murder. However, the issue is not who had the better argument,
but whether the Crown’s position was frivolous.
 At the time of the Crown’s initial certiorari application,
Ceballo and Ferrari left the door open for the combination of
ss. 21(2) and 231(5) as a basis of first degree murder. As this court
stated in Ceballo, it was an open question whether ss. 21(2) and
231(5) could be combined as a basis for first degree murder. That
question was answered in the affirmative in Ferrari, with
the court finding that the sections could be potentially combined
depending on the circumstances of the alleged involvement in
 The weakest part of the Crown’s argument was the degree
of the appellant’s involvement in the killing of Mr. Swan. He certainly did not play a physical role as contemplated in Harbottle.
However, it must be remembered that Harbottle did not mandate
a hard and fast rule that an accused must play a physical role
in the killing.
 While not a strong submission, I am satisfied that it was
arguable and not frivolous to suggest that the appellant could
be liable for constructive first-degree murder. It was, after all,
an argument that found favour with the judge reviewing the initial preliminary inquiry judge’s decision, the judge on the second
preliminary inquiry, and the judge reviewing a subsequent
defence certiorari application. There is also no suggestion that the
Crown was acting in bad faith or that it was dilatory in proceeding with its application for certiorari.
 With respect to the defence certiorari proceeding and
appeals, again the Crown did not take a frivolous position on the
merits. There is also no suggestion that the Crown acted in bad
faith in opposing the appeals or was dilatory in responding to
them. To the contrary, the Crown acted responsibly and with due
regard to the appellant’s constitutional rights in ultimately proceeding on second degree murder.
 Consequently, I conclude that the time taken for the
Crown’s application and the time taken for the defence application and abandoned appeal are discrete events totalling
46.9 months. This reduces the total period of delay to 22.4
months, well below the 30-month Jordan ceiling. In addition,
I agree with the trial judge’s conclusion that a further six-month
deduction should be made to reflect events impacting on the trial
judge’s availability, along with time lost at the preliminary
inquiry and at trial due to the refusal of witnesses to testify.
On this basis, I would dismiss the appeal of the trial judge’s
s. 11(b) ruling.