Ontario Court of Justice

(Toronto Region)

Between:

HER MAJESTY THE QUEEN

v.

AVERY SANTUCCI

Oral Judgment

Justice M. McLeod

September 26, 2014

Appearances:

Mr. Christopher Leaflor — For the Crown

Mr. Frank Adarrio — For the Defence

Decision

In this matter an application has been made for a stay of proceedings based on an alleged violation of Avery Santucci's right to be tried within a reasonable period of time, as protected by s. 11(b) of the Charter.

Having reviewed the more recent decisions dealing with trial delay, my understanding is that a reasonable approach is to take the total period between the date the Information was sworn and the trial date and divide it into an intake period – which is from the date of the Information to the date when a reasonably diligent accused should be in a position to set a trial date; and the period thereafter to the trial date – loosely called institutional delay.

The Intake Period

The intake period must be long enough to permit the accused to make decisions about retaining counsel; for the police to prepare the Crown brief; for the Crown to review the brief; for disclosure to be copied and delivered to the accused; for discussions to take place between the Crown and the defence about possible resolution and management of the trial; for consultation between the defence lawyer and the accused and between the Crown and the police; for arrangements to be made with the trial coordinator to fix a mutually satisfactory trial date. Setting a reasonable intake period shouldn't be controversial because most criminal cases follow the same pattern. At the point at which the Information is sworn, the investigation is largely complete and virtually all of the materials which will be required for the Crown brief and passed on to the defence as disclosure should be readily available in the form of police notes, recorded witness statements, video records made or seized, documentary and other physical exhibits seized. The time actually required to assemble a typical Crown brief is measured in units of minutes or hours – not days or weeks – in most cases it is an administrative task. This is a point made by Justice Green in R. v. Duszak and R. v. Seeveratnum, and other judges in other cases. In a typical case, once the brief is prepared, the material for disclosure is available to be copied because the disclosure is a subset of the material in the brief. The amount of time that should be devoted to producing disclosure is minimal because it is just photocopying or downloading video or audio recordings onto a DVD. Perhaps some of the material to be disclosed needs to be vetted by a Crown. That is a process which may take several hours, once someone gets around to doing it. This is true of much of the activity in the intake period – most of it doesn't take very long to do, it is just a matter of someone getting around to doing it.

It should be noted that while there is a sense of urgency in most criminal investigations, it rapidly dissipates once the arrest has been made – then it is reactivated only intermittently – usually at the whim of a judge.

It is reasonable to anticipate that the brief containing all essential information should be in the hands of the Crown within a short time of the accused's arrest. Where the accused is detained for a bail hearing, the brief is often prepared and delivered within hours. With the brief in hand, a vetted initial disclosure package should be available by the first appearance date – because it is just a matter of preparing some additional photocopies. As a matter of practice, the first appearance of the accused in Court is treated as the opportunity for handing disclosure to the accused – which enables him/her to start preparing to start making decisions about the case. This is also the first opportunity for the Court to find out whether the accused is retaining counsel and to initiate the management process leading to the scheduling of a trial date, if one turns out to be required. It is axiomatic that all essential information must be disclosed to the accused before the case can move forward, whether or not the accused has retained counsel. Disclosure is a prerequisite to the bulk of the intake activities: instructing counsel, getting advice, meeting with the Crown and determining whether to go to trial or plead guilty.

The Morin guidelines as interpreted by subsequent jurisprudence indicate that it is reasonable to expect that intake should be completed within two months of the swearing of the information in a typical kind of case.

Once intake is complete, the Morin guidelines further indicate that the OCJ should be scheduling a trial within eight to ten months – subject to certain considerations.

Chronology of Events

June 26-27, 2013

A search warrant was executed at Avery Santucci's residence on June 26, 2013. Police found 158 grams of marijuana; about 25 grams of MDMA (ecstasy); and 119 tablets of Percocet. Police also found a set of brass knuckles – which is a prohibited weapon. Mr. Santucci was arrested on charges of possession for the purpose and possession of a prohibited weapon. He was taken into custody and produced in Bail Court on June 27, 2013. The Information was laid on June 27, 2013 was presented in Bail Court and Mr. Santucci was released on consent, on a recognizance of Bail.

As already noted – where an accused appears in Bail Court the brief is usually in the hands of the Crown and judging from what happened in Mr. Santucci's bail hearing – it appears that was the case here. This means that this was the first opportunity to hand the accused the standard disclosure package. But this didn't happen – perhaps it hadn't been photocopied – but even if it had it is unlikely that the Crown would have handed disclosure to either the accused or the Duty Counsel at this point – not for any particularly cogent reason and completely without consideration of 11(b) principles – it just isn't done. Despite everything that has been said about disclosure – it remains a sticking point for the prosecution.

At the conclusion of the Bail Hearing, Duty Counsel suggested a return date of August 14th, 2013, and then amended that to August 21st, 2013. The practice in this jurisdiction, where an accused is released on charges, is to schedule the first appearance for a date 6-8 weeks in the future. I find that the Duty Counsel was simply articulating this practice in requesting a first return date of August 14th, 2013 and then amending that to August 21st, 2013.

August 9, 2013

On August 9, 2013, Mr. Santucci applied to vary the terms of his recognizance. The matter appeared before Justice Reinhardt. Mr. Santucci was represented by Mr. Goldblass – who was identified in the transcript as a student. In the course of the hearing, the Crown referenced the fact that the first return date was scheduled for August 21st, 2013, and asked if Mr. Santucci wanted to keep that date. Once counsel confirmed that disclosure was not available, they kept that date. Obviously the Crown Brief was once again in the room with the accused and his counsel – and this was another opportunity for the Crown to hand over the disclosure – but it didn't happen.

August 21, 2013

On August 21st, 2013, Mr. Santucci appeared in Court on his first appearance. The Crown advised that disclosure was not available and requested that the matter be adjourned to September 25, 2013. No explanation has been provided for the non-availability of disclosure on August 21st – eight weeks had gone by since the swearing of the Information and the Brief had been in the hands of the Crown throughout.

September 25, 2013

On September 25, 2013, Mr. Santucci appeared in Court. He received some disclosure with respect to the prohibited weapon charge and "paper disclosure" with respect to the drug charges – which I understand to refer to the standard disclosure package. The Crown advised that the ITO for the search warrant was being vetted and wasn't available. On behalf of Mr. Santucci, Duty Counsel pointed out that the matter had been going since June 26th and the failure to produce the required ITO in three months was "very problematic" - this was a clear reference to 11(b) issues and the accused's right to get to trial within a reasonable time. In the context of her comments about the failure to produce relevant disclosure, Duty Counsel referenced that Mr. Santucci "needs to now look for counsel (now) that he's received some of his disclosure". The matter was adjourned to October 30th, 2013.

Contrary to what was asserted in court on September 25, 2013, the evidence indicates that the ITO was actually vetted by the Crown on September 24th, 2013. There is no indication that this was known by the Crown who attended Court in this matter on September 25, 2013. But at the same time, there is no explanation for why it wasn't known.

On October 28th, 2013, a note was made on the outside of the Crown Brief that the vetted ITO was available to be produced to the defence.

October 30, 2013

On October 30, 2013, Mr. Santucci attended Court. At the outset, the Crown indicated that there was further disclosure which could be produced to Mr. Santucci and the ITO for the search warrant was also available but it was not the Crown's practice to give the ITO directly to the accused. The Crown said: "So, once he retains counsel, we're happy to send that directly to counsel". The matter was then adjourned to November 20, 2013.

November 20, 2013

On November 20th, 2013, Mr. Rosenthal attended Court with Mr. Santucci and confirmed his retainer. Mr. Rosenthal said: "I understand that some disclosure has been provided. There's some outstanding disclosure. I'm not sure if that's available? If not, I'll come back in a week and I'll write a lengthy letter to the Crown today." The Crown indicated that Mr. Rosenthal should write and then suggested scheduling a Crown pre-trial. But Mr. Rosenthal indicated there was no point scheduling the Crown pre-trial until he had an opportunity to review the ITO for the search warrant. The Crown agreed and advised that the ITO would not be ready within the week because it could take a number of months. Clearly the attending Crown hadn't realized that the ITO in this matter was available. In the result the matter was adjourned one week to November 27th, 2013. Mr. Rosenthal confirmed he would particularize the other outstanding disclosure issues and the Crown could check on when the ITO would be available.

November 27, 2013

On November 27, 2013, an agent for Mr. Rosenthal attended Court and indicated that a letter had been sent to the Crown requesting disclosure of notes of three named police officers; DVD disclosure, if there was any; and a copy of the ITO. The attending Crown handed over a copy of the ITO and suggested that the defence should be in a position now to schedule a Crown pre-trial. The matter was adjourned to December 11, 2013.

December 11, 2013

On December 11, 2013, an agent for Mr. Rosenthal attended Court and advised that the required Crown pre-trial had been scheduled for December 16, 2013 and asked that the matter be adjourned to December 18, 2013.

December 18, 2013

On December 18, 2013, an agent for Mr. Rosenthal attended Court and scheduled a JPT for January 24, 2014, and had the matter adjourned to that date.

January 24, 2014

On January 24, 2014, an agent for Mr. Rosenthal attended Court and confirmed that the JPT had taken place and that counsel attended with the Trial Coordinator and were given two days for trial: December 9th and 10th, 2014. The agent confirmed that December 8, 2014, was offered but Mr. Rosenthal was unable to commence the trial on that date. The agent further indicated that Mr. Rosenthal was available for trial on various earlier dates beginning with February 4, 10, 17 and 26; nine days in March; eight days in May; and dates in every other month. There was no indication on the record as to the availability of the Crown and the required witnesses – other than December 9th and 10th, 2014.

Analysis of Delay

It is agreed that the delay of seventeen and a half months between the date the Information was sworn and the proposed trial date was so long as to trigger the s. 11(b) analysis. It is further acknowledged that there was no waiver of 11(b) by the accused.

The Initial Appearance Date Practice

Several aspects of the intake period require comment. First there was the delay between the date the Information was sworn, which coincided with the accused's release from custody, and the first appearance date. The period was from June 27, 2013 to August 21, 2013 – a period of eight weeks. Although the actual return date was put on the record by duty counsel, I am satisfied that duty counsel was simply following the standard protocol adopted by the police and prosecutors in this jurisdiction – which is to schedule the first return date six to eight weeks after the accused's release.

The local practice of scheduling the accused's first appearance six to eight weeks after his release creates a significant delay at the outset. The first appearance date is a key point in processing the case through the system – it is when the prosecution is expected to hand over the disclosure which the accused needs to make the further decisions required in the intake period. It is also the point at which the Court can begin to exercise some meaningful case management by addressing the issues of retention of counsel, continuing disclosure and scheduling further necessary events, like the counsel pre-trial and/or a judicial pre-trial. The period between the accused's arrest and his first appearance in Court ought to be treated as part of the neutral intake period – provided the delay is justified. Unfortunately some of the case law seems to suggest that this first period of intake is always neutralized - whether it is two weeks or eight weeks, because it provides the opportunity for the prosecution to prepare disclosure and for the accused to retain counsel.

This appears to be what Justice Code said in R. v. Lahiry 2011 ONCA 561 – that "it was faintly submitted that a person like Lahiry did not need the initial six-week return date on his appearance notice as he was able to quickly retain counsel. Accordingly, his appearance notice should have had a shorter return date". As I read his reasons, Justice Code was rebutting the suggestion that the standard two months for intake should be shortened in a particular case if the accused or the Crown acted more quickly during the initial stages of intake. But his comments have been taken as justifying the Toronto practice of scheduling the first appearance date six to eight weeks after arrest as neutral intake – regardless of what actually happens during that stage of intake or how it impacts on Justice Code's position that the total intake period should be about two months. See the decisions in cases like R. v. Ham 2010 ONCJ 632 and R. v. Cabading. This conclusion has been questioned by other judges, including myself. Other jurisdictions, such as the adjacent jurisdiction of Peel, routinely schedule the accused's first appearance two weeks after his release. The fact that there is this tremendous variance speaks to arbitrariness. The standard delay is two weeks in Peel and as long as eight weeks in Toronto, for no discernable reason.

In R. v. Lahiry 2011 ONSC 6780, Justice Code said that "in a simple summary conviction drinking and driving case, like R. v. Morin, supra, at pp. 16-17 and 25-26 C.C.C., two months was held to be reasonable" for intake purposes and he elaborated by talking about what was engaged in the disclosure process and the need to provide a reasonable opportunity for the accused to retain counsel. I say that whether the case originates in Toronto or Peel or elsewhere in Ontario, the need to allow time for the Crown to prepare and make disclosure and to allow time for the accused to retain and instruct counsel is the same. While the logistical difficulties might be different in more remote locations, the only difference between Toronto and Peel is that the initial delay prior to the accused's first appearance in court will be two weeks in Peel and eight weeks in Toronto. The greater lapse of time in Toronto provides a greater opportunity to get things done - but this is not to the point – because neither the preparation of disclosure nor the retention of counsel necessarily requires six to eight weeks and providing a longer period within which these activities may take place doesn't improve the likelihood that they will – as demonstrated in the present case. All it does is create a delay at the outset – because the crucial date is the accused's first appearance – this is the first opportunity for the Court to begin to manage the case.

The further problem with automatically neutralizing eight weeks at the first stage of intake, regardless of the needs of the particular case or what actually happened, is that it eliminates almost all of the time Justice Code says should be neutralized for intake, because he clearly accepted that the OCA has indicated that in a typical case the intake period should be about two months. Justice Code went on to explain that about two months needs to be neutralized to account for the time it takes to complete the disclosure process; provide the accused with an opportunity to retain and instruct counsel; allow for the necessary meeting between the Crown and defence to discuss the case; and get a date from the trial coordinator. Most of this activity happens after the accused has attended court to pick up his disclosure. But if the eight weeks prior to the first appearance has already been neutralized, how do we fit the balance into the two months which Justice Code agrees is reasonably adequate for intake?

Simply expanding the neutral intake period, as is often done, isn't reasonable because it means that neutral intake period for cases in the City of Toronto will automatically double what the OCA said it should be – while it remains about two months in the adjacent City of Peel - notwithstanding the fact that these are two substantially similar jurisdictions, where exactly the same things have to happen to get a case to trial.

Disclosure Failures

In any event, even if we take the position that 6 to 8 weeks between the accused's release and his first appearance should be neutralized – without impacting on the two months that Justice Code and the OCA say is sufficient for intake in a simple case – a sort of double double – we still have to look at what happened during the initial intake. Bear in mind that in R. v. Lahiry and related cases, the initial delay between the accused's release and his first appearance is justified as necessary because the prosecution has to prepare disclosure – a process Justice Code described this at some length, saying:

The trial judge's focus on the fact that it would only take the police a few days to produce disclosure materials, in such a simple case, is an oversimplification of the function of an intake period. The Crown must also review the disclosure materials produced by the police for completeness and must do any necessary editing. It is then the Crown that makes disclosure, usually at a first appearance in court, and not the police.

I disagree with the implication of Justice Code's indication that the trial judge in Lahiry oversimplified the function because he didn't mention the need for review and possible editing by the Crown – because in most cases those additional activities are pretty simple. Simple photocopying plus simple reviewing stays simple.

But simple or not isn't the point here because in this case we see that despite the opportunity presented by the lengthy initial delay, from June 27, 2013, to August 21, 2013, nothing was done during that period to prepare the disclosure for delivery to the accused – it wasn't even copied. The Brief was in the prosecution's hands as of June 27 – but as of the accused's first appearance on August 21, 2013, the prosecution acknowledged that no disclosure was available – not even a copy of the synopsis. It wasn't until September 25, 2013, that the prosecution was able to deliver the initial disclosure package to the accused – photocopies of the synopsis and notes and other preliminary documents from the Crown Brief. It was only at that point that the case was ready to move forward. No explanation has been provided to account for the failure of the Crown to do anything in the initial eight weeks, presumably because there isn't an explanation. The Crown simply didn't do it until they realized that it hadn't been done and then in the weeks following September 25, 2013, they got around to doing it.

It bears repeating that making adequate disclosure is a crucial step – a prerequisite to the further steps necessary to get the case to the point at which a trial date can be set. In a case like this, the principal issues would concern the seizure of drugs, a weapon and other evidence from Mr. Santucci's residence by the police. All of the relevant material to be disclosed was generated by the police and was already in the hands of the prosecution. With the exception of the ITO, all of the material was producible simply by being copied. This is not a case like R. v. Stilwell 2014 ONCA 563, where the OCA dealt with a child pornography charge where the neutral intake period was expanded to account for the lengthy period of time it would take to view and classify a vast number of images recovered from the accused's computer and then prepare the necessary report. The trial judge in Stilwell had pointed out that in addition to the time required to schedule and perform the actual work, by its very nature it "takes a huge toll on officers and requires frequent breaks". This is not that kind of case. While it is true that the process of unsealing the ITO and vetting it would involve more than mere photocopying, all aspects of that process are or should be routine and straightforward – scheduling the time to prep the order and do the vetting would be the most delaying aspect and that is a function of administrative efficiency.

In the present case, the Crown had the means to realize it was dealing with a sealed ITO as of the date that the brief was delivered – June 27 2013 – the need to actually produce the ITO to the defence was acknowledged by the Crown on September 25, 2013, after the accused was given the initial disclosure package and in the context of complaints about the delay in completing the disclosure process.

This is another troubling aspect of this case – the accused drew attention to the fact that there was further disclosure which was still being withheld despite the delay of over three months and the response of the Crown was simply to say that they were "in the process of also vetting the Information To Obtain" with no indication as to when or how it would be produced. The case was then adjourned to October 30th, 2013 on the clear understanding that time was required for the Crown to edit the ITO.

The complete lack of regard for inefficiency or the right to get to trial in a reasonable time is further demonstrated by the fact that the ITO was already unsealed and vetted as of September 24th, 2013. No explanation has been offered for why this information was withheld this information from the accused and the Court and there is no adequate explanation for the further delay from September 25, 2013 to October 30, 2013.

Crown's Practice of Withholding Disclosure

On October 30, 2013, the prosecution confirmed that the redacted ITO was ready for production. But they refused to produce it to the accused – saying "It's not the Crown's practice to give out directly to the accused. So, once he retains counsel, we're happy to send that directly to counsel." Apparently this is the prevailing practice of the Federal Crown in this area – perhaps elsewhere as well. But it is problematic because it is elementary law that the right to disclosure is a right of the accused, not his lawyer – disclosure is essential to the accused's right to make full answer and defence whether or not he has a lawyer. Crown Attorneys and defence lawyers prefer that disclosure be given directly to counsel, but that doesn't change the fact that it is a right of the accused that is based on the needs of the accused. In some situations the material to be produced is sensitive – which may require some additional precautions before it is given to an unrepresented accused. But that isn't the case here because the ITO had already been redacted of all sensitive information.

In any event, no reason was given for withholding the redacted ITO from Mr. Santucci – other than referencing the Crown's practice – and we are left with no adequate explanation for why the redacted ITO wasn't simply handed over to the accused. The unreasonableness of delaying the process is further demonstrated by the fact that the Crown didn't know whether or not the accused was going to retain counsel; whether he had the ability to retain counsel; or how long the process might take. Meanwhile, the prosecution must have known that the ITO would be one of the first things that counsel would want to review before offering any advice in the case. And the suggestion that once counsel was retained, the prosecution would be happy to send the ITO directly to counsel was simply wrong. At best the prosecution was suggesting that if defence counsel was retained and he/she wrote to the Crown to advise of this fact and request disclosure of the ITO, then it would be placed in the Crown brief for production on the next scheduled court date.

The unreasonableness of withholding the ITO from the accused on October 30th was demonstrated on the next Court date – November 20, 2013 – when despite the fact that the accused had met the arbitrary pre-condition required by the Crown, the ITO was still withheld. At this point the Crown compounded the problem by misinforming the defence and the Court about the status of the ITO – now indicating that it hadn't been ordered released and vetted and suggesting, on no factual basis whatsoever, that it could take months. Several aspects of this are troubling – first that it was completely wrong, a fact that should have been apparent from a cursory glance at the brief; second that the Crown was so casual in saying that a further delay of months would be required, notwithstanding the fact that it was a relatively simple task; and third, that there was no acknowledgement whatsoever about the impact the continuing delays in making disclosure were having on the accused's ability to make full answer and defence or the fact that the case had already been delayed for five months at this point – waiting on production of standard disclosure. In this regard, the unreasonableness of the Crown's position was exceeded only by the complacent acceptance of the delay by the Court.

It must be kept in mind that, according to the evidence and submissions, this was a straightforward case. The material produced in the investigation was fairly modest in terms of size or quantity: officer notes; an ITO and search warrant; photographs and other descriptors of the search and the items seized; standard reports and filings and the like. The Court cannot simply assume that vetting the ITO is complicated or time consuming – because in most cases it isn't. No evidence was introduced to suggest that the process in this case was unusual and by all appearances the redaction was done efficiently in a relatively brief period of time – such that the ITO was actually ready for disclosure before the initial disclosure package was handed to the accused.

As of November 27, 2013, the crucial disclosure was finally made – which enabled defence counsel to assess the case, get instructions from the client and meet with the Crown for a Crown pre-trial. This happened over the next three weeks – a fact which puts the preceding delay into perspective. Reviewing the ITO in light of the known facts and relevant law; explaining the situation to the accused and getting instructions; meeting with the Crown to review the case – these are activities that involved the allocation of significant periods of time by the lawyer and client and some coordination and further time spent in meetings and a pre-trial conference. This is the heavy lifting in preparing a case to the point at which a trial date may be sought. Yet it was initiated and competed between November 27th and December 18th – a period of three weeks – as contrasted with the five months it took to produce the disclosure.

Calculation of Neutral Intake

The delay in producing essential disclosure accounts for five months of the period of just short of six months leading up to the date a JPT was scheduled. As discussed – much of that period was just delay – unreasonable delay occasioned by inefficiency and inattentiveness to the simple tasks that needed to be completed. But disclosure always takes time – and some delay to account for the activity involved in the disclosure process must be built into the neutralization process. One approach would be to take use the two month standard for intake activities; acknowledge that most of the more time consuming activities were completed within three weeks and allow the balance of five weeks as a generous allocation of time for preparing and vetting the disclosure, including the ITO. In this case that approach fits with what actually happened – because the record shows that nothing had been done to generate the disclosure package as of Mr. Santucci's first appearance on August 21, 2013. In the period of just short of five weeks that elapsed between that date and September 24, 2013, the standard disclosure package was prepared, an order was obtained to unseal the ITO and the vetting was completed. The stalling of the file happened because of miscommunication or lack of communication or lack of file management or sheer inefficiency and nonchalant disregard of time lines.

Between November 27 and December 18, 2013, all of the other intake activities were completed and counsel attended Court and scheduled a JPT. Adding the five week period when it appears disclosure was actually being generated to the three weeks it took to complete the balance of the intake activities results in an attribution of about two months to intake – which fits with what Justice Code and the OCA have said should be considered reasonable in a straightforward case. This leaves the balance of three months and three weeks which must be attributed to actions by the Crown.

Delay in Retaining Counsel

It was argued that notwithstanding the delay attributed to the various problems in the disclosure process the neutral intake period should be expanded because the accused did not retain counsel until some point between October 30th and November 20th. The effect of a delay in retaining counsel was addressed by Justice Code in one of the cases dealt with in the Lahiry appeal and resulted in an expansion of "the intake period in this case beyond the usual norms of two months". However, Justice Code made it clear that in most cases the accused's delay in retaining counsel only became relevant to the calculation of what was required for intake purposes once the Crown had made substantive disclosure. This is particularly the case here, where the progress of the case was delayed until the redacted ITO was disclosed to the defence regardless of whether counsel was retained or not. While it sometimes happens that defence counsel can schedule events such as the counsel pre-trial before disclosure is complete – in a case like this where the legality of the search and seizure is the primary issue, to do so would not serve any purpose. It was essential that the redacted ITO be produced before any meaningful decisions could be made.

Judicial Pre-Trial

On December 18, 2013, counsel adjourned the case to January 24, 2014, to allow for a JPT. The jurisprudence is clear that, barring something unusual, the time it takes to arrange and conduct a JPT should be regarded as a further period of neutral intake – over and above the two month period that is generally accepted as being reasonably required.

On January 24, 2014, counsel returned to Court, having completed the JPT, to fix a trial date. The agreed dates were December 9th and 10th, 2014.

Institutional Delay Analysis

In earlier reasons I expressed a preference for Justice Nordheimer's reasoning in R. v. Sikorski 2013 ONSC 1714, about how to calculate institutional delay; as opposed to the position taken by Justice Code in R. v. Lahiry. In a case where the evidence permitted the Court to establish the earliest dates counsel was ready and available to conduct the trial, I thought the principled approach would be to treat the balance of the time to the trial date as institutional delay. Somewhat belatedly I recognize that the judicial consensus is that the OCA endorsed the position that a period of at least thirty days following counsel's earliest available date should be neutralized as being required for trial preparation – regardless of the fact that the earliest date the system could offer was eight months away, or more. I still don't understand what the OCA meant by saying that "counsel require time to clear their schedule so they can be available for the hearing". Nor do I agree that a further period of time has to be neutralized to account for trial preparation – because my experience is that as a general proposition lawyers don't allocate time to preparation. This is a bureaucratic construct that means nothing to practicing criminal lawyers. To the extent that advance preparation is done, it occurs when the opportunity arises. Otherwise, lawyers prepare when necessary – usually shortly before the trial commences, working around other scheduled court events. But I accept that the jurisprudence requires that these notional concepts be accounted for – that the clock starts to run no sooner than the earliest date that counsel confirms availability and readiness or, where counsel fails to create the necessary record, by allowing a reasonable period for counsel to "clear their schedule"; and that thereafter a further period of at least thirty days should be neutralized to account for trial preparation. In a case such as the present, the trial preparation includes the need to allow for preparation and service of a Charter motion in compliance with the notice requirements of the Criminal Rules.

In this case the earliest date offered by the Court was December 8, 2014 – but defence counsel wasn't available. The earliest date defence counsel indicated he was available and ready to conduct the trial was February 4, 2014. The maximum period for consideration as possible institutional delay is the time between the first date offered by counsel and the first available to the Court – which was ten months.

Consecutive Trial Dates

It was argued that although counsel offered February 4, 2013, as the earliest available date, this wasn't an accurate statement of availability because defence counsel didn't confirm when he had two clear consecutive days to conduct the trial. This was based on the submission that two days were requested for the trial and trial dates should be scheduled consecutively. I understand the point the Crown was making – that in practice trial dates in this jurisdiction are scheduled consecutively. I accept that finding two days back to back is harder than finding a single day or two days spread over time – but there is no evidence to assist in quantifying the impact that should make on the 11(b) analysis. More to the point, I know of no reason that a local preference should be given priority over the right of an accused to a trial within a reasonable time. Although many think it is preferable to book consecutive days for a trial, no real justification for this practice has been offered and none comes to my mind. As far as I can determine, it is based on a belief that it is a convenient way to avoid the potential problems that might arise from splitting a trial. But to the extent this might be a problem it is dependent on the extent of the split – in the sense that difficulties are more likely to arise when trials spread over many months or longer. In the present case, there is no reason to think that this was a realistic possibility. This is a case where the evidence would be put in by police officers working from notes that were fully disclosed to the defence – we could do it in our sleep. While it is true that the earliest dates were not consecutive; enough dates within a relatively brief compass of time were offered to expect that the trial could have been completed without difficulty. In the final analysis, even if there was some risk inherent in splitting the trial between two dates separated by a few weeks, the potential risk is not sufficient to override the accused's right to a trial within a reasonable time in the absence of some evidence that he was consulted and agreed or acquiesced to the preferred practice.

Trial Preparation Period

In terms of what further time should be neutralized as trial preparation, this is not a case like R. v. Steele 2012 ONCA 383, where the OCA noted that, because of the volume of material that had to be reviewed, defence counsel needed five weeks just to prepare for the JPT, and consequently it was appropriate to neutralize a further eight weeks following the set date, for trial preparation. As I have attempted to stress – the present case has been presented as a very straightforward matter in terms of evidence and preparation. Determination of the issues might turn out to be complex and require careful consideration – but not the presentation of the relevant evidence and law. This was demonstrated by the minimal effort that went into the JPT and nothing advanced in argument on the motion suggested that the hearing would involve anything other than the usual evidence from police officers about the search and seizures and presentation of standard section 8 authorities. Deducting a month from the period between counsel's earliest available date and the trial date to account for trial preparation will also cover the notice period for the anticipated Charter motion, as required by the Lahiry analysis. By starting the clock on the date of counsel's first availability – February 4, 2014 – I have already allowed a period of about ten days to allow for the preparation and service of the standard motion materials following the set date. In any event, neutralizing a single 30 day period for the preparation and service of the Charter motion and to prepare for the trial is consistent with the position taken by the OCA in R. v. Konstantakos 2014 ONCA 21 – which was described as a drug case of "moderate" complexity. Therefore the period that should be attributed to institutional delay is nine months.

Comparison to Stilwell

In the recent case of R. v. Stilwell 2014 ONCA 563, the OCA dealt with a case where the trial judge determined that disclosure had been unreasonably delayed for five and a half months and calculated the institutional delay as seven months – and combined the two to conclude that the "time attributed to the Crown" for 11(b) purposes would be twelve and a half months. Applying the same approach here – where the institutional delay was nine months and the disclosure delay was three and a half months generates the same result – twelve and a half months of delay, which exceeds the Morin guidelines by a significant margin. Virtually all of the delay over and above the Morin guidelines can be attributed to the Crown.

Morin Guidelines and Watershed

In the recent case of R. v. Duszak, Justice Melvyn Green of this courthouse dealt with a situation where the delay of concern was twelve and a half months in a straightforward matter like ours – ten months were attributed to institutional delay and two months to Crown actions. Justice Green made the point that in the 11(b) calculus, delay caused by actions of the Crown had to be given more weight in determining the outcome, citing a number of authorities, including R. v. Yun:

delay caused by the Crown is particularly troubling. ... [T]he interests protected by s. 11(b) are affected in a fundamentally more unacceptable fashion when the police or Crown fail to do what they are expected to do and there is no acceptable excuse for the delay. [Emphasis added.]

The position taken in R. v. Yun was also endorsed by the OCA in R. v. Florence 2014 ONCA 443 – to the extent that decisions or failings by the police and/or Crown which are blameworthy can be given more weight in the 11(b) analysis.

Justice Green found that the delay of twelve and a half months in bringing a straightforward matter to trial in the Old City Hall court in Toronto was patently unreasonable, given the availability of judicial resources and nature of the work load. He made the same determination in the somewhat similar case of R. v. Taylor – a position anchored in decisions from other judges at Old City Hall holding that a straightforward case should come to trial in this courthouse "at the lower end of the range of eight to ten months set out in Morin". Both the Taylor and Duszak cases were characterized as simple drinking and driving cases and the present matter is a simple drug case. The characterization is based on the fact that they are the kind of cases routinely presented in the OCJ - where the evidence is not complex or overly contentious and there will be a number of evidentiary and Charter issues. Simple doesn't mean much in terms of time or number of issues – because simple drinking and driving cases usually take a couple of days of court time and involve as many issues as defence counsel can conjure. Consequently, I have no trouble applying Justice Green's comments about simple drinking and driving cases to what has been presented as a similarly simple drug case and I attach no significance in the 11(b) analysis to the fact that counsel estimated that two days were required.

It looks like the courts have taken the period of 11 to 12 months as marking a watershed – with recent reported decisions going both ways in the 11 to 12 month range. After passing 12 months the reported decisions generally find that an accused's rights as protected have been violated: see R. v. Kamboj; R. v. Hung; R. v. Taylor; R. v. Duszak; R. v. Papandrea 2012 ONCJ 651; R. v. Lore; R. v. Lalani; and R. v. Dummet. There are other similar decisions in earlier years.

I appreciate that the appellate courts have cautioned that the Morin range for acceptable delay in the Ontario Court of Justice of eight to ten months is just a guideline: as the OCA put it in R. v. Tran it is "a guideline, not a limitation period". But this does not mean that as a guideline the Morin range is meaningless – particularly as it is presented as a range between eight and ten months. We have to keep in mind that the actual delay is always much longer and the process of neutralizing time periods for intake and judicial pre-trials and clearing schedules and trial preparation has already eliminated all of the periods deemed to be reasonable – which was five months in the present case. The Morin range simply allows the system to deduct a further 8 to 10 months of delay that can't be otherwise justified – a pretty generous allowance for inefficiency. What is left is, by definition, unreasonable delay – and even then many of the cases are willing to allow further margins of inefficiency. A case where the delay is 11 or 12 months is often considered to be close enough to be within the range – but that makes no sense. The range already allows for a further margin of inefficiency – that is the reason it is a range. To include 11 or 12 months is to extend the range – and there is no judicial authority for the proposition that the acceptable range is 8 to 12 months.

To fail to give effect to the Morin guidelines would be contrary to the established jurisprudence – as demonstrated by the cases already mentioned.

The Morin guidelines come into play only after allowances have been made for what we might call reasonable periods of delay, including what many would regard as the artificial neutralization of a month for trial preparation. So where we have a case where the real delay of 17 and a half months has been reduced to 12 and a half months – which is two and a half months longer than the upper limit of the Morin guidelines – and given the case authorities already referenced, it would be hard to escape the conclusion that Mr. Santucci's trial has been unreasonably delayed.

Balancing of Interests

But this isn't the end of the analysis. In R. v. Stilwell the OCA dealt with a case where the real delay of 26 months was reduced to the same period of concern of 12 and a half months, which exceeded the Morin guidelines by the same amount as in our case and where the finding of the trial judge that it was unreasonable was overturned. In some respects this was an application of a point made by the OCA in R. v. Tran, to the effect that "deviations of several months in either direction can be justified by the presence or absence of prejudice." In Stilwell the OCA considered the evidence of prejudice – which consisted of inherent prejudice – which it found the trial judge had over-emphasized in the balancing stage of the analysis – and coupled that with the fact that charges involving child pornography were particularly serious – citing the SCC ruling in R. v. Spencer as to society's "strong interest in the adjudication" of such charges – and coupled that with the evidence that the accused's conduct in the proceeding was "inconsistent with a desire for a timely trial" – to get to the conclusion that it would be unreasonable to grant a remedy notwithstanding the delay in getting the case to trial.

I understand Stilwell as an example of how some diminishing of the weight to be given to certain factors plus the absence of significant prejudice in a case deemed to be relatively serious, can affect the balancing of interests at the conclusion of the 11(b) analysis and lead to the conclusion that notwithstanding the finding about the duration of the delay and the fact that it exceeded the Morin guidelines, no action should be taken by the court. This doesn't mean that everything was fine – it just meant that the OCA was not prepared to pull the pin.

The OCA acknowledged in Stilwell that the accused suffered prejudice – a conclusion which is not surprising given that in a contemporaneous decision such as R. v. Williamson 2014 ONCA 598 the OCA found that inherent prejudice as stigmatization was nonetheless real, noting:

As Cory J. observed in R. v. Askov, the time awaiting trial can be "exquisite agony". The stigma of being under a public cloud should not be lightly dismissed.

But that wasn't sufficient to overcome the strong societal interest in having child pornography charges proceed to trial.

Prejudice to the Accused

In this case Mr. Santucci claims to have suffered the prolongation of emotional and psychological stress – which I find to be the inherent prejudice suffered by an accused whose trial has been delayed. He also claimed that the stigmatization associated with the charges resulted in the loss of his two convenience stores – because his landlord effectively forced him out. The evidence establishing a causal connection between the criminal charges and Mr. Santucci's apparent inability to renew his leases on the store locations is not compelling. Even if it could be made out, Mr. Santucci is particularizing a form of prejudice that is inherent in any situation where the public becomes aware that a person operating a similar business has been charged with a serious criminal offence. It would be hard for me to conclude that, to the extent that the continuation of the proceedings has an impact over and above the fact of the original charges, it isn't simply another aspect of inherent prejudice.

Mr. Santucci has also identified the fact that he was separated from his spouse and children and he felt he was unable to pursue an application for custody or access pending the resolution of these charges. While we might wish it was otherwise, the fact that a non-custodial parent is charged with criminal offences almost always disrupts scheduled access and usually brings family court proceedings involving children to an effective halt waiting for the charges to be resolved – even when the nature of the charges only indirectly implicates parenting ability. Even if we accept that the prospects for Mr. Santucci to obtain full custody of the children were never good – the delay in resolving the criminal charges has had a direct and prejudicial impact on the restoration of the parent-child relationship. This is real prejudice sustained by Mr. Santucci, his children and the community at large.

Seriousness of Charges

So here we have a delay of 12 and a half months – three and a half months of unreasonable delay in providing disclosure of basic but essential material to the accused, coupled with nine months of institutional delay. Based on the jurisprudence, particular weight must be given to the delay caused by the Crown's failure to make timely disclosure – especially in circumstances such as this where both the Crown and the Courts have demonstrated indifference to the impact of the failure in timely disclosure upon the accused's right to be tried within a reasonable time. There was no complicity on the part of the accused in the delay from which it might be permissible to draw an inference that he wasn't all that interested in getting to trial.

The accused has suffered the usual inherent prejudice – which must be given some weight in the balancing process. He has also suffered real prejudice as a result of the unreasonable delay in resolving the charges. Unlike some of the other kinds of prejudice often complained of – as in Stilwell - where the prejudice to the accused of the delay in getting to trial is balanced against the fact that the outcome of the trial is probably going to be even more prejudicial - the impact of the delay had on the accused's interests in the family court proceedings is not affected by the possibility of an unfavourable outcome in the criminal trial. It is the uncertainty surrounding the criminal charges which delays the family court proceedings – the participants in family proceedings, including the judge, are reluctant to act until the criminal charges are sorted. It must be recognized that regardless of how the charges are resolved the family court has the obligation to maximize the opportunity the children have to spend significant time in the care of their father. Whether he is convicted of drug offences or not – we have to do this – this isn't like situations where the conviction is going to trigger disaster so let's stave it off for as long as possible. Here the prejudice arises out of the fact that the Court's ability to do what it needs to do is frustrated by the uncertainty surrounding outstanding criminal charges – prejudice which mounts as time passes because the passage of time in family proceedings creates serious impediments to protecting the interests of non-custodial parents and their children.

The charges are serious. The accused was found to be in possession of a significant quantity of marijuana, ecstasy and percocets – where the quantity was sufficient to establish that it was possession for the purpose of trafficking. But, in terms of trafficking offences, the quantities were relatively modest – as indicated the street value of the drugs was probably in the range of $5,000. This isn't street level trafficking – but it isn't much higher on the food chain. There is no surrounding evidence or information that tends to aggravate the circumstances of the offences beyond the fact that Mr. Santucci was found in possession of significant quantities of marijuana, ecstasy and percocets for the purpose of trafficking. Although the police found a set of brass knuckles – there is no evidentiary or common sense basis to use that as an aggravating circumstance to the trafficking in the way that possession of a firearm would be used.

Serious charges – but not like the charges of possession of child pornography that were of concern in R. v. Stilwell.

Conclusion

On balance I find that the interests of justice and the interests of the community would be best met by granting a stay.