Court File and Parties

Ontario Court of Justice

Date: August 22, 2019

Court File No.: 18-15006561

Toronto – Old City Hall

Between:

Her Majesty the Queen

— and —

Mark Barreiras

Before: Justice H. Pringle

Heard on: July 23, 2019

Reasons for Judgment released orally on: August 2, 2019

Written Reasons for Judgment released on: August 22, 2019

Counsel:

• Christopher Leafloor and Christie Black, counsel for the Crown
• Christopher Tarach, counsel for the accused Mark Barreiras

PRINGLE J.:

OVERVIEW OF THE APPLICATION

[1] These written reasons supplement the oral dismissal, on August 2, 2019, of the applicant's s. 11(b) application.

[2] The applicant and two other defendants were arrested on August 29, 2018, following the execution of search warrants. All three defendants intend to challenge the validity of these warrants. The Garofoli application process began on August 16, 2019 and continues in September, October, and November 2019.

[3] The defendant's trial proper should take five days. It is scheduled to end on February 24, 2020, just four days shy of the Jordan 18-month presumption of unreasonableness. Mr. Barreiras, who awaits his trial in custody, sought a stay pursuant to s. 11(b).

[4] Stays under the Jordan ceiling must be, the Supreme Court has instructed, "limited to clear cases": para. 83. But, as the Court also said, the 18-month Jordan ceiling is far from an aspirational goal: paras. 57-58.

[5] Where, as here, the time to trial falls below the Jordan 18-month guideline, the onus shifts to the defence to establish two things:

• that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings, and;
• that the case took markedly longer than it reasonably should have.

Both aspects of this test must be proven, or the stay application cannot succeed.

THE COURT PROCESS

[6] The applicant was arrested on August 28, 2018. He was denied bail two days later. From then until October 12, 2018, the applicant worked at applying for Legal Aid and retaining counsel.

[7] On October 12, 2018, counsel appeared at court to inquire where disclosure was. Nothing was available. On October 16, October 23, November 1, November 8, and November 15, 2018, the applicant again appeared at court, unsuccessfully hoping to obtain disclosure. Counsel proactively reached out to the assigned Crowns, suggested shorter remand dates than the Crown to aggressively pursue disclosure, and asked that disclosure be couriered to him when ready.

[8] The 500 pages of e-disclosure was received by the Crown on October 10, 2018. It took until November 22, 2018 to be vetted and disclosed to defence. At the same time, the ITOs were being reviewed. By December 6, 2018, the Information to Obtain Search Warrants (ITOs) had been edited, vetted, approved for release, and disclosed.

[9] Between December 6, 2018 and February 25, 2019, the applicant continued to move his case forward proactively. Disclosure was quickly reviewed. A Crown pretrial was held immediately following that review. As early as January 25, 2019, the applicant was ready and anxious to set a Judicial Pretrial (JPT) date.

[10] His co-accuseds, however, were not. One still needed to retain counsel, and both had yet to conduct a Crown pretrial. It took until March 4, 2019, to organize all three defendants' lawyers for a joint JPT. The applicant's counsel bore no part of this delay.

[11] On March 19, 2019, a JPT was held, time estimates reached, and an attempt made to set trial dates through the trial co-ordinator. But "because of the complexity of scheduling", as per the Crown, the JPT had to continue on March 25. The applicant noted his earlier availability, his client's in-custody status, the live issues with delay, and said:

I've canvassed with my friend whether he would sever Mr. Barreiras given he is in custody, and my friend has indicated that's not something he's agreeable to, and in fairness, there is no application before the court today, but that was a discussion that we had, and Mr. Barreiras is very eager, being in custody, in order to have this matter tried as soon as possible.

[12] On March 25, 2019, the JPT was complete and the current trial dates finalized. The Crown stated its availability earlier than the scheduled trial dates, pointing out that this case's Jordan timeline fell four days after the estimated trial's completion. The applicant was available earlier too, and advised a s. 11(b) application would be brought.

[13] The trial verification form, setting out counsel availability, was made part of the evidentiary record. In broad strokes, both Crown and applicant were available on the first dates offered. These began as early as September 30, included continuous blocks of trial time in October, November, and December, 2019, and temporally separated dates in August 2019. The schedules of co-counsel, however, drove the trial to be set for February 2020.

[14] Thus, almost one year will have passed between setting this trial date and the date of estimated trial completion, although in the interim there are dates set for various steps of the joint Garofoli motion.

NO DEFENCE DELAY

[15] The first step in Jordan is to deduct "defence delay" from total delay. Jordan defines "defence delay", at para. 63, as:

• A period of delay that is clearly, unequivocally, waived, or;
• Defence caused "solely by the conduct of the defence".

No step taken by the applicant could possibly fit within this definition of "defence delay".

[16] While the applicant's co-accuseds did cause defence delay, their delay should not count against the applicant's s. 11(b) interests. As the Court of Appeal instructed in R. v. Gopie, 2017 ONCA 728 at para. 128, trial judges must approach the concept of defence delay as an individualized exercise. Counting delay caused by a co-accused would, the Court held at para. 136, be inconsistent with the principles in Jordan.

[17] The exception to this approach lies when jointly-charged accuseds present themselves, in their litigation strategy and approach, as essentially a collective: R. v. Albinowski, 2018 ONCA 1084 at paras. 38 and 39.

[18] That did not happen here. While there is a joint Garofoli application, the applicant's approach to moving the case forward starkly contrasted with that of his co-accuseds. More particularly, he waived no period of delay, caused no period of delay either by actions or in scheduling, was ready to set a trial date as soon as possible, and was available for trial as soon as the Court could offer dates.

MARKEDLY LONGER THAN REASONABLE

[19] In this case, I have concluded the time to trial did take markedly longer than it reasonably should have. This is not a complex case. It is a basic search warrant case with a five-day Garofoli application at its root. The two ITOs are not lengthy, are duplicate in content, and target one accused and two locations. There was 500 pages of e-disclosure. This is not overwhelmingly voluminous.

[20] The trial itself will take another five days. No doubt the three accused persons will raise issues of knowledge and control if the Garofoli application should fail. A five-day trial, like this one, should be heard in the Ontario Court of Justice (OCJ) earlier than 18 months.

[21] The Crown played no part in causing time to trial to be markedly longer than it should have been. Three months to provide disclosure was hardly a model of efficiency. But to be fair, the ITO relied on two confidential informants (CIs), which necessarily added complexity to the Crown's disclosure obligation.

[22] The Crown's decision to proceed jointly against three accused persons did complicate scheduling. Booking the various stages of a Garofoli motion, over multiple days, in advance of a trial with three co-counsel and a Crown was no easy feat. This bore similarity to R. v. Jurkus, 2018 ONCA 489, where the Court of Appeal justified delay three weeks above the Jordan ceiling due to the scheduling complexity inherent in balancing calendars of three defence counsel, one Crown, and the Court: para. 67.

[23] But the Crown's decision to proceed jointly, and his refusal to sever the applicant, was not wrong. This case differs greatly from cases like R. v. Manasseri and Kenny, 2016 ONCA 703, where the Crown should have severed an accused in 11(b) jeopardy. In that case, 15 months after arrest, and three weeks before Kenny's scheduled OCJ trial, the Crown joined Kenny to Manasseri to proceed jointly on more serious charges. This wasted those 15 months. It necessitated setting a preliminary inquiry at a late stage. It joined him to Manasseri, who by then had discharged one counsel and hired another who was unavailable to do this preliminary inquiry for almost one year.

[24] The Crown refused to sever Kenny so he could have a separate OCJ trial. Twice, Kenny unsuccessfully brought severance applications which were ironically delayed due by Manasseri's adjournment requests. The Court held, at paras. 376 and 379, that once the Crown knew the case was already over 15 months old and that Manasseri's new counsel was unavailable for 11 months to do the preliminary inquiry, the Crown should have preferred an indictment or severed:

Instead of exercising the vigilance required to respect Kenny's s. 11(b) rights, the Crown appeared to be content to let Manasseri's counsel dictate the pace of the litigation.

Even absent significant prejudice, the Crown had the tools readily at hand to move the case against Kenny forward. But it failed to pick up, much less to use those tools to do the work of which they were capable. A separate trial for Kenny ….was at once viable, reasonable, and in the interests of justice.

[25] There are solid reasons why joint trials are generally in the interest of justice. As Fairburn J.A. held at para. 68 of R. v. Jurkus, supra:

[t]here are a host of reasons why accused charged in relation to the same incident should be tried together, such as: conserving judicial and trial resources; avoiding inconsistent verdicts; and avoiding witnesses having to testify more than once: Gopie at para. 138 …..In this case, it was clearly in the interests of justice to proceed against the three accused together, even though, as acknowledged by the application judge, this added to the complexity of the matter.

[26] These factors apply in the case at bar. The evidence did not establish that two separate trials, as opposed to a joint trial, would best serve the interests of justice. The Crown cannot be faulted for failing to agree to severance.

[27] Yet Mr. Tarach still convinced me this case took markedly longer than it should have. Significant to this analysis was the fact that the applicant must wait 18 months, in jail, for his trial. I should add that the Supreme Court was silent on the impact, if any, of custody on Jordan. But in my view, custodial status can be considered in assessing whether time to trial took markedly longer than it should have, and I have done so here.

[28] My conclusion is based, in part, on obiter in R. v. Carman, 2017 ONCJ 11. In Carman, at para. 17, Duncan J. noted the problematic nature of grouping in-custody cases under the Jordan ceiling:

The Court intended that the full Jordan framework including the same presumptive ceilings would be applied equally to custody cases….. I think that this is the most likely interpretation and the one that should be followed until further developments. Having said that, there are some serious concerns. Can it really be that waiting in custody for a trial in provincial court for up to 18 months – the equivalent, with enhanced credit, of a penitentiary sentence – is presumptively OK? And is it really acceptable to allow 11b relief in such a situation only if the defence has been proactive in attempting to get an earlier trial? What about defendants in custody who are unrepresented or ineffectively represented? And why, if custody cases fall under this part of the framework, should 11b relief be difficult to obtain (para 101) and reserved only for clear cases (para 83) when delayed custody cases would seem to be the most meritorious and deserving of Charter protection? All of these concerns suggest that this part of the framework was not designed or intended to apply to the custody situation.

[29] These concerns do make the 18-month guideline and in-custody cases a poor fit. In my opinion, custodial status retains relevance in the s. 11(b) analysis. Simply put, in-custody cases are always prioritized when setting trial dates. Logically, an in-custody accused should thus be brought to trial more quickly than a similarly situated, but out of custody, accused. Accordingly, when assessing whether time to trial was markedly longer than it should have been, the in-custody status should be considered. It is just as relevant as other factors such as case complexity, local considerations, and Crown conduct.

[30] Absent defence delay, an in-custody trial should fall well below the 18-month guideline. Jordan and its progeny urge trial judges not to lose sight of the forest for the trees. Mr. Barreiras will wait in jail almost 18 months for his trial and has caused no defence delay. From a bird's eye view, the conclusion is obvious. This is markedly longer than a straightforward in-custody OCJ trial should be.

MEANINGFUL AND SUSTAINED STEPS

[31] However, time to trial was rooted in the schedules of the applicant's co-counsel, not at the feet of the Crown or the Court. This played a role in the next analytical stage, whether the defence took meaningful steps demonstrating a sustained effort to expedite proceedings. Here, I considered the applicant's conduct up to and after setting a trial date.

[32] This was not and should not be an inquiry into finding fault. Mr. Tarach, for the applicant, did an excellent job of pursuing disclosure and ensuring its quick review. His efforts brought all counsel together for the Judicial pretrial and helped to ensure those JPTs were conducted as quickly and efficiently as possible. He brought the need for expediency to the attention of the Court and the Crown more than once. On this record, he often appeared to be the only party concerned with minimizing unnecessary delay.

[33] Yet the Supreme Court's language in Jordan led the s. 11(b) application to fail on this branch of the test. More specifically, the applicant failed to discharge the onus of showing it took "meaningful and sustained steps to expedite the proceedings". The word 'sustained' was, no doubt, deliberately chosen by the Supreme Court. It means continuous, steady, maintained without interruption. I could not reconcile this language with the applicant's inaction after setting the trial dates.

[34] More specifically, at the time when the dates were set, the applicant knew that almost one year would now pass before trial. Clearly, the length of delay was attributable to the schedules of co-counsel, since the court offered dates in August, September, October, November, and December 2019. But after the trial was set, there were no inquiries into the possibility of changed circumstances. There was no attempt to return and see if co-counsel's schedule permitted earlier dates. For other examples of proactive conduct after setting a trial date, see para. 30 of R. v. Carman, supra.

[35] The onus of establishing evidence of "sustained" steps was not assisted by the absence of any defence severance application. To be fair, when co-counsel's scheduling problems became apparent, the applicant inquired into severance. The Crown refused. But this request alone, absent an application, did not established "sustained steps" to expedite the proceedings.

[36] In addition, as referenced above, the Crown did not wrongly refuse to sever the applicant. In order to so conclude, the evidence must prove severance was clearly in the "best interests of justice". The evidence on this application did not. That said, a severance application was one tool, as counsel fairly acknowledged, that the defence could have used to try and bring the applicant to trial sooner.

[37] Not bringing that application was explained as a "litigation decision". But if the applicant felt that severance would best protect his s. 11(b) right, as was advanced here under the rubric of Crown conduct, then the defence should have brought that application. Jordan requires proactivity.

[38] Respectfully, the failure to seek severance told against a sustained effort to expedite proceedings. This, coupled with the applicant's general inaction after trial dates were set, led me to conclude this branch of the test was not met. Accordingly, and despite Mr. Tarach's able argument, the s. 11(b) application must be dismissed.

Released: August 22, 2019

Signed: Justice H. Pringle