Court of Justice, which exceeded the Morin guideline of six to eight months by
only ten days. The trial judge found that G and S had acquiesced in the pace of
the case. In particular, he found that they were complicit in underestimating the
time for the preliminary inquiry, failed to use the first day of the original preliminary hearing to cross-examine the key Crown witness, and failed to follow the
protocol established in Brampton to ensure the timely production of transcripts.
(The protocol, as it pertained to the production of transcripts, requires counsel
who intend to bring applications to order the required transcripts from appearances as occur, rather than placing an order for multiple transcripts of the earlier
dates just before the application.) Despite being reminded of the protocol more
once, the defence counsel, to whom all other defence counsel had delegated the
task of obtaining the required transcripts, ordered them only three days before
the date originally scheduled s. 11(b) motion. The trial judge concluded that the
delay was not unreasonable and dismissed the application. The jury acquitted
S of both counts and convicted G of conspiracy to import cocaine. G was sentenced to nine years’ imprisonment. He appealed his conviction and sentence.
Held, the appeal should be dismissed.
Per Gillese J.A. (van Rensburg J.A. concurring): The jury verdict was not
The trial judge’s charge to the jury was not inadequate. He fairly guided the
jury through the relevant evidence as it applied to the law of conspiracy.
The decision of the Supreme Court of Canada in R. v. Jordan was released
after the trial judge’s ruling on the s. 11(b) application. Neither G nor S waived
any part of the delay. In calculating the defence delay, delay caused by one
accused should not be attributed to all. Rather, an individualized approach must
be taken to the attribution of defence-caused delay in cases of jointly charged
accused. However, provided it is in the best interests of justice to proceed jointly
against co-accused, delays resulting from the fact that there are jointly charged
accused can be considered under the exceptional circumstances analysis in Jordan.
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 towards delay. G and S were not diligent in ordering and
following up on transcripts. They did not follow the Brampton protocol despite
repeated urgings by the court. Their conduct exhibited marked inefficiency or
marked indifference toward delay. A delay of seven months should be attributed
to the defence. A further three-month delay caused by the double-booking of
his counsel should be attributed to G. The net delay was therefore 36.5 months in
S’s case and 33.5 months in G’s case.
A discrete event in the form of the unforeseen unavailability of a Crown witness at the preliminary inquiry reduced the net delay by one month. The remaining delay above the 30-month ceiling was justifiable in light of the complexity of
the case. Given the trial judge’s findings with respect to Crown and institutional
delay and prejudice to the accused, the delay was also justified as a transitional
Despite G’s lack of a criminal record, the nine-year sentence was not demonstrably unfit.
Per D.M. Brown J.A. (concurring): The consideration of delay caused by the
actions of a co-accused should be placed in the defence-caused delay part of the