R. v. Di Iorio, 2021 ONCJ 661
Information No. 4811-998-20-15001862-00
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MICHAEL DI-IORIO
E X C E R P T O F P R O C E E D I N G S
(Ruling on Application)
REMOTELY BEFORE THE HONOURABLE JUSTICE J. NORTH
on October 25, 2021, for a TORONTO, Ontario proceeding
APPEARANCES:
L. Zhao Counsel for the Crown
D. Goldbloom/A. Boni Counsel for Michael Di Iorio
R U L I N G O N A P P L I C A T I O N
The applicant brought an application for a stay of proceedings based on unreasonable delay pursuant to section 11(b) of the Charter. The total delay in this case from the date of the applicant's arrest until the anticipated end of the trial is 635 days or 20.82 months. Crown counsel did not suggest that there was any waiver or defence delay, and I agree with that position.
Therefore, the net Jordan delay is 20.82 months: R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631. As this exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.
The fundamental issue on this application is whether the Crown discharged its burden to show exceptional circumstances that render this delay reasonable. The Crown did not argue that this was a "particularly complex case". See Jordan, at paragraphs 77 to 79.
Crown counsel asserted that the "three main factors" or discrete events that should be considered in determining whether the delay was unreasonable in this case are as follows: "The COVID pandemic, the timing of the disclosure, and the change in personnel."
In Jordan, at paragraph 69, the Court stated as follows:
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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [Emphasis in original.]
In the circumstances of this case, I am not satisfied that any of the three factors that the Crown relies on are exceptional circumstances that caused delay, and which should be subtracted from the total period of delay.
First, in the circumstances of this case, I see no reasonable basis to conclude that the COVID-19 pandemic caused any of the delay. There are many decisions in which courts from this province have concluded that delay that was the result of the COVID-19 pandemic should be deducted from the calculation. Mr. Goldbloom takes no issue with that line of authority as in those cases there was a clear causal link between the impact of COVID-19 on court operations and the ensuing delay.
In R. v Schardt, 2021 ONSC 3143, at paragraphs 68 to 69, Justice Nieckarz stated as follows:
As stated in R. v. Greenridge, 2021 ONCJ 57, at paras. 26 and 30, it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry, as required by Jordan, is whether the discrete event caused the delay. The Crown must prove that, but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay).
A finding that the pandemic and consequent impact on the court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period: R. v. Ali, 2021 ONSC 1230, at paras. 40 and 41.
I agree with the reasoning as set out in the above passage. I have concluded that while the COVID-19 pandemic was occurring at the same time as the delay in this case, there is no reasonable basis to infer that it was the cause of any of the delay.
In my view, the record clearly demonstrates notwithstanding the efforts of defence counsel to obtain relevant disclosure in a timely fashion, which included sending nine disclosure letters, and the parties attending three judicial pretrials, and two Crown pretrials, the police and the Crown, in this case, failed to provide relevant disclosure in a timely fashion. However, the record does not support the conclusion that any of the delays in providing disclosure were related to the COVID-19 pandemic.
Further, trial dates were set on July 5th, 2021. The court offered dates as early as October 2021, but neither counsel were available in October. In my experience, prior to the COVID-19 pandemic, it was not usually possible to schedule a five-day trial at Old City Hall for an accused who was out of custody in less than four months. The record does not support the conclusion that the impact of COVID-19 on court operations was responsible for any of the delay in this case.
Second, the Crown argues that by March 2021, the defence had sufficient disclosure to make an informed decision on how to proceed and that earlier trial dates could have been selected. Crown counsel was very clear that this argument was not being advanced as defence delay that should be deducted to calculate the net delay. In my view, even if I were to accept that the defence had sufficient disclosure to set a trial date prior to July 2021, I do not see how this constitutes an exceptional circumstance.
In any event, based on this record, even if I were to consider this as a "defence delay" argument, I would not be satisfied that 2.8 months should be deduced as defence delay as a result of positions taken by the defence on disclosure or setting dates for trial. I see no basis to conclude that any of defence disclosure requests were unreasonable.
There was significant outstanding disclosure in March 2021. Given the nature of some of the outstanding disclosure and the potential issues related to that disclosure, I do not see how the parties or the court could have made an informed and accurate assessment regarding the length of the trial in March 2021.
In R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 OR (3d) 161 (Ont.C.A.) at paragraph 47, the Court concluded that "the Crown is not [required] to disclose every last bit of evidence before a trial date is set." In Kovacs-Tatar, the Crown asked the court to set a trial date, but the defence was opposed until it received additional disclosure, more specifically an expert report. Significantly, in this case, the Crown did not ask the court to set a trial date before July 2021.
Third, Crown counsel argued that some of the delay was the result of the following three factors:
A new officer in charge was assigned to the case in January 2021.
The file was assigned to a different Crown counsel in March 2021; and
The fact that the case involved two different police services.
With respect, the record does not demonstrate how any of these matters in the context of this case would constitute an exceptional circumstance. This was not a complex case. There was nothing reasonably unforeseen or reasonably unavoidable about any of these things. In any event, even if any of these matters could be see as an exceptional circumstance, I see no reasonable basis on the record to conclude that, cumulatively, they were the cause of anything more than a few days of delay.
Conclusion
I have concluded that the Crown has not discharged its onus to establish the presence of exceptional circumstances that justify the delay. The defence has established that the applicant's section 11(b) right was infringed.
The charges are stayed pursuant to section 24(1) of the Charter.
...END OF EXCERPT AS REQUESTED
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Jessica Campbell, certify that this document is a true and accurate transcript of the recording of R. v. Di Iorio in the Ontario Court of Justice held at 60 Queen St Toronto, Ontario, taken from Recording No. 4811_102_20211025_093548__6_NORTHJ.dcr, which has been certified in Form 1.
____ 12DECEMBER2021__
(Date) (Signature of Authorized Person)
Jessica Campbell
ID: 133 986 5196
***This certification does not apply to the (Ruling(s), Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.