ONTARIO COURT OF JUSTICE
DATE: 2023 01 20 COURT FILE No.: Windsor 21-1553
BETWEEN:
HIS MAJESTY THE KING
— AND —
ELIE AOUN, JASON HADDAD, JOHNY PHOTHITAY and SAYASITH PHOTHITAY
Before: Justice C. Uwagboe
Heard on: November 21, 23 and 28, 2022 Reasons for Judgment released on: January 20, 2023
Counsel: Eric Costaris, for the Crown Zuzana (Sue) Szasz, for the Federal Crown, PPSC Robert M. DiPietro, Counsel for the Applicants, Elie Aoun and Johny Phothitay Daniel W. Scott, Counsel for the Applicant, Jason Haddad Christopher Tarach, Counsel for the Applicant, Sayasith Phothitay
UWAGBOE J.:
RULING ON APPLICATION PURSUANT TO S. 11(b) and 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS
[1] The Applicants apply for stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms, asserting that their right to be tried within a reasonable time, as enshrined in s. 11(b) of the Charter, has been infringed.
Background
[2] This case commenced with seven (7) co-accused all charged in relation to warrants executed on December 22nd 2020 at 3 residences including the following:
(i) 3152 McRobbie Road, Windsor, ON (ii) 1585 Rooney Street, Windsor, ON (iii) 1397 Meridian Street, Windsor, ON
[3] The co-accused on this application were charged in relation to 24 counts under the Controlled Drugs and Substances Act; the Cannabis Act, and the Criminal Code of Canada.
(1) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 1: possession of a schedule I substance, namely cocaine, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (2) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 2: possession of a schedule I substance, namely Isotonitazene, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (3) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 3: possession of a schedule IV substance, namely Alprazolam, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (4) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 4: possession of cannabis for the purpose of distribution contrary to s. 9(2) of the CA. (5) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 5: possession of cannabis for the purpose of selling it, contrary to s. 10(2) of the CA. (6) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 6: contravention of a regulation made under paragraph 117(h) of the Firearms Act, namely regulation SOR 209 respecting storage of firearms contrary to s. 86(2) of the CCC. (7) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 7: possession of a loaded prohibited firearm, namely a handgun, at 1585 Rooney Street, without authorization, licence, or registration certificate contrary to s. 95(1) of the CCC. (8) Sayasith Phothitay and Jason Haddad jointly charged with Count 8: possession of a prohibited firearm, namely a handgun, while knowingly not being the holder of a licence or registration permitting possession of the firearm contrary to s. 92(1) of the CCC. (9) Eli Aoun, charged with Count 9: possession of a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a handgun, without being the holder of a licence contrary to s. 91(1) of the CCC. (10) Jason Haddad, charged with Count 10: possession of a prohibited firearm, namely a handgun, while prohibited from doing so by an order made under section 110(2) of the CC contrary to s. 117.01(1) of the CCC. (11) Jason Haddad, charged with Count 11: possession of ammunition, while prohibited from doing so by an order made under section 110(2) of the CC contrary to s. 117.01(1) of the CCC. (12) Jason Haddad, charged with Count 12: fail to comply with probation order, not to possess any weapon(s) as defined by the CC contrary to s. 733.1(1) of the CCC. (13) Sayasith Phothitay charged with Count 13: while being at large on a release order, fail without lawful excuse to comply with the condition not to possess any weapons(s) and to surrender any weapon(s) in his possession to Windsor Police contrary to s. 145(5) of the CCC. (14) Sayasith Phothitay and Johny Phothitay jointly charged with Count 14: possession of a schedule I substance, namely cocaine, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (15) Sayasith Phothitay and Johny Phothitay jointly charged with Count 15: possession of a schedule I substance, namely Fentanyl, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (16) Eli Aoun charged with Count 16: contravention of a regulation made under paragraph 117(h) of the Firearms Act, namely regulation SOR 209 respecting storage of firearms contrary to s. 86(2) of the CCC. (17) Eli Aoun charged with Count 17: possession of a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a rifle, without being the holder of a licence contrary to s. 91(1) of the CCC. (18) Eli Aoun charged with Count 18: possession of a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a shotgun, without being the holder of a licence contrary to s. 91(1) of the CCC. (19) Eli Aoun charged with Count 19: possession of a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a handgun, without being the holder of a licence contrary to s. 91(1) of the CCC. (20) Eli Aoun charged with Count 20: possession of a prohibited device, namely a cartridge magazine containing 10 cartridges more than originally designed for and designed for or manufactured for use in a semi-automatic handgun, without being the holder of a licence contrary to s. 91(1) of the CCC. (21) Eli Aoun charged with Count 21: possession of a firearm, namely a handgun, a Glock, model 27, serial#CRH733US, knowing it was obtained by crime contrary to s. 96(1) of the CCC. (22) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 22: possession of a schedule I substance, namely Oxycodone 80mg, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (23) Eli Aoun; Sayasith Phothitay; and Jason Haddad jointly charged with Count 23: possession of a schedule I substance, namely Oxycodone 5mg, for the purpose of trafficking contrary to s. 5(2) of the CDSA. (24) Eli Aoun charged with Count 24: possession of property, namely a motor vehicle, obtained by crime valued over five thousand dollars, the property of Sam’s Garage contrary to s. 354(1) of the CCC.
[4] The circumstances surrounding the removal of the three (3) remaining co‑accused from the prosecution of this case is the subject of much dispute on this application, particularly as it relates to Ms. Vanessa Crescenzi who was charged jointly on counts 1-7, 9, and 22-23. The remaining original co-accused, Joseph Aoun and Nouhad Aoun, were charged jointly with Eli Aoun on counts 16-21 and 24.
[5] The parties generally agree on the time it took for this matter to proceed to the conclusion of the scheduled trial, with the Jordan date being June 23, 2022, a total of 717 days. Warrants were executed on December 22, 2020. Issues related to bail, disclosure, and scheduling took some time to resolve resulting in date setting on October 4, 2021 where the Charter and trial dates were scheduled as follows:
(i) Three (3) day Charter: October 17th, 18th and 19th, 2022. (ii) Ten (10) day trial: November 28th, 29th, and 30th, 2022, and December 1st, 2nd, 5th, 6th, 7th, 8th, and 9th, 2022.
[6] How this Court is to deal with the time that has elapsed is very much contested.
Position of the Parties
[7] The Applicants’ claim that the Respondents have failed to bring the Applicants to trial within a reasonable time. The Applicants point to disclosure delays including at the bail stage, a failure on the part of the Respondents to narrow the focus of the prosecution at an earlier point in time, and that the Respondents were generally complacent with respect to the individual 11(b) rights of each co-accused. The Applicants suggest that this matter is not complex and that there were no exceptional circumstances that impacted the delay in this case.
[8] The Respondents claim that this matter is complex, with seven (7) co-accused, numerous authorizations (42 authorizations) and voluminous disclosure. Notwithstanding that, the matter was ready to be set for trial within 9 months of these charges. The Respondents also add that the co-accused’s counsel were not diligent in their efforts to advance the case and protect the delay interests of the Applicants. In particular, the Applicants did not provide express notice that delay was an issue for trial earlier on. Further, the Applicants were not available to proceed to trial at earlier dates when the Respondents and the Court were. The Respondents also point to COVID-19 as a discrete event having had a tremendous impact on this matter proceeding expeditiously.
[9] For the reasons that follow, I cannot agree with the Crown submission that exceptional circumstances justify a reduction of delay below the constitutionally acceptable threshold. On the evidentiary record before me, it is clear that the Crown’s complete disregard for the individual 11(b) rights of the Applicants in this matter led to the delay in this case, not complexity, nor the impact of the pandemic on the courts. As a result, I find that the Applicants right to be tried within a reasonable time has been breached.
Summary of the Litigation History
[10] Eli Aoun and Jason Haddad remain charged on multiple possession for the purpose of trafficking and weapons charges in relation to the warrant executed at 1585 Rooney Street, Windsor. Sayasith Phothitay and Johny Phothitay remain charged with possession of fentanyl and cocaine for the purpose of trafficking in relation to the execution of a warrant at 1397 Meridian Street, Windsor. It is noteworthy that there are no charges in relation to warrants executed at 3152 McRobbie Road, Windsor. I will expand on that further below.
[11] The Applicants were taken into custody on December 22, 2020. Johny Phothitay was released on consent December 24, 2020. The Court was not prepared to accommodate the contested bail hearings in a timely fashion with the first bail hearing being accommodated on January 5th, 2021 for Sayasith Phothitay. He was ultimately released following a contested hearing on January 11th, 2021. Eli Aoun was released on January 6, 2021 following a contested hearing on the same date. Jason Haddad’s hearing was adjourned by defence on January 6, 2021 and was ultimately released following a contested hearing on January 14, 2021.
[12] Disclosure requests were made by counsel for the Applicants at the outset of these proceedings. On January 5, 2021, counsel for the Applicant, Sayasith Phothitay, advised that an 11(b) application “could be expected” if the case did not comply with the parameters set out in R. v. Jordan. Initial disclosure was provided January 8, 2021.
[13] On January 14, 2021, Ms. Szasz was contacted by Mr. DiPietro Sr. to discuss terminating the prosecution of Vanessa Crescenzi, Joseph Aoun and Nouhad Aoun (the parents of Eli Aoun). Ms. Szasz replied by email correspondence, at that time, that it was her position that the prosecutions of these parties would continue.
[14] Between February 8 – March 8, 2021, the Respondents took steps to unseal authorizations. Additional disclosure was provided on March 12, 2021 and April 12, 13, and 26, 2021.
[15] On May 26, 2021 and June 3, 2021, the Respondent for the PPSC met with affiants and sub affiants to vet authorizations. On June 14, 2021, the 42 authorizations were prepared for disclosure. The USB disclosure was ultimately picked up on June 22, 2021.
[16] On June 23rd, 2021, surveillance disclosure was prepared on a hard drive. The hard drive was purolated to Mr. Tarach on the same date. The same disclosure remained at the federal office for the other Applicants to pick up. The disclosure was retrieved and signed for on August 6, 2021 by Mr. Dipietro Sr.
[17] All parties attempted to schedule a JPT. Ms. Szasz, on the part of the Respondent PPSC, was not available and the matter was rescheduled to August 17, 2021. On August 16, 2021, the day before the August 17, 2021 JPT, a considerable amount of disclosure was released including certificates of analysis, supplementary reports, and a firearms report. The JPT proceeded in any event as scheduled but a JPT continuation was required and scheduled for September 13, 2021.
[18] On August 23, 2021, the parties appeared before the Court to adjourn the matter to September 20, 2021 for instructions following the JPT continuation scheduled for September 13, 2021. At that appearance, Mr. Dipietro Sr., on the part of the Applicants, attempted to confirm election to the Ontario Court of Justice on the record for all parties. This attempt to confirm election of this matter was interfered with by the Respondent PPSC. Ms. Szasz, on the part of the Respondent, requested that the Court “hold off on noting that election” until after the scheduled JPT continuation. The Applicants through Mr. DiPietro Sr. noted that “at the pre-trial – at the pre-trial all the other counsel have said this, and they have all elected OCJ.” [6] The matter was adjourned with the elections reserved at the request of the Respondents.
[19] On September 9, 2021, Ms. Szasz, on the part of the Respondent PPSC, sent an email to the Applicants containing a list of requested admissions regarding each location subject to prosecution. It is noteworthy that in that correspondence, the Respondent stated: “ Note – did not include 2152 McRobbie as likely these charges will resolve ” [7] [emphasis added]. It is further worth noting that the correspondence set out the Respondents’ trial time estimate stating: “2 weeks trial and charter.”
[20] The JPT continuation was held on September 13, 2021 as scheduled. There was no response or agreement on admissions and it was determined that a two (2) week trial with three (3) days for Charter arguments was anticipated.
[21] On September 13, 2021, there were communications commenced between the parties to obtain dates for trial. Mr. Tarach for the Applicant, Sayasith Phothitay, advised that he would “accommodate the earliest trial dates.”
[22] On September 17, 2021, it was determined that counsel for the co-accused, Vanessa Crescenzi, was not available until May 10, 2022. As a result of their co‑accused status, dates for all other Applicants represented by the DiPietro firm were provided as follows:
(i) May 10, 11, 12 (ii) June 1, 2, 3, 23, 2022 (iii) July 4, 8, 11, 21, 22 (iv) August 12 (v) September 5, 9, 21, 28, 29, 30 (vi) October any date (vii) Any further date
[23] It is worth noting, that at this time, it was apparent that the availability of Ms. Vanessa Crescenzi’s counsel threatened the Jordan ceiling of June 23rd, 2022 for all other co-accused in this matter.
[24] On September 24th, 2021, Trial Co-Ordination sent correspondence to schedule a follow up JPT at the request of Justice Marion citing disclosure issues in this case. A further JPT was scheduled for November 8th, 2021.
[25] On September 28th, Trial Co-Ordination offered dates for trial and Charter motions which were confirmed by all parties on September 29, 2021. The dates were as follows;
(i) October 17, 18, and 19, 2022 for Charter arguments. (ii) November 28, 29, 30, and December 1, 2, 5, 6, 7, 8, and 9, 2022 for trial.
[26] There were dates that counsel for the Applicants were not available. Mr. Tarach was available for each of those dates on behalf of Sayasith Phothitay. Although this is a distinction as it relates to the date setting exercise, I do not find that there were generally material distinctions between the Applicants as suggested by the Respondents and Mr. Tarach as it pertains to the delay caused in this case.
[27] On October 4th, 2021, the trial dates were confirmed on the record in court.
[28] On October 4th, 5th, and November 15th, 2021, considerable and material disclosure releases were made to the Applicants.
[29] A confirmation hearing was held on August 22nd, 2022. Mr. Kim and Mr. Tarach were present on the part of the Applicants. Justice Marian ordered a follow-up Confirmation Hearing for August 25th, 2022, where all counsel were to be present.
[30] On August 22, 2022, Notices of Application in relation to the 11(b) Charter Applications and other application notices were provided by all co-accused in this matter, except for Sayasith Phothitay, to the Respondents.
[31] On August 25th, 2022, all parties appeared before Justice Marion and the matter was remanded to September 2, 2022. On September 2, 2022, the matter was adjourned again before Justice Marion to September 15, 2022.
[32] On August 26th, all co-accused except for Sayasith Phothitay provided the Respondents with complete application records to support the notices filed on the 11(b). On September 9th, 2022, the Applicant, Sayasith Phothitay, filed his application record for the 11(b) Charter and other applications.
[33] On September 15th, 2022, the matter was again before Justice Marion. The Respondent PPSC stayed the charges on counts 1-5, 22, and 23 against Sayasith Phothitay. The matter was adjourned to September 21st, 2022.
[34] On September 21st, 2022, the matter was back before Justice Marion. The Respondent PPSC stayed counts 1-5, 22, and 23, against Vanessa Crescenzi. All matters were adjourned to October 5th, 2022.
[35] On October 5th, 2022, the matter was back before Justice Marion. A plea was entered by the Applicant Eli Aoun on counts 16, 17, 18, 19, and counts 20 and 21 were withdrawn. The Respondent withdrew all charges against Nouhad Aoun and all but count 24 for Joseph Aoun. These charges were in relation to McRobbie.
[36] On October 6th, 2022, the Respondent Provincial Crown, withdrew count 24 against Eli Aoun and Joseph Aoun (completing the matters for Joseph Aoun). Further, the Respondent Provincial Crown withdrew all remaining Criminal Code counts against Sayasith Phothitay and Vanessa Crescenzi (completing the matters for Vanessa Crescenzi).
Legal Framework and Analysis
[37] The Applicants’ right to a trial within a reasonable time is guaranteed by s. 11(b) of the Charter. The Supreme Court modernized the framework for dealing with unreasonable delay in its seminal decision, R. v. Jordan. There, the Court established ceilings for delay – namely 18 months for provincial court matters, 30 months for federal court matters. Ultimately, if the total delay from the date the Information was sworn to, the actual or anticipated end of the trial, minus any defence delay, exceeds the ceiling, then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish that exceptional circumstances exist barring which the delay is unreasonable and the matter is stayed. Conversely, if the total delay, minus the defence delay or any period attributable to exceptional circumstances falls below the presumptive ceiling, the onus falls to the Applicant to establish that the delay is nevertheless unreasonable. Such cases, however, will rarely result in a stay of proceedings.
[38] The following analytical steps, summarized by our Court of Appeal in R. v. Coulter, 2016 ONCA 704, are to be taken in applying the Jordan framework:
(1) calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial - that is, the end of evidence and argument; (2) subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”; (3) compare the Net Delay to the presumptive ceiling; (4) if the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases; (5) subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”); (6) 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; and (7) if the Remaining Delay falls below the presumptive ceiling, the onus is on the applicant to show that the delay is unreasonable. R. v. Coulter, 2016 ONCA 704, at paras 34-41
[39] Delay that may be subtracted at the outset from the total delay consists of two components:
(1) Periods of clear and unequivocal waiver (implicit or explicit); (2) Periods of defence caused delay – where the actions of the accused directly caused the delay or where the actions of the accused are shown to be deliberate and calculated tactics used to delay the trial. Jordan, at paras 60-66
Date Setting – Timing
[40] The proceedings on this matter through to date setting were unremarkable. In fact, the Respondents submit that the prosecution was prepared to set dates for trial for all 7 co-accused within 9 months of the charges.
[41] The parties agree generally on the timeframe. The Applicants suggest 717 days of total Jordan delay. The Respondents suggest 716 days of total Jordan delay. I find that the total Jordan delay in this matter is 717 days or 23 months and 17 days.
[42] The parties also agree that there were no waivers on the part of the Applicants.
[43] I agree that there were no waivers on the part of any of the Applicants in this case. I will deal with defence unavailability in the context of defence actions causing delay.
Disclosure
[44] As set out in the facts in this matter, there was a considerable amount of disclosure in this case. The Court heard submissions about the 49 authorizations and challenges involved in reviewing, vetting and providing that disclosure.
Defence Delay – Date setting
[45] The Respondents submitted a chart including various periods of time where small portions of time were sought to be attributed to the Applicants for delay. Ultimately, the Respondents walked away from most of those time periods in submissions to the Court.
[46] One of the time periods of concern from the Respondents is the period of time that disclosure was sitting at the Crown office on June 23, 2021 and not picked up by Mr. DiPietro Sr or another member from his office until August 6, 2021. This same disclosure was couriered to Ms. Tarach for Mr. Sayasith Phothitay. There was no real answer to why the disclosure release was dealt with differently between the Applicants. Notwithstanding that, I do not find that the delay in Mr. DiPietro’s office picking up the disclosure impacted the time in this matter proceeding to trial as the parties were not prepared to set dates, the JPT was not held, and material disclosure was still outstanding.
[47] On August 23, 2021, Mr. DiPietro Sr attempted to make a formal election to the OCJ. His efforts were thwarted by Ms. Szasz on the part of the Respondents. It is unclear to this Court why the election was interfered with in this way and the Court was not assisted by the submissions on this point. Regardless, the election was reserved until a later date. I find as a fact, that the defence was prepared to make the election to the OCJ on August 23, 2021, with a view towards securing earlier trial dates.
[48] Trial dates in this case were set notwithstanding that considerable disclosure was still outstanding at the time of date setting. That said, there were dates that all the Applicants, except for Mr. Sayasith Phothitay, were not available for. Those dates were as follows;
(1) August 2, 3, 4, 8, 9, 10, 17, 19, 30, 31. (2) September 1, 6, 7, 8, 19, 20, 22, 23.
[49] Mr. Tarach on behalf of Sayasith Phothitay was available for all dates for trial. There will be no deduction for defence unavailability in respect of that Applicant.
[50] Counsel for the Applicants, Mr. Aoun, Mr. Haddad, and Johnny Phothitay, were not available during the entire period of August commencing August 2, 2022 – September 9, 2022. Counsel for the Applicants were also not available on September 19th and 20th, 2022. Mr. DiPietro Sr. concedes, by way of submission, 14 days as defence delay related to these Applicants.
[51] The Respondents argue that there should be more time deducted for the unavailability of these Applicants during this time period and suggest the entire time period should be deducted as defence delay.
[52] The Supreme Court in R. v. Williamson, 2016 SCC 28 determined that where the defence was not available for multiple dates, during a time period, the entirety of that period can be attributable to defence delay.
[53] I find that the Applicants were not available for the entire period of August up to September 9, 2022. The Court and the Crown were available for that entire period of time and the Applicants were not available for reasons not associated to preparing the defence in this matter. A period of forty (40) days will be deducted as defence delay for the Applicants, Mr. Aoun, Mr. Haddad, and Johnny Phothitay.
Co-Accused, Crown Discretion and the Vanessa Crescenzi Delay
[54] The Respondents walked away from most of the time periods purported to be defence delay in the chart provided to the Court as many of the time periods related to events that took place after the trial date was set on October 4th, 2021, that did not contribute to the delay in this matter or were related to time periods prior to the provision of considerable material disclosure being provided to the Applicants.
[55] The marshalling of this case through the courts as a co-accused proceeding, particularly as it relates to Crown discretion and the availability of Ms. Crescenzi is central to this application and the assessment of time. The largest period of delay relates to the unavailability of Mr. DiPietro Jr., who represented Ms. Vanessa Crescenzi, who at all material times was a co-accused in this matter. Mr. DiPietro Jr.’s unavailability resulted in a period of considerable delay. The Respondents suggest it is the period from September 17, 2021 – May 10, 2022, a period of 235 days or 7 months, 3 weeks and 2 days.
[56] The Applicants argue that the Respondents failed to properly assess and streamline their case early on in this proceeding. This led to all of the Applicants being subject to the delay created by Mr. DiPietro Jr’s unavailability unnecessarily. They further submit that the Respondents ignored the individual 11(b) rights of each of the Applicants in this matter. The Applicants argue that the parameters of trial were determined early on and that Ms. Crescenzi was never a “major player” in this matter. Further, that the allegations related to the McRobbie address were never contemplated as part of the trial to be scheduled. Therefore, the resolution of those charges cannot be the catalyst for the decision to streamline the prosecution case and release Ms. Crescenzi.
[57] The Respondents argue that it is the Crown’s prerogative as to how they marshal the case before the courts. There are many circumstances at play that are not before the Court and impact the determinations made in how to prosecute the case. That severance is not a panacea and ignores the costs related to that approach to the prosecution of these cases. The Respondents submit that the Applicants were not diligent in responding to these charges and that the resolution of McRobbie had a “domino effect” on how the Respondents could assess the case in so far as what accused parties would be proceeded against. The Respondents argue that the unavailability of “the collective,” which comprises of the Applicants, Mr. Aoun, Mr. Haddad and Johny Phothitay, is properly defence delay and is applicable to “the collective.” The Respondents do not, however, attribute this time to Mr. Sayasith Phothitay as he represented that he was available for all dates.
[58] As stated in R. v. Florence, 2014 ONCA 443, “it must be remembered that the onus rests on the Crown to ensure that a matter proceed expeditiously to trial.” Crown counsel should be “ motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling.” R. v. Jordan, at para 112 Efforts should be undertaken by all parties to remedy delay prior to the ceiling being breached.
[59] It is incumbent on the Crown to continually assess its case at each stage to determine whether “the decision to proceed jointly remains in the best interests of justice.” R. v. Gopie, 2017 ONCA 728, at para 171 In making this assessment “there may come a time where the interests of justice are no longer served by proceeding jointly, including where s.11(b) rights are in jeopardy.” Ibid, at para 171
[60] The assessment of s. 11(b) applications where there are multiple co-accused is not about scrutinizing prosecutorial decision-making. The Court of Appeal in R. v. Nguyen, 2013 ONCA 169 stated the following:
“…decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or withdraw charges, are contingent upon independent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown’s decisions absent clear reason to do so…” R. v. Nguyen, 2013 ONCA 169, at para. 61
[61] When dealing with co-accused parties, severance is not necessarily the solution in each case to avoid 11(b) concerns. The Court in R. v. Singh, 2016 BCCA 427 relied on the proposition that “to suggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecuting separate actions” R. v. Singh, 2016 BCCA 427, at paras. 80-82
[62] The Court of Appeal in R. v. Manasseri, 2016 ONCA 703 contemplated delay as it relates to co‑accused and set out the importance of being mindful of the individual rights of the co‑accused parties citing R. v. Vassell, 2016 ONCA 702:
“ Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to be tried within a reasonable time has been breached: Vassell, at para. 4. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7. Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10.” R. v. Manasseri, 2016 ONCA 703
[63] Ms. Szasz on the part of the Respondent PPSC was contacted by Mr. DiPietro Sr. on January 14, 2021 in an effort to have the Respondent reconsider proceeding against Vanessa Crescenzi, Joseph Aoun and Nouhad Aoun; parenthetically, the same parties that were ultimately released from this prosecution in the eleventh hour, one full year after the trial dates were set in this matter.
[64] On January 14th 2021, Ms. Szasz responded to Mr. Dipietro Sr., having consulted with Respondent Provincial Crown, Mr. Costaris, it was determined that the prosecution would continue against all parties.
[65] The Court is alive to the authorities that remind the Court to be hesitant in scrutinizing Crown discretion. It may be the case that as of January 14, 2021, the case was still in its infancy and too soon to consider the removal of parties from the prosecution. That said, the suggestion was out there for consideration at that time. The suggestion was well founded given the determinations that were ultimately made regarding the termination of those prosecutions.
[66] It is the Crown’s prerogative as to how to proceed. That does not preclude this Court from assessing how those determinations impacted the individual 11(b) rights of the Applicants in this case.
[67] The Respondents failed to properly assess their case in respect of respecting the 11(b) rights of the Applicants when they failed to assess the value in proceeding against Vanessa Crescenzi. It was clear that proceeding jointly with this accused would have a deleterious effect on the remaining co-accused’s 11(b) rights when the Respondent was notified of the unavailability of Mr. DiPietro Jr. on September 17, 2021.
[68] It was the Respondents that were in control of how this matter would proceed and as a result, in control of managing the impact of the unavailability of one accused such that it would not breach the Jordan ceiling for the others. Ultimately, the Respondents did release Ms. Crescenzi from the prosecution but far too late to be considered an action on the part of the prosecution to preserve the 11(b) rights of the Applicants.
[69] Naturally, when the remaining charges for Ms. Crescenzi were withdrawn on October 6, 2022, little could be done to secure earlier dates for trial and no efforts were made in that regard.
[70] The Respondents now submit to the Court that the entirety of the period from September 17, 2021 – May 10, 2022 be foist upon the co-accused as defence caused delay.
[71] I disagree with this submission. The delay caused by Ms. Crescenzi’s counsel cannot be attributed to the remaining parties, especially when the Respondents were in a position to avoid this delay altogether by addressing it at some point sooner than over one year after they became aware of the issue. The Court of Appeal in R. v. Gopie, 2017 ONCA 728 addressed this issue facing a similar argument;
“I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence.” R. v. Gopie, at para 128
[72] Justice Munroe, of the Superior Court of Justice, in R. v. Hanan, [2019] O.J. No. 286, a similar circumstance of Crown discretion, put it quite succinctly in stating that “the delay beyond the ceiling did not need to happen. It was not unavoidable. It was not beyond the control of the Crown.” R. v. Hanan, [2019] O.J. No. 286, at para 190
[73] I find that the Respondents failed to properly assess their case in a timely manner, and this resulted in the significant delay occasioned by the accommodation made for Ms. Crescenzi’s counsel. The actions taken by the Respondents to streamline their case on the eve of trial were ineffectual and not reasonably taken with a view to preserve the 11(b) rights of the Applicants.
Notice
[74] The Respondents submit that the Applicants were not diligent in advancing the 11(b) interests of their clients. In support of this submission, they point to the fact that applications for 11(b) were not filed until August 22, 2022, for Mr. Aoun, Mr. Haddad and Johny Phothitay. The application for Sayasith Phothitay was filed September 9, 2022. The Respondents further submit that had the Applicants been proactive in filing notices the Respondents would have been alive to the 11(b) issue. Mr. Costaris on the part of the Respondent Provincial Crown, submits that it is the filing of the 11(b) notices that was the catalyst for the discussions taking place leading to the narrowing of the counts and accused before the Court. He submits to this Court that the Applicants did not give the Respondents an opportunity to deal with the issue of delay. Without the notices, he submits, that “ we didn’t know that we had to do anything. ” Mr. Costaris adds that Mr. Aoun, in respect of the McRobbie prosecution, was the “first domino that had to fall.”
[75] I cannot give effect to this submission. It fails to take into account the obligation that the Respondents had to advance the prosecution of this case with a view to preserving the 11(b) rights of the Applicants prior to breaching the Jordan ceiling. R. v. Jordan, at para 79 Further, it fails to take into account significant events in these proceedings that ought to have reminded the Respondents of this obligation.
[76] On January 5th, 2021, after failing to address bail for Sayasith Phothitay within a reasonable timeframe, in breach of his Charter rights (a fact conceded by the Respondents on the 11(e) motion), Mr. Tarach for the Applicant stated the following on the record:
“…I can say unquestionably, if the prosecution does not culminate within the specified timeframes by the Supreme Court of Canada in Jordan, an application under 11(b) can be expected.” [23]
[77] Mr. Tarach made it clear what would happen if the ceiling was breached. In submissions the Respondents dismissed the comment as an empty gesture and admittedly paid no heed to the waning of a coming delay application if the prosecution of the case did not comply with the Jordan timeframes.
[78] On January 14, 2021, Ms. Szasz for the Respondent PPSC was contacted by Mr. DiPietro Sr. in relation to terminating the prosecutions of Ms. Crescenzi, Joseph Aoun, and Nouhad Aoun. The request was declined at the time but ultimately agreed to much too late. This was an opportunity for the Respondents to keep in mind the potential of focusing this prosecution as it related to these parties in advance of setting the trial date. This was not done.
[79] On August 23, 2021, the parties attended in court to confirm the election to the OCJ for all parties. Ms. Szasz interfered with that election on that date, the election clearly set the parameters for the 18-month Jordan ceiling. The Applicants never departed from this election. This is a fact that the Respondents were aware of at all material times following this appearance.
[80] On September 9, 2021, Ms. Szasz sent correspondence to the Applicants confirming that the offences related to McRobbie “will resolve” suggesting that the 2 weeks for trial and Charter to be scheduled did not include any time related to 2152 McRobbie. The Respondents in submissions acknowledged that McRobbie was resolved in principle earlier than September 9, 2021.
[81] These facts undermine the submission that McRobbie needed to be the “first domino to fall” in order to consider focusing the case against Ms. Crescenzi. The trial dates that were ultimately set on October 4th, 2021, were not set in relation to McRobbie. McRobbie cannot be the “first domino to fall” if it was never put up for trial in the first place.
[82] On September 17, 2021, the Respondents were notified of the unavailability of Ms. Crescenzi’s counsel. That unavailability clearly threatened the 18-month Jordan ceiling and must have been apparent by October 4th, 2021, when the trial was set, if the Respondents turned their minds to 11(b) at all.
[83] Ms. Szasz in her submission to the court stated that the “Crown is cognizant of Jordan and it is always in the back of their minds.” This submission is inconsistent with the Respondents collective submission that without the filing of a notice of application, they would not know that 11(b) was an issue.
[84] This issue was addressed in R. v. Ibrahim, 2022 ONCJ 450. In that case the Applicants did not file notice until after the commencement of trial in contravention of the rules. The Court found that the lateness in filing did not amount to defence caused delay:
“ In assessing the second aspect of defence delay, I find that the lateness in bringing the application did not result in delay caused solely or directly by the Defence. According to the agreed statement of facts, the federal Crown monitored and triaged Mr. Ibrahim’s case when new trial dates became available, as it did with all other cases from their office which were set outside the presumptive ceiling. Therefore, the Crown was aware that the end date of Mr. Ibrahim’s case exceeded 18 months.” R. v. Ibrahim, 2022 ONCJ 450, at para 49
[85] In the case at bar, the Applicants filed their notices close to the trial date but with reasonable notice. The Respondents should have been aware that the end date of the trial would exceed the 18-month Jordan ceiling.
[86] It is apparent that absent the applications from the Applicants the Respondents were content to proceed with relative indifference for the 11(b) rights of the Applicants. This approach is consistent with the culture of complacency that Jordan seeks to address.
[87] There will be no deduction as a result of notice as defence delay.
Net Delay
[88] The delay attributable to the Applicants, Elie Aoun, Jason Haddad and Johny Phothitay is forty (40) days. The defence delay is deducted from the total delay of 717 days. The net delay of 677 days which is the equivalent of twenty-two (22) months and seven (7) days is over the presumptive 18-month ceiling.
[89] No delay is attributable to the Applicant Sayasith Phothitay resulting in a net delay of 717 days or twenty-three (23) months and seventeen (17) days which is over the presumptive ceiling.
[90] Given that the net delay still exceeds the presumptive ceiling of 18 months, the Crown now bears the burden of rebutting the presumption of unreasonableness by establishing exceptional circumstances. R. v. Jordan, at paras 69-81
Exceptional Circumstances
[91] Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances. R. v. Jordan, at para 68
[92] Exceptional circumstances are matters that lie outside the Crown’s control. They are circumstances that are not reasonably foreseeable or reasonably avoidable, and the Crown cannot reasonably remedy the delays resulting from the circumstances once they arise. R. v. Coulter, at para 46
[93] Exceptional circumstances generally fall under two categories: discrete events and particularly complex cases. R. v. Jordan, at paras 69, 71
[94] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. The Crown and justice system must always be prepared to mitigate the delay resulting from discrete exceptional circumstances. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion that the Crown and the justice system could reasonably have mitigated may not be subtracted. R. v. Jordan, at para 75
Complexity as an Exceptional Circumstance
[95] 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 requirement 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. R. v. Jordan, at para 75; R. v. Cody, at para 64
[96] Complexity cannot be used to deduct a specific period of delay. Instead, once any applicable quantitative deductions are made, and whether the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable. When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. R. v. Cody, at para 64
[97] The parties before the Court agree, in large part, that this case was not particularly complex. The Respondents point to voluminous disclosure and multiple authorizations that added to the complexity somewhat.
[98] I do not find that this matter is a complex case. The dates for trial were able to be set within 9 months of the charge, well below the Jordan ceiling. The additional disclosure that was released following the setting of the trial date did not impact the dates set for trial at all. Even if the Crown did satisfy me that this was a complex case, they have failed to establish that they developed and executed a plan to minimize the delay. The net delay is not reasonable in view of this case’s overall complexity.
COVID-19 as an Exceptional Circumstance
[99] The Respondents submit that the COVID-19 pandemic is a discrete event exceptional circumstance applicable to this case. They point to the backlog resulting from the pandemic as a contributing factor to the delay in this matter.
[100] The Applicants submit that there is no evidence before this Court to find that the pandemic had any direct impact in the delay caused in this case. The Applicants point to the prosecutions failure to have a plan to manage this prosecution and mitigate the delay as cause for delay in this case.
[101] I agree with the Applicants on this point.
[102] As the Ontario Superior Court of Justice noted in R. v. Schardt, 2021 ONSC 3143, “[i]t is undisputed that the COVID-19 public health crisis amounts to a discrete event”. The question in this case is whether any time should be attributed to delay on account of this event. R. v. Schardt, 2021 ONSC 3143, at para 62
[103] The Ontario Superior Court in R. v. Schardt, 2021 ONSC 3143, further stated as follows:
“It is also undisputed that COVID-19 has caused a disruption to court services that was, and to a certain extent still is, beyond everyone’s control. This disruption has included, but not been limited to the temporary suspension of operations of the courts except for urgent matters, an inability to hear certain in-person matters, and an inability of judges to circuit to regional courts to hear in-person matters. Even once the operation of the courts expanded in 2020, certain matters such as jury trials were still not proceeding. All those who regularly work in the justice system have had to change how they conduct business and adapt to a rapidly changing environment with often little to no notice.” Ibid, at para 63
[104] As stated in R. v. Greenidge, 2021 ONCJ 57, 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).” R. v. Greenidge, 2021 ONCJ 57, at paras 26 and 30; R. v. Schardt, 2021 ONSC 3143, at para 63
[105] 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 40-41
[106] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. R. v. Jordan, at paras 70, 74
[107] The delay resulting from the Crown’s tactical decisions does not constitute a reasonably unforeseeable or unavoidable circumstance. R. v. Pham, 2021 ONCJ 479, at paras 54-56
[108] The Respondents have failed to articulate for this Court how the pandemic impacted the delay that was caused in this case. There was no evidence filed in support of the delay caused by the pandemic that impacted the timing of bringing this case to trial.
[109] I find myself in a similar circumstance to Justice Carnegie in his assessment of this issue in R. v. Bohnsack, 2022 ONCJ 603 where he stated:
“ Instead of using a blanket approach, I nevertheless must consider the time offered to the parties for pre-trial applications and trial and whether that intervening timeframe was indirectly impacted by the Covid-19 pandemic. It would defy common sense to conclude that the substantive blackout periods for setting trial dates did not, particularly for out-of-custody matters, create a substantial backlog of matters that resulted in significant pressure and resulting longer delays in scheduling trials. Whether or not I have statistical evidence before me to verify this reality, which I do not, it remains an unquestionable reality to consider. However, I am left with little context to assess the scope of this indirect discrete event backlog impact. I have been provided with no statistical information respecting how the Covid-19 resulting backlog impacted trial scheduling in London in general, or the scheduling of this case in particular.” R. v. Bohnsack, 2022 ONCJ 603, at para 68
[110] I find that there were other causes contributing to the delay that was caused in this case during the time period this matter was before the Court. For the reasons I have set out above I do not find that the pandemic impacted the delay occasioned in this case. The cause of the delay in this case is identifiable and is directly related to the Respondents’ management of this co-accused prosecution.
Total Remaining Delay
[111] Without deduction for exceptional circumstances the total remaining delay for the Applicants, Elie Aoun, Jason Haddad, and Johny Phothitay amounts to 677 days, the equivalent of twenty-two (22) months and seven (7) days, which is over the presumptive 18-month ceiling by four (4) months and seven (7) days.
[112] Without deduction for exceptional circumstances the total remaining delay for Sayasith Phothitay is 717 days or twenty-three (23) months and seventeen (17) days which is over the presumptive ceiling by five (5) months seventeen (17) days.
[113] Therefore, based upon the Jordan framework, the Applicants’ s.11(b) rights have been breached.
Remedy
[114] The remedy for a breach of s. 11(b) rights is a stay.
Conclusion
[115] As a result, all of the Applicants’ charges before the Court will be stayed pursuant to s. 24(1) of the Charter.
[116] I thank counsel for their helpful materials and compelling arguments. I found all parties to advocate zealously for their respective positions while conducting themselves professionally and courteously. It was a pleasure to receive your submissions.