Ontario Court of Justice

Date: 2024 02 01 Court File: NEWMARKET - 4911 998 21 911003602

BETWEEN:

HIS MAJESTY THE KING

— AND —

GIACOMO FIORILLO

Before: Justice M. Townsend

Heard on: January 12, 2024 Reasons for Judgment released on: February 1, 2024

Counsel: Z. Sethna, counsel for the Crown Giacomo Fiorillo, on his own behalf

TOWNSEND J.:

[1] Mr. Giacomo Fiorillo stands charged with three counts of Fraud Over $5,000 contrary to section 380(1)(a) of the Criminal Code of Canada, three counts of False Pretenses contrary to section 362 of the Criminal Code of Canada, and three counts of Possession of Property Obtained by Crime Over $5,000 contrary to section 355(a)(i) of the Criminal Code of Canada.

[2] On January 12th, 2024, Mr. Fiorillo brought an Application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms following an alleged violation of his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter.

[3] On that day I gave brief oral reasons dismissing that Application and indicated that written reasons would follow. These are those reasons.

Overview

[4] It is important to note at the outset, that this Application for a stay of proceedings was brought by Mr. Fiorillo prior to the setting of a trial date. I indicated to Mr. Fiorillo in oral submissions that he is welcome to put this Application on hold and renew it once a trial date has been set. He declined that offer and wished to proceed with this Application.

[5] While there is no trial date set, and there is no – to use the words of the Supreme court of Canada in R. v. Jordan – “anticipated end of the trial”, I heard this application on the basis that the anticipated end of trial would clearly be after the motion date, even though there was no formal trial date set at the time of hearing of the application.

[6] As is the case in many 11(b) applications, there is some history to this matter.

[7] The relevant timeline, and description of the many adjournment dates, based on the transcripts provided is as follows:

(a) The Information was sworn on October 17, 2021.

(b) Mr. Fiorillo’s first appearance was on November 16, 2021. Counsel Mr. Geisinger appeared for Mr. Fiorillo. The Crown elected by Indictment and Mr. Geisinger adjourned the matter, with a discretionary bench warrant, for the purposes of obtaining and reviewing disclosure, and scheduling a Crown Pre-Trial (CPT).

(c) On December 16th, 2021 agent for counsel appeared, and after starting to say “we have received – “(presumably “disclosure”), the agent went on to request an adjournment for the purposes of obtaining further disclosure.

(d) On January 6th, 2022, the same agent appeared for Mr. Geisinger. It was indicated that counsel was awaiting further disclosure. After discussion with the Crown, it was noted that initial disclosure was received, and that more substantial disclosure was being sought. The matter was adjourned for that purpose.

(e) On February 3rd, 2022, Mr. Geisinger appeared, and indicated that he was still awaiting further disclosure.

(f) A CPT takes place on March 2nd, 2022. There was a CPT originally set for a date in January, but the assigned Crown was unable to attend.

(g) On March 3rd, 2022, counsel appears, and indicated that he was awaiting instructions from his client after having the CPT. The Crown indicated that they are ready to move the matter forward to a JPT.

(h) On March 24th, 2022, counsel appears, and indicated that he has had a Crown resolution meeting, and he is in the process of putting together a restitution amount for that resolution. Counsel also indicated that he needed time to speak to his client. Counsel asks for a lengthy adjournment and says that it was for the purpose of putting together a resolution proposal and to put that proposal to the Crown. Counsel indicated that he would have that done by the next date. The Crown asked if counsel was prepared to waive 11(b), and while he was not prepared to waive 11(b) counsel indicated “it is a defence request”.

(i) Counsel indicated on May 5th, 2022, that he has had several meetings with his client, was going through some further disclosure, and was waiting for his client to assist him in coming up with a possible restitution amount. Once again, at the request of the Crown to waive 11(b) counsel indicated that he was not prepared to do so but that “it’s a defence request”.

(j) On June 2nd, 2022, counsel appeared, and told the court that he is in the process of coming up with a restitution number and assisting in securing funds for a restitution. The adjournment request by Mr. Geisinger was for the purposes of continuing to put together that resolution proposal.

(k) June 30th, 2022, agent for counsel appeared. Agent requested an adjournment on behalf of counsel as Mr. Geisinger was awaiting instructions from his client, and counsel had some holidays upcoming. When asked about 11(b), the agent said that “I’ll ask it just be noted as a defence request.”

(l) Counsel did not appear on July 28th, 2022, and the matter was adjourned one week.

(m) Again, on August 4th, 2022, neither counsel nor Mr. Fiorillo appeared. The Crown indicated that this was a very serious matter, and that it was eager to move the matter along. The matter was adjourned two weeks to give counsel an opportunity to speak to the Crown and attend Court.

(n) On August 18th, 2022, nobody appeared. A bench warrant was issued for Mr. Fiorillo at 2:35pm.

(o) While the transcripts were not provided for some subsequent appearances, I was told in submissions that Mr. Fiorillo was arrested on the bench warrant on August 24th, 2022, and the first appearance following his arrest was October 7th, 2022.

(p) On November 4th, 2022, the transcripts indicate that counsel Mr. Geisinger appeared, and requested an adjournment, again for the purposes of putting together restitution funds for a proposed resolution.

(q) For the December 1st, 2022, appearance no one appeared, and the matter was adjourned with a discretionary bench warrant.

(r) On December 8th, 2022, counsel Mr. Geisinger appeared, and indicated to the court that “my client is essentially turning his mind to whether or not he wants to proceed to trial, simply because the discussions that we had with the Crown have made it difficult to comply with a plea, so he’s turning his mind to that question.” The matter is ordered to return in JCMC with a discretionary bench warrant.

(s) Again, on January 5th, 2023, nobody appeared, and a bench warrant was issued for Mr. Fiorillo’s arrest. Mr. Geisinger appeared on February 2nd, 2023, and when Mr. Fiorillo eventually appeared counsel put on the record that they were still trying to resolve this matter and that an upcoming JPT date had been set. The Crown indicated that the upcoming JPT is set for February 14th, 2023, and that on a future appearance the Fail to Appear allegations against Mr. Fiorillo will be withdrawn.

(t) On February 14th, 2023, a JPT was held, and the matter was adjourned to March 8th, 2023, for counsel to have instructions on whether this will be a resolution or a trial. Counsel indicated that there is to be an 11(b) waiver from February 14th, 2023, to March 8th, 2023.

(u) On March 8th, 2023, Mr. Geisinger did not appear in JCMC Court, and at 6:00pm when the Court had completed its list, the matter was adjourned without counsel having appeared, with a discretionary bench warrant.

(v) Counsel appeared on March 15th, 2023. As counsel did not attend on the last occasion, there was no follow-up JPT held. Counsel indicated that the matter was likely not resolving, and there would need to be a trial time estimate done before the most recent JPT judge, and the matter was adjourned for that purpose.

(w) On the April 19th, 2023, appearance, Mr. Geisinger indicated that his client had not retained him for trial, and that retainer issues were still being worked out. No follow-up JPT had been set, despite the Crown reaching out to counsel on March 24th 2023, to encourage him to set that JPT date. Counsel waived 11(b) to the next date.

(x) No one appeared to speak to the matter, neither counsel nor Mr. Fiorillo, on May 3rd, 2023, and the matter was adjourned one week with a discretionary bench warrant.

(y) On May 10th, 2023, Mr. Geisinger requested a two-week adjournment for the purposes of filing the trial scheduling form, even though he was not retained for trial. The Court encouraged counsel to file the form and have the matter marked to set a date on a with or without counsel basis. Counsel indicated that he would have the form filed by the next date. Counsel and the Court both acknowledge that this is a defence request for an adjournment.

(z) June 7th, 2023, Mr. Geisinger appeared. Counsel indicated to the Court that he had been trying to get retained for trial but that there were financial issues. Counsel also indicated that this matter probably needs to be set for trial on a with or without counsel basis (my emphasis). Counsel indicated that he had not yet, contrary to the expectation of the Court from the previous occasion, filed the trial scheduling form, and that because he was “triple booked” on this occasion was not prepared to hold the matter down to file the form then. Mr. Geisinger was ordered to file the form by the next occasion.

(aa) On June 14th, 2023, Mr. Geisinger confirmed that he filed the trial scheduling form the day prior or that very morning. With the assistance of the presiding jurist, the matter was adjourned directly into Blitz Trial Scheduling Court.

(bb) In Blitz Trial Scheduling Court, counsel eventually appeared without Mr. Fiorillo. While Mr. Geisinger was prepared to set the trial on a with or without counsel basis, Mr. Fiorillo was not in attendance, and Mr. Geisinger indicated that he had not yet had a discussion with Mr. Fiorillo about his election. Both the Crown and the Court agreed that the matter should be adjourned to the next Blitz Trial Scheduling Court date and that the issue of the election needed to be put to the accused.

(cc) On July 13th, 2023, Mr. Geisinger appeared and made an oral application to be removed as counsel of record. Mr. Fiorillo was present and indicated that he was consenting to the application. Given that Mr. Fiorillo indicated he was not prepared to make his election, the matter was adjourned for a self-represented pretrial before the jurist who heard the matter before.

(dd) At the self-represented judicial pre-trial on August 16th, 2023, Mr. Fiorillo indicated that while the disclosure had been sent to his previous counsel, he had not had a chance to obtain or review that disclosure. As well, there was no election made by Mr. Fiorillo. The matter was adjourned for the purposes of allowing Mr. Fiorillo time to get his disclosure, review it, and make an election.

(ee) On September 13th, 2023, Mr. Fiorillo confirmed that he had obtained his disclosure from counsel and the Crown’s office., and he reviewed it. After a very thorough review of the modes of trial available, Mr. Fiorillo elected to have his trial in the Ontario Court of Justice. A trial time estimate was done on the record in Court, and the matter was adjourned to Blitz Trial Scheduling Court to set a date for trial.

(ff) At Blitz trial Scheduling Court on October 4th, 2023, Mr. Kuner appeared as counsel for Mr. Fiorillo. Mr. Kuner indicated that he was retained the day prior. He indicated that he obtained disclosure from the Crown, and that he needed time to review it. The matter was adjourned, at the request of the defence, for that purpose. The Crown reiterated again its eagerness to move this matter along.

(gg) On October 15th, 2023, Mr. Kuner formally waived 11(b) to the next date to allow for an opportunity to further review the disclosure and continue discussions with Mr. Fiorillo about the mode of trial.

(hh) On December 8th, 2023, both Mr. Kuner and Mr. Fiorillo attended, at which time Mr. Kuner made oral application to be removed as counsel of record. Mr. Fiorillo indicated that he agreed with this application. It is noted that Mr. Fiorillo filed an 11(b) Application the day prior.

(ii) On December 18th, 2023, the matter was adjourned to January 13th, 2024 for the hearing of Mr. Fiorillo’s 11(b) application.

[8] From the swearing of the information and the hearing of this Application there is a total time period of 817 days, or 26.9 months [1].

Analysis

[9] In R. v. Jordan, 2016 SCC 27, 2016 1 SCR 631 the Supreme Court of Canada established the framework to be applied where a breach of s. 11(b) is alleged. For cases in the Ontario Court of Justice this includes a presumptive ceiling of 18 months, and for cases in the Superior court of Justice 30 months.

[10] In R. v. Coulter, 2016 ONCA 704 at paras 34-41 the Ontario Court of Appeal summarized the steps to be taken in applying the Jordan framework:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
2. Subtract defence delay from the total delay, which results in the "net delay".
3. Compare the net delay to the presumptive ceiling.
4. 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. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5. 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.
6. 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.
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[11] If in a case at the Ontario Court of Justice, the delay is greater than 18 months, the onus is on the Crown to rebut the presumption of unreasonableness. If that delay falls under the presumptive ceiling, it is the Applicant’s burden to show unreasonableness. Any delay attributable to the defence, or any delay which has been waived by the defence does not count toward the presumptive ceiling. Any delay attributable to an exceptional circumstance does not count toward the presumptive ceiling.

[12] A further review of the 11(b) R. v. Jordan framework was outlined by the Ontario Court of Appeal in R. v. MacIsaac, 2018 ONCA 650 at paragraphs 22, 42-44 and 60:

[22] The Jordan methodology has been canvassed by this court in several cases. See e.g., R. v. Jurkus, 2018 ONCA 489; R. v Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433; and R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401. There is no need to rehearse it here. It suffices to say that, in the usual case, total delay is measured from the date the charge is laid to the end of the trial. Defence delay is then subtracted from this period to determine the net delay. If the net delay falls above the presumptive ceiling the delay is presumptively unreasonable, but the Crown may rebut this presumption by establishing that there are exceptional circumstances. Conversely, if the net delay falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. When charges pre-date Jordan, the framework must be applied flexibly and contextually, taking into account the parties' reliance on the previous state of the law.

[42] Jordan dictates that net delay above the presumptive ceiling is unreasonable unless the Crown can establish the presence of exceptional circumstances that rebut the presumption (para. 47). Exceptional circumstances are events that are either reasonably unforeseen or reasonably unavoidable, and cannot reasonably be remedied by the Crown once they arise: Jordan, at para. 69. As the Crown points out in this case, exceptional circumstances need not be rare: Jordan, at para. 69. Nor did Jordan establish an exhaustive list of circumstances that might qualify as exceptional; on the contrary, the court left the determination of exceptionality to the trial judge's good sense and experience: at para. 71.

[43] Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases: Jordan, at para. 71. In addition, a transitional exceptional circumstance may arise if, as here, a case was already in the system when Jordan was decided: Jordan, at paras. 94-98.

[44] A discrete exceptional event must be either reasonably unforeseen or reasonably unavoidable, and something that cannot reasonably be remedied by the Crown once it arises: see Jordan, at para. 69. Discrete exceptional events may include, but are not limited to, medical or family emergencies, the recantation of a witness requiring the Crown to change its case, or the appointment of the accused's counsel to the bench: Jordan, at paras. 72-73; Cody, at para. 49. The delay caused by such events is deducted from the net delay to the extent it cannot be reasonably mitigated by the Crown and the justice system: Jordan, at paras. 73, 75; Cody, at para. 48.

[60] When delay falls below the presumptive ceiling, the onus is on the defence to establish that the delay is unreasonable despite not exceeding the ceiling: Jordan, at para. 82. The defence must establish (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

[13] I am particularly mindful of my colleague Prutschi J.’s comments in R. v. Jacques-Taylor, 2023 ONCJ 243: “Jordan was a clarion call from the Supreme Court to all actors within the criminal justice system. It was an explicit directive to jettison the culture of complacency that had infected trial scheduling. The introduction of a presumptive ceiling drew a clear bright line in the hopes of establishing a well-recognized marker for tolerable delay that would vastly simplify the hyper-mathematical battleground upon which previous 11(b) wars had been waged.” (emphasis added)

Defence Delay

[14] As noted above, given that there is no trial date set on this matter to date, the total time to be used in calculation on this application is the time from the swearing of the Information to the anticipated time of these 11(b) Applications. That total time is 817 days, or 26.9 months.

[15] Mr. Fiorillo represented himself on this Application. Throughout submissions on this Application, when going through the transcripts, Mr. Fiorillo was unable to offer any insight into his level of involvement with either or his previous counsel when it came to moving this matter forward.

[16] When asked by the Court to describe the frequency with which he was speaking to Mr. Geisinger, Mr. Fiorillo’s response was “I don’t know”. When asked by the Court whether or not he had had discussions with his previous counsel about proceeding to a trial or a resolution, Mr. Fiorillo’s response was “I don’t remember”. Similarly, when asked about the two instances where warrants were issued for Mr. Fiorillo’s arrest as a result of his non-attendance in Court, Mr. Fiorillo’s justification was “I was relying on my counsel”.

[17] It is clear throughout the transcripts that the Crown was prepared to move this matter forward as early as March 3rd, 2022 when the Crown is eager to set a JPT date. A JPT on this matter was not conducted until February 14th, 2023.

[18] In determining defence delay, I must look at the transcripts. In the transcripts, there are two sets of comments made by counsel that are particularly instructive: 1) times when counsel explicitly waives 11(b), and 2) times when counsel makes a comment like “I don’t have instructions to waive 11(b) but this is clearly a defence request”, or “the record will reflect that this is a defence request”.

[19] These latter comments are ones in which, in my opinion, the defence may not have instructions to waive 11(b) but they are clearly mindful of the impact that this request will have on any 11(b) calculation. When counsel comments that “this is a defence request for an adjournment” or “the record will reflect that this is clearly a defence request”, that time ought to be treated as defence delay. See for example R. v. Moniz, 2018 ONSC 5090, and R. v. S.K., 2022 ONCJ 592.

11(b) Waiver

[20] I am prepared to deduct the following time from the presumptive ceiling based on a clear defence waiver of 11(b):

February 14, 2023 to March 8, 2023 11(b) waiver by defence 22 days

April 19, 2023 to May 3, 2023 11 (b) waiver by defence 14 days

October 25, 2023 to December 8, 2023 11(b) waiver by defence 54 days

[21] These are instances where it was clear on the record that defence counsel waived 11(b). The total amount of this delay to be deducted from the presumptive ceiling is 90 days.

Defence Delay

[22] This case moved slowly. That pace was dictated however by the many defence adjournment requests to obtain instructions on a proposed resolution, two separate failures by Mr. Fiorillo and his counsel to attend court which resulted in bench warrants, the removal of two separate counsel of record for Mr. Fiorillo, and a number of adjournments where counsel indicated that this is “clearly a defence request”.

[23] The particulars of each appearance are outlined above, but I am prepared to deduct the following time from the presumptive ceiling based on delay attributable to the defence:

March 4, 2022 to May 5, 2022 42 days

May 5, 2022 to June 2, 2022 28 days

June 2, 2022 to June 30, 2022 28 days

June 30, 2022 to July 28, 2022 28 days

July 28, 2022 to August 4, 2022 7 days

August 4, 2022 to August 18, 2022 14 days

August 18, 2022 to October 7, 2022 50 days

October 7, 2022 to November 4, 2022 28 days

November 4, 2022 to December 1, 2022 27 days

December 1, 2022 to December 8, 2022 7 days

December 8, 2022 to January 5th, 2023 28 days

March 8, 2023 to March 15, 2023 7 days

March 15, 2023 to April 19, 2023 35 days

May 3, 2023 to May 10, 2023 7 days

May 10, 2023 to June 7, 2023 28 days

June 7, 2023 to June 14, 2023 7 days

June 28, 2023 to July 13, 2023 15 days

July 13, 2023 to August 16, 2023 34 days

October 4, 2023 to October 25, 2023 21 days

[24] The delay attributable to the defence amounts to 441 days.

[25] This delay coupled with the clear 11(b) waiver amounts to 531 days (or 17.5 months) of defence delay to be deducted from the total time.

Other Deductions

[26] The Crown requested, following this Court’s judgment in R. v. Gomes, 2023 ONCJ 568 and the judgment of Henschel J. in R. v. Korovchenko, 2022 ONCJ 389, that a deduction of 90 days due to the COVID-19 pandemic and its effect of the criminal justice system in Ontario be deducted as an exceptional circumstance.

[27] At this point of the process, I am not prepared to make such a deduction. Given that at the time of this Application no trial date was yet set, the impact, if any, of the COVID-19 pandemic on this matter is not fully realized.

[28] Should Mr. Fiorillo allege an infringement of his rights under section 11(b) at a time later in this process, both he and the Crown are entitled to renew their argument for and/or against and deduction from the presumptive ceiling related to COVID-19 as an exceptional circumstance.

Conclusion

[29] Given the calculations above, I am prepared to deduct 531 days, or 17.5 months from the total time from the swearing of the Information to the argument on this Application.

[30] Deducting 531 days of defence delay from the total 817 leaves a total delay of 286 days or 9.4 months.

[31] Given that this is well below the presumptive ceiling, I find that to date, Mr. Fiorillo’s interests under section 11(b) of the Canadian Charter of Rights and Freedoms have not been infringed.

[32] As such, the Application is dismissed.

Released: February 1, 2024 Signed: Justice M. Townsend

[1] To get the total number of months, I will follow the formula as outlined by Justice Paciocco in R. v. Shaikh, 2019 ONCA 895. That is to divide the number of days by 30.417 to get the number of months.