfied, based on the admissions made by, the Crown's translator, Mr. Chandan, during cross-examination, that the trial could have been shortened by several days if collaboration had taken place. Similarly, the Crown eventually provided the translated statement to the defence after steadfastly arguing against its obligation to do so throughout. Crown's refusal to attempt to reconcile the translation increased the trial length. [365] The Crown asserts that it was always trying to move the case along and met with resistance from defence counsel. Although the Crown wrote letters concerning trial dates and raised the question of trial dates at pretrial conferences, there was a paucity of evidence about attempts by either party to actually fix specific dates to sufficient bring this matter to an end. Mr. Zipp said that if, when he had become counsel, Crown had brought forward dates for the spring of 2017, the trial could have ended by May of that year. There was no effort to do this, in part because of the disparities in the time estimates for the trial. [366] The pretrial judges were not successful in pressing counsel to set trial dates. As an example, no dates were presented by counsel at the September 2015 conference. In my view, Crown's efforts at moving the prosecution along lacked the necessary efforts to obtain trial dates or to secure an earlier date that I would have expected in the circumstances. Obtaining dates from trial scheduling and proposing those dates to the defence by mid‑2015 or when Mr. Zipp became counsel in 2016 might very well have allowed this trial to conclude in a more timely fashion. [367] The defence was not proactive in the early stages in moving the trial along, although it is not the accused's obligation to see the trial brought to a conclusion. He had an obligation to move the case along and certainly with regard to the s. 278 application; he was dilatory in making any effort in that regard until very late in the day and was responsible for that delay. [368] That application was ultimately heard and the court ordered production of the documents to the court, but the records were never released to the accused. [369] The Crown conceded that institutional or systemic delay in this case comprised 30.2 months, which exceeded the Morin guidelines by 40 percent. This calculation does not take into account other institutional delays and Crown delay I have identified. Society and the justice system shared a joint interest in ensuring criminal allegations are tried on the merits. On the other hand, society has an important interest in protecting the Charter rights of its citizens, including the accused, to have trials of serious criminal charges concluded within a reasonable time. [370] Following a period of almost seven years of this uncomplicated case, the accused was convicted. Analyzing the parties' decisions that were informed by the law in place before July 2016 in the context of this case, including the seriousness of the charges, the prejudice to the accused, and the more than 83 months after charges and balancing the Morin factors leads the conclusion that overall delay was unreasonable. Although it is appropriate to evaluate delay occurring before Jordan under the relevant Morin factors and the parties reliance on same, when dealing with post‑Jordan delay, the failure to be more proactive in the prosecution and the delay following is telling. In this case, the 21 months after Jordan was merely nine months below the presumptive ceiling. After the release of Jordan, the parties had time to adjust their approaches and the failure to take that opportunity into account, in my view, influences the conclusions on the second analysis under Jordan in this case. [371] Taking all of the factors into account and the Crown's inability to obtain sufficient trial time required to obtain the enough trial days between 2013 and 2016, and in spite of the operating under the Morin framework up to July 2016, I have concluded that the delay was unreasonable. [372] This part of the analysis is contextual and depends on my view that the Crown failed to address flaws in its approach in areas where it could have shortened the time. In this context, I note the Crown's approach to collaboration was wanting, and that the collaboration on the translation issue was but one example of an occasion where the Crown could have been more active in moving the case forward with the possibility of saving time. The Crown took steps early on to refuse to contact complainants to obtain some information that, in the strictest sense, were probably not part of the Crown's obligation, but certainly in the era of when cases require cooperation, it behooved the Crown to participate in any effort that could be made to alleviate delay or to facilitate and expedite the setting of trials. [373] Not until late in the day were sufficient dates for continuations of the trial to its conclusion arranged; if this it schedule had been settled earlier, it might have brought this case to an end sooner. [374] The Crown cannot be faulted for encouraging the accused to set trial dates. There is no indication in the evidence that the Crown ever obtained those dates for the most part except on those times when dates were fixed in court. On the evidence, it is unclear when court time might have been available during any of the periods when the Crown was writing to the defence or raising the point in conferences. At one stage, Crown agreed to fixing dates in intermittent blocks; nevertheless at no time until the fall of 2016 and spring of summer of 2017 were those blocks of sufficient to conclude the trial within the eight or ten weeks estimated early on. [375] On the same point, the defence did not embrace those opportunities to move the case along. Mr. Virk's counsel was content to wait from March 2014 until January 2015 for the s. 278 application and the voir dire. Defence avoided fixing trial dates because of disclosure complaints, in spite of the fact that no applications were being made on an ongoing basis. The defence was also only prepared to fix dates in small blocks, in part because counsel was not available for prolonged absences. Nonetheless, no eight‑week blocks of time were ever offered, and it is unclear when and why such blocks would not have been available or whether the accused would have declined earlier times if they had been available. [376] Defence counsel points out that if the trial had been scheduled in July 2016, it could have completed in March 2017, a full 7.5 months earlier. [377] There were aspects of Crown's response in its approach to the prosecution disclosure and the translation issue that brought into question the Crown's earnestness in attempting to bring this case to trial at an earlier date. [378] In refusing to ask the complainants' questions about their counselling seriously undermined the defence confidence that it had sufficient disclosure to proceed with the trial. The previous law moderated the impacts of delays by reference to complexity in a way that Jordan does not. However, when this case went beyond the Morin guidelines, it seems to me that the parties were ignoring the law and the Morin guidelines and the limits set out in Jordan. No significant effort seemed to have been made to expedite the conclusion of the case. [379] Excessive delay in this case is entitled to meaningful weight under the pre‑Jordan regime, insofar as it exacerbated the accused's prejudice: see Williamson. Conversely, Mr. Virk did not grasp invitations to move the trial along. Although it is not the defence's obligation to bring the matter to trial, he did not respond to the various inquiries concerning counsel's availability early on. Also, I conclude that, unlike the circumstances in Lai, when Mr. Justice Schultes observed that the parties had fully embraced the Jordan approach after July 2016, the same does not appear to have happened in this case. [380] Although the parties' approaches to the ongoing delay in this case are distinguishable from Williamson, the length of delay alone exceeds the bounds of reasonableness: see Williamson at para. 30. Here the accused did not actively attempt to move the case along, but the Crown failed in significant situations to find compromises and bring the case to trial. However, both parties share responsibility for prolonging the process faced by the accused. But, as the court said in Williamson, not even the absence of significant prejudice to Mr. Williamson's Charter‑protected interests can stretch the bounds of reasonableness this far. [381] I note that when delay vastly exceeds the ceiling in Jordan, even though the delay may be reasonable under the Morin framework, mistakes or missteps by the Crown may also still justify a finding of unreasonable Crown delay and a Charter breach. In this case, the Crown's actions certainly contributed to the continuing problem of delay among other reasons by not insisting on and obtaining dates for the setting of trial. It was always open to the Crown to obtain and present dates to pretrial conference judges and to the accused within which the matter could proceed and be concluded in a reasonable time. That was not done and I am satisfied this trial could have completed earlier. [382] In balancing the Morin factors including the length of the delay, the reasons for the delay and the prejudice to the accused I find that the bounds of reasonable delay set out in Jordan and Morin were so far exceeded by the end of this trial that Mr. Virk's s. 11(b) rights were infringed. The delay cannot be excused by the parties' reliance on the old law taking into account the factors to be balanced. [383] I think the comments of Mr. Justice Schultes in Lai are apposite. While a stay of proceedings for delay in sexual assault cases of this notable degree of seriousness were not unknown under Morin, I think the parties would have reasonably expected them to be a fairly rare occurrence, unlikely to arise in the absence of a really appalling delay period of some combination of significant Crown negligence, or blatant disregard for the usual urgency that should attach to serious criminal prosecutions. In my view, the delay in this case rises to a level of really appalling delay. [384] I am satisfied the Crown has not demonstrated that the time taken was justified because of the parties' reasonable reliance on the law as it previously existed. The parties knew the guidelines under the old law and knew those guidelines were exceeded in this case. This suggests they were in fact proceeding with knowledge that the old guidelines had been exceeded and no special efforts were taken to bring the case into compliance even after Jordan was released. [385] The court in Serban dealt with adjournments on the basis that the parties would not have agreed to an adjournments without an express waiver, and this factor was taken into account in assessing the parties' reliance on the old law. In that case, Mr. Justice Verhoeven said that because the parties had already exceeded the Morin guidelines, that when they agreed to further trial adjournments and delay, they were clearly operating under the impression that the old guidelines and the old law allowed them that type of latitude that eschewed concerns for delays that might otherwise impact an accused's Charter rights. [386] In Serban, the question was delay caused in part by an adjournment of a trial date consented to by both parties for their own benefit and with a view to resolution of some issues. In this case, the lengthier institutional delays did not involve the accused choosing between existing dates and new ones or achieving any benefit from a delay. [387] The preliminary inquiry and scheduling of the dates in January 2015 were done at first instance and did not involve choices by Mr. Virk to give up existing dates other than when he changed counsel. He did not consent to significantly delaying his trial. Much of the delays occurred after Jordan. [388] It is hard to conceive of an argument that the time periods that passed up to January 2015, well in excess of the Morin guidelines, could be evidence of the parties' reliance of the law in Morin. In my view, the delay viewed through the Morin lens was nevertheless unreasonable taking into account the reasons for the delay, the actions of the Crown and Defence. [389] Finally, if the delay was reasonable in the Morin context, the post‑Jordan delay demonstrated a continued lack of urgency to secure adequate trial dates and conclude the trial sooner. As defence points out, if this trial had been set in July 2016, it could have been completed in March 2017. [390] Jordan made clear that the question of whether the charges would have been stayed under Morin does not guide the analysis; the narrower question is whether the parties relied on the old law, and even if they relied on the old law, then they had an obligation to correct their behaviour after July 2016. Here the delay simply continued. [391] I have reached this conclusion most importantly balancing society's interest and expectation in a just determination of these serious sexual offences and the equally serious consideration of this application to protect the accused's s. 11(b) rights. [392] Balancing the prejudice to Mr. Virk, the length and reasons for delay in the trial, the seriousness of the charges, and society's interest in seeing persons brought to trial against the accused's Charter rights to a trial within a reasonable time, I conclude that the length of the delay in this case outweighs society's interest in the prosecution of these serious charges. In my view, society's interest in protecting the Charter rights of accused people must prevail in the circumstances. [393] There will be a stay of proceedings. "Armstrong J."