Court File and Parties

Court File No.: Central East - Newmarket 15-09140 Date: 2017-03-16 Ontario Court of Justice

Between: Her Majesty the Queen Respondent

— And —

Mario Ricciardi Applicant

Before: Justice P.N. Bourque

Section 11(b) Charter Application

Released on: March 16, 2017

Counsel:

• L. O'Neill, for the Crown
• C. Kerr, for the defendant

BOURQUE J.:

Overview

[1] The defendant (the "Applicant") Mario Ricciardi, brings an application to have the charges against him stayed pursuant to section 11(b) of the Charter of Rights and Freedoms, and asserts that he has not been brought to trial on these charges within a "reasonable time".

[2] This matter is unusual because two separate series of charges and incidents have been drawn into a single information.

The Charges and the Investigations

[3] On January 14, 2015, there was a home invasion robbery. The Hold Up Squad of the York Regional Police began an investigation.

[4] In a separate investigation by 4 District Criminal Investigations Branch, a search warrant was executed at a restaurant connected to the defendant. Guns and drugs were found and several firearms and drug offences were laid against the defendant on January 21, 2015. He was arrested and has been in custody from that time until one year later on January 21, 2016. He was refused bail on the initial bail hearing and on application for review. His release was on consent and with stringent terms after urging from the (then) trial Judge and the granting of a Crown request for adjournment of the trial.

[5] The search of the restaurant also included materials described as a "hold up kit", some gloves, and a back pack. The Hold Up Squad became involved and they believed the defendant was part of the home invasion from January 14, 2015.

[6] As a result of the search on the restaurant, and the results of that search, the Hold Up Squad obtained warrants to search the defendant's home and a vehicle (believed to be part of the home invasion robbery) owned by the defendant and his wife. Additional charges were laid including possession of drugs for the purpose of trafficking and possession of stolen property (a vehicle) on January 26, 2016.

[7] The police continued to investigate the home invasion robbery and followed up with various searches including production orders on the defendant's phone. The Hold Up Squad continued to investigate the defendant and two other persons with regard to the home invasion robbery. This investigation will be reviewed in further detail.

[8] On November 4, 2015 Anthony Loria was arrested and charged with offences relating to the home invasion robbery. On November 19, 2015, the defendant was charged with conspiracy (with Anthony Loria) in relation to the home invasion robbery.

The Court History

Date	Event
January 20, 2015	Defendant arrested after execution of search warrant at restaurant.
January 21, 2015	Weapons (21) and Drug (8) charges laid. First court appearance by telephone link (defendant under arrest in hospital).
January 22, 2015	Counsel retained and attends for bail hearing – adjourned to January 28, 2015.
January 28, 2015	New information before court adding charges from execution of warrants at defendant's home and the spouse's car. Adjourned at defence request as sureties either charged or under investigation from new charges, to February 19, 2015 to select a new bail hearing date.
February 19, 2015	Bail hearing date of February 26, 2015 - disclosure not yet vetted.
February 26, 2015	Bail hearing conducted. Defendant detained in custody. Adjourned to March 5, 2015.
March 5, 2015	Video appearance – Disclosure still not provided. Adjourned to March 20, 2015.
March 20, 2015	Counsel attended on video remand – First disclosure provided and adjourned to April 2, 2015.
April 2, 2015	Counsel does not appear and matter adjourned to April 7, 2015.
April 2, 2015	Counsel attends – attempts to set a Judicial Pre-trial date – disclosure not complete – notes of officer dealing with CI not disclosed – no Crown assigned to this brief – Court concerned because accused in custody – adjourned to April 15, 2015 for a Judicial Pre-Trial.
April 15, 2015	Judicial Pre-Trial not held – no Crown assigned to do the Judicial Pre-Trial. Crown insists that file is very big and complicated and Crown will seek lengthy prison term – Defense counsel complains of a lack of disclosure. Crown undertakes to "follow up with this case". Court presses Crown to have "somebody …take this file into their hands" and states: "It is not the kind of thing that can float around among Crowns". Crown resists setting a Judicial Pre-Trial as the Crown wants to talk to the officer in charge and "find out about this file". Another Crown attends (who is not assigned to the brief) and says that there have been meetings and she "has to speak with my friend to see what has occurred thus far, what disclosure he's received so far, and make sure we are on the same page". Adjourned to May 13, 2015 for a Judicial Pre-Trial.
May 13, 2015	Pre-trial held – adjourned to continue the Judicial Pre-Trial to May 28, 2015.
May 28, 2015	Pre-trial continued and adjourned to July 22, 2015. Further dates of June 15th and June 29 to have a bail review.
July 22, 2015	Applicant retains new counsel – Continuing Judicial Pre-Trial. Adjourned to August 17, 2015.
August 17, 2015	Pre-Trial held – Defence elects trial on all charges in Ontario Court of Justice – Trial dates January 11th to January 15, 2016, March 7, to March 10, 2016. First trial dates to deal with "Garifoli" motions to exclude information from execution of search warrants. One or more Information to Obtain's heavily redacted.
November 19, 2015	First appearance on charge of conspiracy with regard to the home invasion robbery of January 14, 2015 – adjourned to November 26, 2015 (Defendant's son had also been arrested but charges against him were eventually withdrawn).
November 26, 2015	Second appearance on charge of conspiracy – no disclosure provided – remand to December 17, 2015.
December 17, 2015	All informations before the court including new charge – Crown application to adjourn all the trial dates – wants to try new charge with other charges and include the defendant Anthony Loria who does not have counsel retained. Disclosure on new charge incomplete and Crown indicated it would not be complete to allow Charter applications on the opening day of trial – matter adjourned to December 23, 2015 for Judicial Pre-Trial before Local Administrative Judge - Two different Crowns now on the prosecution – Defense does not have materials prepared as Crown has not disclosed all Information to Obtain's and is making further redactions to new Information to Obtain's.
December 23, 2015	Judicial Pre-Trial before Local Administrative Judge. The adjournment of the January dates is granted but the March dates remain – counsel for co-accused almost retained – Adjourned to January 11, 2016.
January 11, 2016	Trial judge considering adjournment – co-accused has counsel but not available for trial until fall 2016 – further extensive disclosure of 967 pages for initial firearms charges and 500 pages to new home invasion robbery charges. Re-edited Information to Obtain for original search on defendant's home provided. Adjourned to January 14, 2016.
January 14, 2016	Appearance before trial judge. Crown states that it cannot be ready for the March trial dates – Crown refuses to sever trials as there is a "legal and factual nexus between all of these charges". Crown considering severance of defendants but ultimately does not do so. Trial Judge urges the Crown to consider a form of acceptable pre-trial release due to the continuing prejudice to the defendant in custody. Adjourned to January 21, 2016.
January 21, 2016	Defendant granted release upon significant restrictions including GPS monitoring. Trial dates in March vacated but defendant maintained his 11(b) rights. Adjourned to April 5, 2016.
April 5, 2016	Judicial Pre-Trial conducted with the counsel for Anthony Loria. All elect trial in Ontario Court of Justice. New trial dates set – March 6th to March 9th 2017 – April 18th to 21st, 2017 – April 24th to 27th, 2017 – May 1st to May 4th, 2017 and May 8th to May 11th, 2017.
January 5, 2017	Confirmation of the trial dates by Crown and Defence.
January 20, 2017	Court appearance – disclosure still outstanding.

Time Periods for Charges

Charges of possession of guns and drugs from laid on January 21st and January 26th 2015:

• Date of charge to first anticipated completion of trial: 13 months and 19 days
• Date of charge to anticipated completion of trial: 27 months and 20 days

Charges of conspiracy to commit robbery laid on November 14, 2015:

• Date of charge to anticipated completion of trial: 18 months less 3 days

The Evidence on 11(b) Application

[9] The Crown called Detective Constable Steve Blenkhorn and filed an affidavit by him in support of its contention that the laying of the second charge (from the home invasions robbery) was a discrete event. The officer was cross-examined on the affidavit. The officer was investigating the home invasion from January 14, 2015.

[10] From his evidence, I believe the following is relevant to the issue:

(i) The home invasion occurred on January 14, 2015. No suspects were identified at that time;

(ii) By January 21, 2015 the officer was aware that the charges from the search of the café and search of the defendant's home may have some relation to the home invasion robbery;

(iii) In fact, it was clear that the defendant Ricciardi was a suspect in the home invasion within a week of the crimes. The officer believed the guns used in the home invasion were the same guns found at the defendant's restaurant and the several construction vests found at the restaurant and in the defendant's car were used by the perpetrators of the home invasion;

(iv) The officer investigating the home invasion was at all times aware of the fact that the defendant was in custody on the charges from January 20, 2015;

(v) There was just one officer investigation the home invasion and during the times that he was not on duty, or on holidays, or reassigned to other activities, no one was taking any steps to move the investigation forward. For example, in the time period from April 23, 2015 to Sept 29, 2015, virtually nothing happened in the investigation. That is a period of over 5 months;

(vi) The officer in charge of this investigation was in contact with several Crown attorneys during the course of the investigation. There is no evidence that he was encouraged to bring his investigation to a speedy conclusion;

(vii) The officer had reasonable and probable grounds to arrest and charge the defendant Ricciardi with offences related to the home invasion by April 2015;

(viii) The officer's stated reason for not doing so was because he believed there was at least one other person involved in the home invasion robbery and he thought that by laying charges he would "compromise" the investigation of the further suspects;

(ix) In his affidavit filed the officer stated that once the charges were laid he got all of the disclosure to the Crown's office as fast as he could;

(x) The officer was in regular contact with Crown attorneys from the beginning of his investigation. He never believed that there was any reason to "hurry" his investigation; and,

(xi) There was contact between the officers investigating all of these offences.

The Onus

[11] Previous to the decision in R. v Jordan, the onus in these applications was upon the applicant (defendant). Under the new law, the onus is to be determined after determining whether the length of time (as calculated according to R. v. Jordan) is under or over 18 months.

Legal Framework

[12] Before the Supreme Court of Canada's decision in R. v Jordan, 2016 SCC 237, the rubric to be followed was set out in the SCC decision of R. v. Morin (1992), 71 C.C.C. (3d) 1, and a plethora of decisions spanning the next 24 years.

[13] In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources, and
   • (e) other reasons for delay, and
4. prejudice to the accused.

[14] In R. v. Jordan, the court laid out a new set of principles to be applied to the 11(b) analysis. As per R. v. Coulter, 2016 ONCA 704, the principles can be summarized as follows:

The New Framework Summarized

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the "net delay" (Jordan, at para. 66).

[36] Compare the net delay to the presumptive ceiling (Jordan, at para. 66).

[37] If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

[38] Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

[39] If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

[40] If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

B. Key Elements in the New Framework

(1) Defence Delay

[42] Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence ("defence-caused delay") (Jordan, paras. 61 and 63).

[43] Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

[44] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

[45] If the net delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

[46] Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

[47] An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a net delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

[48] The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

[49] An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).

[50] The period of delay caused by any discrete event must be subtracted from the net delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

(b) Particularly Complex Cases

[51] Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).

[52] 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 (Jordan, para. 80).

(3) Remaining Delay is Below the Presumptive Ceiling

[53] If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ("defence initiative"); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

[54] Stays beneath the presumptive ceiling should be granted only in clear cases (Jordan, para. 83).

(4) Transitional Cases

[55] The new framework applies to cases currently in the system (Jordan, para. 94). The analysis of transitional cases differs depending upon whether the remaining delay exceeds or falls below the presumptive ceiling.

(a) Remaining delay exceeds the presumptive ceiling

[56] Where the remaining delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date that Jordan was released. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable (Jordan, para. 96).

[57] Moreover, the remaining delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues (Jordan, para. 97).

(b) Remaining delay falls below the presumptive ceiling

[58] For cases currently in the system in which the remaining delay falls below the ceiling, the two things that the defence must establish (i.e. defence initiative and whether the time the case took markedly exceeds what was reasonably required) must also be applied contextually, sensitive to the parties' reliance on the previous state of the law (Jordan, para. 99).

[59] Further, institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework will be a component of the reasonable time requirements (Jordan, at para. 100).

Defence Delay

[15] Courts have recognized that a defendant may waive 11(b) rights in their entirety or for specific periods during the course of the proceedings.

[16] In this proceeding, there has been no express waiver of the all or part of the time periods.

[17] For the purpose of determining whether the 18 month period has been exceeded, (or not) there must still be an assessment of the period up to the trial to determine if any of them were attributable to "defence delay". Paragraphs 60 to 67 of the R. v. Jordan judgment set out what constitutes "defence delay".

[18] To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.

[19] As I review the transcripts of all of the court appearances, I cannot see how any of the adjournments can be classified as defence delay. The only period which may be classified as delay is the approximately one month period when the defendant secured new counsel. The defence has pointed out that, in any event, a trial date was set well within reasonable time limits. It was only the application by the Crown for an adjournment that caused the trial delay. In any event even reducing it one month makes the delay just under 27 months which is still 9 months over the presumptive ceiling. It did not affect the trial date set for the home invasion charge as it had not been laid yet.

[20] Quite the contrary can been seen. It was the defendant who wished to move the matter forward. Trial dates are set before important disclosure was received. In addition, several judges in the administrative courts were concerned about the slow process of the matter, especially as most of the delays were attributively to the slow movement of the crown to complete disclosure and move the matter to Judicial pre-trials and trials. I also note that the many changes in the Crown who was dealing with the matter clearly resulted in further delays. These delays were set out in detail before Justice Gosh when he was faced with the Crown's insistence that the trial to start in January, 2016 (the preliminary motions) and then the trial proper (in March 2016) could not start because of the Crowns failure to have the matter (because of its insistence on combining charges and defendants over several discrete charges) ready for trial.

Charges from January 21, 2015 (arising from search of café and home)

[21] The delay for these charges is over 18 months. The delay is such that there is a presumption that the charges should be dismissed unless the Crown can show that the delay was based on exceptional circumstances. The Crown can show that delay was the result of "discrete events" or "particularly complex cases".

[22] The Crown argues that the intervention of the second charge was a "discrete event" which has led to some 14 months of further delay. In order to satisfy me that it qualifies as a "discrete event" the Crown must show that the event lies outside the Crown's control in that (1), it is reasonably unforeseen or reasonably unavoidable, and (2), it cannot reasonably be remedied.

[23] I have reviewed the affidavit of officer Blenkhorn, which was filed to support the Crowns' allegation that the laying of this charge from the home invasion was a "discrete" event. With all due respect to the Crown, the only thing that made a discrete event was the choice made by the Crown to try all charges and all defendants together. The investigation by officer Blenkhorn, did not proceed at any real pace. The police obviously did not think that there was any reason to hurry. I cannot criticize them for not hurrying as no one asked them to move this along with a view to trying all of the defendant's charges at the same time. I also don't fault him for wanting to have all possible suspects to the crime know before the charges were laid against some of them.

[24] However, I note that the essential investigation was complete when the officer had the limited identification of the co-defendant Lorie. Only one officer was involved in this investigation. He was at times on vacation and then reassigned to other duties. There is no evidence anyone took over from him. There was clearly no sense of urgency on the part of the police. Perhaps more importantly, there was no sense of urgency from the Crown attorneys assigned to this case. The officer testified that none of the Crown's ever mentioned to him that there was any urgency to completing his investigation. Yet all along the Crown was surely aware of the connections in the two cases.

[25] Clearly they all knew that the defendant had been charged in January with the guns offences (the guns they believed were used in the home invasion robbery) and knew he was in custody awaiting those charges. The police did not proceed with any understanding that these charges would all be tried together, at the behest of the Crown. Surely the Crowns who were involved in this matter would have known that there was a distinct possibility that they would want all of these matters tried together.

[26] I cannot see how this mere chance can be the result of an "unforeseen" circumstance. Quite the contrary. This new charge was eminently foreseeable.

[27] I believe that the Crown could have clearly remedied this problem. There was no absolute need that the trial had to be delayed because of the second charge. While there are some similar issues to each, they are separate charges arising out of separate events. The guns and drug charges from Jan 2015 could have proceeded separately from the conspiracy charges. The Crown points to the release of the defendant on bail in January 2016 as the Crown taking active steps to remedy some aspects of the problem which had arisen. I give them some credit for that but it is clear to me on the record before Justice Gosh that he may not have granted the adjournment of the March 2016 trial dates without the Crown doing something to relieve the extreme prejudice to the defendant by being in jail. The Crown points out that there was the possibility that two different trials on the admissibility of the gun and drug evidence (from the café search) could have led to inconsistent verdicts. An obvious potential solution was to canvass whether the defence would accept the ruling on the first trial in the second. They may not have agreed to that, but that option was never canvassed.

[28] As I review the transcripts of the proceedings before the court, I am not certain that the delay of the trial in March 2016, was just a function of the combining of charges and the combining of the two accused parties into one proceeding.

[29] I quote from the proceedings before Justice Gosh on January 14, 2016:

MS. MONTEMURRO: Given what I've heard today, in terms of Ms. Israel's availability, which is not until the end of March, to, firstly, review disclosure, which she made clear to Justice Tetley during our judicial pre-trial on December 23rd, which ties into her inability to make an election before then, I'm not sure how we're going to do anything on the March dates that are currently scheduled. In addition to that, given the amount of disclosure that Ms. Kerr has requested from Mr. McCallion dated back to October 26th of 2015, which is all related to the firearms investigation, which has not yet been disclosed.

MS. KERR: No. Some of it has.

MS. MONTEMURRO: Well, some of it has but –

MS. KERR: Yes.

MS. MONTEMURRO: - there's a lot. It's about a four-page disclosure request-

THE COURT: No, I hear you.

MS. MONTEMURRO: - that I have reviewed. There a lot of stuff missing.

[30] The Crown goes on to discuss severance and she states for the record that she will not sever the counts but is still thinking about severing the accused. She obviously made the decision at some point beyond that to not do so.

[31] The quotation seems to indicate that one of the reasons that the Crown did not want to proceed with the trial in March of 2016 is because the Crown had somehow dropped the ball on providing all of the disclosure and was really not in a position to proceed in March, 2016.

[32] I contrast these actions of the Crown to the comments made by Justice Code in R. v. Brissett 2017 ONSC 401, where the Crown took many positive steps to move the matter along including waiving the need for Crown pre-trial, stayed charges against two co-accused even though there was a committal, and negotiated several large numbers of sensible admissions with defence counsel. In our case, there were indeed many admissions made by the defence to shorten the trial but there is no indication they were the result of some Crown compromises.

[33] The Crown also points to the schedule of co-defence counsel who contributed to the delay. I note the words of Justice Watt in R. v. Mannaserri 2016 ONCA 703 that "The crown must be cognizant of the fact that any delay resulting from an exercise of their prosecutorial discretion, for example to conduct a joint trial, must respect and conform to an accused's right to a trial within a reasonable time" (Also R. v. Jordan at para. 81). I also note similar comments in many other Superior Court cases cited to me.

[34] It is important to realize that the most important Crown decision which led to this delay was the decision that the gun and drug charges from January, 2015 had to be tried together with the conspiracy charge, which was laid on November 19, 2015. While there may be some relation between the two and clearly it would be more convenient to try them together, that did not make it necessary that they be tried together and more importantly, where the issue of delay was clearly in everyone's mind, the Crown knew that by making the choice that it did, that there was a real chance that by doing so, the defendant's 11(b) rights would be infringed.

[35] The Crown further argues that even if I do not find that the laying of the conspiracy charge from the home invasion robbery was not a discrete event, then I should also find that the complexity of the case results in an exceptional circumstance. After review of the witness lists (Exhibit 8) and the review of concessions made by the defence, I would not find that the original charges were a complex case. The testing of the search warrants does not make the case complex and nor does a voir dire on statements by the defendant. There are no civilian witnesses (other than two members of the defendant's family), no experts are required and there are no issues of continuity.

[36] In any event, the original trial was set for January 2016. By setting that date, the Crown was stating it would be ready for trial in January, 2016. Other than a lack of attention to the file and a timely response to disclosure requests (remember, disclosure is a continuing obligation), there is no reason why these charges would not have been ready to proceed in January, 2016.

[37] The Crown also argues that where the remaining delay exceeds the presumptive ceiling and the charges were brought prior to the release of the Jordan decision, a transitional exceptional circumstance will apply where the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed: Jordan, at para. 96. This requires a contextual and flexible assessment which is sensitive to the manner in which the previous framework was applied and recognizes that parties cannot be judged strictly against a standard of which they had no notice. The release of the Jordan decision "should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one": Jordan, at paras. 96, 102. (R. v. McManus, 2017 ONCA 188)

[38] This argument also, in my opinion fails, as I cannot see how, under the previous framework, this matter would have survived the test in R. v. Morin. The 8 to 10 month guidelines have been exceeded by an excessive amount. From the time that the matter was set for trial, and the contemplated completion of the trial is some 22 months. The prejudice to the defendant (a year of custody and a further period in excess of a year in the most rigorous house arrest) is extreme. While the charges are also extremely serious, that does not negate this prejudice.

[39] The Crown has failed to discharge its burden with regard to the 32 remaining charges with offences dated January 20th, January 22, 2015. All of those charges will be stayed.

The Charge from November 19, 2015 (Home Invasion)

[40] The period of delay from the laying of the charge to the anticipated conclusion of the trial is (November 19, 2015 – May 11, 2017) 17 months less 8 days.

[41] As it falls below the presumptive ceiling, the onus is upon the defendant to show that it took all steps to move the matter forward and that the trial of the matter took markedly longer that what was reasonably required. Again this being a transitional case, the test must also be applied contextually, sensitive to the parties' reliance on the previous state of the law.

[42] There are no actions by this defendant which caused any delay.

[43] It is clear that this defendant took all steps possible to move this matter forward, including electing trial in the Ontario Court. If there was any delay in setting a trial date, it was due to the issue referred to above, that is, this defendant was held hostage to the schedule of counsel for the co-accused. However, and in contrast to the initial delay of the first trial, the time which was lost because of Loria's counsel was not (in my opinion) excessive. With regard to this charge, the trial of this count with the previous charges (also canvassed above) may have resulted in a slightly longer delay here as it would require more trial time. Although several of the motions (i.e. The section 8 application concerning the search warrant) would probably still have to be heard.

[44] Applying the Morin framework and the reasonable expectations of the parties I find the intake of 4 ½ months to be longer than usual and some of this time was taken up by the adjournment request of the Crown for the other trial. I would assign 3 months to intake and a further month to a judicial pre-trial, being a total of 4 months. I would assign some two month on the R. v. Lahiry principle. That leaves a total of just over 11 months. The seriousness of the charge is undeniable. The prejudice to the defendant while significant was less than with the other charges because he only spent two months in pre-trial custody before his consent release.

[45] Based on the Morin framework, I do not think that this charge would have been stayed for delay.

[46] Under the new framework and taking into account the understanding of the parties, I do not think that this charge took "markedly longer than it should have" and I dismiss the application for delay with regard to the charge of conspiracy to commit the home invasion robbery.

Signed: "Justice P.N. Bourque"

Released: March 16, 2017

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