Court File and Parties

Ontario Court of Justice

Date: 2018-11-16

Court File No.: Ottawa 17-F5283

Between:

Her Majesty the Queen

— and —

Nina Vigile

Before: Justice David A. Berg

Ruling 11(b) Application

Counsel

For the Federal Crown:

• Mr. P. Meilleur-Durand
• Mr. G. Cipriano

For the Defendant:

• Ms. S. Ahsan
• Mr. L. Russomanno

Introduction

[1] Nina Vigile stands charged that on March 21, 2017 she committed offences pursuant to sections 355(b), 86(3), 88(2), 91(3), 92(3), 95(2), and 96(2). Count 1 is particularized as $5,000 deriving from trafficking in a Schedule II substance. The other counts deal with a single firearm: a .44 calibre Desert Eagle handgun.

[2] Ms. Vigile has brought an application for a stay of these proceedings pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. It is her position that her right to trial within a reasonable time period as guaranteed by that section has been infringed.

[3] An understanding of the allegations faced by Ms. Vigile is required to understand her application. I will therefore provide a brief summary of the alleged facts that led up to her being charged with these offences.

[4] In February of 2017, the Ottawa Police Service commenced an investigation into an allegedly illegal marijuana dispensary operating under the name Magna Terra Health Services. That dispensary, it is alleged, was owned by Ms. Vigile's brothers, Peter and Franco. As part of the investigation into Magna Terra and the related activities of the Vigile brothers, three Controlled Drugs and Substances Act search warrants were executed. The one relevant to the present matter was executed at 6 Hyde Park Way in the City of Ottawa. This address is the home of Peter, Franco, and Nina Vigile. The three siblings were found at that home upon execution of the warrant. Nina Vigile was released unconditionally. However, a safe was subsequently located in what was alleged to be her bedroom and inside that safe were the money and the loaded handgun. As a result of this discovery, police arrested Ms. Vigile and charged her with the present offences. The matter is being prosecuted by the Public Prosecution Service of Canada.

[5] I have been advised that the disclosure in this case was not particularly voluminous, that the information to obtain the relevant search warrant is under 20 pages long, that it is unlikely that there will be the need to call an expert witness, that the number of witnesses to be called is not large, and that there is a simple factual matrix – the gun, etc., found in the aforementioned safe.

[6] A 1.5-day trial has been set in this matter. It is scheduled for March 4-5, 2019. As well, an application for leave to cross-examine the affiant of the information to obtain the search warrant has been set to be heard on November 16, 2018 with a 2-day Charter application set down for December 17-18, 2018. A delay of 714 days (i.e., 23 months and 12 days) will have occurred from the time the Information was sworn to the anticipated end of the trial. Submissions on this stay application were heard on October 22, 2018.

[7] Parallel to these present proceedings are those in the matter of R. v. Magna Terra, Peter Vigile, and Franco Vigile. I have been advised by counsel that that matter has a trial scheduled at the Superior Court of Justice, the parties having been committed to stand trial by the Ontario Court of Justice. I have been advised that by the time Ms. Vigile was prepared to set down her matter for trial, the parties in Magna Terra et al. had already established a date to hear their leave application. I have been advised that the search warrant executed at 6 Hyde Park Way is relevant to the Magna Terra et al. matter as well as the one at bar. I note that Ms. Vigile is not facing the marijuana related charges that have been brought against her brothers and the corporation and they are not facing the firearm, etc. charges. The Crown has elected to proceed against her separately and the defence has accepted this.

The Procedural History of this Matter

[8] Ms. Vigile was arrested on March 21, 2017. The Information alleging the present offences was sworn on March 22, 2017. Ms. Vigile was released on bail on March 23, 2017. Her counsel at the bail hearing was Mr. Neil Weinstein.

[9] Over the next several weeks, Mr. Weinstein obtained disclosure, conducted a Crown pre-trial, attended a judicial pre-trial on June 19, 2017, and then, at the first court appearance after that judicial pre-trial (on July 5, 2017), requested a five-day adjournment in order to obtain instructions from Ms. Vigile. The next appearance was thus on July 12.

[10] In regards to the judicial pre-trial of June 19, 2017, the earlier date of June 5 had been offered by the Court; the defence was not available. While the defence was available to conduct this pre-trial on June 12, I have been advised that the Court was closed that day. I note that I have also been advised that judicial pre-trials for matters prosecuted by the Public Prosecution Service of Canada occur only on one day of the week.

[11] It seems, however, that between July 5 and July 12, Mr. Weinstein determined that he had to get off the record and he indeed does so at the July 12 appearance. The Court was told that present counsel, Mr. Russomanno, was prepared to go on the record at that time. Mr. Russomanno had already begun to work with Ms. Vigile and had made a request for the disclosure on July 7, 2017. Over the next few weeks, Mr. Russomanno quite properly retraced the procedural steps that had been taken by Mr. Weinstein: obtaining and reviewing disclosure, conducting a Crown pre-trial, a judicial pre-trial, and receiving Ms. Vigile's instructions.

[12] On October 3, 2017, the various trial and motion dates referred to above (para. 6) were set. I note that throughout 2018, the Crown was still providing elements of further disclosure to Ms. Vigile including some as late as September 15. On July 27, 2018, Ms. Vigile had her matter brought forward so that a date could be established to hear the present application; it was heard on Oct. 22, 2018.

[13] I was provided with an agreed statement of facts that was entered as an exhibit on this motion. As it is not long, I will provide the text in its entirety:

Agreed Statement of Facts

1. On August 14, 2017 a JPT was held in the matter of R. v. Magna Terra, Franco Vigile and Peter Vigile. Counsels for the Magna Terra case suggested doing a combined leave application which would have included Ms. Vigile.

2. Counsel for Ms. Vigile, Mr. Russomanno, who was not in attendance at this JPT was in agreement in principle with doing a joint application. The presiding judge stated that it was too complicated and opposed it.

3. At the JPT for Ms. Vigile on September 25, 2017, the Crown offered to do a combined leave application. A different presiding judge stated that it would be too complicated and opposed it. Counsel for Ms. Vigile declined because of these comments. Counsel for Ms. Vigile agreed that the Crown's evidence at the Charter application could apply at the trial but wanted to lead potential defence evidence separately at trial.

4. The matter was not brought up again by the Crown until August of 2018.

[14] Further to the Agreed Statement of Facts, I was advised that in the matter of R. v. Magna Terra et al., the preliminary inquiry and related Dawson application had been completed by June 7, 2018. It is my further understanding that the leave application in Magna Terra et al. was heard on March 23, 2018.

[15] Once the present trial and motion dates were set, the Crown informed the trial coordinator that the dates were problematic and sought earlier dates. The Crown advises me that they were advised by trial coordination that there were no earlier dates available.

[16] On January 18, 2018, the Crown reached out to the trial coordinator for the Ontario Court of Justice in Ottawa and asked whether it would be possible to have the leave application and Charter motion brought forward and heard in March. Specifically, the request was for a ½ day leave application and then, at a later date, two days for the Charter motion. The trial coordinator replied that it was not possible: "Not even close"; and advised the Crown that his office had not been notified by either of the prosecution offices that any time had become free so as to allow the bringing forward of such matters. In this correspondence, the Crown allowed that "[b]ifurcated dates can't be helped with these search challenges unfortunately, because judge needs time to make decision on defence counsel's leave application."

[17] On August 7, 2018, Mr. Cipriano reached out to defence counsel by email and suggested that Ms. Vigile could abandon her leave application and have the evidence already taken from the affiant in Magna Terra et al. apply to her matter. Mr. Russomanno appears to have had a conversation with Mr. Cipriano in response to that email and later followed up with an email stating that while there was overlap, he felt that it would not be in his client's interests to not conduct his own cross-examination. He suggested that the Crown could agree to have the leave ruling in Magna Terra et al. apply to Ms. Vigile's case thereby dispensing with the need for the leave application. Mr. Cipriano replied that the Crown did not feel that it would be an efficient use of court time to adopt the decision but not the evidence. There was further discussion between Mr. Russomanno and Mr. Cipriano, however, no agreement was reached.

Section 11(b) in the Jordan Context

[18] The Supreme Court of Canada brought down its judgment in R. v. Jordan, 2016 SCC 27, on July 8, 2016. As Ms. Vigile was charged with the aforementioned offences in 2017, the following analysis is entirely within the new Jordan framework; hers is not to be treated as a transitional case (i.e., a case that started under the old Morin regime but was completed after the ruling in Jordan).

[19] The Ontario Court of Appeal has provided a concise summary of the analysis in Jordan. As part of its decision in R. v. Coulter, 2016 ONCA 704, the Court of Appeal stated:

31 The majority in Jordan stated that the Morin framework for s. 11(b) applications had given rise to both doctrinal and practical problems that contributed to a culture of delay and complacency. Consequently, it established a new framework to be applied where a breach of s. 11(b) is alleged.

32 At the heart of the new framework lies a ceiling, beyond which delay is presumptively unreasonable. The presumptive ceiling is 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court or cases going to trial in the provincial court after a preliminary inquiry (Jordan, para. 46).

33 A summary of the new framework is set out below, with the key elements highlighted in bold. An explanation of how each key element of the new framework is to be determined follows. See also this court's judgment in R. v. Manasseri, 2016 ONCA 703, released contemporaneously with this judgment. The explanation of the new framework in these judgments is consistent.

A. The New Framework Summarized

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

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, 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, 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 witness, 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 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).

Defence Position

[20] Ms. Vigile concedes that the period from June 19 to October 3, 2017 (106 days) is defence delay albeit with a couple of exceptions. Ms. Ahsan, who had carriage of this motion for Ms. Vigile, submits that the sub-period from August 2 to 30, 2017 is not defence delay because: first of all, the Crown pre-trial that the previous lawyer for Ms. Vigile had conducted in May 2017 had been "an informal pre-trial" and thus new counsel was required to schedule and then conduct one formally on August 30. Secondly, Ms. Ahsan asks me to find that not all of the time required to wait for the second judicial pre-trial should lie at the feet of the defence because the Public Prosecution Service of Canada only participates in judicial pre-trials one day per week in Ottawa. The defence submits that the period of June 19 to October 3, 2017, as qualified above, is the only period of defence delay. Even without the two qualifications, the net delay still exceeds the 18-month ceiling. The defence denies the existence of any exceptional circumstances in this case: the case is not complex, nor are there any discrete events.

Crown Position

[21] Mr. Cipriano, for the Crown, submits that of the 714 days of total delay, 342 days should be attributed to defence delay thereby leaving a remaining delay of a year and four days, a period well below the 18-month ceiling. This defence delay, it is submitted, was due to the change of counsel (i.e., June 19 to October 3, 2017) as well as the result of certain decisions by the defence as to how they would proceed (i.e., March 23 to November 16, 2018). With respect to this latter cause, Mr. Cipriano points first to Ms. Vigile not agreeing to join with the parties in Magna Terra et al. on their March 23, 2018 leave application as suggested by the Crown, and secondly to the defence declining to conduct a trial blended with the s. 8 Charter motion that is being brought by Ms. Vigile. Mr. Cipriano did concede that the defence was willing to run a blended Charter application insofar as the Crown witnesses were concerned, but not for defence evidence.

[22] In regards to Ms. Vigile's disinclination to join the parties in Magna Terra et al. in a common leave application, the Crown submits that the period of March 23 to November 16, 2018, is delay caused by the defence as it was "[t]ime the leave application could have been heard along with a blended Charter application/trial." In their materials, the Crown states that by declining to have her leave application heard at the same time as the parallel matter, "she was acquiescing to the inevitable delay of scheduling her applications with court availability as of October 3, 2018 as opposed to the earlier March 23, 2018 date."

[23] Thus, the Crown submits that of the 714 days of total delay, the defence caused some 338 days and that the remainder, some 376 days, is well below the 18-month ceiling.

[24] In the alternative, the Crown submits that if I determine that the 18-month ceiling has been exceeded, then "the Respondent submits that the manner in which the applicant has chosen to proceed, creates layers of complexity, and brings this case within the exceptional circumstance exception." The "layers of complexity", it is submitted, arise from the trifurcated process (i.e., leave application, Charter motion, and then trial proper).

Analysis

Calculation of Total Delay

[25] The Information charging Ms. Vigile with the present offences was sworn on March 22, 2017. The total delay as calculated to the anticipated end of the trial is 714 days (i.e., 23 months and 12 days). Ms. Vigile has elected trial at the Ontario Court of Justice. The total delay, therefore, well exceeds the presumptive Jordan ceiling of 18 months.

Calculation of Net Delay

[26] Net delay is what remains once defence delay has been subtracted from total delay. As we have seen, defence delay has two components: (1) that arising from defence waiver, of which there has been none in this case; and (2) delay caused solely by the conduct of the defence (i.e., defence-caused delay).

[27] With respect to delay caused by the defence, the Crown invites me to focus on two discrete periods: June 19 to October 3, 2017 and March 23 to November 16, 2018. I agree that those are the relevant time periods.

[28] The defence has conceded that the period from June 19 to October 3, 2017 was delay caused by the defence. However, Ms. Vigile submits that the sub-period of August 2 to 30 should not be counted against the defence because the Crown pre-trial that had been held by previous counsel had been "an informal pre-trial" and thus new counsel was required to schedule and conduct one formally. I do not accept this submission. While I do not fully understand what is meant by "informal" in this context, I note that whatever form that pre-trial took, it was considered sufficient by both parties to move on to the next step: the judicial pre-trial. The need for a second Crown pre-trial was due to Mr. Russomanno having taken over from Mr. Weinstein and clearly and properly wishing to conduct his own such pre-trial. It is clear from the transcript of the set date appearance on August 2, 2017 that it is the defence and not the Crown that is seeking this second pre-trial.

[29] In regards to the second sub-period within June 19 to October 3, 2017 (i.e., August 30 to the date of the judicial pre-trial held on September 25), once again, I note that that period of delay was caused directly by new counsel wishing to conduct a judicial pre-trial de novo. There is nothing improper about this: to the contrary. However, any difficulties here in scheduling that are not out of the ordinary must be attributed to the defence. Ms. Ahsan referred me to the Saskatchewan Court of Queen's Bench decision in R. v. Lemioer, [2017] S.J. No. 152, in support of the defence position. However, in that case unlike the matter at bar, the Court was dealing with a scenario where "the disclosure of the ITOs had not been fully addressed by the time former counsel was dismissed". That is not the situation in Ms. Vigile's case; there is no other significant issue that was contemporaneous with the dismissal of counsel.

[30] When dealing with the period of June 19 to October 3, 2017, I am mindful of the general precept that when counsel for an accused cannot continue in his or her representation of the accused and subsequent counsel then repeats some or all of the procedural steps already conducted, the time required in that repetition, so long as it is not unreasonable, is to be taken as defence delay: see e.g., R. v. Teng, [2017] O.J. No. 371 (S.C.J.); R. v. Abzakh, 2016 ABQB 694; R. v. Pelletier, BCSC 2496. Therefore, I find that the entire period from June 19 to October 3, 2017 is defence caused delay. This is a period of 106 days.

[31] I turn now to the second period that the Crown submits is to be attributed to defence delay: March 23 to November 16, 2018. Here I must deal with two separate issues. First of all, the Crown contends that the defence caused delay by not conducting a common leave application along with the defence in the Magna Terra et al. matter. Secondly, I am being asked to also find that the defence caused delay by declining to conduct a completely blended Charter application/trial; as we have seen above, Ms. Vigile was not willing to have the defence evidence heard in that fashion but was willing to do so with respect to the Crown witnesses.

[32] In the materials that the Crown has submitted in response to this motion, the position is taken that by not joining the Magna Terra et al. parties in their leave application, Ms. Vigile "was acquiescing to the inevitable delay of scheduling her applications with court availability as of October 3, 2018 as opposed to the earlier March 23, 2018 date." However, such a position flies in the face of the facts in this case. The agreed statement of facts establishes that at the judicial pre-trial conducted on August 14, 2017 in the matter of Magna Terra et al., the presiding judge was advised that then counsel for Ms. Vigile was in favour of conducting a common leave application. As is stated in the Agreed Statement of Facts, "The presiding judge stated that it was too complicated and opposed it." Then, at the judicial pre-trial held on September 25, 2017 in the present matter, the issue was raised again. "A different presiding judge stated that it would be too complicated and opposed it. Counsel for Ms. Vigile declined because of these comments."

[33] To refer to defence counsel's reliance on the direction provided by the Court at a judicial pre-trial (here two judicial pre-trials) as 'acquiescence to an inevitable delay' mischaracterizes what occurred. The role of such pre-trials in case management is clear. They have been referred to as "arguably the most important tool of modern case-management" (R. v. Gandhi, 2016 ONSC 5612 at para. 33). The Ontario Court of Appeal has referred to judicial pre-trials as being "conducive to the effective use of resources" (R. v. Konstantakos, 2014 ONCA 21 at para 8). Section 625.1 Criminal Code establishes the overarching purpose of a pre-hearing conference to be "to promote a fair and expeditious" trial (see Judicial Pre-Trial Conferences Scheduled for Tuesday October 11, 2016, 2016 ONSC 6398 at para. 8). Ms. Vigile's actions in this context were in proper compliance with the directions of the case manager(s). There was no waiver of that time period. Therefore, I find that those defence actions were not the cause of any delay.

[34] I turn now to the Crown contention that by refusing to have the evidence on the Charter application/trial heard in a fully blended fashion, the defence caused delay. The starting point of this discussion is the following passage in paragraph 65 of Jordan:

[t]o be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even when the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[35] In the case at bar, the Crown is not suggesting that the section 8 Charter application and the associated motion for leave to cross-examine the affiant are frivolous or not a legitimate defence action. The parties could not agree on a manner of running a blended voir dire/trial. The Crown has not suggested that the wish by the defence to exclude defence evidence from the suggested blended proceeding was not legitimate nor is there any evidence before me on this application to suggest that it was a tactic calculated to delay the trial of these matters.

[36] I find, therefore, that the period of March 23 to November 16, 2018 was not due to delay caused by the defence albeit with one exception. The defence has conceded that they were not available on the first two dates offered by the Court: November 8 and 9, 2017 were offered for the leave application. As the date finally set for the application was November 16, 2017, counsel unavailability was the cause of 8 days of delay.

[37] I find the net delay in this matter to be calculated as follows: 714 days (total delay) less defence delay consisting of the periods from June 19 to October 3, 2017 (106 days) and November 8 to 16, 2018 (8 days). Net delay is therefore 600 days or 20 months. I turn now to examine the presence of exceptional circumstances.

Exceptional Circumstances

[38] As the net delay in Ms. Vigile's case exceeds the presumptive ceiling of 18 months, a stay must follow unless the Crown is able to establish the presence of exceptional circumstances. As referred to above, those circumstances generally fall into two categories: discrete events and particularly complex cases.

[39] The only discrete event to which the Crown has drawn my attention in this matter is the "applicant's insistence on a trifurcated process." To my mind, this would be stretching the definition of the term "discrete event" beyond recognition. The Supreme Court of Canada provided guidance in Jordan:

72 Commencing with [discrete events], by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.

73 Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected – even when the parties have made a good faith effort to establish realistic time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[40] Keeping in mind this direction, I find that the only discrete event that has occurred in Ms. Vigile's matter was the change of counsel. I have dealt with the consequences of that event earlier when examining delay caused by the defence. Thus the remaining delay is the same as the net delay.

[41] I must now consider whether this case was particularly complex such that the time the case will take would be justified and the delay reasonable. Here, for the most part the Crown points once again to the trifurcated process: leave application, Charter motion, and trial proper.

[42] The Ontario Court of Appeal in Coulter (see above) summarized the Supreme Court's definition of particularly complex cases in Jordan as:

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).

[43] Further direction from the Supreme Court can be found in R. v. Cody, 2017 SCC 31:

[64] Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time" (Jordan, at para. 77 (emphasis deleted)). When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).

[65] In this case, the Crown argues that four months of delay should be deducted as an exceptional circumstance based on the complexity as demonstrated by the voluminous disclosure. The majority of the Court of Appeal agreed. This approach, however, is inconsistent with a qualitative assessment of case complexity. The delay caused by a single isolated step that has features of complexity should not have been deducted. While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The question is whether the case is sufficiently complex "such that the delay is justified" (Jordan, at para. 77). Here, there was extensive disclosure. However, the balance of the proceedings appear to have been relatively straightforward. In our view, even after accounting for the voluminous disclosure, this does not qualify as a particularly complex case.

[44] As well, the Ontario Court of Appeal has recently stressed that "[c]ase complexity must be considered more broadly, over the course of the entire proceedings" (R. v. Lopez-Restrepo, 2018 ONCA 887 at para. 37 citing R. v. Picard, 2018 ONCA 692, leave to appeal refused, [2018] S.C.C.A. No. 135).

[45] I see nothing in this case that would suggest that it should be qualified as a particularly complex case. Disclosure was provided quickly. Both counsel for the defence conducted the necessary pre-trials within a relatively short period of time. The actual time requirements for the leave application (half of a day), the Charter motion (2 days) and the trial proper (1.5 days) do not suggest any particular complexity and indeed the present matter has lacked the quality of complexity since its beginning.

[46] The Crown has referred me to several decisions that, it is submitted, are examples of other exceptional circumstances beyond discrete events and particularly complex cases: R. v. Saccoccia, 2017 ONSC 2737, R. v. Brissett, 2017 ONSC 401, R. v. Chung, 2017 ONSC 13, R. v. Lacroix, 2017 ONSC 334, R. v. Herman, 2017 BCSC 215, R. v. Picard, 2017 ONCA 692. Leaving aside the issue of whether these cases are indeed examples of exceptional circumstances that neither display discrete events or can be characterized as being particularly complex, I find that they are factually so different as to be of no assistance to me in the task at hand. For example, Saccoccia deals with a major investigation into gangs with 112 accused persons, over 35 of whom were part of Mr. Saccoccia's sub-group with whom he participated in what appears to have been a lengthy Garofoli application; Brissett was a matter with 6 co-accused and potentially complex Charter issues requiring relatively large blocks of court time; Chung, where the slow pace due to the use of an interpreter for one of the accused forced a lengthy adjournment of the preliminary inquiry.

Conclusion

[47] The total delay in this matter was 714 days. When one deducts the periods that were due to delay caused by the defence, the net delay remaining is 600 days or 20 months. There are no discrete events nor is this a particularly complex case. Therefore, the delay is unreasonable, Ms. Vigile's section 11(b) Charter rights have been violated, and as a result, my order is that these present charges are stayed.

Released: November 16, 2018

Signed: Justice David A. Berg