ONTARIO COURT OF JUSTICE

CITATION: R. v. Ivarone, 2023 ONCJ 69

DATE: 2023 02 07

COURT FILE No.: Central West Region - HAMILTON 21-10700; 21-2917; 21-2195

BETWEEN:

HIS MAJESTY THE KING

— AND —

Joseph Ivarone

Before Justice Anthony F. Leitch

Heard on June 14, 2022

Reasons for Judgment released on February 7, 2023

Christopher Walsh / Ildiko Erdei / Ira Glasner............................ counsel for the Crown

Carolyne Kerr.................................................... counsel for the accused Joseph Ivarone

Leitch J.:

INTRODUCTION

[1] The defence brings an application for a stay of proceedings for a violation of section 11(b) of the Charter of Rights and Freedoms. The period of delay is 20 months, 3 weeks and 1 day with an anticipated completion of the trial on August 24^th, 2023. There is no defence waiver or defence caused delay in this case. Both Crown and defence moved with dispatch to set trial dates and all parties consented to the appointment of a case management Judge to streamline the motions connected to multiple cases against 18 different people flowing from a largescale drug investigation.

[2] Both defence and crown counsel did all the right things to bring this matter (and the other matters arising from project OSkyfall) to trial in a timely way. Given the large volume of disclosure generated by the investigation the disclosure was provided relatively quickly. The defence reviewed that disclosure relatively quickly. The Charter applications were scheduled in advance of all the trial dates. There have been challenges in scheduling all the motions prior to the trial dates set but all parties have acted efficiently and responsibly. The co-accused’s Daniel Reeve and Caroline Cote agreed the Garofoli/section 8 Charter challenge would dispose of their case should they be unable to exclude the drugs seized. The agreement will lead to the withdrawal of charges against Ms. Cote. Only Mr. Ivarone will face a trial on these charges, Mr. Reeve’s conviction will be entered if the drugs he seeks to exclude are admissible, based on an agreed statement of facts admitting the crown’s case.

[3] In short, both the crown and the defence were a model for the Jordan principles, the anthesis of a culture of complacency. Why is the case over the presumptive deadline of 18 months? The Crown points to two circumstances to overcome the presumptively unreasonable delay: delays in scheduling trials caused by the Covid 19 pandemic (discrete event) and the fact that this is a particularly complex case (exceptional circumstance).

DELAY FROM COVID-19

[4] Covid 19 was the quintessential extraordinary event. It was unforeseeable and had a monumental impact on the administration of justice. Both cases in the Ontario Court of Justice and in the Superior Court of Justice were affected. It is difficult to ascertain the true effect of a 4 month shutdown of the courts and a delay in scheduling most of the cases in the system.

[5] A division in the analysis of s. 11(b) jurisprudence has developed once courts became fully operational again. One approach has been to require the Crown, who bears the onus to explain the presumptively unreasonable delay, to produce statistical evidence to show with some precision how much delay to a particular case was caused by Covid 19 shutdowns and the delay in scheduling most trials in the system. The other approach is a recognition that proving this causal link is unachievable or at least so difficult that the court must take notice of the effect of Covid 19 on scheduling as the system attempts to digest the backlog of cases it created. On this approach judges have generally applied a conservative measurement of the effect of the Covid 19 delay, ranging from 3 to 6 months, depending on the timing of the setting of the trial and motion dates in any particular case. A small number of decisions have attributed more than 6 months as a discrete event, most of those in cases where the case was actually delayed by the shutdown of the courts.

[6] The evidence required approach is well described in R v SM, [2022] OJ No 4820:

Delay Due to the COVID-19 Backlog

25 There is no doubt that the COVID-19 pandemic is an exceptional circumstance. It has affected every facet of the court system in a significant manner at some point in time. That being said, the particular effect in each instance is something that must be looked at on a case-by-case basis. While the initial court closures are long behind us, the backlog remains. That does not mean that a blanket deduction that can be made in every case to address the ongoing backlog.

26 In s.11(b) applications that dealt with the earlier period of the pandemic it was quite clear, from the record, with regard to court closures what delay was attributable to COVID-19. As we move further afield from the early court closures it becomes less clear what ongoing delay is able to be deducted as due to the COVID-19 pandemic.

27 The Crown bears the burden of demonstrating, on the evidentiary record, what delay was due to the discrete event that is the COVID-19 pandemic. The Crown must further demonstrate that delay could not have been mitigated. In order for this court to grant a deduction the Crown must establish a "causal link" between the pandemic and the delay the Crown is asking to deduct (see R v. Hinterberger, 2022 ONSC 4860 at para 44; and R v. Bui, 2021 ONCJ 379 at paras 26, 27). As Justice Goodman stated in Hinterberger "covid 19 does not give the Crown a free pass from s.11(b) challenges, instead a review of the record is critical to determine whether the pandemic caused the delay or whether it just ran concurrent to it" (see R v. Hinterberger, at para 52).

28 The Crown relies on Korovchenko and asks this court to find that the backlog in scheduling trials in this jurisdiction is 3 months. In that case no evidence was called by the Crown with respect to the quantum of delay that was attributable to the COVID-19 backlog. The Court subtracted 3 months from the net delay. The Court included in that 3-month period the amount of time taken for the matter to be brought into trial scheduling court. The Court further relied on its own knowledge of the amount of time it took to set a simple two-day impaired matter for trial pre-COVID vs. the time required in that matter. In that case the net delay still exceeded the ceiling, and the charges were stayed (see R v. Korovchenko, 2022 ONCJ 388).

29 A number of other courts have recently looked at the issue of quantifying COVID delay. In Bohnsack the court held that "[h]ere, a blanket approach devoid of contextual analysis would be contrary to the approach mandated in Jordan." (See R v. Bohnsack, [2022] O.J. No 3482 at para 60).

30 The court in Bohnsack considered the procedure necessary to quantify delay due to the COVID-19 backlog. The Crown in that case did not provide any statistical evidence to assist in the quantification of the delay. The Court held that it would not make an arbitrary determination of the delay caused by a scheduling backlog and declined to deduct any time from the net delay.

31 In Schardt the court held it was not sufficient for the Crown to simply point to the pandemic as a discrete event to justify delay stating:

• "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. [emphasis added]"

This analysis was also adopted by the court in Bohnsack (see. R v. Bohnsack at para. 61, and R v. Schardt, 2021 ONSC 3143 at paras. 68, 69).

32 In Y.D. the Crown called no evidence to assist in quantifying the delay due to the COVID-19 backlog. The Court accepted that the COVID-19 pandemic did indeed cause disruptions to the Criminal Justice System and created a backlog of cases. The Court then found that nothing in the evidentiary record demonstrated what was done to try to mitigate the delay in the case before the court and justify the deduction of a period of time as due to the backlog (see R v. Y.D., 2022 ONCJ 376 at paras. 32& 33).

33 In McCudden the Court held that the COVID-19 pandemic had undeniably created a backlog of cases and caused delay in the criminal justice system. The Court then continued, stating: "courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic". The Court ultimately found that the Crown had failed to adduce any evidence that would demonstrate that the portion of time they sought to deduct was indeed as a result of the discrete event that was the COVID-19 pandemic (see R v. McCudden, 2022 ONCJ 138 at para. 64 & 65).

34 In Ajgirevitch the Crown filed an affidavit setting out the difference in time it took to set similar matters down for trial before and after the COVID-19 court shutdowns; demonstrating an increase of 3 months which was attributed to the COVID-19 backlog. The affidavit also set out measures that had been undertaken to mitigate this backlog and reduce the time to trial. This information permitted the trial judge to quantify the backlog attributable to the COVID-19 pandemic and deduct the appropriate amount of time from the net delay (see R v. Ajgirevitch, 2022 O.J. No. 2299). R v SM, [2022] OJ No 4820

[7] In choosing the evidence required approach Justice Sickinger observed:

38 This Court suspects that there is delay here attributable to the COVID-19 backlog created by the mandated court shutdowns earlier on in the pandemic. If that delay were properly quantified, based on an evidentiary record, it may very well be that the delay here would fall below the Jordan ceiling. That being said, the Crown has failed to place a sufficient evidentiary record before the Court to allow this Court that make a finding as to the quantum of any delay. To subtract a blanket period of delay, without a proper evidentiary framework, would accomplish no more than to have this Court place a thumb on the scale in order to save this case from a stay. That is not the proper role of the courts and to do so would bring the administration of justice into disrepute in this jurist's opinion. R v SM, [2022] OJ No 4820

[8] The judicial notice of local conditions approach is exemplified in R v Korovchenko, [2022] OJ No 3896:

Exceptional Circumstances

89 The Respondent submits that a block of time must be deducted to account for the Covid-19 pandemic, a discrete exceptional event which caused an unprecedented backlog of cases in the system. The Crown suggests that a period of 4 months (122 days) is reasonable in the circumstances.

90 If the net delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances. Pursuant to the Jordan framework, exceptional circumstances "lie outside the Crown's control in the sense that:

• i) they are reasonably unforeseen or reasonably unavoidable, and

• ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise."

91 In Coulter, the Court of Appeal explained that the period of delay caused by any discrete event must be deducted from net delay for the purpose of determining if the presumptive ceiling has been reached. The Court of Appeal provided a medical or family emergency as an example of a discrete exceptional event.

92 Any portion of delay caused by a discrete event "that the Crown or the system could reasonably have mitigated may not be subtracted". In respect of the obligation of the Crown to mitigate the impact of discrete events in Jordan, the Court stated, at para. 70:

• It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications or resorting to any other appropriate procedural means. The 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 the delay.

93 The Covid-19 pandemic is clearly a "reasonably unforeseen and unavoidable event". Numerous courts have recognized that the delay caused by the adjournment of trials due to the pandemic is a discrete exceptional event, which requires a deduction of a reasonable period of delay from net delay to account for the additional pressures and backlog arising out of the pandemic.

94 The pandemic began six months before the offence and continued as this case progressed. Because of the pandemic, for a period of time the public and justice participants could no longer attend court houses due to serious public health concerns. The pandemic created an unprecedented challenge to the court system causing mass cancellations of trials. Court operations were suspended as the criminal justice system responded to a new reality, adopting entirely new processes so that trials could proceed remotely and retrofitting courthouses and courtrooms to allow some matters to proceed in-person.

95 The Court may take notice of the procedures and processes of the Ontario Court of Justice. In the months after the pandemic emerged the Chief Justice of the Ontario Court of Justice released directives which make clear the unprecedented impact of the pandemic on the criminal justice system. Between March 16, 2020, and July 6, 2020, in accordance with the Chief Justice's directive, all out-of-custody matters were presumptively adjourned. Neither out-of-custody nor in-custody trials could proceed. During this period court houses were equipped with better ventilation systems, courtrooms were outfitted with protective equipment, and technology was put in place to permit remote hearings and limited in-person proceedings.

96 On July 6, 2020, in accordance with a subsequent directive, the Newmarket courthouse resumed hearing a limited number of trials and preliminary inquiries that were already scheduled in a limited number of courtrooms.

97 On July 2, 2020, the Chief Justice published an incremental plan to begin to set unscheduled criminal trials and preliminary hearings. Priority was appropriately given to in-custody matters. In-custody continuations could begin to be scheduled as of July 6, 2020. Other in-custody matters were eligible to have new dates set between July 7 and July 21, 2020.

98 Out of custody continuations could begin to be scheduled as of August 5, 2020.

99 On August 12, 2020, the Chief Justice released an updated notice that advised the court could begin to schedule out-of-custody trials and preliminary inquiries that had previously been adjourned due to the Covid-19 pandemic between August 17, 2020, and September 21, 2020. Priority was to be given based on the date of the previously scheduled trial or continuation date. New out-of-custody hearings could begin to be scheduled on September 28, 2020.

100 Between April 26, 2021, to May 7, 2021, due to a resurgence in the pandemic, Ontario Court of Justice trials were adjourned at the direction of the Chief Justice to seek to reduce the number of people attending in courthouses including court staff. As a result, more trials and preliminary hearings had to be rescheduled.

101 The cancellation of all criminal trials and preliminary hearings between March 16, 2020, and July 6, 2020, the reduced capacity of courts to hear matters in the months that followed, and the challenge of rescheduling so many matters, all while new matters continued to enter the system, unquestionably had a significant and ongoing impact on the criminal justice system. As indicated by Justice Wright in Ajgirevitch: "It is not a single closure of the courts or a specific lost day. It is an exceptional circumstance that continues to ripple through the courts".

102 I agree with the comments of Justice Nakatsuru in Simmons, in which he recognized the unprecedented, unavoidable and wide-reaching impact of the COVID-19 pandemic on the criminal justice system as follows:

• Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

103 I agree with the Crown submission that although the Applicant's trial was not cancelled due to COVID-19, the pandemic nonetheless contributed to delay in this case. I accept that the matter would have proceeded more expeditiously but for the effects of COVID-19. The pandemic has resulted in an increase in backlog and delay in matters being heard, especially in a large and busy jurisdiction such as York Region.

104 While the ongoing pandemic had an impact on the way disclosure was prepared and provided -- longstanding disclosure practices had to be revised because of the pandemic, the difficulties with disclosure in this case occurred more than eight months after the outset of the pandemic and continued until August of 2021. The Crown did not seek to rely upon the pandemic to explain or justify the difficulties with disclosure in the case and in my view the delays during that time frame were not as a result of the pandemic. As a result, I have not deducted any period for pandemic-related delay between August 19, 2020, and September 29, 2021.

105 In respect of the period between September 29, 2021, and September 9, 2022, a period of 11 months and 12 days, while it is difficult to quantify the amount of delay attributable to the pandemic, a judge is entitled to consider local circumstances. I am satisfied that the length of time to schedule a simple two-day drinking and driving case has been extended by a minimum of three months because of the pandemic. In the absence of a more fulsome evidentiary record, such as that presented in Ajgirevitch, I am not satisfied that I should deduct the four months proposed by the Crown. The period of three months is likely a modest estimate but, in my view, it is a reasonable allowance. The allowance of three months includes the additional time required for a trial scheduling appearance -- a practice adopted to facilitate efficient trial scheduling in York Region in place of in-person attendance at the trial coordinators office -- and the additional time required for a matter to be set for trial from the trial scheduling set date.

106 I accept that the delay associated with the pandemic is not a delay that any individual Crown could have reasonably foreseen or avoided. I also accept that justice participants both in York Region and throughout Ontario have worked tirelessly to respond to the challenges posed by the pandemic, implementing new practices to allow the criminal justice system to move forward such as creating a trial scheduling court, implementing special "COVID 19" judicial pre-trials, implementing virtual case management courts to address first appearances and adjournments, introducing virtual plea courts to allow out-of-custody pleas and in-custody remote pleas to be heard, modifying court rooms to permit in-person proceedings, and conducting trials online through Zoom. R v Korovchenko, [2022] OJ No 3896

[9] The decisions which require causal evidence from the crown showing the specific effect of Covid 19 delay recognize that it is likely this effect is present but point to the onus on the Crown to prove the point with statistical evidence. If the crown fails to marshal statistical evidence on the Covid 19 delay effect the case is stayed and a trial on the merits to get to the truth of the matter is lost.

[10] The decisions that apply a conservative approach to measuring the effect of delay through judicial notice of local conditions ensures the Covid 19 backlog effect is recognized and places an onus on the Crown to produce statistical evidence to justify any greater backlog effect on any particular case.

[11] This court chooses this conservative approach. Which approach turns out to be the correct one is a matter that will be determined by the provincial appellate courts and ultimately the Supreme Court of Canada. In my view, the latter approach recognizes what is the truth: Covid 19 is an exceptional event which created a backlog of cases and produced real delay to trial. The causal evidence required approach often results in the drastic remedy of a stay of proceedings where the true cause of the delay was the exceptional event of Covid 19. Cases that should be tried on the merits are stayed for delay; delay that was attributable to an exceptional event.

[12] The pig is still in the python. Eventually it can be said that the delays are no longer attributable to Covid 19, full digestion will have occurred. Cases that were set for trial in 2020-2022 will have varying Covid 19 delay effects. As time progresses courts will expect the crown to ameliorate the backlog by separating the wheat from the chaff, by purging cases through whatever means, resolving cases that can be settled, and prioritizing the most serious cases which should be tried on the merits.

[13] Joseph Ivarone was charged December 3, 2021. A trial date was set April 8, 2022, after several case management appearances before this court. Six days were scheduled for trial ending August 24, 2023.

[14] Several days of pretrial motions were set in advance of the trial date to deal with a section 8/Garofoli application. Leave to cross and cross examination of the affiants, step two argument, in camera hearings to develop the judicial summaries, step five argument and potentially step six arguments were scheduled to ensure that pre-trial motions were completed before the trial dates. The rulings on other motions for other defendants charged from OSkyfall could lead to excisions in informations to obtain warrants and affidavits in support of wiretap authorizations, rulings arguably applicable to this defendant. The motions on the warrants are all inextricably bound together leading to a complicated pre-trial process. The parties consented to the appointment of a case management judge in recognition of this complexity. Those motions continue in an effort to complete them all before the trial dates for all of the 18 defendants charged out of the project (a few have had charges withdrawn, have plead guilty or have chosen not to challenge the warrants).

[15] In my view, conservatively, 3 months of delay in this case is attributable to the discrete exceptional event of Covid 19. This case is not an island. The scheduling of this case was affected as the court tried to schedule several related matters including the pre-trial motions in this case and the other motions flowing from the OSkyfall investigation. Unrelated cases were part of the backlog when this case was set on April 8, 2021, leading to a delay to trial that was caused by a backlog of cases not heard while the courts were closed and other cases enter the system, while the justice system adapted to conduct trials by video and under safe conditions in person. Whether you call it a pig in a python or a ripple effect, the effect was real and caused delay in scheduling this trial.

[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.

[17] The Court of Appeal in R. v. Coulter, 2016 ONCA 704, at paras. 34 to 41, summarized the steps to be taken when applying the Jordan framework:

• a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. (Jordan, at para. 47)

• b) Subtract defence delay from the total delay, which results in the "Net Delay". (Jordan, at para. 66)

• c) Compare the Net Delay to the presumptive ceiling. (Jordan, at para. 66)

• d) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. (Jordan, at para. 47) If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. (Jordan, at para. 71)

• e) Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached. (Jordan, at para. 75)

• f)  If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. (Jordan, at para. 80)

• g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. (Jordan, at para. 48)

[18] Applying this formula, I subtract three months from net delay leaving the remaining delay of 17 months, three weeks and one day. As a result, this finding is dispositive of the motion. It will be rare that remaining delay that falls below the presumptive ceiling, an onus which lies on the applicant, will result in unconstitutional delay justifying a stay of proceedings. Although the defence has taken all reasonable steps to expedite this matter, I find it is not one of those rare cases where under the ceiling delay is a violation of section 11(b) of the Charter. Even if I am wrong in this regard the reasoning set out below concerning the complexity of the case has application to this issue. This was a particularly complex case so a below the ceiling delay cannot result in a constitutional violation justifying a stay of proceedings.

[19] Although this analysis brings the remaining delay below the presumptive ceiling, in my view the complexity of the case would independently have justified a 20-month, 3 week and 1 day delay, even if I am wrong in my analysis of the effect of Covid 19 as a discrete exceptional event. For this reason, I analyze the crown’s position that this is a complex case justifying the delay to trial in this case.

COMPLEXITY OF THE CASE

[20] This was a large investigation that occurred over more than two years. It began with an investigation into Daniel Reeve but soon blossomed into investigation of over 20 persons with multiple locations and seizures of evidence. Two wiretap authorizations were obtained permitting recordings at a targeted building with surreptitiously installed room probes. Significant investigative manpower was expended by the police with combined police forces including the Hamilton police, Halton police and the RCMP.

[21] The scale of the investigation is well described in the crown’s factum:

16. By the time the warrant was executed at Mr. Reeve’s house, the investigation had expanded to target Joseph Iavarone, Pavle Vlahic, Vladimir Apostolski, Zoran Klisuric, and Lakvinder and Hardeep Sihra, all of whom would eventually be charged.

17. Investigators had already compiled 170 surveillance reports and obtained 20 warrants and other judicial authorizations.

18. In the subsequent 18 months, investigators compiled another 326 surveillance reports and obtained another 139 warrants and authorizations, including two wiretap authorizations.

19. The first wiretap authorization was granted on May 25, 2021 for 60 days.

20. The second authorization was granted on August 12, 2021 for another 60 days, expiring on October 11, 2021.

21. The wiretaps resulted in more than 10,000 intercepted voice communications and text messages.

22. Between June 24, 2021 and October 5, 2021, investigators executed search warrants at 12 addresses and arrested 13 additional accused.

[22] A particularly complex case is described in R v. Jordan:

[77] As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. 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.

[78] A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.

[79] It bears reiterating that such determinations fall well within the trial judge’s expertise. 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 the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). 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. In a similar vein, and for the same reason, the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right (see, e.g., Vassell). As this Court said in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760:

Certainly, it is within the Crown’s discretion to prosecute charges where the evidence would permit a reasonable jury to convict. However, some semblance of a cost-benefit analysis would serve the justice system well. Where the additional or heightened charges are marginal and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete. [para. 45]

[80] Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required.

[23] The analysis is a qualitative not quantitative assessment. Unlike other periods of delay which are subtracted from the overall delay a complex case requires a judgement call to determine if the particular complexity of any given case justifies the overall delay to trial. It follows that the more complex the case the longer the case will take to complete the trial. Complex cases may justify greater delay to trial, but the court and the crown must hear the clock ticking to an unconstitutional trial and do something about it.

[24] Complex cases require the crown to take positive steps to ameliorate any delay to trial. In this case the Crown responsibly divided the charges into several different informations all arising out of this large investigation. They combined defendants who are alleged to have acted jointly. When they charged Joseph Ivarone, they joined him with two defendants (Daniel Reeve and Caroline Cote) who had had their charges stayed under section 579 of the Criminal Code for almost a year to protect the integrity of the OSkyfall investigation. The crown recommenced those charges and at the same time presented a new information charging them along with the defendant, adding a fresh charge of conspiracy to go with the possession for the purpose of trafficking in cocaine and the proceeds of crime charges.

[25] 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.

[26] These are written reasons are provided after announcing the denial of the application to the parties many months ago. While writing these reasons the pre-trial motions have progressed. They have included several days of in camera evidence with the Crown to build judicial summaries designed to protect confidential informants and provide sufficient disclosure to the defence to meaningfully challenge both warrants and wiretaps authorizations. Upcoming argument about the effect of excision as a component of standing to challenge a warrant is expected. Summaries of step two have been accomplished, some cross-examination of affiants has been granted while some has been aborted on the eve of a ruling, with consent to conduct further in camera evidence to replace a cross examination which would of necessity breached confidential informer privilege. Step 2 is complete as are cross examinations of the affiant, steps 5 and 6 still loom and are scheduled for March of 2023. It is not unanticipated that more motion time may be required than presently set aside. All are working furiously to complete this complex pre-trial motion process to ensure the trial dates are not delayed further. Consolidation of all the motions with one case management judge was consented to by all 18 persons charged and those motions were scheduled, but extra days have been added and some motions were delayed further at the request of counsel as they suggested more consolidation with other motions already set.

[27] 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.

[28] 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 immediately. The 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.

[29] For all these reasons the defence application to stay the charges for a violation of section 11(b) of the Charter of Rights and Freedoms is denied.

Released February 7, 2023

Justice Anthony F. Leitch