Court of Appeal for Ontario

Date: August 9, 2017

Docket: C61364

Judges: Feldman, Pardu and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Italo Mallozzi Appellant

Counsel:

• Jill R. Presser and Jeff Marshman, for the appellant
• Brian Puddington, for the respondent

Heard: May 31, 2017

On appeal from: The order of Justice Fletcher Dawson of the Superior Court of Justice, dated April 9, 2015, dismissing the s. 11(b) application, and from the conviction entered on April 10, 2015 by Justice Bruce Durno of the Superior Court of Justice.

Benotto J.A.:

[1] After a preliminary inquiry and two mistrials, and over five years from the date he was charged, the appellant was convicted of two counts of production of marijuana, contrary to s. 7(1) of the [Controlled Drugs and Substances Act, S.C. 1996, c. 19](https://laws-lois.justice.gc.ca/eng/acts/C-38.8/). He was sentenced eight months later.

[2] The appellant appeals on the basis that the trial judge erred in dismissing his application for a stay of proceedings for unreasonable delay, pursuant to s. 11(b) of the Charter.

[3] For the reasons that follow, I would dismiss the appeal.

A. Facts

[4] The appellant and several co-accused were charged on April 7, 2010 with production of marijuana and possession for the purpose of trafficking. The operation involved a potential yield of $1,200,000 per year.

[5] There were five accused and most counsel were from outside the jurisdiction. The matter took 14 months in the Ontario Court of Justice. On May 31, 2011, after the preliminary inquiry, the appellant was ordered to stand trial.

[6] The appellant and three co-accused made their first appearance in Superior Court on June 7, 2011. No counsel for any of the accused appeared on that date. Thompson J. set a judicial pre-trial for June 24, 2011. All accused said they were prepared to go to trial. The Crown indicated that it was ready to begin the trial in the fall. The date of October 3, 2011 was offered. The appellant told the court that his lawyer was not available in the fall of 2011[1]. Thompson J. expressed frustration that no counsel had attended with available trial dates, but nonetheless secured the October 3, 2011 trial date.

[7] At some point the October 3, 2011 trial date was adjourned, and the matter was spoken to on October 4, 2011. Counsel for the appellant did not attend at court on October 4 but sent a letter stating that the earliest date she was available was May 7, 2012. Thompson J. advised that he had earlier dates available in January 2012. The appellant – who was in court – was told to contact his counsel. He did so and reported back that she was not available in January but renewed the request for dates in May 2012.

[8] The matter was adjourned to November 30, 2011 to see if the court could accommodate the appellant's counsel. On November 30, the matter was adjourned for two weeks to December 13, 2011. On December 13, the appellant's counsel again sent a letter, this time with an agent, stating that she was available for a three-week trial May 15-24, 2012 and other dates later in the year. Even though this was not a three-week period, Thompson J. scheduled jury selection to begin on May 15, 2012.

[9] On March 20, 2012, counsel for the appellant, through an agent, requested an adjournment of the May 15, 2012 trial date. The agent confirmed to the court that the appellant's counsel "is prepared to waive 11(b) on the record." The Crown consented to the adjournment and the matter was put over.

[10] On June 5, 2012, the matter was back in court. The appellant's counsel had sent a letter requesting that a trial date be set a year later in the summer of 2013. Crown counsel told the court:

[D]espite [appellant's counsel's] willingness to waive delay, I am, the Crown is concerned with the societal interest in having this case proceed and accordingly I am not in a position to consent to an adjournment until the summer of 2013.

[11] The court was similarly concerned and – despite the waiver – adjourned the matter to June 25, 2012. The matter was adjourned again to September 4, 2012 as the appellant was deciding on how to proceed. Before that date arrived, the appellant's counsel sent an email to the Crown stating:

I don't have any availability until next fall or late summer. … Obviously 11(b) is not an issue for me.

[12] Ultimately the trial was set to commence on October 7, 2013.

[13] On the first day of trial, October 21, 2013, only 11 jurors had been chosen when the jury panel was exhausted. The trial judge asked the sheriff to summon persons from the general public to act as the twelfth juror, pursuant to s. 642 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/). The appellant's counsel objected and stated that she would bring a constitutional challenge to this procedure. This would have required notice to the Attorney General of Canada and the Attorney General of Ontario.[2] The trial judge declared a mistrial.

[14] The Superior Court was able to schedule a second trial within two months on December 2, 2013. Neither defence counsel was available. At the hearing of an adjournment application on November 30, 2013, the court offered March 3, 2014 but the appellant's counsel was not available. The court finally set July 14, 2014 as the trial date.

[15] A request by the appellant's counsel for a further adjournment was rejected. The trial began with the selection of a jury on July 14, 2014. There were problems with the jurors: one knew the co-accused, one was dating a police officer and five of the jurors had been part of the panel originally called in October 2013. Another mistrial was declared.

[16] Despite several available trial dates, including one three months later, counsel for the appellant was not available until April 13, 2015.

[17] On March 18, 2015, the appellant and his then co-accused brought a s. 11(b) Charter application. The application was argued and decided under the Morin framework by the application judge: See [R. v. Morin, [1992] 1 S.C.R. 771](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii89/1992canlii89.html). The application by the co-accused was allowed. The appellant's application was dismissed and the matter proceeded to trial.

[18] On April 10, 2015, the appellant's matter was heard before the trial judge, who found him guilty of two counts of production of marijuana. On December 4, 2015, he was sentenced to 31½ months' imprisonment, concurrent on both counts, in addition to the 4½ months of credit for pre-trial custody.

[19] The appellant now argues that the delay was unreasonable. He appeals the decision of the application judge and the conviction entered by the trial judge.

B. Positions of the Parties

[20] The appellant alleges that the delay violated his right under s. 11(b) of the Charter to be tried within a reasonable time and should result in a stay of proceedings. A total of 60 months and three days elapsed between charge and conviction. A further seven months and 24 days elapsed before the appellant was finally sentenced. The total delay well exceeds the 30-month ceiling set out in [R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631](https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html). There are no exceptional circumstances to justify the otherwise unreasonable and excessive period of delay.

[21] The Crown acknowledges that the gross amount of delay exceeds the Jordan ceiling. The Crown submits, however, that once delay caused by discrete events is subtracted, the remaining delay is under the presumptive ceiling and the delay is not unreasonable.

C. Analysis

[22] I have concluded that the net delay is below the presumptive ceiling and is not unreasonable. However, as I will explain, even if I were to accept the appellant's submission that the delay is above the presumptive ceiling, exceptional circumstances would justify the delay.

[23] I begin with a brief description of the Jordan framework and then apply the principles to the facts of this case.

(1) The Jordan Principles

[24] On July 8, 2016, the Supreme Court rewrote the law on unreasonable delay under s. 11(b) of the Charter with the release of its decision in Jordan. The Jordan framework replaced the multi-factored Morin framework. In its place, the Supreme Court set a presumptive ceiling of 18 months in provincial court and 30 months in superior court. Delay is calculated from the date of the charge to the end or anticipated end of the trial, minus any delay attributed to the defence: Jordan, at paras. 46-47.

[25] A delay that exceeds the ceiling is presumptively unreasonable. It falls to the Crown to rebut the presumption by establishing that the delay was caused by exceptional circumstances beyond its control. A delay that is below the ceiling is presumptively reasonable and it is up to the defence to establish that the delay is nonetheless unreasonable. Stays beneath the ceiling should only be granted in clear cases: Jordan, at para. 48.

[26] Jordan applies to cases that were already in the system at the time of its release, but it is to be applied contextually and flexibly in such circumstances. For cases where the delay exceeds the presumptive ceiling but cannot be justified by exceptional circumstances, a transitional exceptional circumstance may arise if the Crown establishes that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed: Jordan, at paras. 95-96.

[27] There are three steps to follow where a matter that was started under the pre-Jordan regime is determined post-Jordan: [R. v. Coulter, 2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 34-41](https://www.canlii.org/en/on/onca/doc/2016/2016onca704/2016onca704.html); See also [R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426](/on/onca/2017/436).

[28] First, any time attributable to defence delay must be subtracted from the total delay to determine the net delay. The calculation of net delay involves an analysis of delay attributable to the defence, which was recently discussed in [R. v. Cody, 2017 SCC 31, 138 W.C.B. (2d) 118](https://www.canlii.org/en/ca/scc/doc/2017/2017scc31/2017scc31.html). Defence delay has two components: delay expressly waived and delay caused by defence conduct. The subtraction of delay caused by defence conduct is "intended to prevent the defence from benefitting from 'its own delay-causing action or inaction'": Cody, at para. 28.

[29] Second, if the net delay is above the presumptive ceiling, the court must subtract delay arising from discrete events. If the remaining delay still exceeds the ceiling, the court must consider whether the delay is justified by case complexity: Cody, at para. 64.

[30] Third, if the delay is not justified by discrete events or case complexity, the court must consider the whether the transitional exceptional circumstance applies, based on reasonable reliance on the Morin criteria. As Doherty J.A. stated in Gordon, at para. 23:

In most cases, especially when all of the delay occurred prior to the release of Jordan, if the court concludes that the delay was not unreasonable under Morin, the transitional exceptional circumstance described in Jordan will justify delays beyond the 30-month cap.

[31] A theme that grounds Jordan and Cody is that an accused is entitled to have a trial within a reasonable time but has the responsibility to avoid delay. Accused persons must bear in mind that a corollary of the s. 11(b) right to be tried within a reasonable time is the responsibility to avoid causing unreasonable delay: Cody, at para. 33. Defence counsel are therefore expected to actively advance their clients' right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and use court time efficiently: Jordan, at para. 138; Cody, at para. 33.

(2) The Principles Applied

[32] The appellant's case took 60 months to come to trial. The record discloses, however, that the delay was primarily the responsibility of the appellant. Express waiver by the appellant, coupled with delay caused by defence conduct, accounts for 37 months of delay. The net delay of 23 months is below the presumptive ceiling.

[33] This conclusion is supported by four key factors.

[34] First, from October 4, 2011 to the first trial date on October 7, 2013, the court repeatedly offered dates and attempted to accommodate the appellant's counsel. As confirmed in Jordan, and subsequently in Cody, at para. 30: "where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted". Here, the court and Crown were ready to proceed on October 3, 2011. The appellant's counsel was unavailable until May 2012 and then sought a further adjournment to the summer of 2013 which then stretched into the fall. The 24-month delay from October 2011 to October 2013 is attributable to the defence.

[35] Second, within that 24-month period of delay, on March 20, 2012, the defence expressly waived s. 11(b) until the next trial date, October 7, 2013. This is an additional reason for deducting the waived period from the total delay.

[36] Third, after the first mistrial on October 21, 2013, the court offered dates within two months, starting on December 2, 2013. The Crown was willing to proceed on that date, but the appellant's counsel was not available until July 14, 2014. Those seven months of delay are attributed to the defence.

[37] And finally, after the second mistrial on July 14, 2014, the court again offered dates within three months, starting on October 6, 2014. Crown counsel was available. Again, defence counsel was not available until April 13, 2015. Those six months are attributable to the defence.

[38] In total, 37 months should be subtracted as delay either waived or caused solely by defence conduct. This leaves a net delay of 23 months, which is under the presumptive ceiling. The appellant has not established that the net delay was unreasonable.

[39] In light of this conclusion, it would not be necessary to consider exceptional circumstances or the transitional provisions. I do so, however, to demonstrate that – even if the net delay had been somewhat above the presumptive ceiling – the delay would have been justified.

[40] First, the exceptional circumstances.

[41] In my view, the two mistrials qualify as discrete, exceptional events that were reasonably unforeseeable. The first mistrial was October 21, 2013. The court and the Crown were prepared to empanel a twelfth juror through the use of s. 642 of the Criminal Code. The appellant's counsel objected and indicated a desire to launch a constitutional challenge to the process. The appellant submits that this delay was caused by the "system" that failed to empanel enough jurors. I do not agree. The record discloses that over a hundred jurors were called. This was a routine criminal trial in a relatively small Ontario town. There is no evidence of an error. In any event, a frivolous position taken by defence counsel is defence delay which is deducted from the presumptive ceiling: [R. v. D.C., 2017 ONCA 483, at para 5](/on/onca/2017/483).

[42] As noted earlier, the Crown and the court were willing to proceed promptly with a new trial on December 2, 2013. I would therefore deduct the period from October 21, 2013 to December 2, 2013 as the result of the first mistrial. The delay of approximately 7 months – from December 2, 2013 until July 14, 2014 – flowed not from the mistrial but from defence counsel's unavailability, and should therefore be characterized as defence delay.

[43] The second mistrial was July 14, 2014. Although all parties agreed that a mistrial had to be declared when it was discovered that five members of the jury had been on the panel summoned in October 2013, I do not agree that a mistrial was necessary. Again, the appellant submits that this was a failure of the system. Again, I disagree. These events were unforeseeable and were not contributed to by the Crown. They were exceptional.

[44] After the second mistrial, the court and the Crown were willing to proceed in early October 2014, but the appellant's counsel was unavailable until April 2015. I would therefore deduct roughly three months as delay flowing from the second mistrial.

[45] It has not been suggested that the delay in this case is justified on the basis of case complexity.

[46] Finally, I consider the transitional exceptional circumstance.

[47] All of the delay in this case took place under the Morin framework, and the parties' reliance on that framework must therefore be taken into account. The reasonableness of the delay under the Morin framework was determined by the application judge in a thorough and careful analysis. He noted that that the appellant had waived any delay from March 20, 2012 to the first trial and, in addition:

• The court offered dates as early as October 2011;
• The court attempted to accommodate defence counsel;
• The court had dates available within three to four months of every set date appearance;
• The Crown acted expeditiously from the outset, and there was no Crown delay;
• There were only 15.3 months of institutional delay, a period within the Morin guidelines;
• Though the appellant suffered some prejudice due to the lengthy delay, it was considerably less than that suffered by his co-accused;
• The societal interest in a trial on the merits carried more weight in relation to the appellant, who was alleged to be central to the marijuana grow operation, than in relation to the co-accused; and
• The actions of the appellant demonstrated that he was not pressing at any time for an early date: indeed, he was content with the pace of the proceedings.

[48] For these reasons, the application judge found that the delay in the appellant's case was reasonable. As stated in Gordon, when all of the alleged delay occurred before Jordan, and the court has concluded that the delay was not unreasonable under Morin, the transitional exceptional circumstances will justify delays beyond the presumptive ceiling.

(3) Delay to Sentence

[49] During submissions, the appellant submitted that the 30-month presumptive ceiling applies from charge to sentence, not just from charge to verdict. The court requested further submissions with respect to this issue.

[50] The time between conviction and sentence was approximately eight months. Even if the entire time is added to the net delay of 23 months, the delay barely exceeds the 30-month Jordan ceiling. If time is deducted in relation to the discrete events that were the two mistrials, the delay is again below the ceiling. Moreover, as I have explained, even if the delay were to exceed the presumptive ceiling, on the facts of this case, it would be justified on the basis of reasonable reliance on the pre-Jordan state of the law. It is therefore not necessary to determine this issue.

D. Disposition

[51] I would dismiss the appeal.

Released: August 9, 2017

"M.L. Benotto J.A."

"I agree K. Feldman J.A."

"I agree G. Pardu J.A."

[1] Trial counsel was not counsel on the appeal.

[2] Courts of Justice Act, R.S.O. 1990 c. 43, s. 109.