Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 11 29 COURT FILE No.: Toronto 21100714

BETWEEN: THE ONTARIO MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT

— AND —

LIMEN GROUP CONST. (2019) LTD., OCTAVIO TOME, and EMANUEL TAVARES

Before: Justice Newton-Smith

Heard on: June 29, July 25 and September 12, 2023 Reasons for Judgment released on: November 29, 2023

Counsel: W. Robinson, G. Adams......................................................... counsel for the prosecution N. Keith............................................................................................................................................ ...... counsel for the defendants Limen Group, Octavio Tome and Emanuel Tavares

REASONS RE: DEFENCE CHARTER MOTIONS No. 5, No. 7 and No. 8

NEWTON-SMITH J.:

I. OVERVIEW

[1] These proceedings commenced on December 7, 2022 with pre-trial motions brought by the defence. The trial proper commenced on April 11, 2023. During the course of the trial the defendants brought further Charter motions.

[2] Motion No. 5 was an Application for a stay of proceedings alleging various violations of the defendants section 11(d) and 7 Charter rights and an abuse of process. It was based on allegations that the Crown failed to call a witness, intentionally withheld materials that it was required to disclose and failed to conduct Vetrovec inquiries of witnesses. This was the 5th Application for a stay of proceedings brought by these defendants, and at least the 2nd alleging prosecutorial misconduct.

[3] Motion No. 7 was an Application for a stay of proceedings for an alleged violation of the defendants section 7 and 11(b) Charter rights. This was the 6 th Application for a stay of proceedings brought by these defendants and the 2nd alleging a violation of their right to be tried within a reasonable time pursuant to section 11(b) of the Charter.

[4] These motions were argued at the close of the Crown’s case. The defendants also brought a motion for a directed verdict. Submissions took place over 2 days, June 29 and July 25, 2023. On the morning of July 26, 2023 I ruled on the motions denying the stay application and the application for a directed verdict. Following my rulings the defence opened its case.

[5] The defence case closed on September 12, 2023. Another application for a stay of proceedings, Motion No. 8, was then brought. Motion No. 8 was another application for a stay of proceedings for further alleged violations of the defendants sections 7 and 11(b) rights.

[6] These are my reasons with respect to the rulings already made on the 5 th and 7 th Charter motions, and with respect to the 8 th Charter motion on which I had not ruled.

II. HISTORY OF THE PROCEEDINGS

[7] Originally there were five defendants in this matter – Mr. Solc represented by Mr. Sabsay, Mr. Rose represented by Mr. Conlin and the three remaining defendants, Limen Group, Mr. Tome and Mr. Tavares all represented by Mr. Keith.

[8] Prior to the setting of trial dates the matter was extensively pre-tried. It was agreed by all parties that 15 days were required for trial and 2 days for pre-trial motions. The motions were set for December 7 and 8, 2022 and the trial was set for March 27-30, April 11-14, 24-27 and May 8-10, 2023.

[9] The pre-trial motions were not completed in the time originally set aside and 3 additional dates were set, January 11, February 7 and 9, 2023.

[10] On March 27, 2023, the date scheduled for the commencement of the trial, the charges against Mr. Solc and Mr. Rose were withdrawn leaving the three defendants represented by Mr. Keith. At the request of Mr. Keith the trial was adjourned to April 11, 2023 and the remainder of the scheduled trial week of March 27 was occupied with further defence motions, Motions No. 2, No. 3 and No. 4.

[11] The trial commenced on April 11, 2023. It did not conclude on the originally scheduled final date of May 10, 2023. A further 10 trial dates were ultimately required: June 9, 12, 16, 26, 27, 29, July 25, 26 and September 12 and 14, 2023. The trial concluded on September 14, 2023.

(i) The First Pre-Trial Motions

[12] On behalf of all three of the defendants that he represents Mr. Keith brought pre-trial motions alleging violations of his client’s section 7 and 11(b) and (d) Charter rights. The motions were extensive and included numerous disclosure requests. A further supplemental motion was also filed by Mr. Keith. Counsel for the two other accused joined Mr. Keith on the disclosure applications but not the delay application. They, Mr. Sabsay and Mr. Conlin, called no witnesses and made minimal submissions.

[13] Mr. Keith called four witnesses who were examined at length in chief.

[14] The pre-trial judge had not been advised by Mr. Keith that he intended to call witnesses on the pre-trial motions, and no time had been set aside for that purpose. The evidence of the defence witnesses occupied over 3 days of court time such that an additional 3 days had to be set for the pre-trial motions.

[15] Ultimately the pre-trial motions occupied 5 days of court time. Submissions on the pre-trial motions concluded on February 9, 2023.

[16] My rulings on the pre-trial motions were released on March 7, 2023. All of the Charter Applications were dismissed.

(ii) Defence Motions No. 2, No. 3 and No. 4

[17] The trial was scheduled to commence on March 27, 2023.

[18] On March 10, 2023 Mr. Keith brought another motion, Motion No. 2, alleging violations of his clients section 7 and 11(d) Charter rights and seeking a stay of proceedings. The motion was returnable on the first scheduled trial day of March 27, 2023.

[19] Motion No. 2 was largely a disclosure complaint and included a list of 54 items of disclosure being sought, most of which related to the credentials and report of the Crown’s proposed expert Mr. Khorsand.

[20] On March 14, 2023 the Crown advised Mr. Keith in an email that the charge against Mr. Solc was being withdrawn and that Mr. Solc was going to be called as a Crown witness. As an attachment to the email the Crown disclosed a statement from Mr. Solc and the statements of four other witnesses that had also been provided by Mr. Solc’s counsel.

[21] On March 17, 2023 Mr. Keith brought another motion, Motion No. 3, alleging further violations of his clients section 7 and 11(d) Charter rights and seeking a stay of proceedings. Again, the motion was returnable on the first day of trial.

[22] Motion No. 3 related to the Crown’s decision to withdraw the charge against Mr. Solc and call him as a witness. As an alternative to the stay request Mr. Keith sought disclosure of any agreements and communications between the Crown and Mr. Solc’s counsel relating to the withdrawal of Mr. Solc’s charge.

[23] On March 24, 2023 Mr. Keith brought a further motion, Motion No. 4, again alleging violations of his clients section 7 and 11(d) Charter rights and seeking a stay of proceedings.

[24] Motion No. 4 was an allegation of prosecutorial and investigative misconduct.

[25] As an alternative to this request for a stay of proceedings Mr. Keith sought various disclosure orders and an adjournment of the trial from March 27, 2023 to April 11, 2023.

[26] It was Mr. Keith’s position that he was unable to proceed to trial on March 27, 2023 as a result of the unanticipated evidence of Mr. Solc and the three additional and related witnesses [the “Solc witnesses”]. The Crown offered to call the new evidence later in the proceedings so as to give Mr. Keith time to prepare. However, Mr. Keith was adamant in his position that he could not proceed to trial until April 11, 2023 regardless of any accommodations offered by the Crown.

[27] I granted the defence adjournment request of the trial to April 11, 2023. In the interim I heard argument on the further motions filed, motions No. 2, No. 3 and No. 4. My ruling on those motions was released on April 4, 2023. With the exception of the request for disclosure with respect to the agreement to withdraw the charge against Mr. Solc, I made none of the disclosure orders requested. The allegations of prosecutorial and investigative misconduct were dismissed as without merit.

(iii) The Trial

[28] On April 11, 2023 the trial commenced. The defendants were arraigned and the Crown began calling evidence. There were 11 remaining days scheduled for trial: April 11-14, 24-27, and May 8-10, 2023.

[29] On April 25, 2023 the defence sought clarification of my earlier ruling with respect to the disclosure of communications between counsel regarding the withdrawal of Mr. Solc’s charge. I reiterated my ruling to counsel.

[30] On that same day Mr. Keith also asked that I sign a witness summons. The summons was for an administrator at Toronto Metropolitan University, and requested that he bring with him to court Mr. Khorsand’s complete transcript and student number. Mr. Khorsand was the crown’s proposed expert. His credentials had been the subject of Mr. Keith’s earlier disclosure requests in Motion No. 2 which I had already ruled against. I found that the subject of the summons was not material to any of the issues at trial and did not sign it. This was conveyed to counsel in court.

Motion No. 5

[31] On April 26, 2023 Mr. Keith brought another application for a stay of proceedings, Motion No. 5, again alleging prosecutorial misconduct. I declined to hear the motion at that time as it would entail yet another adjournment of the proceedings. The hearing of the motion was adjourned until at least the Crown’s case was in.

[32] At the conclusion of the proceedings on April 27, the Crown inquired as to whether further dates should be set. There were 3 previously scheduled days remaining, May 8-10. The cross-examinations of the Crown witnesses had been lengthy and the Crown was concerned that the trial would not be completed in the remaining scheduled days.

[33] I authorized the parties to set an additional 5 days for trial. Mr. Keith agreed to the scheduling of only a further 4 days.

Motion No. 6

[34] Motion No. 6 was dated April 27, 2023 and returnable on May 8, 2023. It was a motion for production of the “full and complete transcript and student number” for Mr. Khorsand from Ryerson University where he had completed his master’s degree in civil engineering. Mr. Khorsand was an engineer with the Ministry and the Crown’s proposed expert. There was also a request for production of all of Mr. Khorsand’s communications with a Mr. Jeffries, another Ministry engineer.

[35] On May 8, 2023 Mr. Keith was asked about this further Motion that he had filed. He responded that he did not intend on bringing the motion “at this time”. The trial continued and the motion was never brought.

[36] Mr. Khorsand began testifying on June 9, 2023. Throughout his cross-examination Mr. Keith made repeated reference to Mr. Khorsand’s transcript from Ryerson university which he had somehow obtained through his own means without a court order or compliance with the 3 rd party records regime.

Motion No. 7

[37] Motion No. 7 was the defendant’s second application for a stay of proceedings for alleged violations of their right to be tried within a reasonable time. The motion was made returnable on June 9, 2023. On June 9, 2023 Mr. Keith told the court that the return date was an error and it was his intention to bring the application at the close of the Crown’s case, which at that time was anticipated to be June 16, 2023.

[38] On June 9, 2023 the Crown called it’s final witness Mr. Khorsand. The Crown sought to have Mr. Khorsand qualified as an expert to which Mr. Keith objected. The voir dire took place over 3 days. Mr. Khorsand testified on the voir dire on June 9, 2023. His evidence took the entire day, most of which was cross-examination.

[39] On June 26, 2023 Mr. Keith called Mr. Jeffries on the voir dire. Mr. Jeffries was a Ministry engineer who had peer reviewed Mr. Khorsand’s report. His evidence and submissions on the voir dire took the day. The following morning, June 27, 2023, I ruled on the voir dire permitting Mr. Khorsand to testify as an expert [^1].

[40] Mr. Khorsand testified on June 27 and cross-examination continued into the following court day of June 29, 2023. At the conclusion of Mr. Khorsand’s evidence the Crown closed its case.

[41] On June 29, 2023 Mr. Keith filed additional motion materials which included further materials with respect to the 2 nd delay application and a motion for a directed verdict.

[42] It was the position of the defence that all of the outstanding motions, including the delay application, should be argued at the close of the Crown’s case and prior to the defence electing whether or not to call evidence. The Crown took the position that the delay argument should not be heard until all of the evidence, including any defence evidence, had concluded.

[43] The Crown had received the defence materials on the delay application that morning and wished time to file responding materials. Additionally, the Crown submitted that, assuming the defence was calling a case, a further defence application for a stay for unreasonable delay would inevitably come at the conclusion of the defence case.

[44] I permitted the defence to use what remained of the court day on June 29 to make submissions on the directed verdict application and all but the 11(b) application. The Crown response and all submissions on the 11(b) were to be heard the following scheduled court day of July 25, 2023. At that time the last scheduled court day was July 26, 2023.

[45] On July 25, 2023 the Crown made their responding submissions and the 11(b) was argued. The parties agreed to treat July 26, 2023 as the last scheduled court day for the purposes of the 11(b) application.

[46] The next morning, July 26, 2023, I ruled on all of the motions, denying both the stay applications and the directed verdict. The defence then opened its case. At the conclusion of the court day on July 26, 2023 the defence’s first witness, Mr. Quadros, was still testifying in chief.

[47] Two further court days were scheduled for September 12 and 14, 2023.

Motion No. 8

[48] On September 5, 2023 Mr. Keith filed Motion No. 8 which was another application for a stay of proceedings alleging violations of his clients section 7 and 11(b) and (d) Charter rights.

[49] Motion No. 8 was the 3rd delay application. It also contained allegations that the Crown had not fulfilled its disclosure obligations which, Mr. Keith alleged, resulted in an abuse of process. The disclosure issue related to an allegation that the Crown had not disclosed the criminal records for the Solc witnesses – an issue that had previously been addressed both on July 26 and also in the context of Motion No. 5.

[50] The defence evidence concluded on September 12, following which submissions were made on Motion No. 8.

[51] On September 14, 2023 final submissions were made on the trial proper at which time the trial concluded.

III. DEFENCE MOTION No. 5

[52] This motion was essentially an allegation that the conduct of the prosecution had irremediably prejudiced the applicants fair trial rights. The allegations were threefold:

1. The failure of the Crown to call Matthew Antongiovanni (“Antongiovanni”), the disgraced, discredited and discharged lead inspector in this case, has caused substantial and irremediable prejudice to the fair trial rights of the Moving Parties violating ss. 7 and 11(d) of the Charter and an abuse of process;

2. The initial refusal, denial of existence and eventually the late disclosure by the Crown of the quid pro quo immunity agreement with the accused, John Solc (“Solc”), wherein the crown agreed to withdraw the charges against Solc in exchange for his new witness statement, new witness statements of four other witnesses, and their testimony as Crown witnesses. This violated Stinchcombe first party disclosure obligations under s. 7 and 11(d) of the Charter, was obvious Crown misconduct, was an abuse of process and contributed to the further delay of the trial, and

3. The intentional misconduct and/or negligent misconduct of the Crown in failure to follow the well-established and longstanding best practices for Crown prosecutors to properly and adequately vet and verify the new evidence being offered by Solc, and his group of four witnesses, in exchange for the withdrawal of his charge, amounts to a violation of ss. 7 and 11(d) of the Charter and an abuse of process.

(i) The “failure” of the Crown to call Mr. Antongiovanni

[53] When this investigation commenced Mr. Antongiovanni was the lead investigator for the Ministry. He was assisted by Mr. Cook. Mr. Antongiovanni was subsequently suspended and Mr. Cook assumed the role of lead investigator. Eventually Mr. Antongiovanni was fired by the Ministry for reasons unrelated to this case [^2].

[54] The Crown called Mr. Cook as a witness at trial but did not call Mr. Antongiovanni.

[55] The defence claimed irreparable prejudice as a result and listed some 79 alleged examples of prejudice. All of these claims amounted to nothing more than questions that the defence would have liked to put to Mr. Antongiovanni in cross-examination. The Applicants’ complaint was really a complaint that they were not afforded the opportunity to cross-examine Mr. Antongiovanni.

[56] On several occasions the Supreme Court of Canada has affirmed that the Crown is under no obligation or duty to call a witness: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 at paras 14-16.

[57] There is no property in a witness. No suggestion was made that the defence was somehow unable to call Mr. Antongiovanni as a witness should they so choose.

[58] There is no merit to this allegation.

(ii) The Late Disclosure of the Solc Communications

The April 4 Ruling

[59] In additional pre-trial motions brought on what was scheduled to be the first day of trial, March 27, 2023, the Applicants had requested disclosure of any communications between Mr. Solc’s counsel and the Crown with respect to the Crown’s agreement to withdraw the charges against Mr. Solc. In my April 4, 2023 Ruling re Additional Pre-Trial motions I ruled as follows with respect to that issue:

The Crown made a decision to withdraw the charge against Mr. Solc. It appears that the decision was made after receiving the statements from Mr. Solc’s counsel on March 13, 2023. Mr. Keith assumes the decision was made as a result of negotiations with Mr. Solc’s counsel and in exchange for the will-says received. The Crown says that there was no such agreement.

Correspondence between Mr. Solc’s counsel and the Crown in which an offer was made and accepted, for example an offer to withdraw the charge in exchange for will-say statements, would be potentially relevant to Mr. Solc’s credibility as a witness and subject to Stinchcombe disclosure. If such correspondence exists it should be disclosed. However, as I understand the Crown’s submissions on this motion, there was no offer and acceptance and no agreement and no such correspondence exists to disclose.

[60] On April 25, 2023 the Applicants produced an email to the court which suggested that there was indeed such correspondence. I reiterated my ruling and further explained to the Crown that it is the “quid pro quo” of a withdrawal of charges in exchange for statements or testimony that would make the correspondence relevant to the witnesses’ credibility.

The Correspondence Eventually Disclosed

[61] The next morning, April 26, 2023, the Crown disclosed a series of communications with Mr. Solc’s counsel which clearly evidence an agreement to withdraw Mr. Solc’s charges in exchange for his statement and testimony.

[62] The most relevant portions of the communications were as follows:

• In an email communication with the Crown on the evening of March 13, 2023 counsel for Mr. Solc begins by writing, “You had asked us to produce a will-state showing what kind of evidence we had available in the event that you withdraw against our client”. The email concludes by saying, “Finally, in the event that all falls apart and no deal is reached….”.
• Following receipt of a will-say from Mr. Solc and witness statements of four other witnesses, the Crown wrote to Mr. Solc’s counsel on the evening of March 14, 2023, stating: “given our undertaking to withdraw the charges against your client, the Crown is now obligated to provide full disclosure.”
• Later that day the Crown wrote to Mr. Keith to advise him that the Crown would be withdrawing the charge against Mr. Solc and calling him as a witness. Attached to the email were the aforementioned will-says.

The Position of the Crown

[63] When the communications were eventually disclosed the Crown took the following position:

“no immunity agreement was entered into by the Crown whereby the Crown agreed to withdraw the charges against Mr. Solc if Mr. Solc agrees to provide a will-say. The Crown takes the position that it has complied with the Court’s order and its Stinchcombe duties. The below noted materials are being provided to you on a without prejudice basis to this position”.

[64] In the course of submissions on this motion that position was maintained by the Crown. Alternatively, the Crown argued that the Applicants were not prejudiced by the late disclosure.

[65] The Crown’s position is hard to reconcile with the content of the communications and the manner in which the events unfolded.

[66] What makes the Crown’s position particularly difficult to understand is that the reality of what had occurred was so clear from the outset. Mr. Solc was represented by experienced counsel who engaged in discussions with the Crown at the end of which the Crown was in receipt of statements from several witnesses including Mr. Solc, Mr. Solc’s charges were withdrawn and he was added to the Crown’s witness list. The only thing that was unclear was how explicit the discussions between the parties had been and whether or not there were written communications between them which formed an agreement.

[67] That being said, it was also abundantly clear to the Applicants what had occurred. The late disclosure only confirmed the obvious fact that Mr. Solc’s charges were withdrawn because he provided a statement and became a Crown witness. Mr. Solc was extensively cross-examined on this point and never denied that he understood that his charges were withdrawn as a result of the evidence that he provided.

[68] In my view there clearly was an agreement that should have been disclosed to the defence at such time as the Crown acted upon it. However, I can see no way in which the defence was actually prejudiced as a result of this late disclosure.

(iii) The “Failure” of the Crown to “properly vet and verify” the Solc witnesses

[69] It was the position of the Applicants that the Crown was obligated to conduct extensive background checks on the Solc witnesses – Mr. Solc, Mr. Da Cruz and Mr. Vireira. In support of this the Applicants relied on portions of the best practices referred to in the Federal Public Prosecution Service of Canada’s Deskbook and the Ontario Crown Prosecution Manual.

[70] Best practices outlined in prosecution manuals are guidelines that do not, “attain the status of legal authority upon which a Charter breach may be founded”: R. v. Miller Group Inc., 2021 ONCA 879 at para 42.

[71] The Applicants referenced R. v. Vetrovec, [1982] 1 SCR 811, as authority for their position that the Crown conduct here somehow amounted to prosecutorial misconduct and negligence.

[72] The Vetrovec jurisprudence cautions about the use that can be made by triers of fact of the evidence of unsavoury witnesses such as accomplices or jailhouse informants. I have not been pointed to any authority which obligates the Crown to conduct criminal records checks of its witnesses absent a specific disclosure request or some reason to believe that the witness has a criminal record.

[73] Had the Crown in this case been in possession of any criminal record or outstanding charges for the Solc witnesses, those records would have clearly been the subject of Stinchcombe disclosure: R. v. Pascal, 2020 ONCA 287, [2020] O.J. No. 1998 (C.A.) at para 134. The Crown in this case was not. Nor was any specific disclosure request made of the Crown with respect to the existence of any criminal record or outstanding charges for these witnesses.

[74] It is common practice in this jurisdiction for defence counsel in criminal cases to make a specific disclosure request for criminal records of any Crown witnesses, and for the Crown in turn to run such checks. That was not done in this case.

[75] Mr. Keith made no specific disclosure request for the criminal records of these witnesses. When the Crown advised that the witnesses were being added to the witness list Mr. Keith did not then request disclosure of any existing criminal records for the witnesses. When the Crown called the witnesses to the stand Mr. Keith did not rise to say that he was not in a position to cross-examine until such queries had been made.

[76] Rather, Mr. Keith waited until long after the witnesses had testified and been cross-examined to bring an application for a stay of proceedings based on an allegation that the Crown had failed in their disclosure obligations.

[77] Mr. Solc was extensively cross-examined on his criminal antecedence including a criminal record that Mr. Keith advised the court he was in possession of through his own means.

[78] When they testified none of the other Solc witnesses were ever asked by either the Crown or Mr. Keith if they had criminal records.

[79] When the issue was raised during the course of these motions the Crown took the position that because they are Ministry of Labour Crowns who prosecute OHSA charges laid by OHSA investigators, they are not assisted by the police and do not have access to CPIC, and therefore these are third party records.

[80] At my urging the Crown made further inquiries into their ability to access CPIC. On a break Mr. Adams attended the police office in the courthouse and asked for CPIC checks to be conducted on the witnesses. Checks were conducted and Mr. Adams was advised that no records existed.

[81] I do not find that in the circumstances of this case the Crown breached their disclosure obligations by failing of their own motion to conduct criminal records checks of their witnesses. Even if there was such an obligation, there is nothing on the record before me to support the assertion that the Crown’s failure to conduct criminal records checks for the Solc witnesses affected the fairness of the trial.

IV. DEFENCE MOTION No. 8

[82] The issue of the failure of the Crown to conduct criminal records checks for the Solc witnesses was again raised by Mr. Keith in Motion No. 8, in which he again claimed that the Crown had failed to provide full complete and timely disclosure and asserted that the prosecution amounted to an abuse of process.

[83] For the reasons given above there is no merit to this allegation.

V. DEFENCE MOTIONS No. 7 and No. 8 – THE DELAY APPLICATIONS

[84] Motions No. 7 and No. 8 are the 2nd and 3rd applications brought by the defendants in these proceedings alleging a violation of their section 11(b) Charter rights.

(i) Section 11(b) – The Jordan Framework

[85] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the framework was established for determining applications for a stay of proceeding pursuant to section 11(b) of the Charter. A presumptive ceiling of 18 months was set for cases going to trial in the provincial court.

[86] Several steps were set out to determine whether a case has breached the presumptive ceiling. Those steps were summarised by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, at paras 34-41:

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, para. 47).
• Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, para. 66).
• Compare the Net Delay to the presumptive ceiling (Jordan, para. 66).
• 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).
• 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).
• 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).
• 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).

[87] Once the presumptive ceiling has been breached, and the Crown cannot rebut the presumption of unreasonableness, the delay is unreasonable and a stay must follow: Jordan, at para 47.

[88] Exceptional circumstances were defined in Jordan at para. 69 as follows:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional.

Discrete Events

[89] The discrete events calculation occurs within the calculation of delay:

Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999, at para 30.

[90] In elaborating on what might constitute a discrete event, the majority in Jordan stated, “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 it’s case.”: Jordan, at paras 71-73.

[91] The Jordan majority then went on, at paras 73-74, to find:

In addition, if the trial goes longer than reasonably expected - even where 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.

Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. 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.

[92] What is key to the discrete events category of exceptional circumstances is unpredictability and unavoidability.

(ii) Analysis of the Delay in this Case

[93] The total delay in this case from the swearing of the information on December 13, 2021 to the final day of trial on September 14, 2023 is 21 months and 3 days. The Jordan date was June 6, 2021.

[94] This is 3 months and 3 days over the Jordan ceiling.

The Position of the Parties

[95] It is the position of the Crown that once defence delay and discrete events are accounted for this matter falls below the Jordan ceiling and the presumption that the delay is reasonable has not been rebutted.

[96] There are two periods of time which the Crown submits are defence delay as a result of scheduling unavailability.

[97] The first is a period of 28 days when the defence was unavailable during the initial trial scheduling. The second is a period of 17 days for which the defence was unavailable for the scheduling of continuation dates.

[98] The Crown then submits that any further delay is the result of the conduct of the defence and should be characterized as defence delay. Alternatively, the Crown submits that the delay beyond the originally scheduled 15 day trial is the result of exceptional circumstances that were unforeseeable to the Crown.

[99] The exceptional circumstance relied on by the Crown is the fact that the trial exceeded the original agreed upon time estimate of 15 days. The reasons for this were all of the additional motions brought by the defence and the lengthy cross-examinations of the Crown witnesses. These are, the Crown submits, discrete events beyond the control and foreseeability of the Crown.

[100] It is the position of the defence that there was no defence delay and there were no exceptional circumstances.

The Timing of the Delay Applications

[101] When Motion No. 7, the 2 nd 11(b) application, was argued the parties agreed to treat July 26, 2023 as the trial completion date. At that time it was the position of the Crown that when delay attributable to the defence and exceptional circumstances was deducted the total delay was 17 months and 1 day.

[102] On the morning of July 26 I gave my rulings with respect to all of the motions including the 11(b) with reasons to follow. The defence then elected to call a case. At the conclusion of the court day on July 26 the first defence witness was still testifying in chief. Mr. Keith indicated that he had further witnesses to call and that another 4 court days would be required. Further trial dates were scheduled for September 12-15, 2023.

[103] Ultimately the trial completed 50 days later on September 14, 2023.

[104] When Motion No. 8, the final 11(b) application, was argued the defence position remained the same; that no delay was attributable to the defence or to exceptional circumstances.

[105] The Crown took the position that the additional delay from July 26 to September 14, 2023 was either further defence delay or exceptional circumstances.

Trial Scheduling

[106] The original time estimate for trial in this case, agreed to by the parties, was 15 days. Dates were set with a trial commencement date of March 27, 2023 and a completion date of May 10, 2023. When those dates were set there were a total of 28 days on which the Court and Crown were available for trial but the defence was not.

[107] This period of time, characterized by the Crown as “Initial Trial Scheduling”, amounting to a total of 28 days is defence delay and should be subtracted from the total delay.

[108] The original agreed upon time estimate for trial of 15 days turned out to be inadequate.

[109] The trial did not start on March 27, 2023. Rather, March 27, 28 and April 3 became additional pre-trial motion dates and the trial itself started on April 11. 2023. Once the trial started it took place over 21 days and did not end until September 14, 2023.

[110] In April when it became clear that the trial would not complete in the scheduled time a further 6 days were set all in June and concluding on June 29, 2023.

[111] When these 6 further trial dates were set the Court and the Crown were available for a scheduled completion date of June 12. However, as a result of defence unavailability, the trial completion date was scheduled for June 29, 2023.

[112] In June when it became apparent that those further 6 days would not suffice 2 additional days were set – July 25 and 26, 2023.

[113] Again those dates proved to be insufficient and 3 further dates were set in September for the continuation of the defence case and closing submissions.

The Adjournment of the March 27 Trial – The Withdrawal of the Charge Against Mr. Solc

[114] The trial was originally scheduled to commence on March 27, 2023 but did not commence until April 11, 2023. It was the defence who requested this 2 week adjournment of the trial.

[115] Mr. Keith submits that this delay was necessitated by the actions of the Crown in withdrawing the charge against Mr. Solc and calling the additional Solc witnesses.

[116] The withdrawal of the charges against the two former defendants, Mr. Solc and Mr. Rose, was a result of information that was provided to the Crown by Mr. Solc’s counsel, Mr. Sabsay, 2 weeks before the trial was scheduled to commence. The email containing witness statements from Mr. Solc and four other witnesses was sent to the Crown on March 13, 2023. The next day this information was disclosed to the defence. The Crown advised the defence that the charges against Mr. Solc and Mr. Rose would be withdrawn and the Crown would be adding these witness to their witness list.

[117] When Mr. Keith took the position that he could not be ready on the scheduled trial date because of this new disclosure, the Crown offered to call the new witnesses at the end of their case. The trial had been set in groups of days rather than a continuous 15 days and the Crown proposed to call the new witnesses commencing on April 24, 2023. This would have given Mr. Keith 6 weeks to prepare for their testimony.

[118] Additionally, while the Crown added 4 new witnesses, Mr. Solc, Mr. Araujo, Mr. Vieira and Mr. Da Cruz, 2 witnesses were taken off of the originally scheduled witness list.

[119] The Crown does not control if and when the defence provides information. As observed by the Court of Appeal in R. v. Jurkus, 2018 ONCA 489 at para 50, a co-accused becoming a Crown witness is part of the “uncertain and complex world of Crown-defence negotiations in multiple accused cases”.

[120] The fact that the Crown agreed to withdraw the charges against Mr. Solc as a result of the receipt of this information, does not mean that the Crown could anticipate or control Mr. Solc’s change of heart. Nor was the Crown in a position to notify the remaining defendants of this possibility until it occurred. The fact that an event such as a co-accused becoming a Crown witness may have been a possibility which the Crown was aware of does not make it foreseeable or avoidable, as understood in the context of Jordan.

[121] The Crown took steps to mitigate any delay occasioned by this change to the litigation landscape. This was a discrete event.

The Late Disclosure of the Solc Agreement

[122] As I have already ruled, the communications between the Crown and counsel for Mr. Solc which amounted to an offer to withdraw charges in exchange for evidence are subject to Stinchcombe disclosure. The Crown did not initially disclose the fact of the agreement, although eventually did disclose communications evidencing the agreement.

[123] Again, as I have already ruled the late disclosure did not prejudice the defence. It was, however, the subject of some of the litigation with respect to Motion No. 3. While motion No. 3 was an application to stay the proceedings as a result of the withdrawal of the charge against Mr. Solc, Mr. Keith did seek as an alternative remedy disclosure of the communications between counsel regarding the withdrawal of Mr. Solc’s charges.

[124] The disclosure issue formed only a small part of the litigation during Motion No. 3. While I did have to revisit the issue following my ruling, again this took perhaps 15 minutes of court time.

[125] Any delay occasioned by the failure to make timely disclosure of this agreement lays at the feet of the Crown. However, the actual amount of time spent litigating the issue was minimal.

[126] I view disclosure of the agreement to be a fairly straightforward issue, and the Crown’s position and initial failure to do so difficult to comprehend. As a result, while the matter ultimately occupied very little court time I will attribute 1 day of litigation to it.

The Conduct of the Trial

[127] The question of whether defence actions, over and above scheduling unavailability, contribute to delay requires consideration of the case as a whole. Wide latitude should to be given to the defence in responding to the charges. However, as the Supreme Court cautioned in R. v. Cody, 2017 SCC 31 at para. 32, that latitude is not infinite:

Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

[128] Drawing the line between actions undertaken in pursuit of a vigorous defence and defence action which is inappropriately litigious and unconcerned with delay is not always easy.

[129] When this case was judicially pre-tried the parties agreed that the pre-trial motions would require 1 day. Out of an abundance of caution the pre-trial judge assigned 2 days.

[130] The pre-trial motions were defence motions, and as such the Crown was largely reliant on the defence’s time estimate.

[131] Contrary to what was discussed at the pre-trials, the defence called four witness on the pre-trial motions.

[132] The lengthy examinations of the defence witnesses on the first set of pre-trial motions often approached hostility and were effectively cross-examinations. The first set of pre-trial motions, which included the first allegation of unreasonable delay and request for a stay of proceedings, occupied 5 days of court time, and were ultimately all dismissed.

[133] While the additional dates that had to be secured for the first set of pre-trial motions were set prior to the originally scheduled start of the trial proper, and therefore did not ultimately impact the timing of the trial, these motions are an example of the manner in which the defence was conducted.

[134] At trial the cross-examinations of the Crown witnesses were lengthy, often repetitive and largely focused on matters not relevant to the issues at hand. The total number of pages of trial transcript occupied by the Crown’s examinations in-chief and in-reply of witnesses is 483 pages. The total number of trial transcript occupied by Mr. Keith’s cross-examinations of Crown witnesses is 1217 pages.

[135] The lengthy voir dire into the qualification of Mr. Khorsand as an expert witness approached spuriousness.

[136] The cross-examination of Mr. Khorsand on the voir dire lasted the better part of a day and was hostile to the point of becoming a personal attack on Mr. Khorsand. The attack on Mr. Khorsand, and the allegation of bias, were meritless.

[137] Ultimately by the time it came to closing submissions on the trial proper Mr. Khorsand’s opinion was not contentious.

[138] Throughout the pre-trial and mid-trial motions repeated allegations of prosecutorial and investigative misconduct were made, all without merit.

[139] As it became increasingly clear that the trial was taking much longer than originally estimated I urged counsel on several occasions to consider whether enough days had been scheduled and to set further dates. Mr. Keith was generally reluctant to address the issue and refused to meaningfully engage in discussions with respect to how much time may be required for a defence case.

[140] Despite the fact that Mr. Keith made frequent assertions about his clients’ desire to be tried expeditiously, his actions were often markedly inefficient and markedly indifferent towards delay. The line between a vigorous defence and conduct that is at best indifferent towards delay and at worst courting delay was crossed in this case.

Lost Court Time Due to Staffing Shortages

[141] Court closures due to “staffing shortages” are shockingly a common occurrence in the New Toronto Court House. On one of the scheduled dates for these proceedings, June 19, 2023, a total of 18 courts had to be closed for lack of court staff.

[142] As a judge sitting in the New Toronto Courthouse I can say that court closures, or late openings as a result of staffing shortages, occur on a regular basis. While we are now told that the “court closures” have stopped, it is still the case that courts open late, sometimes by more than an hour, because there are no available staff for the 10am start.

[143] There is no evidence before me as to exactly why this happens and why it is tolerated. Stories abound. Some which have been reported in the media are as follows. The staff are not adequately compensated and their working conditions are poor. The amalgamation of all of the Toronto courts into the New Toronto Court House downtown means many of the staff have new and lengthy commutes which they don’t wish to make. There is no repercussion for failing to come to work. Rather than hiring full time staff the government hires contract workers over whom they have little control.

[144] As I said, these are the rumours and there is no evidence before me beyond the fact that this occurs with alarming frequency.

[145] What I can say is that it is clearly intolerable. The government’s failure to properly staff courtrooms is inexcusable delay that lies solely at the feet of the state. It happens with too much regularity to be an exceptional circumstance.

[146] Here the parties agree that 2 days of court time were lost in this case due to staffing shortages.

(iii) Application of the Jordan Framework and Principles

[147] This trial was originally scheduled to conclude under the Jordan ceiling. The last scheduled day of trial, as was agreed to by the parties following judicial pre-trials, was May 10, 2023. The Jordan date was June 6, 2023.

[148] The total delay in this case is 21 months and 3 days or 630 days.

[149] There are 28 days of scheduling delay in this case which I have attributed to defence delay.

[150] This brings the net delay to 602 days or 20 months.

[151] The delay of this case from the originally scheduled completion date of May 10, 2023 to September 14, 2023 can be characterized in two ways; as a discrete event or defence delay. Another way to characterize it would be to say that the delay occasioned by a discrete event was exacerbated by the conduct of the defence.

Exceptional Circumstances – Discrete Events

[152] The change to the landscape of the Crown’s case brought on by the late change of heart of Mr. Solc was a discrete event. The Crown made efforts to mitigate any possible delay occasioned by the addition of the four new witnesses, including reducing the original witness list by two and offering to call the new witnesses later in the case.

[153] When this case was originally scheduled for 15 days there were three defence counsel and five defendants. The withdrawal of the charges against Mr. Solc and Mr. Rose resulted in additional Crown witnesses, but it also resulted in fewer cross-examinations and fewer defendants making closing submissions.

[154] As a result of the lengthy cross-examinations, all of the additional defence motions and the change in the Crown’s case additional days were required. The last day of trial was September 14, 2023, bringing the case over the Jordan ceiling.

[155] Jordan cautions that delay in trials that were scheduled to conclude under the Jordan ceiling but end up exceeding it is likely unavoidable.

[156] Assuming that the original time estimate of 15 days was a good faith effort to establish realistic time estimates, the trial went longer than reasonably expected and the scheduling of further trial dates beyond the Jordan ceiling was unavoidable.

[157] The trial exceeded the original estimate of 15 days by 6 days. This was not something that could have been foreseen by the Crown. I cannot say that this was necessarily the case for the defence.

[158] The cross-examinations of the Crown witnesses on the original witness list were lengthy. The voir dire into the qualifications of the Crown expert was lengthy. These are circumstances uniquely within the control and knowledge of the defence which should have factored into the original time estimates.

[159] Throughout the proceedings the defence brought numerous motions, sometimes repetitively and sometimes entirely without merit.

[160] The conduct of the defence in this case did little to move it forward with efficiency and was a significant factor in how long it took to complete the trial. While I have characterized all but 3 days of the delay from the originally scheduled trial completion date of May 10 to the actual completion on September 14 as an exceptional circumstance, the conduct of the defence contributed significantly to that delay.

The Remaining Delay

[161] Taking a bird’s eye view, rather than parsing out each day, I find that the delay in this case from May 10, the original scheduled completion date to September 14, when the trial was eventually completed, is an exceptional circumstance that could also be characterized as defence delay. This is a total of 128 days.

[162] However, during that period of time there were 3 days which are not defence delay and cannot be justified by exceptional circumstances: 1 day which I have allocated to the crown’s failure to disclose the Solc agreement, and 2 days lost due to staffing shortages. As a result, I am subtracting 125 and not 128 days from the net delay for exceptional circumstances.

[163] The total delay is 630 days. The total delay minus 28 days of defence delay in initial trial scheduling is 602 days of net delay. The net delay of 602 days minus 125 days for exceptional circumstances brings the delay to 477 days, or just under 16 months, which is below the presumptive ceiling. The presumption that the delay is reasonable has not been rebutted.

VI. CONCLUSION

[164] I have already ruled on Motions No. 5 and No. 7. The remaining application for a stay of proceedings, Motion No. 8, is also denied.

Released: November 29, 2023 Signed: Justice Newton-Smith

[^1]: In the interests of moving the case forward I made my Ruling with reasons to follow. Those reasons are being released alongside these. [^2]: The history of the investigation and Mr. Antongiovanni’s firing are outlined in my March 7, 2023 ruling on the original pre-trial motions