Court File and Parties

Ontario Court of Justice

Date: 2017-04-10

Brampton Court File Nos.: 13-12774, 13-11230, 14-2751

Between:

Her Majesty the Queen

— and —

Salvatore Formusa

Before: Justice Patrice F. Band

Ruling on s. 11(b) Charter Application, released on April 10, 2017

Counsel:

• Mr. C. Walsh, counsel for the Public Prosecution Service of Canada
• Mr. P. Cooper & Ms. L. Jørgensen, counsel for the defendant Mr. Formusa

BAND J.:

I. INTRODUCTION

[1] Late in the summer of 2013, Mr. Formusa and his co-accused were charged with offences relating to the importation of 50 kg of cocaine. The trial began in January 2015. The evidence was completed on June 14, 2016 and the matter was adjourned to November 4, 2016 for final submissions (written and oral). In the interim – on July 8, 2016 – the Supreme Court of Canada released its decision in R. v. Jordan.

[2] On November 4, 2016, through his counsel, Mr. Formusa first gave oral notice of his intention to seek a stay of proceedings on the grounds that his s. 11(b) Charter right to be tried within a reasonable time has been breached. His counsel described it as an "ethical obligation" he owed to Mr. Formusa flowing from the change in the law. No Charter materials were filed on that date.

[3] The parties completed their closing arguments on the merits and the stay application was adjourned to February 17, 2017 to allow Mr. Formusa to file the required application materials and the Crown to respond.

[4] After receiving written materials I heard oral argument on that date. Mr. Formusa's s. 11(b) argument was argued by Ms. Jørgensen. I reserved my decisions on the merits and the application to April 10, 2017.

II. THE NATURE OF THE TRIAL

A. The Investigation and Disclosure

[5] On August 25, 2013, Mr. Formusa and Mr. Richard Avanes were charged with importing 50 kg of cocaine, possession of cocaine for the purpose of trafficking, conspiracy to import cocaine and conspiracy to possess cocaine for the purpose of trafficking. Two weeks later, Drago Jankovic was also charged.

[6] I have described the facts of the case in significant detail in two prior rulings: first, on the admissibility of the "electronic brief" and second, on Messrs. Formusa and Jankovic's application for directed verdicts. The following summary will suffice for current purposes.

[7] In the summer of 2013, Mr. Formusa was involved in the importation of a shipment of automotive tire-replacing machines from Panama. On August 10, it arrived by ship at the port of Halifax, where it was searched by officers of the Canadian Border Services Agency ("CBSA"). They found 50 kg of cocaine secreted within the machinery. Mr. Formusa had engaged the services of a brokerage company to assist him in seeing that all duties, taxes and charges were paid so that the shipment could be delivered to a location of his choosing. On August 25, the shipment arrived at a warehouse in Vaughan, where Mr. Formusa and Mr. Avanes met to unload it. They were arrested that day just outside the warehouse. Each had a Blackberry that was seized upon arrest. Mr. Avanes' other Blackberry was seized later, from his apartment. The electronic data found on some of the Blackberries included various electronic messages sent between the parties and others. It was the subject matter of my ruling as to the admissibility of electronic documents in this case. I will return to it below.

[8] After taking over from the CBSA, the RCMP investigated the matter for approximately one month. Their investigation culminated in a "controlled delivery" of the shipment to its final destination. It also included surveillance (particularly of Mr. Formusa and Mr. Avanes), judicially authorized intercepts of Mr. Formusa's phone, telephone records obtained through production orders from various telephone companies, audio probes inserted into the shipment, search warrants for Mr. Formusa's place of residence (a trailer) and Mr. Avanes' apartment and investigation into Mr. Jankovic's travel history.

[9] I was advised that the paper disclosure in this case comprised three bankers' boxes. However, it also included a CD-ROM containing more than 10,000 pages of electronic documents downloaded from the Blackberries.

B. The Trial

Scheduling in a nutshell

[10] In the pre-trial process, the parties agreed that the trial would require 15 days. It was set to take place in three and four day blocks between January 12 and February 11, 2015. On consent of all parties, the trial was to take place before the judge who had pre-tried/case-managed the matter. On a subsequent date, that judge advised the parties that she was no longer available to conduct the trial and that it would take place before another judge. No party raised any concerns about the timing of the trial.

[11] For a number of reasons that I will discuss in more detail, the trial proper was not completed until November 4, 2016. Some are easy to define: due to a prior commitment, I was unavailable on January 28 and 29, 2015; I missed six weeks of work after having surgery on my dominant shoulder on September 3, 2015; the Crown took parental leave between mid-December 2015 mid-March 2016. Others are more complex: Mr. Avanes pleaded guilty mid-trial, giving rise to a dispute about potential additional disclosure; mid-trial motions requiring adjournments and reasons were brought by one party or another. All this took place in a case involving four busy lawyers and a judge in what is often said to be the busiest courthouse in the province, if not the country.

[12] The total trial time – that is, where testimony or argument were heard – took place over 19 days. Not all of those were full days and there were a number of mid-trial appearances scheduled (or used) for trial management or on which little to nothing was accomplished. The argument on the s. 11(b) application took an additional day.

[13] The additional dates on which evidence was called or argument heard were:

• April 28, 2015
• August 31, 2015
• October 27 and 29, 2015, and
• June 13 and 14, 2016

Evidence and Issues

[14] 29 witnesses testified in this trial, including Mr. Formusa.

[15] Over 70 exhibits were filed. Many of them comprise numerous pages. The CD-ROM, of course, contains thousands.

[16] While Mr. Formusa always took the position that the central issue from his perspective was knowledge of the existence of the contraband in the machinery, this joint trial nonetheless raised a number of disputed issues.

[17] It must also be said that, as is their right, Mr. Avanes and Mr. Jankovic never proposed to narrow the issues to such an extent. The Crown was therefore required to call evidence as to identity and all the other elements of the offences charged (aside from the nature and value of the substance found).

[18] I will mention only the most challenging or time-consuming issues that arose in this trial.

[19] One of the Crown's witnesses presented expert fingerprint analysis evidence and its attendant reports and aids. While he testified that a fingerprint on a water bottle in the warehouse was left by Mr. Formusa, the main import of his evidence pertained to a fingerprint that was found on a Ziploc bag among the contents of a different (and prior) shipment of tire-changing machinery at the warehouse. The bag contained cocaine residue and the print was said to belong to Mr. Avanes. While his qualifications were not challenged, all accused left the value of his evidence to be argued.

[20] The Crown sought to introduce the electronic documents contained in the CD-ROM because they tended to strengthen the case considerably against Mr. Avanes and, potentially, against the others in relation to the count of conspiracy. All accused were opposed on the basis that the Crown had not complied with the electronic document provisions of the Canada Evidence Act concerning the authentication of such documents. I required written submissions to assist me. As I believe my reasons demonstrate, the issues raised in this context were novel and complex. Understandably, the parties required a ruling before being put to their elections.

[21] I will return to the issues surrounding this "electronic brief" below.

[22] When the Crown firmly decided to introduce Mr. Formusa's statement to police into evidence, his counsel indicated that its voluntariness was an issue and a voir dire ensued. I reserved my decision. Naturally, Mr. Formusa required a ruling prior to being put to his election.

[23] I advised the parties that the Crown had succeeded in relation to both of these applications, with reasons to follow.

[24] Some time after October 29, 2015, Mr. Avanes resolved this and other matters in another court. The Crown asked me to stay his charges on the Information before me on November 13, 2015. This prompted Mr. Formusa's counsel to request additional disclosure from the Crown concerning Mr. Avanes' other matter(s) ("the additional Avanes disclosure"). This, in turn, effectively led to an adjournment request and the specter not only of a motion before me for more disclosure, but also of the potential need to recall certain Crown witnesses. I later learned that after receiving a good amount of additional disclosure, Mr. Formusa's counsel decided not to pursue any further remedies.

[25] At the close of the Crown's case, Messrs. Formusa and Jankovic applied for directed verdicts of acquittal. Oral arguments were made on October 27 and 29, 2015 and I reserved my decision. After a number of trial management appearances, June 13-17, 2016 were set for Mr. Formusa to call evidence (the Crown's parental leave would take place in the interim).

[26] December 8-10, 2015 had been among the dates previously added to this matter for continuation but they were abandoned owing in part to the additional Avanes disclosure and, ultimately, the parties' agreement that more than three days were needed to complete the trial. In trial management discussions on October 27, 2015, some dates in November were also discussed in light of the Crown's impending parental leave, but ultimately not fixed.

[27] A short time prior to the return date of June 13, 2016, I advised the parties of my rulings granting Mr. Jankovic's application and denying Mr. Formusa's. I provided my written reasons on the return date. I believe they demonstrate the relative complexity of the matter.

[28] Mr. Formusa's evidence was completed on June 14, 2016. As the additional Avanes disclosure issue had been resolved, Mr. Formusa saw no need to call additional evidence.

[29] After discussions about reasonable time-lines for the production of written submissions, the matter was adjourned to November 4, 2016 for final argument. Mr. Cooper asked to be given until the end of August to produce his written submissions. In doing so, he referred to the "unique legal issues" presented by the conspiracy count in particular.

[30] On November 4, 2016, the matter was argued on the merits. Mr. Formusa also gave notice, for the first time, of his intention to file a s. 11(b) application. While the date of February 17, 2017 was set, we also discussed a potential return date of December 13, 2016 on which Mr. Cooper was available but to which the Crown could not yet commit. It was agreed that the parties would be in contact about that date. Likewise, we discussed the possibility of returning on one of seven possible dates in January 2017. Mr. Cooper undertook to file Mr. Formusa's s. 11(b) materials "as quickly as possible" and indicated that no further court appearances were required for trial management purposes. Rather, discussions could be had by e-mail.

[31] Having heard nothing from either party, I sent a note on November 30, 2016 inquiring about the December 13 date. The Crown advised that he was unavailable after all. Again, neither party contacted the Court to try to secure one of the January dates.

[32] Mr. Formusa's materials were filed on January 18, 2017.

[33] In oral argument on February 17, Mr. Formusa's counsel advised that the application materials had been put together in the space of two weeks and that, as such, the application could have been heard as early as December 31, 2016.

III. THE CULTURE AND ATMOSPHERE OF THE TRIAL

[34] It has been said that a trial is not an island. It takes place in a particular context. Of course, it occurs in a certain jurisdiction faced with the demands of other cases. But internally, it also involves counsel with different personalities and strengths. With several busy counsel, schedules invariably conflict. Some conflicts are practice-related. Others, in a human (and humane) criminal justice system, are of a personal nature. Where a trial takes place over a lengthy period, it can develop a certain culture.

[35] There are cases in which the s. 11(b) clock is ticking throughout the proceedings and counsel make comments about it whenever there is wiggle at the joints. Such comments routinely pepper court transcripts. They have an incantatory, reflexive tone. One can hear scores of them on any day in set-date, practice and plea court.

[36] This proceeding was not like that.

[37] At no time until after Jordan was released did Mr. Formusa make a focused complaint about the pace of this litigation or any prejudice he had suffered. His factum does not refer to any such occasion and, in response to my questions during oral argument, his counsel did not point to any.

[38] I have described some of the complexities of this trial. The evidence was voluminous. Its presentation in some instances was dense. Cross-examinations – such as those involving the location and condition of the crates and boxes photographed by the police in the warehouse – were detailed and meticulous. The motions involved complex legal and factual issues. The charges are extremely serious and the stakes are very high.

[39] All of that translates into hard work. Throughout, counsel treated each other with respect and civility. They allocated different portions of the work amongst themselves. This was evident in the defence's written work relating to the electronic brief as well as the way cross-examinations were conducted. At times, they assisted each other even where they were not aligned in interest. For example, all counsel depended on the Crown's superior technical aptitudes to navigate efficiently through the electronic brief. Importantly, they showed a willingness to accommodate each other and did so.

[40] Everyone knew they had an important job to do and they were determined to see it through even if it was going to take more time than they had originally planned. It was clear that they understood and accepted the realities in which the trial was unfolding.

[41] I did not infer or intuit this simply by watching the parties collaborate amicably. It was made manifest by counsel's behaviour surrounding issues of timing during the trial. This behaviour included silence where one might have expected resistance in another case, as well as counsel's statements on the record.

[42] On an occasion when Mr. Cooper raised a potential scheduling conflict of his own, and the possibility of having to vacate some of the additional trial dates, he said:

I know we don't want this, as a group, to go on and on and on, but at the same time, [sic] serious matter, and I know that I did have one further application to bring…

[43] I choose this comment not as a "gotcha" moment that defeats Mr. Formusa's application; these issues are not so simple. Rather, I point to it because it encapsulates the atmosphere that pervaded the trial as I observed it.

[44] But there are more concrete examples, including the following.

[45] The delay between set-date and the beginning of trial was 303 days. No party expressed any concern about delay on that date, the confirmation date or indeed on a subsequent interim date when Mr. Formusa's bail was relaxed. Yet, Mr. Formusa's counsel now urges me to find that by electing to have his trial in the Ontario Court of Justice, Mr. Formusa made clear his wish to proceed expeditiously.

[46] While I accept that matters in this Court are generally completed more quickly than those that are heard in the Superior Court, one would have expected counsel to raise concerns in the face of the delay in this one when the trial date was set. Here no one did. This might be why much of the argument focused on the way the trial itself unfolded.

[47] On the first day of trial, we engaged in some "housekeeping" discussions. I advised the parties that I was unavailable for two of the scheduled dates. Mr. Cooper advised that he required one of the afternoons off. In relation to that commitment, he indicated that "I'm sure we'll make it up in any event" and the Crown agreed. No party expressed any concerns.

[48] On April 28, 2015, we agreed to a time-line for the filing of written materials relating to the admissibility of the electronic brief and fixed July 29, 2015 as the return date for oral submissions. On that date, the matter could not be argued as all three defence counsel had failed to meet their obligations. We adjourned to August 31, 2015.

[49] The context is important here. The admissibility of the electronic brief was an important part of the Crown's case against Mr. Avanes in particular and it was clear that all accused wanted a ruling before being put to their elections. Due to the complexity and novelty of the issues, a quick ruling with reasons to follow was not in the cards. Also, I had earlier advised the parties that I was going to have surgery in early September (subject to that date being confirmed by the surgeon) and that during my recuperation, I would not have the use of my right hand. Losing July 29 was problematic.

[50] On August 31, 2015, Mr. Cooper advised that he might have a conflict owing to his duties as a Bencher of the Law Society of Upper Canada on some portion of one or two of the dates that had been fixed for continuation in October. While I strongly urged him to "do away with those commitments," no party raised any concerns.

[51] On October 27, 2015, Mr. Cooper advised that he had an opportunity to work on a file in the Turks and Caicos on two of the continuation dates that had been set for December 8-10, 2015. His hope was that he could be accommodated. As he put it, "if we can try to find alternative dates, either earlier, before or just slightly after." He then indicated that he understood his obligations in this matter.

[52] In oral argument, Mr. Formusa's counsel correctly pointed out that the December dates were vacated for other reasons (described above). But that is beside the point. On October 27, Mr. Formusa, through counsel, once again indicated a willingness to jeopardize continuation dates. He did this knowing that the Crown's anticipated parental leave was set to begin in mid-December.

[53] He did so again, on the following day. As Mr. Cooper put it,

The problem with December, as I articulated is my problem. If anything can be done to accommodate it, I appreciate it.

[54] It is also important that the co-accused expressed no concerns.

[55] I accept that Mr. Cooper also indicated that he hoped that other dates could be secured either "before or just slightly after." In fact, dates were canvassed in November. But in a case involving four busy lawyers and a trial judge in the Brampton courthouse, that hope was ambitious.

[56] The Crown's three month parental leave took place between the end of the Crown's case and Mr. Formusa's defence. While Mr. Walsh indicated that he would try to find a colleague to deal with any issues surrounding the additional Avanes disclosure, no party ever asked me to urge him to find a substitute to continue the case on the merits during his absence. I doubt that I would have done so, given the nature of the case and the timing, but the important point is that no counsel sought to expedite the matter in the face of what would be at least a three month adjournment. This was not unreasonable. It was realistic. In addition, when the issues surrounding the additional Avanes disclosure were discussed in November 2015, Mr. Cooper suggested that the matter be adjourned to March 2016.

[57] The point is that the conduct discussed above demonstrates, in my view, that s. 11(b) was not a live concern in this case.

IV. APPLYING THE JORDAN FRAMEWORK TO CASES ALREADY IN THE SYSTEM

A. The Parties' Positions

The Defence

[58] Mr. Formusa argues that this matter took some 41 months from arrest date to February 17, 2017. From that, his counsel would subtract approximately 6.5 months in relation to defence-caused delay. The main portions of that defence delay relate to the adjournment between November 2015 and June 2016 and the delay between November 2016 and February 2017 relating to the s. 11(b) argument. For these, Mr. Formusa accepts a portion of the time as defence-caused and attributes the remainder to the Court and the Crown. He attributes the entire period from set-date to trial date to the Court.

[59] He also submits that (only) my surgery amounts to an exceptional circumstance under Jordan and that one month ought to be subtracted for it.

[60] The resulting delay of 34 months is well over the 18 month Jordan ceiling and is presumptively unreasonable.

[61] The defence submits that the "transitional exceptional circumstance" under Jordan does not arise in these circumstances despite the admitted lack of prejudice and seriousness of the case.

The Crown

[62] The Crown's factum argued the case as though the old regime and analysis applied to it because the case was essentially complete when Jordan was released. In oral submissions, the Crown refined its argument to tackle the Jordan analysis more directly. Had this trial been completed in February 2015, as originally scheduled, it would have taken approximately 17.5 months. The extent to which it continued beyond its anticipated parameters constitutes "exceptional circumstances" under Jordan that should be subtracted from the net delay. He points to the complexity of the trial and the unforeseen "discrete events" that took place within it. He also argues that the transitional exceptional circumstance applies as a result of the parties' reliance on the prior state of the law. In particular, he points to the absence of prejudice and the seriousness of the charges.

[63] As a result, the Crown submits that while the trial took longer than expected, it did not take an unreasonable amount of time.

B. Net Delay Calculation

[64] In oral argument, the parties agreed that the "anticipated end of the trial" in this matter is the date set for judgment: April 10, 2017. I agree with them. Therefore, the entire time from arrest to completion is approximately 43.5 months.

[65] The defence delay in this case does not involve waiver. The question is which periods of delay were "caused solely by the conduct of the defence."

[66] While no party raised any concerns about the delay between set-date and the trial date, the record is incomplete. It is not known whether the trial could have begun sooner with another judge or whether the defence was unavailable during that period. Therefore, no clear portion of it can be said to be solely attributable to the defence.

[67] Mr. Formusa accepts that the delays between March 2 and April 28, 2015, when Mr. Cooper was ill, and between July 29 and August 31, 2015, are attributable solely to the defence.

[68] Mr. Formusa argues that the adjournment from late November 2015 to mid-June 2016 should be attributed in equal parts to the defence, the Crown and the Court. His argument for the latter is that reasons for a number rulings were not yet available.

[69] I agree that the parties were entitled to rulings concerning the directed verdict applications and in November, I indicated that they would be forthcoming before the December dates. However, those dates were subsequently adjourned. I reject the contention that Mr. Formusa was entitled to reasons for my mid-trial rulings. I would therefore apportion the delay between November 2015 and June 2016 to the parties in equal parts. In doing so, I am mindful of the fact that the trial-coordinator was reluctant to provide them with anything other than a block of dates. However, the transcript shows that other options were available and that no party sought my assistance in this regard.

[70] I disagree with Mr. Formusa's characterization of the 105 day delay between November 4, 2016 and February 17, 2017. He argues that 56 days are attributable solely to the defence. These comprise the time to obtain transcripts and prepare the materials, and 30 days' notice. The rest he attributes to the Crown and the Court.

[71] In oral argument, I asked why the Jordan application was not filed sooner. Mr. Formusa's counsel explained that Mr. Cooper had been on vacation during the summer of 2016 and did not turn his mind to it until September. He then considered the matter and consulted with other counsel until October.

[72] This is unacceptable. First of all, it does not explain why no steps were taken to bring the matter to my attention – if only in October – as had been done previously in relation to much less momentous issues. Second, Mr. Cooper is senior counsel and was well able to analyze Jordan's potential impact. Third, Mr. Cooper does not work alone. Fourth, in light of the history of this case, any Jordan concerns ought to have taken top priority.

[73] The matter ought to have been brought to my attention for discussion and scheduling. Such discussions were commonplace in this trial. Had that taken place, an earlier date for argument might have been selected. In the worst case scenario, it would have been argued on November 4. Instead, it went over to February 2017.

[74] Accepting that counsel take summer vacation, that materials take some time to compile and that the Crown is entitled to 30 days' notice, this application ought to have been perfected by mid-September 2016. Had it been brought forward in the summer, a date might have been fixed or, at the very least, the record would be clear.

[75] In these circumstances, I would attribute the five month period from mid-September, 2016 to February 17, 2017 to the defence.

[76] The net delay of approximately 32 months exceeds the 18 month presumptive ceiling. The Crown bears the onus of justifying it based on exceptional circumstances and/or the transitional exceptional circumstance.

C. Exceptional Circumstances

[77] This trial was originally set to conclude within the 18 month ceiling. The difficulties did not arise until the ceiling approached. The Supreme Court cautioned that such timing can make it difficult for the Crown and the Court to respond in a timely fashion:

For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[78] In a case such as this, which was all but complete before Jordan was released, that caveat applies with greater force.

[79] The Supreme Court also adverted to the fact that "unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay." Even where parties have made a good faith effort to establish realistic time estimates, "it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance."

[80] I would repeat here that the trial proper occupied less than 19 days of court time. This exceeded the 15 days the parties had anticipated. But in light of the complexities, this excess is not unreasonable. Put another way, while incorrect, the parties' time estimates were realistic.

[81] Exceptional circumstances lie outside the Crown's control. They fall under two categories: discrete events and particularly complex cases.

Discrete events

[82] Delays occasioned by discrete events are to be subtracted from the total period of delay. They include medical or family emergencies. The parties have already agreed that my shoulder surgery qualifies, and have subtracted a period of time to account for it. That period was relatively simple to account for. Everyone had notice of it, the recovery time was roughly defined and dates were not set to occur within it. But, like many of the issues that led to delay, it took place within an ongoing trial. This is unlike a pre-trial adjournment due to outstanding disclosure or defence unavailability. In the dynamic context of this trial, it is impossible to identify and allocate the delays that such obstacles caused with any precision. This is because, like billiard balls, subsequent and unanticipated events intervened that also changed the course of the proceedings. I cite, for example, the numerous discussions and factors that led to the adjournment of the December 2015 continuation dates. While the reasons for which those dates were required can likely be identified, they were eclipsed by a series of intervening events.

[83] This difficulty is reflected in the defence's application materials, where parts of specific delays were attributed to various players in greater or lesser proportion. That some of these allocations changed after oral argument only reinforces the point.

[84] The questions, ultimately, are whether these complications were reasonably unforeseen or unavoidable and whether Crown counsel could have reasonably remedied the delays they caused.

[85] The parties agreed that my unavailability for two of the scheduled trial dates was unknown to them until the first day of trial. While unfortunate, this delay could not be anticipated or avoided by the Crown. Nor could it have remedied the delays caused by them any better than it did. Once the parties became aware that the time would not be "made up" within the original time estimate, the Crown suggested seeking additional dates.

[86] Other issues, such as Mr. Avanes's guilty plea, the directed verdict applications and the voluntariness voir dire are much the same. The Crown certainly could not be expected to anticipate, much less avoid, the guilty plea of a party. The same is true of directed verdict applications in a strong circumstantial case such as this. While in some cases one could be critical of the Crown for not deciding sooner whether it intended to rely on an accused's statement, I can not do so in this case. I was not privy to the discussions counsel had off the record and this case was complex. The evidence against the co-accused overlapped and its strength varied.

[87] The principal bone of contention appears to be the Crown's application to tender the electronic brief into evidence. The witness testimony and oral argument occupied additional court time. The application also required significant resources in terms of the parties' research and written materials, as well as my time outside of court considering the issues and preparing reasons.

[88] As the defence correctly pointed out, I was critical of the Crown's cumbersome approach. Had an appropriate witness been identified early and a report provided, one suspects that the issue would not have been litigated. However, my critique must be read in context. I added that "this approach is to be discouraged." My hope was to incite the Crown to avoid such controversy in future cases.

[89] More importantly, the defence's position is problematic for a number of reasons. Aside from the fact that it is very difficult to determine precisely what delay was occasioned by the Crown's application, it is unclear to me that the Crown could have anticipated the problem that it presented.

[90] I learned in the context of the s. 11(b) application that the electronic brief had been disclosed to the defence a very short time prior to trial. As I have already noted, this disclosure was voluminous.

[91] The defence did not raise the late disclosure with me at the time. But in this application, Mr. Cooper submitted that by soldiering on in silence, Mr. Formusa showed a desire to move the case forward. That may be so. On the other hand, given the controversy that arose about its admissibility, there could have been strategic reasons to stay mum. There is simply no evidence before me on that issue.

[92] At the outset of trial, the Crown indicated that the defence had conceded the "continuity" of exhibits. No one disputed that. The Crown maintained that this was his understanding until the defence indicated its opposition to the admissibility of the electronic brief on the basis of lack of authentication. That issue proved to be complex and novel. This might explain why the Crown's written material continued to characterize the issue predominantly as one of continuity.

[93] As the parties now seem to agree, the defence's opposition was not placed on the record when it ought to have been – when the CD-ROM was presented as an exhibit through Tarek Mokdad of the RCMP. What is more, excerpts from the CD-ROM were included in a bound volume the Crown had presented without controversy earlier in the trial. The parties' additional written submissions on this question refer to off-the-record discussions and they do not agree about their content. Those particular submissions do not assist me as I am in no position to resolve the conflict.

[94] In these circumstances, I find that the Crown could not reasonably have anticipated the controversy surrounding the admissibility of the electronic brief or reasonably remedied the delays occasioned by it.

[95] The Crown's parental leave is a special case. One cannot say that it is the equivalent of a medical or family emergency. Whether such leaves will be seen as exceptional circumstances per se remains to be determined. The list is not closed.

[96] The parental leave was foreseeable and, at least theoretically, within the Crown's control. What was unforeseeable and beyond the Crown's control was that the trial would continue into late 2015 and early 2016. In any event, no party urged him to find a substitute.

[97] In the context of a trial that was scheduled to conclude within the 18 month ceiling, I find that the obstacles that caused delays were discrete events. I agree with the Crown that much if not all of the "spill over" ought to be subtracted from the total. Even if I do so, however, the 18 month ceiling would have been exceeded – if only because of the time I would have taken to deliberate and write reasons about the admissibility of the electronic brief, the directed verdict applications and the merits.

[98] As a result, the burden in this application remains on the Crown.

Particularly complex cases

[99] Particularly complex cases are a second category of exceptional circumstances. In Jordan, the Supreme Court defined them as

cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[100] I have already described the complexities of this case in detail. The Crown has satisfied me that the nature of the evidence and the issues, in combination, meet the Jordan criterion.

[101] I hasten to add here that the Crown's decision to prosecute all three accused together was eminently reasonable. The charges (including conspiracy) and evidence were overlapping and all accused were represented by senior, experienced counsel who were active in the matter. At no time did any party argue the contrary, much less seek severance.

[102] While the case took much longer than one would have expected, I find that the time it has taken is justified and reasonable in all the circumstances.

[103] These reasons are a sufficient basis upon which to dismiss the application. However, I discuss the transitional exceptional circumstance because I believe it also avails to the Crown.

D. The Transitional Exceptional Circumstance

[104] The case began in the summer of 2013 and was all but completed one month prior to the release of Jordan. In my view, such a case calls for a particularly flexible and context-sensitive application of the Jordan framework.

[105] The Crown argues that the time it has taken is justified based on the parties' reasonable reliance on the law as it previously existed. He characterizes the defence application as "revisionist history." I agree.

[106] The charges are extremely serious. If found guilty, a person can generally expect to spend over a decade in jail. Mr. Formusa has not pointed to any "real" prejudice. His bail conditions were relaxed prior to trial.

[107] I have already described the defence's behaviour in the face of delays in this case. In the context of the s. 11(b) argument, Mr. Formusa's counsel submitted that I should not mistake resignation for satisfaction with the pace of the litigation. Nor are counsel required to make any specific "magic" comments on the record in the face of delay. All of that is true. However, when silent, resignation and satisfaction appear the same in court and on the record. Again, putting s. 11(b) concerns on the record was the norm in the pre-Jordan culture. Also, all counsel in this matter were senior and experienced. The Crown was entitled to rely on their behaviour in this particular case.

[108] I asked Mr. Formusa's counsel why the s. 11(b) application had not been brought prior to Jordan. She candidly and fairly acknowledged that "it may not have been successful under Morin due to lack of prejudice." However, Jordan's ceilings and its treatment of prejudice "make it easier." In fact, the defence factum devotes considerable space to the weight, if any, to be given to (lack of) prejudice post-Jordan.

[109] Mr. Formusa was represented by senior and experienced counsel throughout these proceedings. Defence counsel's own sense of the relative strengths of his s. 11(b) claim pre- and post-Jordan is telling of his reliance on the state of the law as it previously existed. It also supports the Crown's position.

[110] The parties' reliance on the previous state of the law was reasonable.

[111] Given the timing of Jordan's release, the parties and the system did not have time to adapt in this case.

[112] It is true that an accused person's rights cannot be held in abeyance while the system works to respond to the Jordan framework. In this case, the parties and the system did not have time to adapt. What is more, this is not a simple case or one in which the delay was the result of "repeated mistakes or missteps by the Crown." Nor is it a case like R. v. Picard or R. v. Manasseri in which the defence frequently raised concerns or the Crown failed to pay heed to the accused's s. 11(b) rights.

[113] The Crown has satisfied me that the transitional exceptional circumstance applies in this case.

V. CONCLUSION

[114] I have found that the "culture" of this trial reflected the realities of the case and the context in which it took place. The charges were very serious, everyone was working hard and certain events arose that required accommodation. While I would expect things to unfold differently in a similar case post-Jordan, I do not believe that complacency was the culprit in this one.

[115] Therefore, Mr. Formusa's application for a stay of proceedings based on ss. 11(b) and 24(1) of the Charter is dismissed.

Released: April 10, 2017

Justice Patrice F. Band