Court of Appeal for Ontario

Date: July 15, 2019

Dockets: C63745, C64484, C64485, C64685, C65045, C65309, C65378

Judges: Strathy C.J.O., Watt and Zarnett JJ.A.

Parties

Docket C63745

Between

Her Majesty the Queen Respondent

and

Raul Bulhosen Appellant

Docket C64484

And Between

Her Majesty the Queen Respondent

and

Jeffrey Kompon Appellant

Docket C64485

And Between

Her Majesty the Queen Respondent

and

Vito Buffone Appellant

Docket C64685

And Between

Her Majesty the Queen Respondent

and

Borja Vilalta-Castellanos Appellant

Docket C65045

And Between

Her Majesty the Queen Respondent

and

Dean Brennan Appellant

Docket C65309

And Between

Her Majesty the Queen Respondent

and

Marco Cipollone Appellant

Docket C65378

And Between

Her Majesty the Queen Respondent

and

John Oliver Appellant

Counsel

• Reid Rusonik, for the appellant Raul Bulhosen
• Frank Addario and James Foy, for the appellant Jeffrey Kompon
• Mark C. Halfyard, for the appellant Vito Buffone
• Philip Campbell, for the appellant Borja Vilalta-Castellanos
• Michael Dineen, for the appellant Dean Brennan
• Howard Krongold, for the appellant Marco Cipollone
• Jeffery Couse, for the appellant John Oliver
• Lisa Mathews and Bradley Reitz, for the respondent

Heard: May 27, 2019

Background

Appeals by Raul Bulhosen (C63745), Borja Vilalta-Castellanos (C64685), Marco Cipollone (C65309) and John Oliver (C65378) from the convictions entered by Justice Joseph R. Henderson of the Superior Court of Justice on December 20, 2016; by Dean Brennan (C65045) from the conviction entered by Justice Joseph R. Henderson of the Superior Court of Justice on January 6, 2017; and by Jeffrey Kompon (C64484) and Vito Buffone (C64485) from the convictions entered by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, on June 12, 2017.

A. Overview

[1] These appeals concern the application of the principles in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, to proceedings against the appellants, who were convicted of various offences relating to a conspiracy to import and traffic in cocaine.

[2] After unsuccessful applications by all seven appellants before Henderson J. of the Superior Court of Justice to stay the proceedings for breach of their rights under s. 11(b) of the Canadian Charter of Rights and Freedoms to trial within a reasonable time, five of the appellants, Bulhosen, Vilalta-Castellanos, Cipollone, Oliver and Brennan, were convicted by Henderson J. based on agreed statements of facts. They were sentenced to penitentiary terms ranging from 8.25 years to 18 years. They appeal their convictions, asserting that in dismissing their s. 11(b) applications, the application judge failed to properly apply the principles in Jordan.

[3] The other two appellants, Kompon and Buffone, were convicted after a trial before Ramsay J. of the Superior Court of Justice, sitting with a jury. Kompon was sentenced to 20 years' imprisonment and Buffone was sentenced to 22 years. They, too, appeal their convictions based on the dismissal of their s. 11(b) applications. Their conviction appeals raising other grounds and their sentence appeals have been bifurcated from these appeals and will be heard separately, if necessary.

[4] The appeal focuses on three issues raised by the appellants. They submit that:

(a) because the Crown preferred an indictment while the case was in the Ontario Court of Justice, and no preliminary inquiry was held, this became a "one-stage" proceeding and the applicable Jordan ceiling should be 18 months;

(b) the application judge failed to consider the Crown's delay in preferring the indictment, which resulted in what they characterize as "wasted" 7.5 months in the Ontario Court of Justice; and

(c) the application judge failed to recognize, and to account for, systemic or institutional delay in the courts below.

[5] For the reasons that follow, I would dismiss the appeal. The application judge correctly found that a 30-month presumptive ceiling applied, because the case was tried in the Superior Court. He found that the projected delay to the end of trial was 35 months, and that the Crown had discharged its burden of proving that the delay was justified by the particular complexity of the case. The Crown had a plan to manage that complexity and the plan was implemented in a reasonable manner.

[6] In fact, as events transpired, five of the appellants' trials were completed under the Jordan ceiling and two were tried within 32.5 months. Even if the applicable period of delay is the 35 months projected by the application judge, and not the shorter periods within which the appellants were actually tried, I see no error in the application judge's careful and thorough analysis. The application judge correctly applied the principles in Jordan and his assessment of the complexity of the case is entitled to deference.

B. Background

(1) The Offences

[7] The charges against the appellants were the culmination of a three-year investigation, involving eight law enforcement agencies: Royal Canadian Mounted Police; Ontario Provincial Police; Canada Border Services Agency; United States Homeland Security Investigations; United States Drug Enforcement Administration; Niagara Regional Police Service; Peel Regional Police; and Toronto Police Service.

[8] The investigation targeted a scheme of the appellants and others to import large quantities of cocaine from Mexico into Canada, to distribute it in southwestern Ontario and to launder the proceeds. Under the guise of a legitimate business, granite boulders were imported into Canada from Brazil and Mexico by land and sea. Prior to shipment, the cocaine was secreted in holes drilled into the boulders, which were sealed with cement.

[9] When the boulders arrived in Canada, they were transported to warehouses, where the cocaine was extracted and distributed to members of the group. There were at least 47 shipments of granite between December 22, 2011 and December 9, 2013. In 2013 alone, the participants imported some 2,431 kilograms of cocaine. Money was sent back to Mexico in payment for the cocaine. Between December 2013 and June 2014 alone, more than $13 million in cash was funneled back to Mexico.

[10] The investigation was massive in scale. For much of the duration of the conspiracy, the appellants and the other accused were under covert visual surveillance by the authorities. Their communications were monitored pursuant to authorized wiretaps and their movements were recorded by tracking devices. Police engaged in approximately 1,000 days of covert surveillance and obtained more than 100 judicial authorizations, including wiretap authorizations, tracking orders and production orders.

[11] On "takedown day", September 22, 2014, police executed search warrants at approximately 30 locations. In addition to the seizure of cocaine, officers seized a vast number of documents and approximately 100 electronic devices, including laptop computers and cell phones, some of which were encrypted. Fourteen co-accused, including the seven appellants, were arrested and charged with 30 counts on a single information, including: possession of cocaine for the purpose of trafficking; trafficking in cocaine; conspiracy to import and to possess cocaine for the purpose of trafficking; unlawfully importing cocaine; money laundering; possession of proceeds of crime; and participating in the activities of a criminal organization.

(2) Proceedings Below

(a) Ontario Court of Justice

[12] At the time of the arrests on September 22, 2014, each of the then 14 co-accused was provided with a "Substantive Event Summary". Those documents set out the allegations against the accused in considerable detail. They included summaries of intercepted communications, surveillance photographs, and particulars of the evidence of witnesses. Within one month of arrest, the Crown disclosed approximately 600 documents referenced in those summaries.

[13] Bail hearings took place in the Ontario Court of Justice in September through November 2014, and on into 2015 for some appellants.

[14] In early December 2014, within three months of "takedown", the Crown produced a "first wave" of disclosure, including more than 240,000 documents in electronic form and approximately 100,000 intercepted text and audio communications. The defence conceded that this initial disclosure made up approximately 93 percent of the documents relevant to the Crown's case.

[15] The Crown requested the appointment of a case management judge and a case management conference was held on February 24, 2015. The Crown sent a resolution offer to counsel for each of the accused prior to that conference.

[16] At the case management conference, the Crown indicated that it proposed to conduct the preliminary inquiry pursuant to s. 540(7) of the Criminal Code, R.S.C. 1985, c. C-46, using written witness statements in lieu of oral testimony. It estimated that it would take a maximum of two to three days for the presentation of its case. The Crown advised that it was prepared to accommodate reasonable requests to make witnesses available for cross-examination, in the hope that the s. 540(7) application could proceed on consent. Counsel for one of the 14 co-accused stated that his client required a preliminary inquiry. Another counsel stated that he would contest the s. 540(7) application. It was estimated that the preliminary inquiry would take approximately six weeks.

[17] On February 25, 2015, the Crown began to canvass defence counsel for their availability to conduct the preliminary inquiry between February and June 2016. These discussions continued into March and April.

[18] In the meantime, a bail review was being conducted for the appellant Cipollone. A second wave of disclosure was made on March 30, 2015. It included redacted Informations to Obtain ("ITOs") filed in support of judicial authorizations. It also included disclosure of four 400-page wiretap affidavits and a 1000-page "takedown" warrant package. A third wave of disclosure, containing additional ITOs, was made on April 13, 2015.

[19] On April 2, 2015, the Ontario Court of Justice advised that a judge would be available for the preliminary inquiry for a total of 16 days in January through March 2016. At that point, Brennan's counsel indicated that he was no longer available for the January dates.

[20] In the meantime, approximately 6.5 months after their arrest, two appellants were still without counsel – Cipollone was seeking legal aid and Oliver was attempting to retain counsel.

[21] A second case management conference was held on April 21, 2015. At that time, the Ontario Court of Justice was only able to reserve ten days in February and March 2016 for the preliminary inquiry. Before the case management conference, the Crown had asked defence counsel to provide statements of issues and witnesses for the preliminary inquiry to assist in estimating the time required. Only four counsel did so.

[22] Resolution discussions continued with some of the accused. On May 19, 2015, two pleaded guilty and were sentenced.

[23] A fourth wave of disclosure was sent to defence counsel on June 8, 2015.

[24] Efforts continued to finalize dates for the preliminary inquiry and anticipated Dawson applications to cross-examine affiants of affidavits filed in support of applications for judicial authorizations. There were ongoing difficulties in obtaining responses from counsel concerning their statements of issues and witnesses and as to whether they would be bringing Dawson applications.

[25] A third case management conference was held on June 18, 2015, some nine months after the charges were laid. Cipollone and Oliver had still not retained counsel. The case management judge indicated that, at most, six weeks would be available for the preliminary inquiry. He observed that the Crown might need to seek a direct indictment in order to keep the proceedings moving forward. The case management judge directed counsel to file statements of issues and witnesses well in advance of the next court appearance, scheduled for July 7, 2015.

[26] At a court appearance on July 7, 2015, preliminary inquiry dates were set for December 15, 2015, and other non-contiguous dates in February through June 2016.

[27] Another one of the original 14 co-accused pleaded guilty on September 14, 2015 and the charges were withdrawn against another on the same date. A fourth accused pleaded guilty on October 7, 2015.

[28] On October 9, 2015, the Director of Public Prosecutions consented to two direct indictments, one for Laurence Aiello (one of the original 14 co-accused), and the other for the remaining eight co-accused.

(b) Superior Court of Justice

[29] On October 16, and again on October 27, 2015, the Crown wrote to the Superior Court requesting the appointment of a case management judge and a date for a judicial pre-trial. On November 13, 2015, counsel were advised that Henderson J. had been appointed to case manage the proceeding and that a case management conference/judicial pre-trial would be held on February 9, 2016. On November 23, 2015, all counsel appeared on the direct indictment in Welland, Ontario, before Regional Senior Justice Turnbull.

[30] In the meantime, there had been ongoing changes of counsel, with counsel for some accused going off the record. Cipollone and Oliver were seeking to retain new counsel and some counsel were pursuing Rowbotham applications.

[31] At the first case management conference before Henderson J. on February 9, 2016, the Crown reported that its disclosure was almost complete and now included the results of searches of 99 electronic devices seized at "takedown", with 18 devices still outstanding, including several encrypted devices. The Crown was preparing trial briefs to explain the anticipated evidence at trial. The Crown estimated a four to six-month trial, depending on defence concessions that might reduce the time for trial. The Crown had heard from some defence counsel in this regard, but not from all.

[32] By February 10, 2016, the Crown confirmed a six-month jury trial commencing April 2017, which was subsequently re-scheduled to begin two months earlier, in February 2017. Pre-trial applications were scheduled for two weeks in December 2016 and for two weeks in January 2017.

[33] Aiello pleaded guilty on March 1, 2016.

[34] A second case management conference before Henderson J. was held on April 8, 2016, with the Crown providing draft trial briefs containing a detailed outline of the evidence to be called at trial, including references to the witnesses and documentary evidence. Dates were confirmed for pre-trial applications (three weeks commencing November 7, 2016) and for trial (six months commencing February 27, 2017).

[35] Another of the original 14 co-accused pleaded guilty on April 14, 2015, leaving only the seven appellants to be tried.

[36] A third case management conference before Henderson J. was held on May 27, 2016, together with a judicial pre-trial. Two additional judicial pre-trials were held before Henderson J. on August 19 and October 11, 2016.

[37] The appellants' s. 11(b) applications were heard on November 7-10, 2016. They were dismissed by reasons released November 25, 2016, reported at 2016 ONSC 7284.

[38] Within about six weeks of the dismissal of their applications, the appellants Bulhosen, Vilalta-Castellanos, Cipollone, Oliver and Brennan, were convicted based on agreed statements of facts. Bulhosen, Vilalta-Castellanos, Cipollone and Oliver were convicted and sentenced pursuant to joint submissions on December 20, 2016. Brennan was subsequently convicted on agreed facts on January 6 and was sentenced on January 30, 2016.

[39] The Superior Court of Justice trial of the appellants Kompon and Buffone before Ramsay J., sitting with a jury, began on February 27, 2017 and lasted 48 days over 3.5 months. They were convicted on June 12 and sentenced on September 28, 2017.

[40] In the result, as noted earlier: the trials of Bulhosen, Vilalta-Castellanos, Cipollone and Oliver were actually completed within 27 months of their arrest; Brennan's trial was completed within 27.5 months; and the trial of Kompon and Buffone was completed with 32.5 months.

C. The Jordan Framework

[41] Section 11(b) of the Charter provides: "Any person charged with an offence has the right … (b) to be tried within a reasonable time".

[42] Jordan established a new framework for the s. 11(b) analysis. It was designed to be simple in its application and predictable in its effect. It replaced the framework articulated in R. v. Morin, [1992] 1 S.C.R. 771, which the majority in the Supreme Court described as "too unpredictable, too confusing, and too complex": Jordan, at para. 38. The Jordan framework is now well-understood: see R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 31-59; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 301-323, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 513; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 135; and R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at paras. 4-9, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 325.

[43] At the centre of the new framework is a "presumptive ceiling" on the time between the date of the charges and the actual or anticipated end of the trial. Delay beyond that ceiling is presumptively unreasonable: Jordan, at para. 46. For cases tried in provincial courts, the ceiling is 18 months. For cases tried in superior courts, or in provincial courts after a preliminary inquiry, it is 30 months.

[44] The Supreme Court saw the presumptive ceiling as giving "meaningful direction to the state on its constitutional obligations" and giving guidance to all actors in the justice system who have a part to play in ensuring that trials are concluded within a reasonable time: Jordan, at para. 50. The presumptive limits also give assurances to accused persons, victims of crime, families, witnesses and the public that s. 11(b) "is not a hollow promise": Jordan, at para. 50.

[45] Delay waived by the defence, or delay attributable to the defence is deducted from the "total delay" (the time between the date of the charges and the actual or anticipated end of the trial) to determine the "net delay": Jordan, at para. 66; and Coulter, at para. 35.

[46] If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable and the Crown bears the onus of establishing that the delay was reasonable: Jordan, at paras. 47, 68. It may do so by establishing that the delay was caused by "exceptional circumstances": Jordan, at paras. 47, 68. These have two components: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) the Crown cannot reasonably remedy the delays emanating from these circumstances once they arise: Jordan, at para. 69. Exceptional circumstances generally fall into two categories, either "discrete events", which are not at issue in this case, or cases that are particularly complex as a result of the evidence or issues: Jordan, at para. 71; and Coulter, at para. 37.

[47] If the net delay is less than the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable: Jordan, at paras. 48, 82; Coulter, at para. 40; and R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at paras. 22, 60. To do so, it must demonstrate: (1) that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have: Jordan, at para. 48. In the absence of both these factors, the s. 11(b) application must fail: Jordan, at para. 82; and Coulter, at para. 53. Jordan contemplates that stays of cases falling below the presumptive ceiling should only be granted in clear cases: Jordan, paras. 76, 83.

[48] Particularly complex cases are those where the nature of the evidence or the nature of the issues, or some combination of both, require an inordinate amount of trial or preparation time: Jordan, at para. 77. The complexity of the case may also be impacted where there are multiple co-accused: Jordan, para. 77. The hallmarks of cases where the complexity arises from the nature of the evidence include (Jordan, at para. 77):

• voluminous disclosure;
• a large number of witnesses;
• significant requirements for expert evidence; and
• charges covering a long period of time.

[49] The majority in Jordan noted that the judge assessing the complexity of the case should 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": para. 79.

[50] It also noted, at para. 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" (emphasis added).

[51] While the gravity or seriousness of the offence cannot be used to establish complexity, more complex cases will often be those involving serious charges, such as terrorism, organized crime and gang-related activity: Jordan, at para. 81.

[52] Jordan also established transitional rules applicable to cases in which the delay exceeds the presumptive ceiling but the cases were "in the system" prior to the release of the decision in Jordan and the Crown establishes the parties reasonably relied on the law as it then existed: para. 96. Those circumstances do not apply to this case.

[53] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, released approximately 11 months after Jordan, the Supreme Court explained and confirmed the principles in Jordan. In particular, it explained the calculation of defence delay, the application of Jordan's transitional rules and the determination of particular complexity. As to complexity, Cody explained, at para. 64: "case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex" (emphasis added). Unlike defence delay or discrete events, "[c]omplexity cannot be used to deduct specific periods of delay" but rather involves considering "whether the net delay is reasonable in view of the case's overall complexity": Cody, at para. 64.

[54] Both Jordan and Cody recognized that the determination of whether the net delay is reasonable in light of the case's overall complexity is "well within the expertise of a trial judge": Jordan, at para. 79; and Cody, at para. 64.

[55] With these principles in mind, I turn to the reasons of the application judge.

D. The Application Judge's Reasons

[56] The parties agreed that the net delay between the date of the charges and the anticipated end of the trial was 35 months. The Crown did not seek to attribute any of the total delay to defence conduct and it was agreed that the defence did not waive any delay.

[57] The application judge rejected the defence submission that the case was a one-stage proceeding as a result of the preferred indictment and that the 18-month presumptive ceiling therefore applied. He observed that Jordan articulated a shift from previous practice and that "pre-Jordan principles" (i.e., the principles in Morin), should not apply to a post-Jordan case. Nowhere in Jordan did the Supreme Court make a distinction between one-stage and two-stage proceedings. Indeed, the Supreme Court repeatedly drew a distinction between the ceiling applicable to cases going to trial in provincial courts and those tried in superior courts. The applicable ceiling was 30 months.

[58] Because the net delay of 35 months exceeded the presumptive 30-month ceiling, the Crown had the onus of showing that the delay was reasonable due to exceptional circumstances. The Crown submitted that the delay was justified by the particular complexity of the case.

[59] The application judge accepted that submission. He found that this case had "many of the hallmarks of a particularly complex case as discussed in Jordan." Documentary disclosure was in excess of 250,000 documents which were stored in approximately 220 gigabytes of data, and approximately 1.5 terabytes of data representing the contents of approximately 100 seized electronic devices. There were also approximately 100,000 audio intercepts, 400 of which the Crown intended to use at trial. The evidence at trial would likely be "extensive": the Crown intended to call 220 witnesses, including approximately 85 surveillance witnesses and 22 expert witnesses in drug trafficking, coded language, American-Mexican cartels, money laundering, and the forensic investigation of electronic devices.

[60] Although the application judge accepted the appellants' submission that there is no Jordan exception for large-scale narcotics cases based on intercepts and surveillance, he found that the complexity of this case was "substantially increase[d]" because the Crown needed to weave together a large volume of surveillance evidence, intercepted evidence, expert evidence on coded language, and forensic evidence for many of the brief interactions between two or more people. This combination of evidence would need to be developed over and over again by the Crown in an effort to prove the activities of the parties and the relationships between them. Moreover, he noted that this case was more complex than a typical narcotics case due to the combination of the 3.5 year time-frame of the charges, the complex nature of the conspiracy and criminal organization charges, the international component to the charges, and the involvement of international police agencies. It would take an "inordinate amount of trial time and preparation time." The fact that the trial proper was estimated to take approximately six months supported this view.

[61] The application judge also accepted the Crown's submission that the complexity of this case was increased because it involved multiple co-accused. This meant there would be issues regarding the co-actors exception to the hearsay rule, the use that can be made of evidence as between different accused, and the potential for antagonistic defences.

[62] The application judge concluded that the Crown had established that the case was particularly complex and that exceptional circumstances existed. He then considered whether "the time the case has taken is justified" by reason of the exceptional circumstances: Jordan, at paras. 68, 80. In particular, he asked whether the Crown had a plan to manage the case, whether that plan was reasonable, and whether it was implemented reasonably, such that the delay to trial was justified.

[63] Ultimately, he answered each question affirmatively. In doing so, he made a number of findings:

• he rejected the defence submission that the Crown did not have a plan and found that "the Crown clearly had a plan to manage the case from early in the proceedings";

• the Crown's plan included:

  • proceeding to a preliminary inquiry using the Criminal Code, s. 540(7) procedure;
  • a plan for disclosure, including disclosure of a large number of documents and electronic data early in the process;
  • offering to provide requested witnesses for cross-examination;
  • coordinating the schedules of the court and defence counsel for the purpose of scheduling the preliminary inquiry and trial;
  • requesting statements of issues and witnesses from the defence;
  • taking the initiative to engage in the case management process in both the Ontario Court of Justice and the Superior Court; and
  • streamlining the case by resolving the charges against 7 of the initial 14 co-accused, thereby reducing the complexity of the case.

• while the ITOs should have been disclosed earlier, no time was lost by their late disclosure, as the parties were still able to engage in meaningful discussions at the first case management conference and by the second case management conference all ITOs had been disclosed;

• the Crown did not act unreasonably by not accepting various defence proposals to shorten the process because those proposals would not realistically have done so and the Crown was dealing with multiple co-accused, many of whom were not involved in, or apparently not interested in, negotiating a shorter process;

• the Crown did not act unreasonably in exercising its discretion not to sever the charges against some of the accused; and

• the Crown was permitted to change its plan by preferring the indictment and, although it could have done so earlier, it ultimately reduced the time to trial by approximately eight months.

[64] The application judge found that while preferring the indictment arguably resulted in some time lost in the Ontario Court of Justice, it saved time going forward.

[65] The application judge concluded:

Overall, in consideration of the Crown's plan, the way in which the Crown managed the plan, the presumptive ceiling of 30 months, and the complexity of this case, I find that the Crown has proved that the 35 months that this case will take to the end of this trial is reasonable.

[66] Accordingly, the application judge held that the appellants' s. 11(b) rights were not infringed and he dismissed their applications.

E. Analysis

(1) The Presumptive Ceiling: 18 or 30 Months?

[67] In this court, the appellants renew their submission that by preferring the indictment and bypassing the preliminary inquiry, the Crown turned the case into a one-stage proceeding and therefore the 18-month ceiling applies. They refer to Morin, at p. 793, where the Supreme Court made a distinction between a one-stage and a two-stage proceeding.

[68] The rationale for the 30-month ceiling in Jordan, the appellants submit, is that a case proceeding in the Superior Court, or in the Ontario Court of Justice after a preliminary inquiry, has increased time requirements. Where the Crown prefers an indictment, the inherent time requirements are reduced and the 18-month limit should apply.

[69] This submission fails for several reasons. First, Jordan created a new framework for the s. 11(b) analysis. In this and other aspects of their submissions, discussed below, the appellants rely on concepts in Morin that have been superseded by Jordan, except for some aspects of transitional cases. As the application judge noted, the Supreme Court repeatedly drew a distinction in Jordan between trials in the provincial court and trials in the superior court. Nowhere in Jordan did the court speak of a one-step or two-step proceeding, or suggest that different rules apply when an indictment is preferred in a superior court.

[70] Second, in Cody, the Supreme Court did not adopt the submission of the intervener, the Criminal Lawyers' Association of Ontario, which invited the court to carve out an exception to the 30-month ceiling for cases that have proceeded in a superior court without a preliminary inquiry. The absence of reference to this issue in Cody suggests that the Supreme Court felt that its reasons in Jordan were clear. It is reasonable to conclude that if the Supreme Court had intended an 18-month ceiling for cases tried in a superior court without a preliminary inquiry, it would have taken the opportunity in Cody to say so.

[71] Third, as the Crown notes, not only is there no authority for the appellants' submission, it has been rejected by numerous decisions across the country. See, in particular: R. v. Schenkels, 2017 MBCA 62, 384 C.R.R. (2d) 266, at paras. 43-50, leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 268; and the decisions of the Ontario Superior Court of Justice in R. v. Millard, 2017 ONSC 4030, at paras. 56-61; R. v. Nyznik, 2017 ONSC 69, at paras. 22-35; and R. v. Maone, 2017 ONSC 3537, at paras. 11-22. See also the decisions in: Corriveau c. R., 2016 QCCS 5799, at paras. 21-35; R. v. Jones, 2016 ABQB 691, at paras. 23-33; Catania c. R., 2016 QCCQ 15023, at paras. 42-55; R. v. Cabrera, 2016 ABQB 707, 372 C.R.R. (2d) 62, at paras. 18-28; R. v. Wilson, 2017 ABQB 68, at paras. 77-78; R. v. Nasery, 2017 ABQB 564, at paras. 44-56; R. v. Barra and Govindia, 2017 ONSC 6008, 394 C.R.R. (2d) 1, at paras. 35-38; R. v. Carter, 2018 ABQB 657, 418 C.R.R. (2d) 133, at paras. 14-19; and R. v. Rye, 2018 ONSC 7474, at paras. 7-23.

[72] I would not give effect to this submission.

(2) Did the Application Judge Err in Finding the Delay Was Reasonable in Light of the Particular Complexity of the Case?

(a) Standard of Review

[73] The characterization of periods of delay, and the ultimate decision as to whether there has been unreasonable delay, is subject to a correctness standard, but "the trial judge's findings of fact are entitled to deference where they are relevant to the analysis required by Jordan": see R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 3; Jurkus, at para. 25; and R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27.

(b) Length of Delay

[74] The appellants submit that this court should consider the projected delay considered by the application judge – 35 months – despite the fact that they were, in fact, tried in a shorter time. As events transpired, five were tried a few months under the Jordan ceiling and the other two were tried a few months over the ceiling.

[75] No cases were cited to us in which appellate courts have applied the actual trial completion date when it results in a delay less than what was estimated by the application judge. There appears to be a uniform approach, however, of using the actual date when the delay is greater than what was projected by the application judge: See R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 12, 19; Manasseri, at paras. 278, 284-285, 326; D.M.S. v. R., 2016 NBCA 71, 353 C.C.C. (3d) 396, at paras. 13, 21; R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776, at para. 4; Schenkels, at para. 21; and R. v. Barna, 2018 ONCA 1034, 371 C.C.C. (3d) 217, at para. 4, leave to appeal to S.C.C. refused, [2019] S.C.C.A. No. 40. Moreover, this court has previously suggested that there is no need to use the anticipated trial completion date where the conclusion of the trial is "a date certain": R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 149.

[76] Using the actual trial completion date would materially affect the Jordan analysis for the five appellants whose trials were completed within 30 months, as it would place the onus on them to show that the delay was nevertheless unreasonable, something they have not attempted to do.

[77] As I find no error of law in the application judge's analysis, and agree with his conclusion that the delay was reasonable based on the particular complexity of this case, it is unnecessary to address this issue. Had he made an error enabling us to consider this issue afresh, it may have been open to us to assess the alleged breach of the appellants' Charter rights based on the shorter delay established by the full record: see D.M.S., at para. 13.

(c) Complexity

[78] As the projected delay exceeded the presumptive 30-month ceiling, and as there was no waiver of delay by the defence or delay attributable to the defence, the onus was on the Crown to establish exceptional circumstances in the form of either discrete events or the particular complexity of the case as a result of the evidence or issues. There were no discrete events relied upon, so the sole issue was complexity.

[79] The appellants do not challenge the application judge's finding that the case was complex. Nor could they possibly do so in my view. The complexity of the evidence ticked every box in Jordan and then some: the number of co-accused (initially 14 and ultimately reduced to 7), some of whom spent long periods of time without counsel and many of whom, as the application judge noted, were not involved in, or apparently not interested in, negotiating a shorter process; the complex nature of the charges; the time span of the charges (3.5 years); the volume and complexity of the evidence; the number of witnesses (anticipated at 220); the need for complex expert evidence (22 experts); the international aspects of the case; and the projected length of trial (6 months). Moreover, as the application judge noted, presenting the evidence against each accused would involve piecing together a massive jigsaw puzzle of evidence and would raise complex evidentiary issues.

[80] It is important to reiterate that the application judge's analysis did not end with his finding that the case was particularly complex. He went on to conclude that the Crown had a plan to manage the case, that the plan was reasonable, that it was implemented in a reasonable manner and that the delay to the projected end of trial was reasonable in light of the particular complexity of the case.

[81] Again, the application judge's conclusion that the Crown's plan was reasonable is fully supported by the evidence. Although the initiation of this prosecution preceded Jordan by almost two years, the Crown was attentive from the outset to its disclosure and case management obligations. As I have noted, on the very day of arrest, the Crown gave each accused a lengthy and very detailed synopsis of the case. This was undoubtedly designed to show the Crown's hand and to incentivize early resolutions and possible cooperation.

[82] Within three months of the arrest, the Crown had made massive disclosure, consisting of approximately 93 percent of its evidence by volume. It sought and obtained case management in both the Ontario Court of Justice and the Superior Court from the early stages in each court and it was proactive in its use of case management and judicial pre-trials. It actively engaged with defence counsel in scheduling and in attempting to streamline and simplify the preliminary inquiry and trial. It made ongoing efforts to resolve the proceedings with individual accused and it was successful in doing so for 7 of the 14 original co-accused at various times prior to trial. The Crown's conduct of the proceedings satisfied Jordan's admonition, at para. 70:

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. 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.

[83] As this court observed in Manasseri, at para. 308, where the Crown takes reasonable steps to avoid and address delay: "What counts is effort and initiative, not success."

[84] While the Crown's efforts were not always successful, and while, as the application judge noted, there was some delay in disclosure of the redacted ITOs, that delay had to be considered in context. The application judge, having case managed the proceeding from the outset in the Superior Court, was well positioned to do so.

[85] As I have noted, Jordan requires no further analysis once the application judge finds that the delay in trying the case is reasonable because of its particular complexity. I will, however, address the appellants' submissions that the delay in this case was caused, not by complexity, but by "wasted" time in the Ontario Court of Justice as a result of delay in preferring the indictment and by systemic or institutional delay in both courts.

(d) Preferring the Indictment

[86] The appellants say that after allowing for 5 months of "intake", they spent 7.5 months in the Ontario Court of Justice waiting for a preliminary inquiry that never materialized. This time, between February and October 2015, was "wasted" and, unless explained, cannot be cured by preferring an indictment. They say the 30-month presumptive ceiling reflects the inherent time requirements of a case with a preliminary inquiry. If the Crown prefers an indictment during the "normal intake period" there is no reason why a higher presumptive ceiling should apply. If the indictment is preferred at a later date, so the argument goes, the Crown must explain why it "wasted" time preparing for the preliminary. If it fails to do so, preferring the indictment cannot cure unexplained "past delay".

[87] I do not agree.

[88] It is well settled that the Crown's decision to prefer an indictment is a matter of prosecutorial discretion and is reviewable only for abuse of process: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 24; and R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 44, 48, 51. The Crown has no obligation to give reasons to justify its decision, absent an evidentiary basis for a claim of abuse of process: Anderson, at para. 55; and R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226, at para. 23.

[89] It has been recognized for some time that the avoidance of unreasonable delay is an appropriate basis on which to prefer an indictment: see Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), at pp. 93-94; R. v. Charlie, 126 C.C.C. (3d) 513 (B.C.C.A.), at para. 32; and S.J.L., at para. 38.

[90] Thus, in Manasseri, at para. 376, n. 5, Watt J.A. observed:

Direct indictments under s. 577(a) of the Criminal Code have been infrequent in this province. However, after Jordan, with full disclosure as required by Stinchcombe, the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.

This recommendation was expressly endorsed by the Manitoba Court of Appeal in R. v. C.M.M., 2017 MBCA 105, [2018] 2 W.W.R. 213, at para. 14. Moreover, as previously noted, the case management judge in the Ontario Court of Justice specifically advised the Crown in this case that it might need to seek a direct indictment in order to keep the proceedings moving forward.

[91] I do not accept the appellants' distinction between "past delay" and "future delay", a distinction found nowhere in Jordan. Nor do I accept the appellants' premise that preferring an indictment lowers the presumptive ceiling unless explained. This approach would restrict the utility of the preferred indictment as a remedial tool to ensure the protection of s. 11(b) rights.

[92] Nor do I accept that the time in the Ontario Court of Justice prior to the preferred indictment was "wasted". Similar arguments were rejected in Maone, at paras. 20-21, and in Millard, at para. 58, where Code J. observed:

[T]he main premise of the Applicant Smich's argument in favour of the eighteen month ceiling is that the time spent in the Ontario Court of Justice is "wasted," when a direct Indictment is preferred, because the accused has been denied the benefit of a preliminary inquiry. In particular, it was submitted that the time has been "wasted" when the Indictment is preferred "on the eve of the preliminary inquiry." I do not accept this premise. The time that a case spends in the Ontario Court of Justice, prior to a preliminary inquiry, is extremely valuable. Bail hearings are held, the accused has time to retain counsel, initial Crown disclosure is made and then reviewed by the defence, ongoing Crown disclosure is substantially completed and defence requests for further disclosure are made, counsel interview witnesses and preserve evidence that may be needed at trial, counsel take instructions from the client and negotiate resolutions, judicial pre-trials are held where the case against certain accused can be finally resolved and where admissions that shorten and simplify the case can be negotiated. See: R. v. Maone et al., 2017 ONSC 3537 at para. 21. In short, the time spent in the Ontario Court of Justice prior to preferring a direct Indictment is not "wasted" and it cannot simply be discounted or ignored, when determining a reasonable presumptive ceiling for overall delay. It is valuable time that the parties use and need.

[93] The same occurred here. During the so-called "wasted" time between February and October 2015, some of the accused were still seeking counsel, Crown disclosure was taking place and there were three case management conferences. Resolution discussions took place and 4 of the original 14 co-accused pleaded guilty. Efforts were made by the Crown, albeit sometimes unsuccessful at the time, to shorten and simplify the case. While not all of these efforts were immediately successful, they helped to pave the way for expedited trials for five of the seven appellants – trials that were, in fact, completed within the 30-month presumptive ceiling. The application judge did not err in failing to characterize the time spent in the Ontario Court of Justice prior to the preferring of the direct indictment as "wasted".

[94] For these reasons, I reject the appellants' submission that the Crown was required to explain the delay in preferring the indictment and that this had the effect of reducing the presumptive ceiling.

[95] I turn to the appellants' submissions concerning systemic or institutional delay.

(e) Systemic or Institutional Delay

[96] It bears repeating that Jordan established a new framework for the s. 11(b) analysis. As this court has observed, the Supreme Court "rewrote the law on unreasonable delay … with the release of its decision in Jordan": R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 24, leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 392; see also Coulter, at para. 60.

[97] Other than in transitional cases, which the Crown concedes this is not, pre-Jordan constructs have little utility in the Jordan analysis.

[98] Jordan's goal was to promote behaviour modification and predictability by encouraging parties to "manage 'each case in advance to achieve future compliance with consistent standards'": Jordan, at para. 35, quoting Michael A. Code, Trial Within a Reasonable Time: A Short History of Recent Controversies Surrounding Speedy Trial Rights in Canada and the United States (Scarborough, Ont.: Carswell, 1992), at p. 117 (emphasis in original).

[99] In so doing, Jordan departed from Morin's retrospective inquiry, which focused on institutional delay and classifying stages of a case into categories of delay that could or could not be visited upon the Crown: see R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 46. Instead, Jordan relies on presumptive ceilings. As Jordan points out, particularly at paras. 52-56, the presumptive ceilings take account of the factors that "can reasonably contribute to the time it takes to prosecute a case": para. 53. This includes the "inherent time requirements of the case", institutional delay in the provincial court and in the superior court following committal for trial and "the increased complexity of criminal trials since Morin": para. 53. The Supreme Court also stressed that the presumptive ceiling includes a public interest component by giving clarity and assurance concerning the duration of trials, thereby building public confidence in the administration of justice.

[100] The presumptive ceilings established by Jordan assume that there will be institutional delay in the courts below. Unlike delay waived by the defence or attributable to it, which is deducted from the total delay to produce the net delay, Jordan does not require an accounting for Crown delay or institutional delay. Instead, the focus is on the presumptive ceilings. Jordan permits the ceilings to be exceeded in exceptional circumstances, which can include discrete events and particularly complex cases. It recognizes that in some exceptional circumstances, the ceiling may not adequately reflect the time required as a result of the particular complexity of the case at hand. If the Crown is to avoid a stay in such cases, however, it must discharge the onus imposed in Jordan to show that the circumstances were outside its control. It may do so where it shows that it developed and followed a reasonable plan to minimize the delay. The question, ultimately, is not whether institutional factors or the particular complexity of the case caused certain stages of the delay, but rather, whether an inordinate amount of trial or preparation time was needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified: Jordan, at para. 78.

[101] In this case, there is little question that there was some institutional delay, particularly in the provincial court, where the Crown struggled to schedule a six-week preliminary inquiry in a jurisdiction (Welland, Ontario) with a one-judge courthouse. But Jordan recognizes that institutional delay will occur and makes provision for it in the presumptive ceiling.

[102] As I have noted, the application judge did not end his analysis with his finding that the case was particularly complex. He went on to find that the time the case took was reasonable, was justified by its complexity and that the Crown implemented a reasonable plan to manage that complexity. The complexity included the scheduling challenges associated with a lengthy preliminary inquiry involving multiple co-accused.

[103] The application judge was faithful to the analytical framework set out in Jordan for the determination of case complexity. He began to case manage the proceeding approximately one month after its arrival in the Superior Court and had presided over three case management conferences and three judicial pre-trials. His privileged perspective on the issue of complexity of the case as a whole informed his findings of fact, which are entitled to deference. I see no error in his ultimate decision that the projected delay in this case was reasonable given the particular complexity of the case.

F. Disposition

[104] For these reasons, I would dismiss the appeal.

Released: July 15, 2019

"G.R. Strathy C.J.O."

"I agree. David Watt J.A."

"I agree. B. Zarnett J.A."