Court Information

DATE: September 14, 2022 Information No. 0611-998-21-918-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. MASSIMO SEIBEZZI

Ruling

BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on September 14, 2022 at ORANGEVILLE, Ontario

Appearances:

R. Levan Counsel for the Crown E.M. Battigaglia Counsel for Massimo Seibezzi

Ruling

PUGSLEY, J. (Orally):

Mr. Seibezzi faces a single charge of assault causing bodily harm. At the commencement of his trial, he brings an application for a stay of proceeding under s. 24(1) of the Canadian Charter of Rights and Freedoms, based on a breach of his Charter right to have his trial within a reasonable time under s. 11(b). The Crown opposes the application.

Since the implementation of the Charter on the 17th of April, 1982, countless hours, hundreds of thousands of pages of paper, and thousands of cases have engaged the question, what is "reasonable time" in s. 11(b).

I was called to the bar, coincidently on April 4th, 1982. I've had a grandstand view of the process of the 11(b) cases through the system over the subsequent 40 years as counsel and latterly, as a judge. All of my career as criminal counsel, both for the defence, as a part-time Crown attorney and as a federal agent, has been focused on the Orangeville and Brampton courts.

In early 2002, I was appointed a criminal judge in Brampton. Within two years after that, I transferred to Orangeville as a criminal and family court judge. In the past, I've been the local administrative justice in Orangeville. As a past president of the Association of Ontario judges, and as a per diem travelling judge over the last year plus, I have had the opportunity to review s. 11(b) cases across the province.

I don't say any of this to age myself - rather it is to demonstrate my high level of knowledge about the local and provincial history of the 11(b) journey, and in particular, the challenges of 11(b) scheduling in a small, two judge judicial setting such as Orangeville.

Section 11(b) became an issue right out of the gate. The cases made their way through the appellate levels up to the Supreme Court of Canada as early as Mills v. The Queen in 1986, followed by R. v. Smith in that court in 1989, and the Elijah Askov et al case in the Supreme Court of Canada in 1990, R. v. Morin in the Supreme Court of Canada in 1992 and latterly, R. v. Jordan in the Supreme Court of Canada in 2016 and R. v. Cody, also in that court, in 2017.

The 11(b) practice, if I can call it that, under the Morin guidelines, engaged an increasingly detailed and nuanced dissection of each individual step in a court case, with the timeline being allocated as neutral, defence or institutional delay, often on a day by day basis. Prejudice was then argued.

The 11(b) process, without irony, vastly increased the complexity and often the time needed for many, if not most, of the criminal cases that formed the core of the business of the criminal courts of Ontario, indeed, even down to the Provincial Offences courts. This was the target of the majority in R. v. Jordan in the Supreme Court of Canada: the "doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b)."

The majority cut through the Morin analysis Morass and established a new Bright Line approach to s. 11(b) by establishing ceilings above which delay is virtually, presumptively, fatal to the case. Fatal, since the only remedy for a s. 11(b) breach is a stay of proceeding. The ceiling in this court is set at 18 months, and in the Superior Court of Justice, 30 months.

While the majority (at paragraph 48) recognizes that s. 11(b) delay may result in a stay at delays below the presumptive ceiling, the court placed the onus on the defence to establish that: one, it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and, two, the case took markedly longer than it reasonably should have. Then the majority went on to state, "We expect stays beneath the ceiling to be rare and limited to clear cases." That clear statement in 2016 has not, in my observation, prevented a retrenchment into the pre-Jordan quibbling, intended by the court in Jordan to be stopped. Rather, the Morin analysis has started to come back in through the back door, in the guise of analyzing delay as here under the 18 month ceiling. In my view, this fails to abide by the clear direction of the court in Jordan.

Such issues now are exacerbated by the effects on the court of the 2020 to 2022 global Covid 19 pandemic, save and except that it is the Crown in most cases trying to establish that delays more than 18 months were extraordinary. Luckily, there appears on the face of this record in isolation to be no Covid analysis needed. This will not be the case in most other s. 11(b) applications.

By clear caselaw, the swearing of the Information starts the 11(b) clock running. That is when the defendant's jeopardy formally begins, because he is "a person charged with an offence." Here, that date was August 26, 2021.

The end date for the purposes of the Jordan calculation is the presumed end date of the trial. Here, the 16th of January 2023. August 26, 2021 to January 16, 2023 is 16 months and 21 days. This delay is under the Jordan ceiling, so the process shifts to a consideration of the onus on the defence to establish its conduct, and that the delay is constitutionally excessive in any event, by taking longer than it reasonably should have.

The Supreme Court of Canada in Jordan expects that such a stay would be limited to clear cases.

Let me pause a moment to note the situation here in Orangeville in the Ontario Court of Justice. Until my transfer as a judge from Brampton to Orangeville in 2004, Orangeville was a single criminal judge location. This was notwithstanding that the Ontario Court of Justice Criminal had jurisdiction over not only criminal cases in the County of Dufferin, but also in the Town of Caledon, the northern most town in the three municipalities in the Region of Peel. Yes, the same Peel that was at the core of the Supreme Court of Canada cases in Askov et al and Morin.

The Caledon cases coming to Orangeville more than doubled the caseload in Orangeville, with no increase in judicial resources until my transfer here in 2004. The resources today are still that, two judges, and one judge also now has the remit of presiding in the Family Court for one full day each week. Essentially, then, the judicial resources in the Ontario Court of Justice at Orangeville are actually less now than they were in 2004.

The Covid backlog has descended on the Ontario Court of Justice across the province like an avalanche, and the result of that huge backlog is only now starting to be seen. Yesterday, I was presiding as per diem judge in a Brampton court, on a five day trial from a 2020 allegation which was scheduled for February 2024. Brampton OCJ currently is short six judges. I invite counsel to do the math.

The court has struggled with increasing delay and has used the resources available to it to try and combat this. Per diem judges, such as myself, have been temporarily allowed to sit more days per year than in the past. The Chief Justice and her representatives in each region are trying to allocate resources as best they can. From my perspective, it is the lack of resources that is the immediate problem.

With no little irony, I reference R. v. Elijah Askov et al, where Justice Cory notoriously referred to Peel Region as the worst jurisdiction for delay "north of the Rio Grande." Askov had, at its core, the findings of senior District Court Justice, Justice Bolan, that there was "a chronic shortage of institutional resources in the judicial district of Peel." That statement was made in early September 1986. At that time, Caledon, now in our jurisdiction at Orangeville, was still part of the Brampton i.e. Peel Court.

Resources of the Orangeville OCJ are, in my view, having sat here full time and lately part time for more than 18 years, well within the definition of chronically under resourced.

In that context, I continue my analysis of this matter to its conclusion. This case started as a two count Information, assault causing bodily harm and robbery. The defence quickly engaged the court system and set a date for a preliminary hearing. The matter was pre-tried and both sides agreed that Justice Schwarzl, the Local Administrative Judge at Orangeville, could be the justice conducting the preliminary hearing, notwithstanding the fact that he was the pretrial judge, an indication that everyone wanted this matter to move ahead.

Before the date of the preliminary hearing the Crown looked carefully at their case and decided to withdraw the robbery charge. This greatly reduced the potential jeopardy faced by the accused. It also led to the accused seeking to re-elect to be tried in the Ontario Court of Justice.

The Crown's consent was needed to such a re-election. The Crown could have placed a condition on its consent, a waiver of any consequent delay caused by the case now being subject to the shorter OCJ 18 month ceiling. See the discussion of Justice Paciocco in R. v. Shaikh, 2019 ONCA. No such waiver was sought or given here.

Here, the immediate effect of the re-election to a trial in the Ontario Court of Justice was the Crown deciding that at the trial, as opposed to the preliminary hearing, it would seek to show that the accused's statement was voluntary. In the calculus of committal at a preliminary hearing, no such evidence would be needed. This had to be built into the trial time estimate and led to the need for a longer trial. Longer trials by their nature are harder to schedule. Two very fast dates were offered, and were acceptable to the defence, but not to the Crown. By very fast dates, I mean less than a month after the set date court. To the extent that the defence application hangs its hat on those dates in early July 2022, I reject that submission.

The Crown had to rejig its case from a preliminary hearing to a trial. To do so in a very busy court where multiple other cases were also competing for both Crown and court resources is frankly unreasonable.

While the Crown did not have to consent to the re-election that the accused wanted, it did so in the core spirit of R. v. Jordan. The matter then was scheduled to start the trial in October 2022 and end it as I said in January 2023. The defence submission focuses on the alleged simplicity of the trial. The complainant has unfortunately died. With respect, this makes the trial more complex, not less, as the Crown tries to have the court admit his pre-mortem statement. The timeline here was not only reasonable, in the context of Orangeville that I've already discussed, and the post-Covid demands from other deserving cases, the timeframe is miraculous.

Defence has failed to satisfy me that the timeline here is so clear that the only result should be the peremptory end of the trial before the merits are heard. Neither leg of the defendant's task stands. While facially, he acted to move the case along, in re-election, his decision inevitably contributed to a delay, albeit, a delay that still kept the case within the Jordan ceiling.

That the Crown withdrew the robbery charge and agreed to the re-election is in the best tradition of Jordan, and the Crown as a Minister of Justice. To hang an 11(b) breach on the hook of steps that the Crown took to help move the case along, would be contrary to the spirit and letter of the Supreme Court of Canada direction in Jordan.

I repeat, Jordan represents a Bright Line ceiling. It does not intend to establish Morin, Part 2. The application is dismissed.

Counsel should contact the trial coordinator in the next little while to establish a date to replace November 18th, 2022, a date scheduled for this matter that, unfortunately, as counsel knew when the date was selected, is a date when I'm already committed to preside on an accessory to murder preliminary hearing in Brampton. The selected date shall be before the January 16, 2023 date. If we are able to establish a continuation date to replace November 18th and is still before January 16th, then that should not require a revisiting of the 11(b) analysis.

The date proposed needs to be canvassed with me and with the Regional Manager before it is confirmed. As I indicated earlier, the Regional Manager keeps track of my schedule and the number of days that I have left when I can sit. In the interim, the trial is adjourned to commence the evidence on the 17th of October 2022, at 9:30 in person, as has already been scheduled. The date agreed to to replace November 18th can be addressed conveniently on October 17th. Any questions or concerns, Counsel?

...MATTERS ARE ADJOURNED TO OCTOBER 17, 2022

Certificate of Transcript

FORM 2 Certificate of Transcript Evidence Act, subsection 5(2)

I, Rosey Crean, certify that this document is a true and accurate transcript of the recording of R. v. Massimo Seibezzi in the Ontario Court of Justice, held at Orangeville, Ontario, taken from Recording No. 611_102_20220914_091028__6_PUGSLEB.dcr, dated September 14, 2022 which has been certified in Form 1 by Nancy Byers.

October 3, 2022

Date

Rosey Crean Authorized Court Transcriptionist

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