COURT OF APPEAL FOR ONTARIO
Roberts, Copeland and Dawe JJ.A.
BETWEEN
His Majesty the King
Appellant
and
Robert Vrbanic and Sarah Josipovic
Respondents
Ian Bell and Connor Macorin, for the appellant
Jeff Marshman, for the respondents
Heard: October 21, 2024
On appeal from the stay entered by Acting Regional Senior Justice Anthony F. Leitch of the Ontario Court of Justice on April 21, 2023.
A. Introduction
1The Crown appeals the application judge’s order staying the proceedings against the respondents based on the breach of their right to trial within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms.
2The respondents were jointly charged with possession of significant quantities of four different drugs for the purpose of trafficking and possession of the proceeds of crime.
3The charges arose out of a lengthy project investigation, “Project OSkyfall”. The investigation was conducted over two years, involved numerous warrants and judicial authorizations, and two wiretap authorizations. It led to charges against 18 people. The disclosure was voluminous. The Crown ultimately divided the charges into ten prosecution groups. The joint charges against the respondents that are the subject of this appeal were one of those groups (“Group 5”).1
4The respondents sought a stay of proceedings of the Group 5 charges on the basis that their right to a trial within a reasonable time was breached. The Crown did not dispute that the delay in this case was over the 18-month presumptive ceiling for a trial in the Ontario Court of Justice, but argued that this delay was justified by the complexity of the case. The application judge found that the Crown had not met its burden of justifying the delay and stayed the charges.
5On appeal, the Crown contends that the application judge erred in his analysis of the particularly complex case exception to the presumptive ceilings established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The Crown’s primary submissions are that the application judge failed to consider the complexity of the entire project prosecution as a whole in his analysis, and that he focused unduly on the fact that the respondents were not participating in a lengthy Garofoli application being brought by the defendants in some of the other prosecution groups. As part of this argument, the Crown also notes that, based on inadvertent misstatement by the trial Crown, the application judge mistakenly began his s. 11(b) analysis with an overall delay length of 22 months. In fact, the overall delay was 21 months and 4 days. As a result of this error, the application judge conducted his exceptional circumstances analysis based on a net delay of 19 months, after a deduction of three months for delay due to the COVID pandemic. Using the correct overall delay figure, the net delay was 18 months and 4 days.
6I would dismiss the appeal. The application judge’s finding that the Crown failed to meet its burden to show that the case was sufficiently complex to justify delay over the 18-month presumptive ceiling is free of legal error and entitled to deference. I do not accept the Crown’s submission that the application judge failed to consider the whole of the case in his complexity assessment. Although the application judge erred in his initial calculation of the overall delay, that error had no impact on the result or on the application judge’s assessment of the particularly complex case exception. After the three-month deduction for delay due to the COVID pandemic, the net delay is 18 months and 4 days. This exceeds the Jordan ceiling and is presumptively unreasonable, putting the burden on the Crown to justify the delay on the basis of complexity. The application judge’s conclusion that the Crown had not met this burden was based on his assessment of the facts, which are entitled to appellate deference. He thus, did not err in finding a breach of the respondents’ s. 11(b) Charter rights and ordering a stay of proceedings.
B. Factual Background
7The respondents were arrested on August 27, 2021. The Information was sworn on September 27, 2021. The charges involved allegations of possession for the purpose of trafficking of two kilograms of cocaine, three kilograms of methamphetamine, 500 grams of psilocybin, as well as possession of $400,000 in cash that was alleged to be proceeds of crime.2
8The Crown sought case management early in the proceedings. The application judge was also the case management judge for all of the cases arising from the project investigation. The first case management appearance was on January 12, 2022.3 By this time, the Crown had made the decision to prosecute the 18 accused broken into ten separate groups, with each group on a separate Information. As noted above, this appeal arises out of the Group 5 charges brought jointly against the respondents. The respondent Vrbanic was also charged in Group 8 with four other individuals.
9Between January 12, 2022 and April 8, 2022, the application judge held multiple judicial pre-trials in his role as case management judge, both jointly for all of the individuals in the ten groups of charges and with each group individually.
10A significant issue in the course of the case management judicial pre-trials was an anticipated joint Garofoli application4 that some of the project accused intended to bring, and ultimately did bring, challenging the issuance of various warrants and authorizations.
11On April 8, 2022, the respondents’ charges were scheduled for trial on June 26-30, 2023. At that time, their s. 11(b) Charter application was scheduled for December 14, 2022. When these trial dates were set, counsel for both respondents (not counsel on appeal) put on the record that the trial dates set were the earliest dates offered.
12The respondents’ s. 11(b) stay application was ultimately argued before the application judge on February 6, 2023.
13A central issue in dispute in the s. 11(b) application was whether the respondents intended to participate in the Garofoli application for the Group 5 charges and the impact of that issue on the analysis of the complexity of the case. The respondent Vrbanic participated in the Garofoli application in relation to his charges in Group 8. It was clear on the record on April 8, 2022 that the trial dates scheduled for Vrbanic’s Group 8 charges were set to allow for the Garofoli application. However, whether the respondents intended to participate in the Garofoli application and/or delay their trial in the Group 5 charges until after the Garofoli application was decided was contested in the s. 11(b) application. The record in relation to the setting of the trial dates on April 8, 2022 was less clear on that issue as it related to the Group 5 charges, and the application judge was required to make factual findings about the issue in deciding the s. 11(b) application.
14On April 21, 2023, the application judge gave brief oral reasons granting the s. 11(b) application and staying the proceedings. He indicated that he did so because the scheduled trial dates were fast approaching. In the oral reasons he adopted portions of his analysis in another s. 11(b) application arising out of the same project investigation, R. v. Ivarone, 2023 ONCJ 69, which had been argued before the respondents’ application. The application judge had released written reasons in Ivaroneon February 7, 2023, the day after the respondents’ application was argued. In his oral reasons granting the respondents’ s. 11(b) application, the application judge said he intended to supplement his oral reasons with written reasons to follow. However, in the event, he later advised the parties that he would not provide further written reasons.
15The application judge began his analysis with an overall delay of 22 months, which as noted above, was based on the trial Crown’s misstatement of the starting date, and overstated the delay by a month. He then deducted three months as exceptional circumstances due to delay caused by the COVID pandemic. This left 19-months delay, which exceeded the presumptive threshold.
16The application judge then considered whether the net 19-month delay was justified as an exceptional circumstance on the basis that the respondents’ charges constituted a particularly complex case. He found that the Crown had failed to meet its burden to show that the delay over the ceiling was justified by the particular complexity of the case. In particular, he found that the Crown had failed to prove that the respondents had taken the position that the trial of the Group 5 charges should follow the Garofoli application, which had been scheduled for various dates between the summer of 2022 and the spring of 2023. It was common ground that if the respondents’ trial did not have to wait for the Garofoli application, they could have been offered trial dates in late 2022, which would have been under the 18‑month presumptive ceiling. The trials of several other groups that were not participating in the Garofoli application had been scheduled in the summer and fall of 2022. The application judge found that without the interconnection of the complexity caused by the Garofoli application, the volume of project disclosure was not sufficient, standing alone, to make the case against the respondents particularly complex. As a result, he found that the delay above the ceiling was unreasonable and stayed the charges.
C. Analysis
17The issues raised in this appeal turn on the exceptional circumstances branch of the Jordan analysis. The Crown did not argue defence delay or waiver either below or on appeal. The Crown does not argue on appeal that the application judge’s error regarding the overall delay based on the trial Crown’s misstatement of the start date, standing alone, warrants setting aside the stay. Nor does the Crown challenge the application judge’s decision that three months should be subtracted to account for delay caused by the exceptional circumstance of the COVID-19 pandemic. The Crown also does not challenge the application judge’s finding that the Crown failed to prove that the respondents intended that their trial on the Group 5 charges be scheduled to await the outcome of the Garofoli application.
18Rather, the Crown argues that the application judge erred in treating the issue of the respondents’ participation in the Garofoli application as “essentially determinative” of the s. 11(b) application. The Crown contends that the application judge failed to step back and consider the complexity of the case as a whole. The Crown argues that, considered as a whole, the project prosecutions were of considerable complexity and that the project Crowns appropriately managed the prosecution to mitigate delay.
19The Crown further argues that to the extent that Crown counsel involved in scheduling the trial dates were mistaken in their belief that the scheduling of the respondents’ trial was dependent on the Garofoli application, it was a reasonable mistake. As such, it should be viewed as an isolated misstep in the Crown’s otherwise appropriate management of a particularly complex prosecution.
20I would reject these arguments, primarily for three reasons. First, the application judge’s assessment of whether the case fell within the particularly complex cases exception is free from error and is entitled to deference. He did not fail to consider the case as a whole. Second, the application judge did not err in not considering whether the Crown’s apparent mistake about whether the scheduling of the respondents’ trial was dependent on the Garofoli application could justify the delay because the Crown did not raise this argument below. Third, although the application judge did err in his initial calculation of the overall delay by counting from the arrest date/offence date, rather than the date the Information was sworn, that error had no impact on his analysis of whether the Crown had established that this case fell within the exception in Jordan for particularly complex cases. Although on a correct calculation the overall delay, minus the delay attributed to the pandemic, was only four days over the 18-month Jordan presumptive ceiling, the presumptive ceiling “is not an aspirational target”, but represents “the point at which delay becomes presumptively unreasonable”: Jordan, at para. 56. Once the application judge found that the Crown had not justified the excess delay, he was obliged to find a breach of the respondents’ s. 11(b) Charter rights and stay the charges against them.
21In the analysis below, I address: (i) the standard of review; (ii) the law applicable to the particularly complex case exception in Jordan; (iii) the three reasons outlined above why I conclude the application judge did not err in his assessment of whether the Crown had met its burden to show that this case fell within the particularly complex case exception; and (iv) the fact that the net delay in this case is only slightly above the 18-month Jordan ceiling for cases in the Ontario Court of Justice.
(1) The standard of review
22On appellate review of a s. 11(b) decision, deference is owed to an application judge’s underlying findings of fact. Characterization of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5; R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; R. v. S.A., 2024 ONCA 737, at para. 18.
23In the absence of an error in the legal principles applied, an application judge’s assessment of the complexity of a case, and whether the Crown used reasonably available tools to minimize delay, are “well within the trial judge’s expertise” and entitled to deference: Jordan, at para. 79; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 35; R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 88; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 103, leave to appeal refused, [2019] S.C.C.A. No. 423.
(2) The particularly complex cases exception
24I will not summarize the entire Jordan framework, which is well-established. I focus on the exception to the presumptive ceilings for particularly complex cases. Jordan recognizes that a case’s complexity may constitute an exceptional circumstance and justify delay over the presumptive ceiling: Jordan, at paras. 69-71, 77-81; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64.
25Because particularly complex cases are a category of exceptional circumstances, it is helpful to start with the majority’s description of exceptional circumstances from Jordan, at para. 69:
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. [Emphasis in original.]
26The majority explained that the two requirements outlined above mean that the exceptional circumstance must not only be reasonably unforeseen or unavoidable, but also that the Crown must show that it took reasonably available steps to avoid or minimize delay before the delay exceeded the ceiling. Examples of reasonable available steps include seeking prompt resort to case management, seeking to work with the defence to streamline evidence or issues for trial or pre‑trial applications, or other appropriate procedural means: Jordan at para. 70.
27The Crown bears the burden of rebutting the presumption of unreasonableness by establishing exceptional circumstances: Jordan, at paras. 68-81.
28The Jordan majority explained how complexity is to be assessed when the Crown seeks to rely on a case’s complexity as an exceptional circumstance, at paras. 77-81. The seriousness of the offences charged is not itself an indicator of complexity; although as a practical matter, more complex cases will often involve serious charges. Particularly complex cases are those that “because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified” (emphasis in original). Hallmarks of particular complexity arising from the evidence include voluminous disclosure, a large number of witnesses, significant expert evidence, and charges covering a long period of time. Hallmarks of particular complexity arising from the nature of the issues include a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, where it is reasonable to do so, may also impact the complexity assessment. These are not an exhaustive list. As noted above, the assessment of complexity is a matter within a trial judge’s expertise.
29In Cody, the Supreme Court provided further direction on the nature of the particular complexity analysis. The analysis involves a qualitative, not a quantitative assessment. Complexity will be an exceptional circumstance “only where the case as a whole is particularly complex”: at para. 64. Consistent with this approach, in Cody, where the case involved voluminous disclosure but the balance of the proceedings were relatively straightforward, the court concluded that the case as a whole was not sufficiently complex to constitute an exceptional circumstance. The court reiterated that voluminous disclosure is a hallmark of particularly complex cases, but “is not automatically demonstrative of complexity”: at para. 65.
30As with the general description of the Crown’s burden to establish exceptional circumstances, where a claim of exceptional circumstances is based on a case’s complexity, the Crown must not only show a sufficient level of complexity, but also show that it took reasonable steps to minimize delay (at para. 79):
And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize delay occasioned by such complexity. Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control (citation omitted).
31The steps taken by the Crown in a plan to minimize delay for a particularly complex case need not meet the standard of perfection. The Crown is not required to show that the steps it took to minimize delay were successful, but only that it made a concrete plan and took reasonably available steps to attempt to avoid the delay: Jordan, at para. 70; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at paras. 44-45.
32One final point, for analytical clarity. The issue of whether a case’s complexity is sufficient to constitute exceptional circumstances justifying what would otherwise be unconstitutional delay is to be considered if the delay is over the presumptive ceiling after any applicable quantitative deductions have been made (for example, for defence delay or waiver or delay attributable to discrete exceptional events): Cody, at para. 64.
(3) The application judge did not err in his analysis of whether the Crown had met its burden to show that this case fell within the particularly complex cases exception
33I now turn to the three points outlined above, around which I structure the analysis that leads me to conclude that the application judge did not err in his assessment of whether the Crown had established that this case fell within the particularly complex case exception.
34As context, I note the following points, which are not in dispute. First, because the case proceeded in the Ontario Court of Justice, the Jordan presumptive ceiling was 18 months. Second, the overall delay from the laying of the Information to the end of the scheduled trial date was 21 months and 4 days. Relying on the trial Crown’s miscalculation of the overall delay, the application judge erred by stating that the overall delay was 22 months.5 On appeal, the Crown accepts that this miscalculation appears to have been based on counting from the date of arrest/offence date, rather than the date the Information was sworn.6 As a result, the application judge overstated the overall delay by one month. This error carried through to his calculation of the net delay after the three-month deduction for the exceptional circumstances of the COVID pandemic, which he calculated as 19 months. Third, if the application judge’s calculations are corrected by starting with the correct start date, the overall delay is 21 months and 4 days. Subtracting the three-month deduction for the COVID pandemic (which the Crown does not challenge on appeal), the net delay is 18 months and 4 days. This net delay exceeds the presumptive ceiling.
(i) The application judge did not assess complexity based only on the Garofoli issue
35The Crown contends that the application judge erred by failing to engage in the required contextual analysis of all of the circumstances in his analysis of whether the Crown had shown the case fell within the exception for particularly complex cases. The Crown argues that the application judge effectively made the issue of whether the respondents intended to participate in the Garofoli application determinative of the complexity analysis. I disagree.
36As noted above, the case law establishes that assessing whether a case is particularly complex is a matter within the experience of a trial judge and, thus, entitled to deference. The application judge in this case was particularly well-placed to consider whether this case was particularly complex in the sense outlined in Jordan and its progeny. By the time of the hearing on the s. 11(b) application, he had been case-managing the cases from the project investigation for over a year. In his role as case-management judge, he had conducted global and case-specific judicial pre-trials for all of the project cases. There can be no doubt that he was familiar with the scope of the investigation, the volume of disclosure, the issues at play in and across the various prosecutions, and how those factors did or did not contribute to the complexity of each case. He also knew that trials for several of the prosecution groups whose members were not participating in the Garofoli application had been scheduled for the summer and fall of 2022.
37I do not accept the Crown’s characterization of the application judge’s reasons as “treating the issue of the respondents’ participation in the Garofoliapplication as essentially determinative of the [s. 11(b)] application.” Although the issue of whether the scheduling of the respondents’ trial was dependent on the Garofoli application was clearly an important factor in the application judge’s analysis, it was not the only factor he considered in his assessment of whether the Crown had established exceptional circumstances based on the particular complexity of the case. A review of the application judge’s reasons makes this clear.
38The application judge began his reasons by adopting, “with some qualifications” his reasons on the complexity issue from Ivarone, a decision he had given in a s. 11(b) application in another case arising from the same project. As will become clear in my discussion of the application judge’s reasons, although there are many common factors between Ivarone and this case because they arose from the same project, ultimately, the application judge found that Ivarone was distinguishable from this case because the accused in Ivarone was participating in the lengthy Garofoli application.
39As the Crown does not challenge the application judge’s deduction for delay due to the COVID pandemic, I focus on the application judge’s complexity analysis from Ivarone. The application judge set out in his Ivarone reasons the relevant paragraphs from Jordan that describe what constitutes a particularly complex case. He considered the Ivarone case as a whole in assessing its complexity, including:
that it was a two-year-long project investigation;
that the investigation ultimately involved over 20 individuals and multiple locations and seizures of evidence;
that it involved two wiretap authorizations and many other warrants and judicial authorizations;
that the investigation resulted in hundreds of surveillance reports, more than 10,000 intercepted voice communications, and that disclosure was voluminous; and
the complexity of a lengthy Garofoli application involving multiple different groups of defendants.
40The application judge summarized his conclusions about the complexity of the Ivarone prosecution as follows:
Several terabytes of video and almost 70 gigabytes of notes, surveillance, warrants and other disclosure material was made reasonably quickly given the quantity of material involved. Although the trial itself will not be particularly complex the pretrial motions and disclosure process are particularly complex. It is self-evident that a full-scale Garofoli challenge with multiple different groups of defendants bringing interrelated applications to various of the 170 warrants and 2 wiretaps in this case is particularly complicated and notoriously difficult to schedule.
The above paragraph demonstrates that this is a particularly complex case. Disclosure is voluminous. The pretrial applications are complicated and time consuming. The interrelationship between this defendant’s case and other persons charged out of project OSkyfall is a complicating factor which required the appointment of a case management judge. Most of the charges involve seizures of significant quantities of hard drugs, making the stakes high. This is a particularly complex case justifying a delay to trial of almost 21 months.
41In Ivarone, the application judge also found that the Crown had developed and followed “a concrete plan” to minimize delay of the cases arising from the project investigation:
They sought and gained consent for appointment of a case management immediately. The[y] took steps in advance of the project takedown to contact the trial coordinator to arrange for an appearance before a judge to case manage the multiple parties and charges that were laid. They appropriately resolved some of the more minor charges and divided the prosecution into several groups of defendants instead of trying to keep them together on a monolithic approach. Within three months of the project takedown, the Crown had disclosed all of the judicial authorizations, a significant number of the informations to obtain those authorizations and more than 90,000 other files comprising 68.2 GB of disclosure. They have shown attention to the issue of delay in this case and have implemented a concrete plan with reasonable diligence, the standard they must meet set out in Jordan.
42In sum, in Ivarone, looking at the whole of the case and the conduct of the parties, the application judge found that the case met the particularly complex case threshold from Jordan and that the Crown pursued reasonable steps to minimize the delay in the face of this complexity.
43In his oral reasons in this case, the application judge explained the “qualifications” he placed on his complexity analysis from Ivarone in this case – in other words, what features of this case were distinguishable from Ivarone. He accepted that if the record in the respondents’ case supported that their trial needed to wait for the outcome of the Garofoli application, then a 19-month net delay would be constitutional “given the complex interrelationship of the pre-trial motions.” However, he rejected that the record supported the Crown’s contention that the respondents chose to schedule their trials after the Garofoli application. This led him to find that the Crown had failed to meet its burden to establish that the overall complexity of the project justified delay in the respondents’ case in excess of the presumptive ceiling:
I have carefully reviewed the record before me and find it does not support the prosecution’s position. And, of course, because the delay is over the 18-month Jordan threshold, they bear that onus and burden of proof. It may be that the defence took that position in the off-record discussions with the Trial Coordinator and all the other parties on the day that these dates were set but I have no evidence that the applicants took the position that the trial dates for the charges under consideration on this application should follow the Garofoli litigation of the 111 Brockley Group of litigants.
I find the 19-month delay is therefore not justified by the particular complexity of this particular case without the interconnection of the pre-trial motions. I cannot find that the volume of disclosure alone renders this a particularly complex case.
44The references in the application judge’s reasons to “the interconnectedness of the pre-trial motions of the several prosecutions arising from Project Skyfall”, to “the complex interrelationship of the pre-trial motions”, and to the fact that this case lacked “the interconnection of the pre-trial motions” show that he considered the case as a whole in assessing complexity. This is also clear from the aspects of his reasons in Ivarone that he adopted on the complexity issue in this case.
45It is also supported by a colloquy between Crown counsel and the application judge during submissions on the s. 11(b) application:
THE COURT: Okay. This is an important issue, Mr. Walsh, because as you’ll see tomorrow,7 my view of the complexity of the case is not in the trials themselves but in the disclosure process and the inter-relationship of the pre-trial motions amongst all those charged out of the project.
MR WALSH: Absolutely. I concur with that entirely. We absolutely could have run this trial in August of 2021, or I guess it would have been 2022.
46This colloquy shows two things. First, it was undisputed that the trials of several other project groups that were not participating in the Garofoliapplication had been scheduled to proceed in late 2022. The Crown acknowledged that similarly early trial dates could have been offered to the respondents if the Crown had realized that they were also not participating in the Garofoli application. Second, the application judge clearly understood that he had to assess the complexity of the respondents’ case in the context of the bigger picture of the whole project.
47Thus, the application judge considered in his complexity analysis the interconnectedness of the pre-trial motions for several of the cases arising out of the investigation, the volume of disclosure, and the fact that there were multiple accused, which the Crown had divided into groups for prosecution in order to attempt to mitigate delay. This is exactly the contextual analysis directed by Jordan. The application judge’s finding that the complexity of the case did not justify delay over the ceiling is entitled to deference.
48There is no question that the disclosure in this case was voluminous. The entire project investigation took over two years. It involved 150 judicial authorizations, including two wiretap authorizations. It resulted in charges against 18 people and over 70 gigabytes of disclosure. As the case management judge for all of the cases from the project, the application judge was familiar with the volume of disclosure. He summarized that issue in the complexity portion of his reasons in Ivarone, which he incorporated by reference into this case.
49In his oral reasons, the application judge considered the volume of disclosure, both in the context of the case as a whole and standing alone. The substance of the application judge’s finding is that once the additional complexity of the lengthy pre-trial Garofoli application was removed from the mix, the remaining aspects of the respondents’ case were insufficient to constitute a particularly complex case as described in Jordan. The conclusion that the volume of disclosure and the inherent difficulty of managing multiple cases did not on their own justify delay in excess of the Jordan presumptive ceiling is supported by the undisputed fact that the other project groups who were not participating in the Garofoli application were given trial dates in late 2022, well under the ceiling, and by the trial Crown’s acknowledgement that the Crown “absolutely could have run this trial in August” of 2022, and that if the respondents’ trial had not been deliberately scheduled after the Garofoli application they “could have got much, much earlier dates … far below the ceiling”.
50The application judge’s conclusion in this regard is consistent with the approach in Cody. In Cody, the Supreme Court found that voluminous disclosure in the context of an otherwise straightforward prosecution was not sufficient to meet the Crown’s burden to show that it was a particularly complex case: at para. 65. I note that Cody, like this case, involved serious drug trafficking charges, and arose out of a project investigation which led to charges against multiple people and involved voluminous disclosure.
51It was the Crown’s burden to show that the case fell within the exception for particularly complex cases. The application judge found that the Crown failed to meet that burden. The application judge’s finding that the Crown failed to meet its burden was grounded in the evidence in the record, in evidentiary gaps that were relevant to whether the Crown had discharged its burden, and by the Crown’s frank acknowledgment that trial dates could have been offered under the Jordan ceiling if the Crown had not believed that the trial had to await the outcome of the Garofoli application.
52The application judge referred in his reasons to the fact that two other trials arising from the same project which were not participating in the Garofoli application were scheduled well before 18 months from when the charges were laid. One prosecution group not participating in the Garofoli application was scheduled for August 8-12, 2022 (approximately 11 months after the charges were laid). Another was scheduled for five days in early December 2022 (approximately 1 year and 2 months after the charges were laid).8 As noted above, before the application judge, Crown counsel conceded that but for its assertion that the scheduling of the respondents’ trials was dependent on the Garofoli application, the respondents’ trial could have been scheduled as early as August 2022, “far below the ceiling”. The Crown noted that in April 2022 one of the two defendants in the Group 3 prosecution had pleaded guilty and the charges against the other accused had been withdrawn, and acknowledged that the five days in August 2022 that had been set aside for the Group 3 trial could have been offered to the respondents if the Crown had not believed that their trial had to await the determination of the Garofoli application.
53The application judge was entitled to rely on the evidence of the scheduling of the other non-Garofoli trials arising out of the same project, as well as the Crown’s concession, in support of his finding that the non-Garofoli trials were not so complex as to justify delay over the presumptive 18-month ceiling. This was compelling evidence of how soon it was possible to schedule similar cases in the same jurisdiction, arising out of the same project, and of similar relative complexity, in the application judge’s view. There is no basis to interfere with this finding. It is supported by the record, the local experience of the application judge, and his deep knowledge of the case due to his role as case management judge.
54The application judge also relied on gaps in the evidence when considering whether the Crown had met its burden to justify the delay over the presumptive ceiling based on asserted exceptional circumstances. The Crown chose not to lead any evidence in response to the s. 11(b) application. The absence of evidence that the respondents had taken the position that their trial dates should be scheduled after the Garofoli application was an important factor in the application judge’s conclusion that the Crown had failed to meet its burden to show that the Garofoli application was a factor which contributed to the complexity of this case.
55In sum, the application judge conducted the appropriate complexity analysis looking at the whole of the case. I see no error in the particular focus the application judge placed on the issue of whether the scheduling of the respondents’ trial was dependent on the Garofoli application and on the volume of disclosure. It was the focus of the submissions before him. The application judge considered the whole of the project prosecutions in his complexity analysis, including the interconnectedness of the pre-trial motions for several of the cases arising out of the investigation, the volume of disclosure, and the fact that there were multiple accused, which the Crown had divided into groups for prosecution in order to attempt to mitigate delay. Looking at the whole of the case, he found that when the factor of the lengthy Garofoli application was removed from the mix, the respondents’ case was not particularly complex in the sense described in Jordan, and that its complexity did not justify delay over the presumptive ceiling. That finding was open to him on the record and is entitled to deference.
(ii) The application judge did not err in not considering the Crown’s apparent mistake
56The Crown argues on appeal that, having found that the scheduling of the respondents’ trial was not dependent on the Garofoli application, the application judge erred in not going on to consider the trial Crowns’ apparent mistake in this regard. The Crown argues that not scheduling the respondents’ trials earlier was a misstep by the Crown that fell within its reasonable plan to divide the prosecutions into groups and schedule the non-Garofoli trials earlier. The Crown argues that this isolated misstep does not undermine the Crown’s reasonable efforts to mitigate delay.
57The problem with the Crown’s reasonable mistake argument is that it was not made below. Before the application judge, the Crown put forward its justification of the delay under the exception for particularly complex cases on the basis of the size of the investigation, the volume of disclosure, and the multi-week Garofoli application. In both written and oral submissions before the application judge, the Crown took the position that the scheduling of the trial in this matter was dependent on the Garofoli application hearing, and that the respondents chose or acquiesced to that scheduling. The trial judge rejected this argument, as I have outlined above. The trial Crowns did not argue before the application judge that if they made a mistake about the scheduling of the respondents’ trial being dependent on the Garofoli application, this was a reasonable mistake, and that a reasonable mistake within a plan to minimize delay should be a factor that is weighed when assessing whether the delay was unreasonable.
58Nothing prevented the Crown from making an alternative argument before the application judge that, in the event he found that the scheduling of the respondents’ trial was not dependent on the Garofoli application, the Crown’s apparent mistake was reasonable in the context of an appropriate plan to manage the prosecution. It was not an error for the application judge not to consider an argument that was not advanced before him by the Crown.
59This is particularly so where the Crown chose to lead no evidence in relation to the mistake issue. As noted above, the steps taken by the Crown in a plan to minimize delay for a particularly complex case need not meet the standard of perfection. However, if the Crown had sought to justify the delay in this case on the basis that Crown counsel had made a reasonable mistake about the need for the respondents’ trial to await the determination of the Garofoli application, one would expect the Crown to have provided an evidentiary basis for the argument, and to have explained to the application judge how the mistake happened, and why it was reasonable in the circumstances. Even if the trial Crowns had not anticipated the respondents taking the position that they had never meant to participate in the Garofoliapplication, the Crowns could have asked to have the s. 11(b) application adjourned so they could assemble evidence on this point. In my view, having not properly raised this issue before the application judge, the Crown cannot now argue that he erred by not addressing an argument that was not made.
(iii) The application judge’s error in the calculation of the overall delay had no impact on his assessment of exceptional circumstances based on asserted complexity
60The application judge’s error in the initial calculation of the overall delay does not remove the deference owed to his assessment of whether the Crown had shown that this case fell within the particularly complex case exception.
61As noted above, the case law is clear that an application judge’s assessment of whether the Crown has shown that a case falls within the exception for particularly complex cases is entitled to deference. Here, the application judge had been case managing this prosecution for a year by the time he heard the s. 11(b) application. He was exceptionally well-positioned to assess the relative complexity of the case.
62His error with respect to the overall delay – by starting from the arrest date/offence date, rather than the date that the Information was sworn – had no impact on his assessment of whether the delay was justified by the complexity of the case. This is not a case where the application judge found that some delay over the 18-month ceiling was justified by particular complexity of the case and, thus, that a net delay of 18 months and 4 days may have been justified by the complexity of the case but that a net delay of 19 months was not justified. Rather, the application judge found that without the Garofoli application, the respondents’ case as a whole did not meet the particularly complex case threshold. As I have outlined above, this conclusion was grounded in the record and the application judge’s knowledge of the case as the case management judge. In particular, the record supported the conclusion that because the scheduling of this case was not dependent on the Garofoli application, it could have been scheduled in late 2022, well before the 18-month ceiling.
(4) Delay just over the Jordan ceiling
63Properly calculated, the delay in this case is only slightly above the Jordan ceiling, 18 months and 4 days, after the deduction of three months for the exceptional circumstances related to the COVID pandemic. One might be tempted to reason that this is “close enough.” However, as I have already noted, in Jordan, at para. 56, the majority made clear that the presumptive ceiling “is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable.” The hard ceilings in Jordan give practical effect to this principle. A “close enough” approach would foster the uncertainty and culture of complacency rejected by Jordan.
64A reader may also ask whether a little more time could have been allocated for the exceptional circumstances of COVID delay, given that the assessment of COVID delay is not an exact science and involves, to some extent, a judgment call. However, such an approach would be inconsistent with this court’s appellate role for two inter-related reasons.
65First, on appeal, the Crown chose not to challenge the application judge’s finding in Ivarone, which he adopted in his decision in this case,that three months was an appropriate assessment of the delay caused by COVID, in the absence of case-specific evidence justifying a longer delay. As the application judge explained in his reasons in Ivarone, at para. 16:
It is possible a greater covid 19 delay effect delayed this case. Any delay caused by Covid 19 greater than 3 months, a conservative estimate of Hamilton’s local conditions, must be demonstrated by statistical evidence to prove the delay was greater than the 3 months I have attributed as a discrete exceptional event in this case. No such evidence was called in this matter so nothing greater than the 3-month attribution will be applied.
The trial Crown did not lead any evidence to justify a longer deduction for delay due to the COVID pandemic. The Crown on appeal took the position that the three-month deduction for the exceptional circumstances of the COVID pandemic was reasonable.
66Second, there is no apparent legal or factual error in the three months the application judge deducted for delay due to the COVID pandemic. This court has emphasized the importance of the local perspective and trial judges’ familiarity with circumstances in their courthouse and jurisdiction in evaluating pandemic-related delay: R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, at para. 26, leave to appeal refused, [2023] S.C.C.A. No. 477; R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, at para. 6, leave to appeal refused, [2024] S.C.C.A. No. 41; R. v. L.L., 2023 ONCA 52, at paras. 21-23. While the quantum of deduction for delay caused by the exceptional circumstance of the COVID pandemic has varied from case to case, the three-month deduction made by the application judge is consistent with the quantum deducted by other judges in similar circumstances: R. v. Korovchenko, 2022 ONCJ 388, at paras. 102-105; R. v. Nikiforos, [2024] O.J. No. 407 (S.C.J.), at para. 23; R. v. Martins, 2024 ONSC 146, at paras. 23-25; R. v. Clark, 2024 ONCJ 218, at paras. 8-9.
D. Conclusion and disposition
67I am not persuaded that the application judge erred in his assessment of whether the Crown met its burden to show that the case fell within the particularly complex case exception to the presumptive ceiling. I would dismiss the appeal.
“J. Copeland J.A.”
“I agree. J. Dawe J.A.”
A. Overview
68I have had the benefit of reading my colleague’s well-written reasons for dismissing the appeal. I part company with respect to the following issues that, in my view, materially affect the application judge’s analysis of the reasonableness of the four-day delay above the 18-month Jordan ceiling.
69The application judge erred in his calculation of the overall delay as 22 months rather than 21 months and four days. While I agree with my colleague that this error alone would not affect the correctness of the application judge’s analysis, this miscalculation, along with the application judge’s errors in his consideration of the complexity of the case as a whole, materially affected his determination of the reasonableness of the delay. In my view, the application judge principally erred by too narrowly focusing on the issue of whether the respondents agreed to schedule their trial following the hearing of the Garofoli application rather than stepping back to analyze the root cause for the delay. The application judge erred by failing to consider the complex circumstances surrounding scheduling numerous trials and motions with numerous parties and the reasonableness of the Crown’s understanding that the respondents chose to schedule their trial following the hearing of the Garofoli application notwithstanding that earlier trial dates were available.
70The application judge recognized the complexity of the proceedings and, along with the respondents, commended the Crown for its adept management and efficient prosecution of them. As earlier noted by my colleague, the respondents were two of eighteen individuals charged as a result of Project OSkyfall, a large-scale drug investigation into more than twenty individuals over a two-year time frame. It was a joint investigation between the Hamilton Police Service and the Royal Canadian Mounted Police. The investigation involved two wiretap authorizations, numerous search warrants and other judicial authorizations, and surveillance reports that produced more than 10,000 intercepted voice and text communications, several terabytes of video and nearly 70 gigabytes of notes, surveillance warrants, and other disclosure. The investigation resulted in the seizure of significant quantities of hard drugs.
71The respondents’ charges arose from the seizure of two kilograms of cocaine, three kilograms of methamphetamine, and 500 grams of psilocybin from a storage locker at Concord Place, and $400,000 in cash from Regalview Drive. Mr. Vrbanic was also jointly charged with offences involving other individuals arising out of the same project.
72As my colleague has also described, the management of the proceedings included the early appointment of the application judge to case manage the proceedings and several attendances to schedule the various pre-trial motions, including the Garofoli application, the judicial pre-trial attendances and trial dates for the ten prosecution groups (the respondents were the Group 5 prosecution group and Mr. Vrbanic was also part of the Brockley/Group 8 prosecution group). The Crown does not challenge on appeal the application judge’s factual finding that there was no evidence of an agreement on the record that the respondents were content to await the outcome of the Garofoli application and have a later trial. However, as I explain later in these reasons, the transcripts from those pre-trial attendances fully support the reasonableness of the Crown’s belief that the respondents chose to schedule their trial to follow the hearing of the Garofoli application although there were earlier trial dates available.
73The application judge was not persuaded that the Crown had met its burden of demonstrating that the complexity of the proceedings amounted to exceptional circumstances that justified the four-day delay above the 18-month ceiling, which the application judge erroneously treated as one month. He based that conclusion on his determination that it was the interconnection between the Garofoli application and the trial proceedings that created complexity rising to exceptional circumstances in other cases arising out of Project OSkyfall. The application judge determined that there was no such interconnection in this case because the Crown had failed to prove the respondents’ agreement to schedule their trial after the hearing of the Garofoli application. He reasoned that when reliance on the Garofoli application was removed from the analysis, there were no exceptional circumstances arising from procedural complexity to justify the delay above the 18-month ceiling.
74In my view, the application judge’s analysis of the reasonableness of the delay was flawed because of the miscalculated delay and his approach to the assessment of the complexity of the case. He should not have disregarded the scheduling of the Garofoli application as it served to explain how the respondents’ trial was scheduled. It also operated as crucial context for the reasonableness of the Crown’s belief in the respondents’ agreement to the scheduling of their trial and the possibility of confusion arising from the procedural complexity of this matter. A proper qualitative assessment of the overall complexity of the case required consideration of the scheduling of the Garofoli application. When correctly assessed, the four-day delay above the 18-month ceiling was reasonable because of the exceptional circumstances of this case. These reasons explain why I would allow the appeal.
B. Background
75I do not propose to repeat my colleague’s comprehensive recitation of the relevant facts. To provide a factual framework for my analysis, it is necessary only to set out in further detail the procedural background that I say informs the exceptional circumstances in this case.
76I start with the facts that are not in dispute. It is common ground that there were earlier dates available for the respondents’ trial at the time that trial dates were being scheduled in April 2022 and later in December 2022 when another trial folded and further dates became available; and that if the respondents’ trial had been scheduled for August or December 2022, there would not have been presumptively unreasonable delay. The respondents do not allege that the time that this matter took up until the 18-month threshold was unreasonable; on the contrary, they commended the Crown’s efficiency. There is also no dispute that the Crown’s honestly held belief, rightly or wrongly, was that the respondents wished to await the outcome of the Garofoli application and therefore were content to schedule their trial following its hearing.
77The record of the attendances filed shows that at no time did the respondents explicitly state that they were content to await the outcome of the Garofoli application; however, at no time on the record did the respondents state that they were not affected by and therefore not content to await the outcome of the Garofoli application and required an earlier trial date, as other counsel had done. It was clear at the time that the trial dates were being scheduled that they were being scheduled to accommodate the hearing of the Garofoli application for affected accused. It was also clear that counsel for unaffected accused spoke up but that the respondents did not.
78There were three appearances before the application judge before the Garofoli application was scheduled and the trial dates were set in most of the prosecution groups. In the course of these appearances, Crown and defence counsel informed the application judge of the status of the proceedings including the application for the application judge to act as case management judge, the state of the disclosure relevant to each accused’s charges, and the need to set application and trial dates. A simple reading of the transcripts demonstrates, in my view, the tremendous scheduling complexity in these proceedings and the strong possibility for confusion.
79At the first appearance before the application judge on January 12, 2022, counsel for the respondents indicated that their respective retainers were not finalized and asked for bench warrants with discretion.
80Counsel for the respondents did not ask to set trial dates although counsel for Mr. Vrbanic advised: “I don’t really have much else to say, I just want to get this case moving as quickly as possible”; and counsel for Ms. Josipovic remarked that: “It’s our position that she is chaff in this prosecution and should be cut”.
81On the February 9, 2022 appearance, Crown and defence counsel agreed to the application judge’s suggestion that separate judicial pre-trials should be held for each prosecution group, with a joint pre-trial for a possible joint Garofoli application. Crown counsel noted that it was his impression that “there will be somebody who would sort of take the lead” on the Garofoli application so that there was no repetition of arguments and that parties could rely on the outcome in their own cases even if not participating directly. The respondents did not express a different view.
82The application judge conferred with the trial coordinator about possible dates, proposed scheduling, including for the Garofoli application, and asked counsel for input:
The thinking is that we’ll try to set two days now for the series of pre-trials, and then also set something thereafter for the Garofoli. If there’s some stragglers who can’t do the dates that are being suggested, we’ll have to deal with that. So maybe I’ll just start the process of getting counsel to give me any input.
83The respondents did not indicate during that attendance that they would not participate in the Garofoli pre-trial or the Garofoli application. One reason for this may have been because, as the discussion in the transcript reflects, disclosure of the remaining 69 informations to obtain had not yet been made and it was not yet possible to determine who would be participating in or affected by the Garofoli application and pre-trial. Judicial pre-trials were set for March 24 and 25, 2022, and the matter was adjourned to April 8, 2022 for a pre-trial on the Garofoli application.
84The discussions during the April 8, 2022 attendance are significant in understanding how the respondents’ trial dates were set and how the Crown’s belief about their position was formed. Specifically, the discussions initially centred around the challenge in scheduling a Garofoli application in which most counsel would participate or one representative Garofoli application, the outcome of which could apply to the other ITOs. Ultimately, two Garofoli applications were scheduled: one for Mr. Reeve’s prosecution group and one for the Brockley Group, Group 8, of which Mr. Vrbanic was a part. The Brockley Group/Group 8 Garofoli application is what is being referenced in these reasons as the Garofoli application.
85Crown counsel, Ildiko Erdei, stated that the purpose of the attendance was “to discuss the Garofoli and then set dates”. Crown counsel then asked, as it was “a bit unclear” to her, for clarification from defence counsel as to how they were going to join in the challenge to the ITOs with respect to one accused, Mr. Reeve. Mr. Reeve’s counsel, Mr. Rusonik, who had taken the lead in the discussions about scheduling on previous attendances, responded. He, Crown counsel, and the application judge, then had the following exchange:
Mr. Rusonik: I think the others would have standing in terms of the Reeve, if we can call it that, the Reeve ITO because there are things that come out of the execution of that warrant that are then subsequently included in subsequent ITO’s. And therefore, if the Reeve ITO is successfully challenged [], there’d have to be an excise down the line.
Ms. Erdei: To a certain degree we would agree. If something is excised from some of the earlier ITO’s that is repeated in a later ITO, and it’s excised because either there’s a material misrepresentation or omission, or whatnot, and it is identical in the later ITO’s, we would have to agree that it would be excised in the later ITO’s.
Mr. Rusonik: Okay. And just to complete the thought, I don’t know if they have – if someone subsequently has standing in the sense of being able to directly participate in that argument because it relates to a place, location, and the rights of individuals that the standing is still in issue.
Ms. Erdei: Yes.
Mr. Rusonik: So they certainly have an interest … they certainly have an issue in terms of wanting to see the outcome of that challenge, but they won’t actually be allowed to participate in it.
And, Your Honour, I’m wondering if, you know, the thought up until this point is to do everything in one lump sum, one lump proceeding, but maybe it makes more sense for the challenge to the Reeve ITO to go first separately and then the -
The Court: I’ve been struggling with this, staying up nights, Mr. Rusonik, thinking about it. The challenge in scheduling this many lawyers in a single proceeding, even if I have the ability to do so as a case management judge, I think would be an insurmountable challenge to – because those who are experienced in Garofoli applications know, in a fully litigated Garofoli, there are so many steps, and even the best laid plan of mice and men go agley. I just don’t know how we could do a group Garofoli with 18 lawyers.
But I think what Mr. Rusonik is suggesting, and I had the same thought, is pick an early warrant that is going to have impact on others by way of excision, or other fallout, if I can put it that way, from whatever decision is made by the case management judge, and then schedule from there, knowing that the Court will bend over backwards to get these dates in before the eventual trial date, which I hope will be set today. [Emphasis added.]
86The application judge suggested that they “should have discussions about what the actual trial dates for these things are going to be, and then get back together today to discuss this Garofoli issue”. He said he was “open to doing sort of a – I don’t want to call it a test case, but a case that will direct the other parties as to whether and how to schedule their motions.” (Emphasis added.)
87In response, counsel for two other accused indicated that they were not in a position to set trial dates because they were missing substantial disclosure. The application judge and counsel had the following exchange:
The Court: But is it your position that the Charter challenge [the Garofoli application] that Mr. Rusonik is talking about will have no relevance to your Charter litigation?
Ms. Shemesh: It will have no relevance.
The Court: Okay. So this is kind of a separate thing, in your view?
Ms. Shemesh: Yes.
The Court: Okay. So any excisions that occur out of his litigation are not going to affect the warrants that you’re dealing with?
Ms. Shemesh: I don’t think so.
The Court: Okay. All right. Well, it may be that that will have to be done on a separate track then.
[Emphasis added.]
88The application judge then directed Ms. Shemesh to speak to the Crown about outstanding disclosure and other matters.
89Counsel for another accused then interjected and advised that his client “has no Charter argument”. He advised that he and the Crown were talking about potential resolution and asked if his client’s matter could be put over for a couple of weeks to be spoken to. The application judge asked if “the Federal Crowns agree with that, that there’s no point in setting dates on that because you’re likely to resolve the matter? Okay.” The application judge then indicated that they would set a trial date which could be vacated and the matter brought forward if there was a resolution.
90During these discussions, the respondents’ counsel did not make any statements that they would not be participating in nor relying on the outcome of the Garofoli application, although, as I just reviewed, other counsel did so. They also did not ask to adjourn their matter or set a trial date before the hearing of the Garofoli application, although, absent confusion, they must have been aware that there were trial dates available before the hearing of the Garofoli application.
91After an off-the-record Zoom meeting with the trial coordinator, s. 11(b) application dates, trial dates and some dates for the Garofoli application were set before the application judge. During this process, the trial coordinator informed the application judge that she had advised counsel that “if things change, they can bring the matters forward for earlier dates” and that it was her understanding that “the bulk of [the matters] have to be set after the March 15-day [Group 8 trial] matter.” Trial dates and eight of the twenty dates needed for the Garofoliapplication in the Group 8 matter were set but it was adjourned to April 14, 2022 to set further dates for the Garofoli application and the Group 8’s s. 11(b) application. Other matters were similarly adjourned to April 14, 2022 for further scheduling.
92The respondents’ counsel scheduled the s. 11(b) application and the trial dates in their Group 5 matter at this April 8 appearance. However, the respondents did not indicate that they were not participating in nor awaiting the outcome of the Garofoli application, nor did they ask to “bring [their matter] forward for earlier dates”. They did not correct the trial coordinator or say anything to contradict her understanding as to how matters would be scheduled. After their trial dates were read into the record, the respondents’ counsel indicated they “accepted the earliest dates that were offered”. Except for shorter trials9, these dates appear to be the earliest trial dates set following the hearing of the Garofoli application.
93Before adjourning the attendance, the application judge asked twice whether anyone had any further comments or if there was “[a]nything else we need to do at this stage?” The respondents did not make any comments with respect to their Group 5 matter.
94On the same date, the trial coordinator’s office provided a Trial Scheduling Form confirming the dates for the Group 5 trial and s. 11(b) application. That form also indicated that a Garofoliapplication was “being set separately”. The setting of Group 8 dates was completed on April 14, 2022 and the trial coordinator’s office provided a Trial Scheduling Form on that date. The form confirmed the Garofoli dates that were set during the appearance on April 8, 2022, with additional dates set for September and December 2022. The form for Group 8 indicated that a Garofoli application was being “set separately”. Again, there was no indication that Group 5 was not awaiting nor relying on the outcome of the Garofoli application.
95At the hearing of the respondents’ s. 11(b) application, the respondents denied ever having taken the position that the scheduling of their trial dates was dependent on the Garofoli application. However, on the s. 11(b) application, while counsel for Mr. Vrbanic took the position that his client was not and had never been relying on the Garofoli application for the Group 5 charges, at the same time, that position was not absolute as he left open that he might re-evaluate Mr. Vrbanic’s reliance on the outcome of the Garofoli application “if something changes”.
96The application judge allowed the respondents’ s. 11(b) application and stayed the Group 5 proceedings against them. He determined that the Crown had not met its onus to prove exceptional circumstances justifying the delay above the 18-month ceiling. Without referring to the details of the attendances that I have just reviewed, the application judge stated that there was no evidence of the respondents’ agreement to await the outcome of the Garofoli application before proceeding to trial. However, he did not make a finding one way or the other as to whether the respondents in fact had or had not agreed to await the outcome of the Garofoli application. He stated: “It may be that the defence took that position in the off-record discussions with the Trial Coordinator and all the other parties on the day that these dates were set but I have no evidence that [the respondents] took the position that the trial dates for the charges under consideration on this application should follow [the Garofoli application].” He also did not consider the reasonableness of the Crown’s understanding that the respondents were content to await the outcome of the Garofoli application in setting their trial dates in the absence of the respondents indicating that they were not affected by the Garofoli application and seeking earlier dates, as other counsel had done.
C. Analysis
(a) Standard of Review
97I adopt my colleague’s description of the applicable standard of review. In particular, decisions on matters such as complexity, the existence of a reasonable plan, and the way the Crown implemented the plan and attempted to minimize delays are subject to deference from this court: R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at paras. 14, 35.
98I am of the view that the application judge’s decision here depends on the miscalculation of the net delay and a misapplication of the governing principles respecting exceptional circumstances. Accordingly, I would accord no deference to the application judge’s conclusions on complexity and reasonableness of the delay because it is affected by legal error: R. v. Hanan, 2022 ONCA 229, 161 O.R. (3d) 161, at para. 41, rev’d on other grounds, 2023 SCC 12, 170 O.R. (3d) 240; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 137, leave to appeal refused, [2018] S.C.C.A. No. 135; R. v. Lai, 2021 BCCA 105, 402 C.C.C. (3d) 1, per G.B. Butler J.A., dissenting, but not on this point, at paras. 162-165, aff’d 2021 SCC 52, 407 C.C.C. (3d) 1; R. v. Zahor, 2022 ONCA 449, at para. 79. In my view, these errors materially affected the application judge’s ultimate decision as to whether the delay was unreasonable. The ultimate determination that there has been unreasonable delay is subject to review on a standard of correctness: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5, at para. 2; Morash, at para. 14; R. v. S.A., 2024 ONCA 737, at para. 18; R. v. R.B.-C., 2024 ONCA 930, at para. 60.
(b) Application of the Jordan analytical framework
(i) The Jordan framework – Exceptional Circumstances Analysis
99My colleague has detailed the well-established analytical framework set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. It is therefore only necessary for me to repeat some of the elements as context to my consideration of the application judge’s analysis of exceptional circumstances in light of the four-day presumptively unreasonable delay.
100As Jordan instructs, at para. 69, exceptional circumstances have two components: “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in the original). In general, exceptional circumstances are categorized as discrete events or particularly complex cases: Jordan, at para. 71; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 37-39. In this case, the Crown relies only on the particular complexity of these proceedings. Therefore, the application judge had to “look to the complexities of the case to determine whether the passage of time is nonetheless reasonable”: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 8, leave to appeal refused, [2018] S.C.C.A. No. 325.
101While the Jordan presumptive ceilings already reflect the “increased complexity of criminal cases since Morin”, assessing the particular complexity of a case is a qualitative assessment: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 63, 64. This requires the court to step back from the minutiae and adopt a bird’s eye view of the case: Jordan, at paras. 37, 91; R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, at para. 22, leave to appeal refused, [2023] S.C.C.A. No. 478; Zahor, at paras. 92-93. Jordan instructs that the undertaken analysis must be based on reasonableness in relation to the “circumstances of the particular case at hand”: at para. 58, explaining at para. 51:
While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: … compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time.
102The ultimate question is whether the particular delay is justified in light of the particular complexity of the case: Jordan, at para. 80; Cody, at para. 65; Coulter, at para. 39.
103It is the Crown’s burden to “link complexity to the delay that ensued and also demonstrate that, despite developing a plan to address the complexity and minimize the delay, it was unable to do so”: R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 83. Complexity does not provide an automatic excuse for delay. Neither, as the application judge noted, does voluminous disclosure: Cody, at para. 65.
104In complex prosecutions, such as large drug investigations, a prosecution plan must be developed and followed to minimize the delay resulting from the complexity: R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2. The actions and decisions made by the police and the Crown in how they investigate and manage large project cases must respect s. 11(b) of the Charter: Jordan, at para. 79; Cody, at para. 36. Project cases often present considerable challenges and Crown counsel must be on guard to ensure that s. 11(b) guarantees are not compromised: R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 5.
105While the Crown bears the burden to justify presumptively unreasonable delay on the basis of exceptional circumstances, the test for exceptional circumstances “does not impose a standard of perfection upon the Crown” because “[t]rials are not well-oiled machines” (Jordan, at para. 73), and “[m]istakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b)”: Cody, at para. 58. See also, Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 45, leave to appeal refused, [2020] S.C.C.A. No. 53.
106Moreover, the consideration of reasonableness includes the consideration of all the participants’ efforts to advance the matter. As Jordan instructs, at para. 116: “[U]ltimately, all participants in the justice system must work in concert to achieve speedier trials”. The Crown must develop and follow a concrete plan to minimize the delay caused by complex proceedings: Jordan, at para. 79. The Jordan framework “also encourages the defence to be part of the solution” with the expectation that “accused persons who are truly prejudiced … be proactive in moving the matter along”: Jordan, at paras. 113, 109.
(c) Jordan Principles Applied
107In my view, the application judge’s approach to the exceptional circumstances analysis was flawed. The analysis should be undertaken anew.
108First, he relied on a miscalculation of the net delay. He treated the net delay above the ceiling as one month; the correct calculation was four days. As Jordan instructs, the length of the delay above the ceiling is relevant to the assessment of the reasonableness of the delay: at para. 80. The weighing of the delay of four days versus the consideration of a month of delay over the 18-month threshold is a material difference in the assessment of reasonableness, especially in a complex case where, as the application judge found here, the Crown had implemented and followed an excellent litigation plan. Indeed, if the trial had been estimated for only one day, with a proper calculation of the delay, the 18-month ceiling would not have been exceeded.
109That said, I agree with my colleague that the calculation error alone would not justify setting aside the application judge’s decision and undertaking a fresh analysis. However, the calculation error stands as one of the flaws of the application judge’s analysis that do justify appellate intervention. In my view, the application judge failed to carry out a complete analysis in accordance with the Jordan analytical principles that I have just reviewed. Specifically, he did not step back and take a “birds-eye” view of all relevant circumstances that comprised the complexity of this case and consider whether that complexity caused the four-day delay over the 18-month ceiling. He also held the Crown to a standard of perfection without regard to the role of the respondents and how their actions (and inaction) contributed to the Crown’s belief that the respondents were relying on the Garofoli application, which underpinned the scheduling of their trial.
110While the respondents contend that their prosecution was a simple possession trial, there was no question that Project OSkyfall as a whole had all the hallmarks of complexity that the Supreme Court suggested may give rise to exceptional circumstances: a large number of charges and pre-trial applications, novel or complicated legal issues, a large number of significant issues in dispute, and proceeding against multiple co-accused: Jordan, at paras. 77, 78. The simple coordination of dates among the calendars of multiple defence counsel, the Crown and court adds a layer of complexity to the proceedings: Jurkus, at para. 67.
111In R. v. Ivarone, 2023 ONCJ 69, the application judge’s decision in a related s. 11(b) application by another accused arising out of Project OSkyfall, the application judge made material findings which he adopted in the present case about the complexity of Project OSkyfall as a whole. He characterized Project OSkyfall in general as “a particularly complex case”: Ivarone, at para. 27. While noting that “the trial itself [in Ivarone] will not be particularly complex, the pretrial motions and disclosure process are particularly complex” and that “[i]t is self-evident that a full-scale Garofoli challenge with multiple different groups of defendants bringing interrelated applications to various of the 170 warrants and 2 wiretaps in this case is particularly complicated and notoriously difficult to schedule”: Ivarone, at para. 25. (Emphasis added.) These findings applied to all the prosecutions arising from the investigation.
112At paragraph 27 of Ivarone, the application judge summarized the overall complexity of Project OSkyfall that he had detailed in the preceding paragraphs of his reasons:
Disclosure is voluminous. The pretrial applications are complicated and time consuming. The interrelationship between this defendant’s case and other persons charged out of [P]roject OSkyfall is a complicating factor which required the appointment of a case management judge. Most of the charges involve seizures of significant quantities of hard drugs, making the stakes high. [Emphasis added.]
113The application judge’s reasons on complexity in Ivarone do not simply depend on the accused’s reliance on the outcome of the Garofoli application nor are they limited to the particular circumstances present in Ivarone. Rather, in Ivarone, the application judge, correctly in my view, stepped back and assessed complexity from the perspective of the entire investigation and with acknowledgement of all of its many moving parts that added to the complexity of the proceedings, as borne out by the record before him. Instead of applying this broad contextual lens in the present case, the application judge erred by treating reliance on the pre-trial motions as determinative of the complexity arising from the interconnectedness of the motions and the proceedings.
114The interrelationship between the Garofoli application and trial scheduling remained pertinent. The application judge erred in taking it out of the equation. But for the complication of scheduling the Garofoli application, the respondents’ trial would have been heard earlier and there would have been no delay over the Jordan ceiling. The application judge’s findings in Ivarone regarding the procedural complexity created by scheduling the Garofoli application around numerous trial dates, counsel and parties remained applicable in the present case.
115The application judge correctly determined that the scheduling of the respondents’ trial following the hearing of the Garofoli application caused the delay above the 18-month ceiling. However, that was not the end of the analysis required under the Jordan framework. He failed to go on and examine why and how the scheduling of the respondents’ trial occurred. Without determining why and how the scheduling took place, the application judge could not ascertain whether the complexity of the case led to that result and whether this amounted to exceptional circumstances justifying the four-day delay above the 18-month ceiling. The absence of an agreement put on the record by the Crown or the respondents to schedule their trial following the Garofoli application was not determinative of these issues. To get to the root of the issue, the application judge had to pursue the analysis further.
116Why and how was the respondents’ trial scheduled following the Garofoli application when it was known that there were earlier trial dates available? Was it a product of the Crown’s understanding or misunderstanding of the respondents’ position? If so, how did the Crown’s belief arise? Did it result from the respondents’ failure to speak up, indicate they were not affected by and did not wish to wait for the outcome of the Garofoli application, and ask for earlier trial dates, like other counsel had done? Was there confusion all around because of the complexity of scheduling these proceedings with so many matters, parties and counsel? To answer these questions, the application judge had to look at the record of the attendances and review how the Garofoli application and trial dates were set.
117The application judge did not undertake this analysis. He restricted his analysis to considering whether the Crown proved that the respondents agreed to await the Garofoli application and were content with later trial dates, and decided that the Crown had failed to meet its burden. What did the application judge’s finding mean? In my view, given the record and the respondents’ silence, the application judge’s finding can only reasonably mean that there was no agreement explicitly put on the record. While this finding was open to him, and the Crown does not challenge it on appeal, the application judge erred by not going further and addressing the questions that I have just reviewed, which was necessary for a proper contextual analysis.
118The record, as I have reviewed earlier, supports the application judge’s adopted findings from Ivarone that Project OSkyfall was complex and that its complexity arose in good measure from scheduling numerous attendances, applications and trials involving numerous Crown and defence counsel and accused. The excerpts from the various attendances and, in particular, the exchanges between the application judge and counsel that I have just reviewed, amply illustrate the complexity of managing these proceedings.
119The record also grounds the Crown’s reasonable belief that the respondents intended to await the outcome of the Garofoli application. Present at the attendances, the respondents should have heard that there were earlier trial dates before the hearing of the Garofoli application. They should have heard that the trial coordinator was prepared to move things forward and offer earlier dates. They should have heard that other counsel spoke up and advised when they were not affected by the Garofoli application and not prepared to await its outcome. They accepted trial dates after the scheduled date for the Garofoli application. They did not indicate they were unaffected by the Garofoli application nor ask for earlier trial dates when given the opportunity to do so by the application judge. In accordance with the expectations of the Jordan framework that I earlier reviewed, if the respondents felt they were being prejudiced by any delay, they would have been “proactive in moving the matter along”: Jordan, at para. 109. In these circumstances, the respondents’ silence can only be reasonably explained by their confusion arising from the complexity of the proceedings.
120In light of this record, there can be no question that had the respondents stated that they wanted to schedule their trial before the hearing of the Garofoli application, and had the Crown or the trial coordinator known that the respondents wanted earlier trial dates, which were available in April 2022 and then in December 2022, earlier dates would have been offered for the respondents’ trial. The Crown made this submission before the application judge in support of its understanding that the respondents were intending to rely on the Garofoli application.
121At the very least, the application judge had to consider whether there was confusion over the scheduling of the respondents’ trial dates following the Garofoli application, how that confusion arose, and whether that confusion amounted to exceptional circumstances. And, if there was confusion on the part of the Crown, the respondents, or everyone, whether it was reasonably unforeseen or reasonably unavoidable. The next analytical step under the Jordan framework would have been to consider whether Crown counsel could have reasonably remedied the delays emanating from those circumstances once they arose. The application judge did not address these questions. His analysis was therefore incomplete.
122In my view, the Crown’s belief that the respondents were relying on the Garofoli application for the purpose of scheduling the Group 5 trial was reasonable in the particular circumstances of this case. Pre-trial, application and trial dates had to be set for 18 accused in ten different prosecution groups, including the 15‑day trial for the Group 8 prosecution group of which Mr. Vrbanic was part. The 20‑day Garofoli application had to be accommodated over the course of six months. Voluminous disclosure had to be made and was carried out in a timely way. As already indicated, the joint discussions before the application judge to set individual pre-trial and Garofoli pre-trial and application dates clearly proceeded on the understanding that most accused were either directly participating in or awaiting the outcome of the Garofoli application to determine whether it impacted their cases. Where that was not so, it was a reasonable expectation in the circumstances of this case that counsel would indicate that their clients’ matters should be scheduled differently. Some counsel did speak up and those cases were put on another “track” and received earlier trial dates.
123The application judge did not make a finding that the Crown’s understanding of the respondents’ position was mistaken, nor did he find that the respondents did not agree to await the outcome of the Garofoli application before proceeding to trial. However, if the Crown’s understanding of the respondents’ position was mistaken, its inadvertent mistake was understandable and an isolated mistake in an otherwise commendable litigation plan. In assessing the Crown’s burden to show its understanding was reasonable, the respondents’ silence and their acceptance of trial dates following the Garofoli application prior to the hearing of the respondents’ s. 11(b) application inform the reasonableness of the Crown’s belief about the respondents’ position in the particular circumstances of this case.
124It is common ground that the Crown’s overall management of the proceedings was commendable. At para. 2 of Ivarone, the application judge praised defence and Crown counsel who “did all the right things to bring this matter (and the other matters arising from project OSkyfall) to trial in a timely way” and that “[g]iven the large volume of disclosure generated by the investigation the disclosure was provided relatively quickly” which the defence reviewed “relatively quickly” (emphasis added).
125The application judge further described in Ivarone, at para. 28, the tremendous efficacy of Crown’s management of the proceedings:
I add that the Crown has developed a concrete plan for prosecution from the outset. They sought and gained consent for appointment of a case management [judge] immediately. They took steps in advance of the project takedown to contact the trial coordinator to arrange for an appearance before a judge to case manage the multiple parties and charges that were laid. They appropriately resolved some of the more minor charges and divided the prosecution into several groups of defendants instead of trying to keep them together on a monolithic approach. Within three months of the project takedown, the Crown had disclosed all of the judicial authorizations, a significant number of the informations to obtain those authorizations and more than 90,000 other files comprising 68.2 GB of disclosure.
126Similarly, at paras. 36 and 37 of their factum on the s. 11(b) application, the respondents commended the Crown, acknowledging that trial dates were set promptly and there were no “wasted steps”:
“Project cases” often present considerable challenges and Crown counsel must be on guard to ensure that s.11(b) guarantees are not compromised. In the case at bar, it would appear that Crown counsel acted responsibly and made decisions on how to best handle a prosecution that involved more than a dozen accused. While those efforts are to be applauded, “chronic institutional delay” remains.
127The respondents took the position on their s. 11(b) application that they did not intend to await the outcome of the Garofoli application before proceeding to trial. By then, it was too late for the Crown to provide earlier trial dates. Had the respondents spoken up earlier, as other counsel had done, earlier trial dates would have been available, including the dates available from other resolved trials. In these circumstances, the Crown did not act unreasonably.
128In my view, the Crown’s understanding of the respondents’ position and any related confusion on the part of the Crown and the respondents was the product of a very large and very complex prosecution with multiple moving parts and many counsel and parties. The four-day delay arising out of the complexity of the case is therefore reasonable in the circumstances.
D. Disposition
129For these reasons, I would allow the appeal and set aside the stay of proceedings against the respondents. There was no unreasonable delay. The matter should proceed to trial.
Released: February 28, 2024 “L.B.R.”
“L.B. Roberts J.A.”
Footnotes
- The respondent Vrbanic also faced a second set of charges with four other accused, referred to as the “Group 8” charges or “Brockley group”. The Group 8 charges were not the subject of the stay of proceedings and are not the subject of this appeal.
- There was also a count of possession of fentanyl for the purpose of trafficking, but ultimately, when tested, the substance turned out not to be fentanyl.
- The application judge was formally appointed case management judge in April 2022. However, it is common ground that he began the case management function in January 2022.
- R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421.
- Counsel for the respondents (not counsel on appeal) had correctly calculated the overall delay and took the position before the application judge that it was 21 months and 4 days.
- The parties accept that the correct starting point for calculation of overall delay is the date the Information is sworn: see Jordan, at paras. 47-49; R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, 48 C.C.C. (3d) 459, at pp. 1602-10; R. v. Allison, 2022 ONCA 329, at paras. 35-43.
- This appears to be a reference to the fact that reasons in the Ivarone s. 11(b) Charter application were scheduled to be released the next day (and ultimately were).
- The matter set for August 2022 resolved in late April 2022, with one accused pleading guilty and charges withdrawn against the other. The Crown did not offer the five days set for that matter to the respondents. The matter set for December 2022 resolved on the first day of trial.
- For example, the Gallant trial was set for June 19, 20 and 23, 2023. The s. 11(b) application in that matter was scheduled for December 19, 2022.
