Court of Appeal for Ontario
Date: 2018-03-27 Docket: C63461
Justices: Sharpe, Pardu and Fairburn JJ.A.
Between
Her Majesty the Queen Appellant
and
Itolo Mallozzi Respondent
Counsel
David Littlefield, for the appellant
Gregory Lafontaine, for the respondent
Heard: March 23, 2018
On appeal from the stay entered on April 26, 2017 by Justice Todd Ducharme of the Superior Court of Justice.
Reasons for Decision
[1] This is a Crown appeal against a stay of proceedings for unreasonable delay on a two-count indictment. After taking into account 56 days of defence delay, the trial judge found that the net delay was approximately 32 months. The trial judge concluded that there had been unreasonable delay under both R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Morin, [1992] 1 S.C.R. 771.
[2] We find it unnecessary to address all of the errors advanced. There are three fundamental ones that require that the stay of proceedings be set aside and a new trial ordered. The errors arise from a failure to properly calculate defence delay.
[3] Defence delay is defined in Jordan as including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.
[4] The trial judge failed to consider two periods of time that constitute defence delay. He also misapprehended the evidence respecting another period of time, leading to an erroneous conclusion that the time did not constitute defence delay.
First Error: Preliminary Inquiry Scheduling Delay
[5] First, there is an 87-day period of time during which the defence delayed the scheduling of the preliminary inquiry. Although the trial judge's reasons correctly note that earlier dates for the preliminary inquiry were provided, there is no analysis as to why the matter was not scheduled on those earlier dates. The evidence is clear that Crown counsel was available during the earlier dates.
[6] The respondent maintains that his trial counsel had dates earlier than those offered by the court and, therefore, though his counsel was not available on the later dates that were offered, he should not be required to absorb this time as defence delay. We disagree. Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.
Second Error: Co-Accused Adjournment Delay
[7] Second, the Crown maintains that there is an 84-day period of time that the trial judge failed to consider. This time is also said to constitute defence delay.
[8] The respondent was originally facing trial with a co-accused who ultimately pled guilty. Prior to entering his guilty plea, the co-accused asked that the pending preliminary inquiry be adjourned. The Crown opposed the adjournment request. The respondent took no position, noting that this was a "very complex matter with complex disclosure".
[9] The Crown expressed its concern about moving the matter forward. To this end, the Crown opened up its priority in-custody dates to accommodate the earliest possible dates to reschedule the preliminary inquiry. The record reveals that the earliest dates provided did not coincide with the respondent's trial counsel's schedule. The trial verification form demonstrates that there was almost three months between the earliest dates offered and when the respondent's counsel became available to conduct the rescheduled preliminary inquiry.
[10] The respondent maintains that he was ready to proceed on the first preliminary inquiry date and, therefore, his co-accused's request for an adjournment should not result in any defence delay to him. Multi-accused cases bring a level of complexity with them. All justice participants are required to work together in obtaining the earliest dates possible when matters cannot proceed. Although a co-accused caused the adjournment of the original preliminary inquiry date, something that could trigger an inquiry into exceptional circumstances under R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 136, we need not resort to an analysis of this Jordan principle here. In the wake of the adjournment request, new dates were offered and the Crown and the court were ready to proceed. The defence was not. This was defence delay.
Third Error: Discovery and Trial Date Misapprehension
[11] Third, we agree that the trial judge misapprehended a piece of evidence that caused him to reject the Crown's submission that an additional 3.5 months should be considered defence delay.
[12] The record establishes that both the court and Crown were ready to proceed to trial on February 6, 2017. During a court appearance on January 25, 2017, trial counsel for the respondent acknowledged that it was the "Jordan anniversary date" of 30-months. Even so, she was not prepared to accept the February 6 start date for trial because she still had a witness to discover by way of a cross-examination in the Ontario Court of Justice. She was clear that this cross-examination was to occur on February 2, 2017. The respondent's trial counsel also acknowledged that, while she had been provided trial dates in February, March and April, she was not available until May 23 for the start of trial.
[13] The trial judge misconstrued the evidence in his s. 11(b) ruling, stating that when the trial date was selected, the cross-examination was scheduled to proceed on March 27, 2017. Although, in the end, the cross-examination occurred on March 27, this date resulted from the defence rescheduling the discovery after the trial date had been set. When the trial date was selected, the outstanding discovery was still scheduled to proceed on February 2, 2017.
[14] Based upon his misunderstanding of when the cross-examination was scheduled to occur, the trial judge concluded that the Crown's offer of trial dates before March 27, 2017 did not constitute meaningful offers because, in his view, they pre-dated the discovery yet to be completed. In fact, every trial date offered post-dated the completion of the scheduled cross-examination. The Crown and the court were ready to proceed on all of those dates. The defence was not.
[15] Even if one accounts for the fact that the defence may not have wanted to proceed days after the cross-examination was done, other dates were offered that would have allowed the defence ample preparation time following the conclusion of the cross-examination originally scheduled for February 2. The only reason the trial did not go ahead earlier is because the defence was unavailable. On a generous view, this constituted at least a couple of months of defence delay.
Conclusion
[16] Any one of these three errors brings the delay under the Jordan ceiling and, cumulatively, they bring the delay well below the ceiling. In these circumstances, it is unnecessary to address the balance of the arguments raised.
[17] The appeal is allowed, the stay of proceedings is lifted and the matter is remitted to the Superior Court of Justice for trial.
"Robert J. Sharpe J.A."
"G. Pardu J.A."
"Fairburn J.A."
