ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
FILIPPO ACCIAIOLI, SAMANTHA CROSS, LEONARDO MILITO, NIKOLA PAVLOVICH AND PETER PAVLOVICH Applicants
Before Justice Matthew C. Webber
Decision on s. 11(b) Application Released on February 12, 2019
Mr. Roderick Sonley & Ms. Delinda Hayton for the Respondent
Mr. Jose Guede for the Applicant, Filippo Acciaioli
Mr. Biagio Del Greco for the Applicant, Samantha Cross
Mr. Bruce Engel for the Applicant, Leonardo Milito
Mr. Jessica Abou-Eid …….. for the Applicants, Nicola and Peter Pavlovich
WEBBER, J.:
INTRODUCTION
1The accused in this case have jointly applied for a stay of proceedings on the basis that their trial will not be completed within a reasonable time and that therefore, their section 11(b) rights have been violated.
2The Court heard this application followed by a somewhat complex challenge of the General warrants that comprised part of the investigation in this case. On the General warrant argument, I found that the Ontario Court of Justice lacked the necessary jurisdiction to authorize the surreptitious video surveillance used in this case. I further concluded however, that no evidence would be excluded pursuant to section 24(2). I initially provided the parties with a brief oral summary of my decision. My full written reasons on that application were released on November 29, 2018. The parties were also advised prior to the commencement of trial evidence that this 11(b) Application was dismissed. The following are my reasons on the section 11(b) Application.
OVERVIEW
3The Applicants were arrested and ultimately charged as a result of a large and complex drug trafficking investigation conducted by the Ottawa Police Service. The investigation, dubbed “Project Step”, necessitated ninety-four separate judicial authorizations including four General warrants and three full scale Part VI authorizations over the course of its lifespan. The General warrants contained authorizations to conduct sustained surreptitious video surveillance on private property and as well to conduct covert searches. The investigation also utilized extensive physical surveillance of its targets. The disclosure generated from the investigation was voluminous.
4The initial target of the investigation was Lukas Abraham. Ultimately, Mr. Acciaioli, Peter and Nicola Pavlovich, Leonardo Milito and Samantha Cross were charged on the information before this Court. Charges were also laid against Carlo Milito, Duc Diep Nguyen, George Koury, Harvey Dalaise, Peter Saikeley and Jansen Morash. Mssrs. Croteau, Saikely and Morash were charged and are being tried on another joint information. The remaining accused were each charged separately. Notwithstanding that the Crown has separated the prosecution of the multiple accused persons in this manner, the allegations and the collective evidence is interrelated amongst the entire group. This interrelatedness is illustrated somewhat by the fact that Peter Pavlovich is charged before me with conspiring with Peter Croteau, yet Mr. Croteau is being tried in one of the separate and parallel prosecutions.
5Thirty separate search warrants were executed on June 15, 2016 – referred to as “take down day”. The Applicants before me were actually arrested between December 11 and December 21, 2016. Each of them were released on bail near immediately after arrest. All matters were adjourned to January 11, 2017 for their first appearance post bail. The information charging the five accused before me contains 25 separate counts. The trial of the five accused before me (the Applicants) was scheduled to conclude on February 8, 2019.
6The total anticipated delay between the laying of charges and the end of this joint trial is approximately twenty-six months. By trial’s end, the case will have taken well in excess of the eighteen month ceiling prescribed for trials conducted in Provincial Court.
POSITIONS OF THE PARTIES
7The central position taken by the Crown in response to this application is that exceptional circumstances – specifically the complexity of the case – justifies the time it will have taken to complete the trial.
8The Applicants submit the case is not “particularly complex” and that the Crown therefore bears the responsibility for the lengthy delay that has occurred. The Applicants have further submitted that a significant cause of delay was a deficiency in the disclosure process which in turn slowed down their ability to elect level of trial court and as well to set dates. Finally, the factum filed on behalf of Peter and Nicola Pavlovich also raises the fact that they had inquired of the Crown as to whether or not the Crown would consider severing them from their co-accused. This inquiry was conveyed in correspondence dated August 22, 2017. I was advised in the course of submissions that the Crown did communicate its opposition to severance. Counsel for the Peter and Nicola Pavlovich at no time filed a severance application, nor did they pursue the issue in oral argument.
9The Crown agrees that at no time did any of the Applicants explicitly or impliedly waive any delay. The Crown does submit however, that the defence did, on a handful of occasions, cause pockets of delay by their unavailability on dates that the court and Crown were available. I ultimately find that the periods of delay caused by defence unavailability were limited and less than that submitted by the Crown. These pockets of delay will be discussed somewhat, later in these reasons. However, when the limited defence delay that I find to have occurred is ultimately subtracted from overall delay, net delay remains well in excess of the ceiling.
10The central issues on this Application are:
(i) Has the Crown established that the case is sufficiently complex to justify delay in excess of the ceiling?
(ii) If so, did the Crown develop and follow a concrete plan to minimize the delay that would result from the complexity of the case?
11This prosecution is the result of a lengthy police investigation into cocaine and marijuana trafficking in the Ottawa region. The investigation itself commenced in the spring of 2015 and continued into December 2016. Over the course of the investigation ninety-four judicial authorizations were issued. The General warrants, which were ultimately the subject of pre-trial challenge by the defence, permitted surreptitious video surveillance on private property as well as covert entries into and the search of multiple addresses. Over the course of the investigation, hundreds of hours of video surveillance footage were generated. The authorizations also included four full-blown Part VI authorizations. Tens of thousands of private communications, both phone and SMS, were intercepted. Additionally, extensive physical surveillance was conducted which in turn generated hundreds of surveillance reports. The initial disclosure package contained in excess of 75,000 pages not to mention extensive audio and video evidence, all of which would require review.
12The original target of the investigation was Lukas Abraham. As the investigation unfolded multiple persons of interest were identified. Ultimately twelve individuals were charged and are being prosecuted as a result of the investigation. The Crown has proceeded with two multi-accused prosecutions; the one before this court with five accused and the second before my colleague Justice Dorval, which has three accused. The remaining four accused persons are being individually prosecuted.
13The culmination of the investigation was designed to unfold in two stages. On “take down day”, June 15, 2016, thirty independent search warrants were executed at homes of the accused, target addresses, stash houses etc. The accused however, were not arrested until mid-December 2016. This staged approach enabled the Crown and police to collect and organize all disclosure prior to the arrests. Traditionally, in cases such as this, the disclosure process can be long and arduous. In this case all the accused made their first post-bail court appearance on January 11, 2017. On that date all accused were adjourned to February 1, 2017. Each of the accused before this Court in fact received the first wave of disclosure prior to the February 1st return date.
14The initial wave of disclosure was by no means insignificant in scope. In fact the disclosure received at this time amounted to the lion’s share of the total disclosure that would ultimately be received. This disclosure package included the following:
A source integrated synopsis [SIS];
Target profiles;
Judicial authorizations;
Informations to obtain;
Activity reports;
Officer’s notes;
Photos and videos (including accused’s interviews);
Call summaries;
Linesheets (the monitors’ summaries of intercepts);
Transmissions data recorder reports;
Tracker data reports;
Wire room activity reports;
Asset forfeiture;
Surveillance reports;
Take down reports;
Arrest reports.
15A review of the transcripts of pre-trial proceedings in this matter confirmed that this initial wave of disclosure contained 75,000 pages of material as well as videos and recordings.
16The record before me also establishes that on January 20, 2017 the Crown had sent a letter to our Regional Senior Justice requesting the assignment of a case management judge and the assignment of an additional judge not otherwise involved in the prosecution, to take guilty pleas should the need arise. By return letter dated January 23, 2017, Justice Legault (R.S.J.) advised that Justice Wadden would be case-managing the project and that Justice Legault himself would be available to hear any pleas if necessary.
17On the February 1, 2017 appearance, the Crown advised all counsel that Justice Wadden had been assigned to case-manage all matters arising out of Project Step. The case was otherwise adjourned to February 15 with the Crown indicating that they were hoping to set a judicial pre-trial (“JPT”) on that occasion. Notably, a representative from Mr. Edelson’s office (Mr. Edelson was at that time representing Leo Milito) indicated that they felt a minimum four week adjournment would be required to give counsel ample time to review the enormous disclosure brief and to thereafter be in a position to meaningfully discuss the case.
18One February 16, 2017 the first of numerous judicial pre-trials was scheduled for March 27, 2017. The first available date that the Crown and Court had to conduct the pre-trial was February 27th. Counsel for Mr. Acciaioli was not available before March 8th. The next date offered by the Court and Crown was March 20. Counsel for Mr. Milito was not available on that date but was available on March 27. [One week of delay attributable to Acciaioli, another one week attributable to Milito.]
19I am going to briefly digress from the chronological treatment of the case to discuss these distinct periods of defence delay.
20The Crown submits that counsel for Mr. Acciaioli caused 22 days of defence delay. The submission is that the delay attributable to Mr. Acciaioli during this set-date should be calculated between the first date offered when the Crown and Court were available (February 27, 2018) and the first date that the Court, Crown and defence counsel were available (March 20, 2018). This approach ignores the fact that counsel for Mr. Acciaioli was available March 8 and thereafter. The Court and/or Crown were presumably unavailable from March 8 to March 19 or the dates would have been offered. The Supreme Court held at para. 64 of Jordan:
However, periods of delay which the court and Crown are unavailable will not constitute defence delay even if defence counsel is also unavailable.
Accordingly, Mr. Acciaioli should only be held responsible for one week of delay.
21Counsel for Mr. Milito was not available on the 20 but was available on the 27 of March. Therefore one week of delay is properly ascribed to Mr. Milito.
22The Court of Appeal held in R. v. Gopie, 2017 ONCA 728, at para. 136, that:
….. Attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded against multiple accused is irrelevant to the s.11(b) assessment under Jordan…… delays arising in the case of jointly charged accused can give rise to exceptional circumstances under the Jordan framework.
Therefore, on the one hand, both Mr. Milito and Mr. Acciaioli should each be ascribed one week of defence caused the delay. However, one cannot ignore that the ultimate result of their various periods of unavailability was that the JPT was set for March 27, 2018 instead of February 27, 2018. In reality, one month of delay was caused by two separate weeks of unavailability. While this one month cannot properly be deducted from overall delay when determining net delay, the loss of this one month is illustrative of how such delay can result as a consequence of the exceptional circumstances present in a case.
23Returning then to the history of the case. At the request of the defence it was agreed that the matter would return to Court after the March 27 pre-trial on April 10, 2017. The defence suggested that a two week adjournment would be necessary to provide sufficient time for them to meet with their respective clients and take instructions. Justice Wadden agreed that the large volume of disclosure as well as the complexity of the case justified the somewhat delayed return date. Mr. Edelson’s representative again expressed on the record that while his office was in the midst of reviewing the 75,000 pages of disclosure, they may not have sufficient time to digest it prior to the March 27judicial pre-trial.
24The sentiment expressed by Mr. Edelson’s office is not at all surprising. One only needs to have had carriage of a single case with disclosure of the girth present here to know full well that it takes months of review (especially given the likelihood of concurrent commitments) to obtain a sufficient level of preparedness to thereafter be able to commit to positions in the course of a pre-trial.
25On the April 10 appearance before Justice Wadden, the Crown noted that the defence had by then, been in receipt of the disclosure since January; that the Crown had provided some additional disclosure that was discussed during the last pre-trial; and, that the Crown was ready to set dates. With the exception of Mr. Edelson on behalf of Mr. Milito (who asked for an additional four months to continue their review of the brief) remaining counsel sought a sixty day gap before the next pre-trial. Clearly, defence counsel were still immersed in their review of the voluminous disclosure. Justice Wadden agreed to set the next pre-trial approximately sixty days down the road. Again, in doing so, he noted that the defence had requested this time due to the complexity of the case.
26The next judicial pre-trial was scheduled for June 14, 2017 and return date was scheduled for June 20, 2017.
Disclosure Request – (May 23 and 30, 2017)
27On May 23 and 30, 2017, Mr. Edelson sent a request and a follow-up, for additional disclosure. This was the first actual request for additional disclosure sent by anyone from the defence. On June 20, 2017, a formal request for the disclosure sought by Mr. Edelson was sent on behalf of the remaining accused. Mr. Edelson’s disclosure letter of May 26, 2017 is before the Court in the Respondent’s application record as is the Crown’s response letter of June 13, 2017.
28Mr. Edelson noted in his correspondence that he had received “project step video summaries” regarding the hallway surveillance conducted at 691 Bank Street as well as approximately thirty-five video clips of this surveillance. His request went on to note that there appeared to be gaps in the surveillance and further, that he had reviewed written summaries of surveillance of which he had not received actual footage.
28Regarding the separate topic of “intercepted communications”, the disclosure request asked whether the defence was in receipt of all audio and SMS communications and if not, what has been withheld and why. The disclosure letter also asked whether he was in receipt of all line summaries produced from the intercepts.
29The Crown responded in writing on June 13, 2017. Regarding the hallway video surveillance, the Crown clarified that the camera was in fact not operational at all times. These passages of time were laid out in the letter. Otherwise, the Crown made a request of the Ottawa Police Service to forward any surveillance footage that had not yet been provided. Regarding the intercepted communications, the Crown responded that they had provided all relevant intercepts and/or line sheets for all such communications. If the defence identified relevant conversations from within the line sheets that had not yet been produced, the Crown would attempt to produce such material. Otherwise, the Crown took the position that their Stinchcombe responsibilities had been met. The Court is unaware of any further request being made by the defence for additional disclosure of conversations or communications. In fact, no further requests for disclosure of any sort were made by the defence.
30On the June 20 appearance before Justice Wadden, the Crown advised the Court that all outstanding disclosure would be made available to the defence by June 28. Actually, the outstanding material was made available on June 23. On this appearance Justice Wadden impressed upon the defence that he wanted to make concrete progress in the scheduling of dates on the next appearance. A further judicial pre-trial was scheduled for July 6, 2017.
31The failure to disclose all relevant surveillance at the outset did therefore contribute somewhat to overall delay, however, from the moment the issue was first raised to when it was rectified, approximately one month elapsed. Further, this was the only moment in the disclosure process that could be characterized as a misstep. Otherwise, the process unfolded very smoothly. Contrary to the position taken by the Applicants, I find that disclosure issues marginally contributed to the delay in this case. Further, when a case involves 75,000 pages of disclosure, as did this one, it is hardly shocking that a piece of disclosure or two might fall through the cracks. Fault cannot really be found in the fact that this occurred. One might even venture that in a case of this size it is almost inevitable. Fault could well attach to the Crown if, once discovered, the disclosure issue was mismanaged. That, however, did not happen here. The oversight was quickly corrected.
32On July 11, 2017 all accused formally elected to be tried before the Ontario Court of Justice. A further judicial pre-trial was scheduled for July 25, 2017.
33On July 27, 2017 (two days after the JPT) the case was addressed in Court. At this time Justice Wadden summarized the scheduling discussions that had taken place at the JPT. He indicated as follows:
.... At our last pre-trial we discussed what time would be required both for the trial and for pre-trial motions. We discussed the breakdown of time starting with a…. four-day appearance, another four-day appearance, another two days, and then followed by…. five weeks of trial for the main information. So hopefully we can nail all that down and have dates on August 16th. So that is the intention, my intention. Okay?
34On August 16, 2017, the pre-trial motions were scheduled. Slots of time were set for three separate motions. The dates set were August 27 – 30; October 22 – 26; and, October 29 – November 1, 2018. The amount of time set for these motions was expanded somewhat during this appearance at the suggestion of the defence. The rationale provided to the Court was that the motions were complicated and involved multiple counsel thus setting extra time appeared prudent. The Court accommodated the defence request.
35The three motions that were identified by the defence were:
a challenge of the General warrants;
a challenge of the Part VI authorizations; and,
a challenge of the takedown warrants.
36The operative understanding of all parties at this time was that each of these motions would be argued before a single judge and that all accused charged out of Project Step agreed to be bound by those rulings in their respective trials.
37The first slot of time offered for these pre-trial motions was the week of September 17 – 21, 2018. Mr. Edelson, on behalf of Leo Milito, was unavailable that week. It is apparent however from the record, that he did make significant efforts to have his calendar cleared up so that he could agree to the two weeks offered in October. But for the unavailability of counsel the week of September 17, the week of October 29 would not have been required to accommodate argument on the pre-trial motions. Here, the Crown seeks to attribute one month of delay to Mr. Milito (i.e. from September 17 to October 22). It must be kept in mind that three weeks of motions were being scheduled. The unavailability of Mr. Milito’s counsel did delay the commencement of the second of these weeks from September 17until October 22. However, even if Mr. Milito’s counsel was available the week of September 17, given the dates offered by the Court, the last week of motions would have been the week of August 22. In other words, what appeared to be a one month delay between September 17and October 22, in reality would only have resulted in one week of delay. [One week of delay caused by Milito.]
38On September 29, 2017 the case was adjourned to October 17, 2017. It was the expectation of the Court that the trial dates would be confirmed on this October date. The Crown had already had discussions with the Trial Coordinator prior to September 29 during which the first five full weeks in the New Year had been suggested as trial dates. On October 17, the trial dates of January 7, 2018 to February 8, 2018 were confirmed. Otherwise, Justice Wadden set a reporting date before him to take place on June 26, 2018. A filing deadline of May 25, 2018 was set for the defence motions.
39On the June 26, 2018 appearance, it became clear that filing expectations had not been met. No one had filed an application challenging the Part VI authorizations. The accused before me on this application had filed their challenge to the General warrants but did not express any intention to join in the other applications originally contemplated. Mr. Ertel, counsel for Mr. Morash, had filed his challenge to the takedown warrant concerning his client. While the pre-trials had devoted time and energy to scheduling an omnibus set of motions before a single judge in an effort to economically accommodate all accused, clearly the ground had shifted for some, if not all counsel. This was summed up by Justice Wadden as follows:
It also seems to me that things are not quite as intertwined as they were. It is not the Jenga puzzle that we thought it was when we were doing the JPT’s.
40It is difficult to quantify the extent to which the defence shift on the omnibus pre-trial motions affected overall delay, if at all. At the very least there was time expended during pre-trials arranging for the group applications only to have the plan collapse late in the day. I am inclined to treat the apparent shift in defence positions as an indicator of the complexity of the case. Clearly positions taken on pre-trial motions evolved over time, likely as a result of increased familiarity with the evidence.
41The Applicants on this motion did indicate on June 26 that they would be bringing a section 11(b) application. The application was set to be heard on August 1 and 2. Their challenge of the General warrants was argued before me during the week of August 27. Otherwise the decision was made that we commence the trial of this case the week of October 29. Both arguments took place as scheduled.
42I was not sitting for almost a month commencing mid-September of 2018 as a result of being abroad, attending a judicial conference, and a family holiday. I addressed counsel prior to my departure and indicated that while they had made fulsome arguments on their challenge of the General warrant, I still required their submissions on what subsequent authorizations might be affected by a finding of a breach and how.
43On October 18, 2018, I provided brief oral reasons summarizing my conclusions regarding the first General warrant. As a result of discourse had between the Court and counsel on that day and a pre-trial held in my Chambers on October 25, it was agreed that the Applicants would complete their submissions regarding the warrants on Monday October 29. The Crown would make their responding submissions at the end of that week.
44In an effort to ensure that the remaining days during the week of October 25 were not wasted, I imposed upon the Crown to arrange a list of witnesses for that week who could provide evidence not affected one way or the other by the Court’s ruling on the General warrant argument. To the Crown’s credit, they did compile such a witness list and the Court was able to commence hearing trial evidence in advance of providing complete reasons on the section 8 application.
45One final scheduling complication arose in this case that had the potential of causing delay. I had previously made firm plans for a trip during the week of January 28. Immediately upon realizing the conflict, Trial Coordination was contacted and they made arrangements to set aside the week of February 11, 2018 to provide fallback dates should the trial not be completed by February 8.
46The Crown ultimately closed its case on February 4, 2018. On February 5, counsel for Ms. Cross brought an application for a discharge on count number 1. Later that day, reasons were provided for dismissing the application. Closing submissions could well have been completed prior to February 8, however, they were ultimately scheduled for February 11 and 12 at the request of all counsel.
ANALYSIS AND LAW
47The section 11(b) framework established in R. v. Jordan is centrally premised on its creation of ceilings beyond which “net trial delay” is treated as presumptively unreasonable. Net delay is arrived at by subtracting defence created delay from overall delay. One example of the type of defence delay contemplated here is when the Court and Crown are ready to proceed but the defence is not (Jordon at para. 64). However, delay that is a consequence of the defence legitimately responding to charges will not be subtracted from overall delay. As the Court held in Jordan.
… The defence must be allowed preparation time even where the court and Crown are ready to proceed.” (Jordan, para. 65)
48Much of the delay in this case can only be properly understood as a direct consequence of the case itself requiring much more front-end loaded review and preparation than would a more standard case. It took the defence seven months from the first appearance to elect mode of trial (December 11, 2016 until July 11, 2017). Given the size of disclosure, this is not particularly surprising.
49Ultimately, I find that the delay caused by defence unavailability in this case, does not significantly factor into the Court’s treatment of this application. Once that delay is subtracted from the overall delay, the lifespan of this case still significantly exceeds the 18 month ceiling. The delay in this case is presumptively unreasonable. The Respondent can therefore only establish that this delay was nevertheless reasonable if based on the presence of exceptional circumstances.
50Exceptional circumstances are generally either categorized as “discrete events” or “case complexity”. Regardless of the category, such circumstances need to be,
(i) Reasonably unforeseen or reasonably unavoidable; and,
(ii) Circumstances from which the Crown cannot readily remedy the resultant delays, once such circumstances arise. (Jordan para.69)
51The Crown submits that this prosecution is, and has been, sufficiently complex that the delay which has accrued is reasonable. The determination of this application revolves centrally around this issue.
CASE COMPLEXITY
52The Crown submits that the following characteristics of this prosecution support a finding that this is in fact a particularly complex case as contemplated in Jordan:
The investigation was lengthy, having commenced in the spring of 2015 and, concluding in December 2016;
The complexity of the case and investigation is apparent by the enormity of the disclosure. The disclosure package, which consisted of over 75,000 pages, included intercepted communications (disclosed by combination of recordings and/or written summaries), hundreds of hours of video surveillance and hundreds of surveillance reports;
The investigation generated 94 separate judicial authorizations including multiple General warrants permitting the surreptitious video surveillance and covert searches. The investigation also secured four separate Part VI authorizations which intercepted tens of thousands of private communications (both phone and SMS);
As a result of the video surveillance authorized by the General warrants, the defence brought a novel and complex Charter motion that had not been previously litigated;
In the course of pre-trials, it was agreed that the defence would be bringing three separate Charter applications; the one just referred to as well as separate challenges to the takedown warrants and the Part VI authorizations. In the course of pre-trials, it was agreed by all parties that three separate weeks would be required for these applications. Three such weeks were in fact set;
The prosecution involved five co-accused and 25 separate charges;
The nature of the charges, specifically the conspiracy charges, rely upon months of overlapping and interrelated circumstantial evidence;
The Crown anticipated calling 29 police witnesses;
While only five accused appear on the information before this Court, 12 accused in total were charged and prosecuted as a result of this investigation with all prosecutions being run near simultaneously. Further, the investigation identified multiple additional co-conspirators who remained unindicted yet remained relevant from both a disclosure and prosecution perspective;
The trial itself (not including pre-trial motions) was ultimately scheduled to run for six weeks.
53In spite of the above-noted considerations, the Applicants have submitted that the actual trial in this matter promised to be relatively straightforward and thus, the case is not “particularly complex” as contemplated by the Supreme Court in Jordan.
54I firmly disagree with the position taken by the Applicants on this issue of case complexity.
55The above breakdown of the characteristics of this prosecution, which I do except as accurate, contains most of the hallmarks of a complex case as defined by the Supreme Court in Jordan. At para. 77 of Jordan the Supreme Court defined a complex case in the following way:
Particularly complex cases are cases 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. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, 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, so long as it is in the interest of justice to do so, may also impact the complexity of the case.
56The position taken by the Applicants on the issue of complexity also overlooks the complexities that were apparent in the pre-trial phase of this case. This was precisely the error identified by the Court of Appeal in the trial judge’s s. 11(b) analysis in R. v. Picard. As Benotto, J.A. reminds us in her reasons on leave in the case of Ontario (Labour) v. Nugent, 2018 ONCA 1014, at para. 29:
Jordan has been previously considered multiple times by this court. In R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135, this court indicated that the complexity of the case must be assessed more broadly over the course of the entire proceeding, rather than on how the case presents at trial: paras. 57 and 60-64; see also Cody, at para. 64.
57The case management and pre-trial phase of this case was hardly commonplace. Justice Wadden conducted four separate judicial pre-trials and at least twice as many management-oriented remand appearances before the dates for motions and trial were actually set. The pre-trials did not include only the five accused before this Court but as well, the other accused charged as a result of Project Step. This complex arrangement made sense in that the plan throughout was to have the pre-trial motions all argued before a single judge. Obviously the intention was to maximize efficiencies regarding the pre-trial motions. The dates were set for the motions on this understanding. While this plan never came to fruition the Court nor the Crown can be faulted for this.
58For all of the reasons outlined I have no hesitation finding that this prosecution is properly characterized as a complex case as contemplated in Jordan and its progeny. This finding of complexity however, does not end the matter. As the Court of Appeal noted in the case of R. v. Saikaley, 2017 ONCA 374, [2017] O.J. No. 2377 at para. 36:
The Crown, having initiated what could reasonably be expected to be a complex prosecution, has a positive duty to develop and follow a concrete plan to minimize the delay occasioned by such complexity. Where the Crown has failed to do so, it will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control: Jordan, at para. 79.
59The Crown submits that it did in fact put together and execute such a plan in an effort to manage delay. The Crown points to the following facts as illustrative of such plan:
Charges were purposely not laid against the Applicants at the time the search warrants were executed. While the searches were conducted in June 2016, the laying of charges did not occur until December 2016. This permitted the Crown and police to organize and vet disclosure prior to the arrests and thereby enabled the Crown to provide nearly all of the disclosure very early in the process;
Despite Peter Pavlovich allegedly being involved in conspiracies with multiple accused (at least one of whom was tried before Justice Dorval) the Crown proceeded with two separate and smaller multi-accused prosecutions in an effort to be more efficient;
That by design Mr. Milito was kept on a separate information throughout the pre-trial phase of the case until it was determined that his counsel (reputed to have a very busy schedule and thus perhaps capable of contributing to delay more so than other counsel) would not cause problematic delay due to unavailability. If such proved to be the case, the Crown was prepared to prosecute Mr. Milito separately;
The Crown sought and accomplished the assignment of a case management judge at a very early stage of the proceeding;
That the Crown was able to rectify the only disclosure misstep efficiently;
That when the pre-trial motions did not unfold as anticipated the matter was brought forward and arrangements made to hear trial evidence the week of October 29, 2018;
Further, the witness list for that week was selectively compiled, so as to arrange for evidence that could be called even though full reasons on the section 8 application were still outstanding;
That the Crown sought in writing, a list of admissions from the defence in an effort to streamline trial proceedings (the evidence heard on this application is that the defence did not respond to this request prior to the commencement of trial).
60When one considers the efficacies of the plan put in place by the Crown on any given case, it is useful to reflect on the words of the Supreme Court in Jordan. On this topic the court held at para. 70 of Jordan:
[t]he Crown, we emphasize, is not required to show that the steps it took were ultimately successful rather, just that it took reasonable steps in an attempt to avoid delay.
61I am satisfied that the Crown did in fact have a concrete plan in place to address delay issues. Further, a review of the record confirms that with the exception of the single disclosure misstep discussed above, the Crown at no time caused, or in any way exacerbated, the delay in this case.
62This is a case where the nature of the charges as well as the evidence clearly favoured the Crown’s decision to proceed with a joint prosecution. This factor alone however, inevitably lengthens the trial process and impacts on the complexity of the case. The Supreme Court recognized as much in R. v. Vassell, 2016 SCC 26, wherein it held at para. 6:
[i]n many cases, delay caused by proceeding against multiple accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial.
Justice Fairburn, while then sitting as a trial judge, made the same point in R. v. Ny, 2016 ONSC 8031, para. 47:
[T]he concept of “reasonable time” within s. 11(b) may fluctuate depending on whether accused are standing alone or together. Provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one.
63It is recognized that there may come a point in a joint prosecution where the interests of justice are no longer served by proceeding jointly, for instance, if s. 11(b) rights are being assailed as a consequence of the manner of proceeding. The review of the case history outlined above makes it clear in this case however, that at no point was one accused effectively holding another “hostage”. At no point did the behaviour of any particular accused unduly contribute to delay. In fact, the “defence created delay” accounted for very little of the total delay that did occur. The delay in this case was almost exclusively a direct result of the complexity of the case.
63Finally, this is a prosecution that arises out of a Project level investigation. Investigations of this type characteristically generate voluminous and complicated disclosure. This case is no exception to that general rule. Truth be told, cases that share the characteristics of this case will always prove exceedingly difficult to complete in less than 18 months. This truth is rooted in the fact that these types of cases are inherently complex. An inordinate amount of time is needed at the front end of cases such as this for counsel to review and analyze the brief and thereafter be able to conduct meaningful pre-trials and/or make informed tactical decisions. Cases such as this require larger amounts of court time to complete than most. In this case, cumulatively, (pre-trial motions and trial time) 9 weeks of court time was required to accommodate this trial.
64In conclusion, I am satisfied that the complexity of this case readily justifies the amount of delay beyond the 18 month ceiling. The delay that has accrued in this case is not unreasonable in all of the circumstances. For these reasons the s. 11(b) application is dismissed.
Released: February 12, 2019
Signed: Justice Matthew C. Webber