CITATION: R. v. Poersch, 2015 ONSC 2499

COURT FILE NO.: CR 11-154-0000

DATE: 20150416

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

CHRISTOPHER POERSCH and ITOLO MALLOZZI

Applicants

Paul A. Bailey, for the Respondent

Susan Pennypacker, for the Applicant, Christopher Poersch

Leora R. Shemesh, for the Applicant, Itolo Mallozzi

HEARD: March 30 and 31, 2015 at Owen Sound

RULING ON s. 11(b) CHARTER APPLICATION

F. Dawson J.

[1] Christopher Poersch and Itolo Mallozzi face charges of production of marijuana and possession of marijuana for the purpose of trafficking. They seek a stay of proceedings on the basis that their right to be tried within a reasonable time, as protected by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been violated.

[2] The two accused, along with three others, were arrested following the take-down of a large scale marijuana growing operation in the Owen Sound area on April 7, 2010. They made their first court appearance on April 8, 2010. The case has a long and complex history, including two mistrials. The third trial is set to commence April 13, 2015 for three weeks in Own Sound. Consequently, by the time that trial starts the case will be just over five years old.

Overview of the Case

[3] The investigation leading to the charges commenced with an anonymous tip to the police. Thereafter the police commenced surveillance on at least two farm properties in the Owen Sound area. Information was also developed from confidential sources and a general search warrant was obtained which permitted the police to employ more intrusive surveillance techniques. The investigation was focused on two farms as the sites of suspected marijuana grow operations. A third rural property was thought by the police to have been utilized in other aspects of the operation. I am advised that the police seized marijuana valued at approximately $12,000,000 when the investigation concluded.

[4] Five accused were originally arrested. Three have had their cases resolved. The two remaining accused, Christopher Poersch and Itolo Mallozzi, are jointly charged with production of marijuana and possession for the purpose of trafficking. Itolo Mallozzi also faces separate additional charges of production and possession for the purpose of trafficking.

[5] Counsel for Mr. Poersch advised the court that it is alleged Mr. Poersch is a gardener and nothing more. Crown counsel did not refute that submission. Itolo Mallozzi is alleged to be more centrally involved as a directing mind of the operation.

[6] As I will mention in more detail later, Itolo Mallozzi was also charged in Orangeville with possession of the proceeds of crime in relation to this investigation. Those charges arose out of a statement made to the police by one of the former co-accused in the course of resolving his charges. The progress of the proceeds of crime investigation and resulting charges impacted the progress of the production and possession for the purpose of trafficking case. I am advised Mr. Mallozzi resolved the proceeds of crime charges by agreeing to forfeiture and fines in lieu of forfeiture totalling $400,000.

[7] All counsel agree that the case proceeded fairly expeditiously to the conclusion of the preliminary inquiry in the Ontario Court of Justice. The accused were ordered to stand trial on May 31, 2011.

[8] Their first appearance in the Superior Court was on June 7, 2011. At that time, in circumstances I will comment further on below, the case was set for trial to commence October 3, 2011. That trial date was adjourned at the request of defence counsel who were not available.

[9] On October 4, 2011 the case was set for trial to commence on May 7, 2012. That trial date was also adjourned at the request of defence counsel because they were unavailable. Again, I will comment further on the circumstances below. After a number of delays related to the proceeds of crime investigation and charges, on November 5, 2012 the case was set for trial commencing October 7, 2013 in Owen Sound. However, for various reasons, jury selection did not take place until October 21, 2013 after the pretrial motions had been completed.

[10] Unfortunately, the jury panel was exhausted with only 11 jurors seated. The trial judge directed the local sheriff to find 12 talesmen. Counsel for the accused objected to that procedure and brought a constitutional challenge to s. 642 of the Criminal Code, which would have necessitated an adjournment of the trial so that notice of a constitutional question could be served and so counsel could prepare. This would have left the 11 selected jurors in limbo. At that point the trial judge declared a mistrial and ordered that the case proceed to trial again on December 2, 2013 with a fresh and larger jury panel.

[11] Defence counsel were unavailable for trial on December 2, 2013 and the trial was once again adjourned to accommodate the busy schedules of defence counsel.

[12] The trial was eventually rescheduled to commence July 14, 2014 in Owen Sound. Shortly before the trial was to commence counsel for Itolo Mallozzi sought a change of venue to a location closer to Toronto, and when that was refused, an adjournment. Christopher Poersch and his counsel opposed the adjournment request, which was also refused.

[13] Jury selection was completed on July 14, 2014 in Owen Sound and the trial judge delivered his opening remarks to the jury. At that point circumstances arose which led to the discharge of two jurors. As the trial judge and counsel were discussing what to do it was determined that the jury panel used for selection that day had included members of the same panel that had been used and exhausted on October 21, 2014. Indeed, it became apparent that five selected jurors had been present for the jury selection process in October. After consultation with counsel the trial judge declared a further mistrial. The ten remaining jurors were discharged on July 16, 2014 and the accused were remanded to appear before Durno J. in Brampton that afternoon. Durno J. was able to offer dates for jury selection and trial commencing anytime between October 1 and October 8, 2014 in Owen Sound. Unfortunately, counsel for Mr. Mallozzi was not available until April 13, 2015, which was the date then selected for trial.

[14] Justice Durno also ordered the compilation and disclosure to counsel of a large volume of material about what had occurred in relation to the three jury panels that had apparently been combined to form the panel used for the July 14, 2014 selection.

[15] Although counsel for the accused determined many months ago that they would bring a s. 11(b) application, not all of the required transcripts and material were provided to the court by the scheduled date of this application on March 30, 2015. Indeed, it was only after I raised the matter with counsel through the trial coordinator about a week and a half before the application that transcripts of what occurred in the Ontario Court of Justice were even ordered. In addition, on the first day of the application I had no transcript or information about how or when the April 15, 2015 trial date was scheduled. I was able to obtain that by having a digital audio recording of the proceedings before Durno J. on July 16, 2014 emailed to me in Owen Sound on the evening of March 30, 2015. On March 31, 2015 all counsel agreed that I could consider transcripts received after their arguments were concluded. I have subsequently received three such transcripts, including one corresponding to the digital recording I listened to on the evening of March 30, 2015.

Manner of Proceeding

[16] While the history of the delay in this case is long, it is also somewhat complex. After briefly setting out a summary of the governing legal principles I propose to divide what occurred in this case into four separate time frames. I will then take each time frame in turn and undertake a detailed examination of what occurred. I will categorize the various periods of delay for s. 11(b) purposes as I do so. At the end of that process I will summarize my findings and undertake a separate s. 11(b) analysis for each of Christopher Poersch and Itolo Mallozzi.

[17] For reasons which I will develop, I am of the view that the proceedings again Christopher Poersch should be stayed for violation of his s. 11(b) rights. However, I reach a different conclusion with respect to Itolo Mallozzi. I conclude that he has failed to demonstrate a violation of his s. 11(b) rights. The case against him should proceed as scheduled.

[18] Due to the impending trial I previously released a brief endorsement stating my conclusion without supporting reasons.

The Applicable Legal Principles – In Summary

[19] These reasons have been prepared as a trial date is looming. As time is short much of this summary has been borrowed from my judgment in R. v. Sidoro, 2013 ONSC 610, at paras. 17-21, with some changes and additions.

[20] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is primarily directed to the protection of the individual rights of the accused. This protection encompasses security of the person, liberty and fair trial interests. However, there is also an important societal interest protected by s. 11(b) of the Charter, as the public has an interest in ensuring that accused persons are tried promptly and fairly on the merits. These principles are described in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771; [1992] S.C.J. No. 25 and in R. v. Qureshi et al. (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at pp. 458-9. See also R. v. Godin, [2009] S.C.R. 3, 2009 SCC 26.

[21] In Morin the Supreme Court of Canada summarized the method by which the time elapsed from the laying of the charge to the completion of the trial should be analyzed to determine whether s. 11(b) of the Charter has been contravened. Before balancing the interests that s. 11(b) is designed to protect, Morin mandates (at pp. 787-88, paras. 31-32) an examination of the delay under the following categories:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources;

(e) other reasons for delay;

4. prejudice to the accused.

[22] While the delay is to be analyzed under these categories, the resolution of the issue does not come down to a mathematical formula. Rather, a balancing must take place in order to determine whether or not the delay is unreasonable. The nature of that balancing process is described in R. v. Kporwodu (2005), 2005 CanLII 11389 (ON CA), 75 O.R. (3d) 190, [2005] O.J. No. 1405 (C.A.), at paras. 184-197. Reasonableness is not a precise concept and its determination requires an assessment of the entire time period in light of the explanations for the constituent parts of the delay: Morin, at p. 788 (para. 32); R. v. Allen (1997), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.) at p. 345, aff'd. 1997 CanLII 331 (SCC), 1997, 119 C.C.C. (3d) 1 (S.C.C.); R. v. MacDougall (1998), 1998 CanLII 763 (SCC), 128 C.C.C. (3d) 483 (S.C.C.); R. v. Smith (1989), 1989 CanLII 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.) at p. 105; R. v. Pusic, 1996 CanLII 8215 (ON SC), [1996] O.J. No. 3329 (Ont. Gen. Div.).

[23] In R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.), the court made the following observation at p. 355:

The determination of what constitutes a "reasonable" time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the "reasonableness" of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pretrial delay will constitute unreasonable delay for constitutional purposes.

[24] As with all Charter motions, the burden of proof is on the applicants to establish on a balance of probabilities that their rights have been violated.

Analysis

The Overall Length of the Delay

[25] The overall delay in this case will be just over five years to the commencement of the trial on April 13, 2015. As previously mentioned, the trial is estimated to take three weeks to complete. A delay of this magnitude clearly requires further examination of the underlying reasons for the delay.

[26] Before I undertake an in depth examination of the delay I would observe that this case is characterized by the court repeatedly being able to accommodate a trial well before defence counsel had availability in their schedules. For the most part, the Crown was always ready to proceed on the dates when the court was available.

[27] This situation created tension throughout the various and repeated efforts that were made to schedule and reschedule the trial. Generally speaking, counsel for Mr. Poersch was available on earlier dates than was counsel for Mr. Mallozzi.

[28] This tension was often exacerbated, in my view, by the failure of counsel for the accused, and more particularly for Mr. Mallozzi, to attend in person on critical occasions when trial dates were to be scheduled. While counsel usually had some other counsel appear to speak as their agent, or sent lists of available dates to Crown counsel or the trial coordinator, I am of the view that some of the scheduling difficulties or errors that arose could have been eliminated, or at least ameliorated, if counsel had attended in person.

[29] I also observe that counsel for Mr. Mallozzi has frequently mentioned that the court in Owen Sound is only available to hear criminal cases on a limited basis during sittings which counsel has suggested occur just twice per year. This is incorrect. It is my understanding that in most years the Superior Court of Justice for Grey County devotes 11 to 12 weeks per year to the conduct of criminal matters. Those 11 to 12 weeks are generally in three or four sittings taking place in each season of the year except the summer.

[30] However, it is also my understanding that in addition criminal jury trials are occasionally held at other times of the year. On those occasions special jury panels are arranged. Often a visiting judge from another judicial centre in the South Region presides. That in fact occurred in this case. The trial in this case has, on occasion, been scheduled outside the parameters of the regular sittings of the court.

[31] I also wish to mention that when this prosecution began Clayton Conlan, now Mr. Justice Conlan of this court, was the local agent for the Public Prosecution Service of Canada who was assigned to prosecute this case. Justice Conlan was appointed to the court on December 1, 2011 and became the resident local judge for Grey and Bruce Counties (Owen Sound and Walkerton). This required that new Crown counsel become involved and further complicated trial scheduling as Justice Conlan obviously could not be the trial judge.

The Analysis Will Address Four Time Frames

[32] The overall delay in this case naturally falls into four time frames. First, there is the period when the case was before the Ontario Court of Justice. Second, there is the much longer period between the accused’s committal for trial and the declaration of the first mistrial on October 21, 2013. Third, there is the period between the first mistrial and the declaration of the second mistrial on July 16, 2014. Fourth, there is the period from the declaration of the second mistrial to the conclusion of the trial set to commence on April 13, 2015. A consideration of the delay within each of these time frames will aid the discussion and my explanation of how I have reached my conclusions.

1. Time in the Ontario Court of Justice

[33] The accused made their first appearance in the Ontario Court of Justice on April 8, 2010. The case was adjourned to the following day for a bail hearing. The accused were released on conditions on April 9, 2010. I have not been provided with the transcript for that date.

[34] The accused next appeared before Morneau J. on May 20, 2010. There were five accused before the court. Some disclosure had already been made and arrangements were discussed to have vetted copies of the informations to obtain the search warrants disclosed to counsel.

[35] The accused next appeared on June 24, 2010, again before Morneau J. One accused wanted additional disclosure. More disclosure had just recently been sent out to counsel. All other accused were ready to set a judicial pretrial. The case was adjourned to August 19, 2010.

[36] On August 19, 2010 Mr. G. Marron, who appeared as counsel for an accused named Bonar Magill, also appeared as agent for all other defence counsel. He indicated that there had been “a couple” of judicial pretrials by way of teleconference with Justice McGowan of the court’s regional office. Mr. Marron said all counsel were prepared to set dates for a preliminary inquiry and he had correspondence with counsel’s available dates.

[37] Based on the foregoing, I conclude that the period from April 8, 2010 to August 19, 2010 is properly characterized as an intake period. Counsel were dealing with bail, disclosure and judicial pretrials. These are all part of the intake process. While this intake period is somewhat longer than a simple case would take, there were five accused and most counsel were from outside the jurisdiction.

[38] The transcript on August 19, 2010 reveals that defence counsel were seeking preliminary inquiry dates between May 23 and May 27, 2010. However, both the clerk of the court and Crown counsel indicated they understood that, based on the discussions at the judicial pretrials, dates were to be set in March. Mr. Marron had been provided with very few March dates by other counsel. The court clerk stated that she had spent three days trying to coordinate March dates. This led to the case being adjourned to September 23, 2010 to sort out preliminary inquiry dates.

[39] I would attribute the delay from August 19 to September 23, 2010 to the defence. The transcript reflects that on August 19 the Crown, the court and Mr. Marron, the one defence counsel who appeared, had all been expecting to fix dates in March. One month and one week is thus delay attributed to the defence.

[40] On September 23, 2010 Mr. Marron again appeared for all counsel before Justice Morneau. The preliminary inquiry was fixed for May 24 to 27 and May 30 and 31, 2011. This would start a period of institutional delay effective September 23, 2010 but for the fact that some reasonable period of time should be attributed for counsel to prepare for the preliminary inquiry: Morin, at pp. 791-92 (para. 41); R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at para. 26. In Morin, at p. 792 (para. 41), Justice Sopinka indicated that the amount of time required to prepare will not often be apparent from the record but said that trial judges are well able to assess the amount of time required. I would assess one month for this purpose. Counsel would be required to integrate this preparation into their other professional obligations. Thus I assess one month of inherent delay for this purpose.

[41] I conclude that, based on the August 19, 2010 transcript the Ontario Court of Justice could have accommodated the preliminary inquiry in March 2011. I conclude that by March 23, 2011 that court could probably have accommodated the preliminary inquiry. This stops the period of institutional delay which, subject to a deduction of one month for inherent preparation time, commenced on September 24, 2010. I therefore find an institutional delay between September 23, 2010 and March 23, 2011 of five months after deduction of one month inherent time for preparation.

[42] I have found that the court could probably have accommodated the preliminary inquiry by March 23, 2011. The preliminary inquiry could not start until May 27, 2011. This period of two months and four days must be added to the earlier period of defence delay that occurred within this time frame.

[43] From May 27 to May 31, 2011 the preliminary inquiry was underway. This five days was part of the inherent time requirements of the case.

[44] In summary, I conclude the delay in the Ontario Court of Justice is attributable as follows:

1. Intake period – four months and 10 days.

2. Inherent time requirements – one month and five days.

3. Crown delay – zero.

4. Defence delay – three months and eight days.

5. Institutional delay – five months.

6. The Time Frame from the End of the Preliminary Inquiry to the First Mistrial – May 31, 2011 to October 31 2013

Overview of this Time Frame

[45] This is the longest of the four time frames. It is also the most complex to analyze due to the many court appearances and the circumstances that surrounded them.

[46] The case was set for trial three times within this time frame. However, the first two trial dates were set when defence counsel were not available and defence counsel brought adjournment applications. The second of those applications was heard on March 20, 2012.

[47] As I will explain in detail below, I conclude that all delay within this time frame prior to March 20, 2012 was intake or other forms of inherent time.

[48] In my view, March 20, 2012 is an important date in the attribution of periods of delay. It is also a significant date in terms of the distinctions I draw between how delay should be attributed in relation to each of the two accused. That is because, as I will explain below, I am of the view that Itolo Mallozzi expressly waived the period of delay from March 20, 2011 to the new trial date. That new trial date was not scheduled until several court appearances later. On November 5, 2012 the trial was scheduled for October 7, 2013. That was the first date on which counsel for Mr. Mallozzi was available.

[49] In my view this waiver requires that the time period from March 20, 2012 to October 7, 2013 be eliminated from consideration in assessing whether there has been unreasonable delay in respect of Mr. Mallozzi. This is not the case for Mr. Poersch as he did not waive that period of delay.

[50] I would also note, however, that counsel for Mr. Mallozzi, conceded during submissions that Mr. Mallozzi was not ready to set a date for trial until late October 2012, due to the fact that a related proceeds of crime investigation led to charges against Mr. Mallozzi in Orangeville. Those charges were not resolved until October 30, 2012. Until they were resolved there was the possibility that all charges would be joined together. November 5, 2012 was the first court appearance subsequent to that resolution. On November 5, 2012 the case was set for trial on October 7, 2013.

[51] As I will explain, if there had not been a waiver for Mr. Mallozzi on March 20, 2011, I would have found that the time from the end of the intake period in Superior Court to November 5, 2012 was all inherent time. As I will also explain, while Mr. Poersch did not waive any time periods as Mr. Mallozzi did, his counsel nonetheless acquiesced in the delay while matters in Orangeville were resolved. Consequently, there is no consideration of institutional delay within this time frame until after November 5, 2012 when the trial date was set. That would be the case for both accused but for the waiver on March 20, 2011 by counsel who appeared for Mr. Mallozzi that day.

[52] I now return to a more detailed parsing of the many periods of delay within this time frame. I will deal with some subsidiary arguments that were advanced by counsel as I do so.

A Detailed Examination of this Time Frame

[53] The accused made their first appearance in the Superior Court on June 7, 2011. There were four accused before the court at that time. No counsel appeared for any of them. It was discovered later in the day that counsel for Itolo Mallozzi had written to Crown counsel stating that she could not be present and asking that the case be scheduled for a judicial pretrial on June 24, 2011 at 5:00 p.m. by telephone before Durno J. However, that was unknown when the accused made their court appearance.

[54] Thompson J. confirmed that a pretrial had been set for June 24, 2011 at 5:00 p.m. He inquired whether the Crown was ready and was told the Crown was ready. He asked the accused if they were ready for trial. They said they were. They all confirmed they wanted the earliest possible trial date. Thompson J. set the case for trial commencing October 3, 2011.

[55] After the trial date was set Mr. Mallozzi spoke up and told the court that his lawyer did not expect the case to be dealt with that fall and that she did not have time in her schedule. Thompson J. indicated counsel could bring an adjournment application if necessary and hoped that counsel would attend or send a properly instructed agent the next time.

[56] Counsel for the accused do not suggest that what occurred on June 7, 2011 added to the delay as they take the position that the case was not ready to be set for trial. However, they submit that the need to bring an adjournment application should be taken into account in the assessment of prejudice. I point out that on this occasion the trial judge had no information about counsel’s wishes or availability. Crown counsel did not become aware of the letter from Mr. Mallozzi’s counsel until later in the day.

[57] It appears that a judicial pretrial did take place on June 24, 2011. During the intervening time counsel for Mr. Mallozzi was arranging to obtain a copy of a statement made by a co-accused who was resolving his charges. The delay from committal for trial on May 31, 2011 to the pretrial on June 24, 2011 is properly classified as intake.

[58] I infer from some comments in the record that there were other pretrials as well. It must have been determined during those pretrials that the October 2011 trial date would be adjourned. On September 29, 2011, in preparation for an October 4, 2011 court appearance, counsel for Mr. Mallozzi wrote to Crown counsel indicating that she needed to know when Mr. Gianfrancesco would be pleading guilty before she could set a date for trial.

[59] On October 4, 2011 the case again came before Thompson J. An agent appeared for counsel for one of the co-accused, Bonar Magill, who was seeking an adjournment for resolution discussions. Mr. Mallozzi and Mr. Poersch were in court without counsel or an agent. Thompson J. had been provided with a letter dated October 4, 2011 from Mr. Mallozzi’s counsel offering trial dates commencing in May 2012. Justice Thompson had earlier trial dates available in January 2012. He directed the accused to telephone their lawyers and report back on availability in January. They reported that their counsel were not available. The case was adjourned to November 30, 2011 to see if a judge would be available in May 2012 as Mr. Mallozzi’s counsel had proposed in her letter. On November 30, 2011 the case was adjourned to December 13, 2011 to set a date. Justice Thompson was trying to make special arrangements to accommodate counsel’s availability in May 2012.

[60] On December 1, 2011 Conlan J., who had been appearing as counsel for the Crown, was appointed to the court. This necessitated the designation of a new Crown counsel who needed to become familiar with the file.

[61] On December 13, 2011 the case was back before Thompson J. to set a date. Mr. Poersch and Mr. Mallozzi were present. Mr. Y. Schochet appeared as counsel for the accused Joe Gianfrancesco and as agent for Ms. Shemesh on behalf of Mr. Mallozzi. Ms. Shemesh had sent a letter setting out her “availability for a 3 week trial”. This included May 15 to May 24, 2012 and periods in July, August and September 2012 that were in fact shorter than three weeks. Her availability in May 2012 was reduced from that indicated in her previous letter. Ms. Shemesh’s first availability for a continuous three week trial was in November and December 2012.

[62] Arrangements were made for the accused and Mr. Schochet to telephone counsel of record. After doing so, Mr. Schochet advised the court that counsel were “tied up with some other matters”. He suggested that counsel for the accused could attend on January 30, 2012 to set a date. At that point Thompson J. set the trial for May 15, 2012 on the basis of the nine day period available in the letter from Ms. Shemesh. Crown counsel said the Crown was ready any time. In setting the May 15, 2012 date Thompson J. indicated that he was concerned about a s. 11(b) application.

[63] By this point in time Itolo Mallozzi was charged with proceeds of crime offences in Orangeville. Counsel advised me that the proceeds of crime investigation had started in October 2011. On February 15, 2012 Ms. Shemesh wrote to Crown counsel saying she was still waiting to find out who would have carriage of the Orangeville matters. I have been advised that there was a debate about whether those charges would be prosecuted by the provincial or the federal Crown. It was eventually determined the federal Crown would prosecute. Ms. Shemesh said in the letter she had inadequate time in her schedule to accommodate the May 15, 2012 trial date set by Thompson J. She also raised the question of whether the Orangeville charges would be joined with the Owen Sound charges. She was raising the need to adjourn the trial.

[64] On March 7, 2012 the trial coordinator in Owen Sound emailed Ms. Shemesh concerning a request she had made for a date on which to bring an adjournment application. The trial coordinator offered a three week trial starting June 4, 2012. Counsel were apparently unavailable. This email, together with the trial dates the court had been offering, show that the court was consistently offering early trial dates. However, counsel’s schedules were such that they could not take advantage of them. This is the antithesis of institutional delay.

[65] However, looking at what was going on with the case at around this time, I cannot say this delay was attributable to the defence. Based on what was occurring in relation to the Orangeville charges in particular, I see what was occurring as an ongoing inherent delay. The Orangeville charges were related to the Owen Sound charges. It made sense that if they could not be resolved that they be joined with the Owen Sound charges. I understand there were also issues leading up to this point about whether any statements made by Mr. Gianfrancesco to the police in connection with the resolution of his charges would impact directly on this case against Mr. Mallozzi. I accept the submission made by Ms. Shemesh in oral argument that counsel were not ready to set a date for trial until the Orangeville charges were resolved in October 2012. Ms. Pennypacker did not take issue with that submission.

[66] Support for this assessment can be found in the transcripts of subsequent court appearances on June 25, 2012 and September 4, 2012. On June 25, 2012 it was apparent there had been a further pretrial before Durno J. Ms. Pennypacker, appearing as counsel for Mr. Poersch and agent for Ms. Shemesh on behalf of Mr. Mallozzi, asked that the case go over to August 15, 2012 because Ms. Shemesh had to decide “whether to set a trial date or have a plea for Mr. Mallozzi”. Ms. Pennypacker said she and Mr. Poersch found themselves in a situation where they had “to tag along”.

[67] Rather than August 15 the matter went over to September 4, 2012. On that date Crown counsel advised the court that an agreement had now been reached concerning disposition of the proceeds of crime charges in Orangeville.

[68] On September 4, 2012 the case went over to be spoken to on October 4, 2012. On October 4, 2012 it went over to November 5, 2012, when the trial was finally set for October 7, 2013.

[69] I will return to the various court dates I have just referred to from June 25 to November 12, 2012 in a moment in order to deal with a separate argument raised by Ms. Shemesh concerning Justice Conlan and the effect of the conflict of interest he had declared. All but one of this series of appearances were before Conlan J. However, first I must return to the significant date of March 20, 2012 which I skipped over in order to demonstrate why, leaving aside any question of waiver, I consider the period from the completion of the intake period on June 24, 2011 to November 5, 2012 to be part of the inherent time requirements of the case. This characterization is important with respect to Mr. Poersch who, unlike Mr. Mallozzi, did not waive any time periods.

[70] On March 20, 2012 the court was dealing with the defence application to adjourn the May 15, 2012 trial. Counsel, Mr. J. Frost, appeared as agent for Ms. Shemesh, on behalf of Mr. Mallozzi. Ms. E. Barefoot appeared for the Crown. The following is documented at p. 1 of the transcript:

Ms. Barefoot: …The Crown is consenting to the adjournment application. As I understand it, Ms. Shemesh is prepared to waive 11(b) on the record.

Mr. Frost: That’s correct.

[71] This is an express waiver by Mr. Mallozzi of the period of delay to the next trial date. That trial date, October 7, 2013, was not set until November 5, 2012 and as already touched upon there were a number of intervening court dates due to the proceeds of crime investigation and Orangeville charges. Apart from Mr. Mallozzi’s waiver, I have found those delays to constitute part of the inherent time requirements of the case.

[72] There was no express waiver of delay by Mr. Poersch on March 20, 2012 or on any other date. Even if Ms. Pennypacker’s comment about tagging along could be said to constitute an implied waiver, it did not extend beyond November 5, 2012 and therefore coincided with the institutional delay.

[73] There is further mention of waiver on some of the court dates between March 20, 2012 and the setting of the trial date on November 5, 2012. In my view those comments, set against the background of the express waiver made on March 20, 2012, confirm that counsel for Mr. Mallozzi intended that there be an ongoing waiver. However, I wish to point out that the express waiver made on March 20, 2012 was made before Thompson J. The subsequent court appearances were before Conlan J. and Bielby J., who were not advised that there had been an express waiver before Thompson J. on March 20, 2012, which no doubt led to the Crown consenting to the adjournment at that time. Ms. Barefoot was Crown counsel on March 20, 2012 when the waiver was made, but she did not appear for the Crown on the subsequent appearances.

[74] On June 5, 2012 the accused appeared before Conlan J. Mr. Bailey, who appeared for the Crown, said that Ms. Shemesh was willing to waive delay but that the Crown still had a concern about the societal interest in a timely trial. Reference was made to a letter, presumably from Ms. Shemesh, which, by inference, is requesting an adjournment to the summer of 2013. Mr. Bailey says he cannot consent to such a lengthy adjournment.

[75] Justice Conlan pointed out that he had a conflict and did not want to become too embroiled in any dispute for that reason. However, he indicated that there was merit in what the Crown had said and that an accused’s waiver of s. 11(b) does not end the matter. Therefore he would not make an endorsement that the trial not be held until sometime after July of 2013. He adjourned the case to the June 25, 2012 assignment court in Owen Sound.

[76] As previously mentioned, on June 25, 2012 the case was adjourned to September 4, 2012 so that Ms. Shemesh could decide how to proceed.

[77] Prior to the September 4, 2012 court appearance Ms. Shemesh exchanged emails with Mr. Bailey who was acting for the Crown. Those emails have been marked Exhibit 1. In an email on August 30, 2012 at 4:31 p.m. Ms. Shemesh advised that she had no availability until the fall or late summer of 2013. She also said, “Obviously 11(b) is not an issue for me.” This further confirms the waiver and its continuing nature.

[78] On September 4, 2012 the matter again came before Conlan J. Mr. Bailey advised the court that the Orangeville charges would be resolved. Again, Mr. Bailey told the court Ms. Shemesh said delay was not an issue and that she was not available until August 2013. Again, Mr. Bailey raised societal concerns about delay and asked if the court felt comfortable setting a trial date. The judge said he did not because he did not want a s. 11(b) waiver on behalf of Mr. Mallozzi “through the mouth of the Crown”. I again point out that Conlan J. was not aware of the express March 20, 2012 waiver before Thompson J. or of the August 30, 2012 email from Ms. Shemesh. Justice Conlan wanted the case to be dealt with by another judge. The case was adjourned to October 4, 2012.

[79] On October 4, 2012 the matter again came before Conlan J. He indicated that the local trial coordinator and the regional trial coordinator were making arrangements for an out of town judge and wanted counsel’s availability. Ms. Pennypacker, on behalf of Mr. Poersch, had three weeks open beginning July 29, 2013. Neither counsel were present in person but they did have an agent appear for them. Conlan J. said he would note in his endorsement that s. 11(b) needed to be dealt with. No one advised him of the previous express waiver or the August 30, 2012 email from Ms. Shemesh.

[80] On October 30, 2012 the Orangeville charges were resolved by guilty plea.

[81] On November 5, 2012 the case again came before Conlan J. who noted that he had intended that the matter would be before Justice Thompson. However, Justice Thompson was not sitting.

[82] A trial date was set for October 7, 2013. Counsel for Mr. Poersch was available commencing May 27, 2013 for three weeks and also at the end of August. Ms. Shemesh remained unavailable for a three week trial until October 7, 2014.

[83] On this application Ms. Shemesh submitted that Justice Conlan originally refused to set trial dates due to his conflict. However, on November 5, 2012 he went ahead and set them. Ms. Shemesh submits this was inconsistent behaviour on the judge’s part that somehow contributed to the delay.

[84] I reject this submission. First of all, it is inconsistent with Ms. Shemesh’s position that counsel were not ready to set a trial date until the Orangeville charges were resolved. That did not happen until October 30, 2012 and November 5, 2012 was the first court date thereafter.

[85] Second, I reject the submission that Conlan J. would not set a trial date due to his conflict, and then changed his mind. Reading the transcripts of what Conlan J. said on the various court appearances, it is clear that he was concerned about becoming involved in any dispute between the parties concerning whether there was or was not a waiver of s. 11(b). Conlan J. wanted another judge to deal with any such matters. I do not understand him to have had any concern about simply setting a date.

[86] In any event, there was a clear waiver of s. 11(b) by Mr. Mallozzi on March 20, 2012 that renders this debate academic.

[87] I come now to the issue of whether there was any institutional delay, and if so how much, between the setting of the trial date on November 5, 2012 and the scheduled trial date of October 7, 2013. This is not a factor in relation to Mr. Mallozzi due to the waiver. It is important in relation to Mr. Poersch.

[88] Institutional delay begins when the parties are ready for trial but the institution cannot accommodate them. Unfortunately, the court’s availability was not placed on the record on November 5, 2012 when the trial date was set. As a result, counsel for the applicants contend the entire time from November 5, 2012 to October 7, 2013 must be treated as institutional delay.

[89] I disagree. The entire history of this case shows that the court could accommodate a trial within three to four months of any set date appearance. On June 7, 2011 a trial date was set for October 3, 2011. On October 4, 2011 the court had three weeks available starting January 30, 2012. When Ms. Shemesh inquired about a date for an adjournment application by email dated March 7, 2012 the trial coordinator offered a three week trial commencing June 4, 2012. Based on this evidence I have no reason to think that on November 5, 2012 the court did not have similar availability. More than that, I am persuaded by the entire history of this matter that it probably did. However, to give the benefit of any degree of uncertainty to the applicants, I am confident on this record that the court could have provided a three week trial within 5 months. Consequently, I would attribute five months of the time period between November 5, 2012 and October 7, 2013 to institutional delay.

[90] Some period must also be attributed for preparation and so counsel could clear their schedules. There were pretrial motions to be prepared in relation to search and seizure issues and the admissibility of statements. I would attribute two months to preparation which is part of the inherent time requirement of the case. That time would be integrated into counsel’s other work and commitments.

[91] The balance of the time to the trial date after attributing five months to institutional delay and two months to preparation time, is four months. I would attribute this to the defence on the basis that they were unavailable.

The Confusion about the October 2013 Trial Dates and the Delay of the Trial

[92] It is perfectly clear from the November 5, 2012 transcripts and from the endorsement on the indictment that jury selection was to take place on October 7, 2013. On November 5, 2012 the case was also set to be spoken to on June 3, 2013 to address any trial readiness issues.

[93] On June 3, 2013 Mr. M. Martin appeared on behalf of Mr. Bailey for the Crown. Mr. Martin said he had been advised by Mr. Bailey that the case was to start October 1, 2013. Conlan J. indicated the trial coordinator said the plan was to pick the jury October 1 and start the trial on October 7, 2013. Mr. Mallozzi was present without counsel. An agent appeared for Ms. Pennypacker on behalf of Mr. Poersch. Mr. Mallozzi advised the court the October 1 date was “new”. The case was adjourned to September 9, 2013 to be spoken to.

[94] Following the June 3, 2013 appearance the trial coordinator emailed counsel that there was confusion about the date for jury selection. A jury panel was available for October 1, 2013 but not for October 7, 2013. The trial coordinator asked counsel to advise which day they wished for jury selection. All responded indicating October 7, 2013. A special jury panel was arranged to be called in for that date. Then counsel began to email amongst themselves that maybe it would be better to pick the jury the following week. The emails are at Tab 15 of the Amended Motion Record.

[95] By the time the dust settled the trial did not start until October 15, 2013 with pretrial motions. The jury was not selected until October 21, 2013.

[96] How and why these changes in start dates came about is only partially clear. I will deal with this because Ms. Shemesh submits that the trial judge, Ricchetti J., was mistaken when he later said when declaring a mistrial that it was a conflict in Ms. Shemesh’s schedule that delayed the start of the trial and had kept the jurors waiting from October 7 to October 21, 2013. Ms. Shemesh submits that there was no conflict in her schedule and that the only problem related to the confusion about the start date of the trial.

[97] Subsequent to submissions, I reviewed a transcript of what occurred before Conlan J. on September 9, 2013. On that date everyone agreed that jury selection would take place on October 7, 2013. Conlan J. then indicated that Ms. Shemesh had advised the trial coordinator “that due to a conflict in her schedule she would not be available to continue the trial that week”. Ms. Pennypacker, who was appearing as agent for Ms. Shemesh, confirmed that was correct. It was agreed by all that the jury would be selected October 7 with the trial to start October 15, 2013. Consequently, contrary to Ms. Shemesh’s submission I find that a delay was caused by her schedule. However, I have not been able to determine how or why there was a further change of the date of jury selection to October 21, 2013. Pretrial motions were argued and decided the week of October 15. In any event, it seems that the jury panel was called for October 7 and was not utilized until October 21.

[98] In my view, the period from October 7 to October 21, 2013 is all part of the trial, which is inherent time and therefore neutral time in the s. 11(b) analysis.

The First Mistrial

[99] On October 21, 2013 jury selection proceeded before Ricchetti J. Eleven jurors were seated. Defence counsel then exercised their remaining peremptory challenges to exhaust the panel.

[100] Crown counsel points out that it would have been apparent to counsel for the applicants that by using their peremptory challenges they would exhaust the panel. Mr. Bailey points out that he had used only one challenge to that point. He submits that the manner in which the applicants used their challenges ought to be a factor in attributing the resulting delay.

[101] I am unable to accept this submission. The applicants were entitled to use their peremptory challenges for the purpose of eliminating prospective jurors whom they felt were, for whatever reason, unsuitable from their perspective. There is no evidence before me that the challenges were not exercised in good faith for the purpose of selecting a suitable jury. This aspect of the respondent’s submissions plays no role in my decision.

[102] Once the panel was exhausted Ricchetti J. turned to s. 642 of the Criminal Code and directed the sheriff to obtain 12 more potential jurors as “talesmen”. The sheriff and the police in due course brought 12 potential jurors to the Owen Sound courthouse.

[103] At that point counsel for the applicants objected to the procedure and indicated that they wished to bring a constitutional challenge to the validity of s. 642 of the Criminal Code. That would have necessitated an adjournment so notice of constitutional question could be served. The trial judge was faced with concerns about the impact on the already selected jurors. Ricchetti J. was also concerned that the jurors had originally been summoned for October 7 and that jury selection had been delayed.

[104] At that point Ms. Shemesh said: “If there’s another avenue or another route for which this court can proceed on then of course I will defer to it” (transcript, p. 16). This comment, which Ms. Pennypacker on behalf of Mr. Poersch did not disagree with, supports the trial judge’s decision to declare a mistrial.

[105] Ricchetti J. declared a mistrial and indicated that the case would proceed again on December 2, 2013 with a fresh jury panel. Counsel for the applicants indicated they were not available. Crown counsel indicated he could be available December 6, 2013, or possibly earlier if he could rearrange another trial commitment.

[106] No one submits that Ricchetti J. should not have ordered a mistrial in the circumstances.

[107] In summary, I conclude the delay during the time frame under consideration is attributable as follows:

Christopher Poersch

1. Intake period .75 months

2. Inherent time 18.16 months

3. Crown delay zero

4. Defence delay 4.25 months

5. Institutional delay 5 months

Itolo Mallozzi

1. Waiver 18.6 months

2. Intake period .75 months

3. Inherent time 9.25 months

4. Crown delay zero

5. Defence delay zero

6. Institutional delay zero

7. The Time Frame from the First Mistrial to the Second Mistrial – October 21, 2013 to July 16, 2014

[108] After declaring the first mistrial Ricchetti J. ordered that the next trial commence on December 2, 2014. Counsel for the applicants then applied to Durno J. to have a case management judge appointed pursuant to s. 551.1 of the Criminal Code. That came before Durno J. on October 25, 2013. On that date counsel discussed a possible s. 11(b) application. It was discussed that the December 2, 2013 trial would have to be adjourned if a s. 11(b) application was to be brought as all transcripts had to be ordered. No s. 11(b) application was brought prior to the next trial date.

[109] On November 6, 2013 Ricchetti J. heard an adjournment application brought by the applicants. Crown counsel indicated he was free after December 6, 2013. Various dates were discussed. As Ricchetti J. was the judge who had made the pretrial rulings he was to continue as the trial judge and his schedule was also a factor. The parties eventually agreed on July 14, 2014 for trial.

[110] A further pretrial had also been arranged before Durno J. to be held on November 6, 2013.

[111] Before explaining other events that occurred in this time frame I will indicate how and why I attribute the periods of delay within this time frame. In circumstances where a mistrial has occurred I do this by applying R. v. A.J.W., 2009 ONCA 661, [2009] O.J. No. 3814 and R. v. A.C., 2015 ONCA 103. Both cases deal with the attribution of periods of delay following a mistrial.

[112] In both A.J.W. and A.C. the Court of Appeal held that a mistrial will often trigger a further period of institutional delay. At para. 30 of A.J.W. Rosenberg J.A. spoke about the delay following a mistrial caused by a lack of judicial resources in the following terms:

The question of how to characterize the resulting delay is a difficult one. It seems to me that in principle, since the mistrial was caused by a systemic failure, the delay until the system is able to again accommodate the trial is properly characterized as institutional delay.

[113] Applying this principle to the case at bar I conclude the time from the declaration of the mistrial on October 21, 2013 to December 2, 2013, when the court could next accommodate the case, is attributable to institutional delay – a period of approximately 1.3 months.

[114] In A.J.W., at para. 33, Rosenberg J.A. dealt with how to characterize other periods of delay following a mistrial, such as those resulting from the fact that defence counsel are not available due to their other professional obligations. The applicants rely on the comments of Cromwell J. in Godin, at para. 23, to the effect that counsel cannot be expected to “hold themselves in a state of perpetual availability”. In A.J.W. Rosenberg J.A. dealt with this concern at paras. 31-33. He held that the court must closely examine the reasons for the delay. In circumstances where the court is available to hear the case, but defence counsel are not available due to other professional commitments, the delay resulting from a mistrial caused by a lack of judicial resources should be treated as neutral time rather than delay caused by the defence.

[115] Based on this approach, which I find to be directly applicable to the period from December 2, 2013 to July 14, 2014, I attribute 7.5 months to neutral or inherent time.

[116] There were other court appearances during this time frame that I have not yet mentioned. On July 8, 2014 Ms. Shemesh brought an application to have the venue of the case moved to a location closer to Toronto because her children’s caregiver was ill and she needed to be closer to her children. Ms. Shemesh did not argue the application herself and no affidavit evidence was filed. Ricchetti J. gave reasons for refusing the application. Allowing the application would have required the trial to be adjourned.

[117] Ms. Shemesh then brought an adjournment application on the same basis. Mr. Poersch was strongly opposed to any adjournment, as was Crown counsel. Ricchetti J. gave reasons for denying the application.

[118] I find that these applications have no bearing on the outcome of the s. 11(b) application. They do not affect the attribution of any period of delay. In view of the information that the caregiver to Ms. Shemesh’s children was ill I also do not see those applications as negatively impacting my decision under the rubric of the conduct of the defence.

[119] On July 14, 2014 jury selection was completed, the accused were put in charge of the jury and Ricchetti J. made his opening comments to the jury. The balance of the jury panel had dispersed. At that point two selected jurors raised issues. One juror advised the court that when he saw Mr. Poersch’s wife in the courtroom he remembered that he and Mr. Poersch used to work together. Then another juror revealed that he was dating a police officer from one of the police detachments involved in the case.

[120] As counsel were discussing what should be done, information came to light that the jury panel that had attended for the jury selection process in October 2013 and had been exhausted, had been called back and merged with other prospective jurors to form the panel that had been utilized for the jury selection that day. Eventually it was determined that five selected jurors were members of that previously exhausted panel. Everyone agreed that a mistrial had to be declared. That was officially done on July 16, 2014 when the ten remaining selected jurors returned to the courthouse.

[121] The three day time period from July 14 to July 16, 2014 is part of the inherent time required to conduct the case and is neutral time for s. 11(b) purposes.

[122] In summary, I conclude the delay during this time frame is attributable as follows:

1. Institutional delay (October 21, 2013

to December 2, 2013) 1.3 months

2. Inherent time (December 2, 2013

to July 16, 2014) 7.5 months

4. The Time Frame from the Second Mistrial to the Next Trial Date – July 16, 2014 to April 13, 2015

[123] The Crown, the applicants and their counsel all appeared before Durno J. in Brampton on the afternoon of July 16, 2014. Various issues were discussed. Counsel were seeking disclosure of information about how the jury panel from October 2013 had been recalled. This led to an order by Durno J. that was dated September 12, 2014. He made the order as a case management judge and pursuant to s. 551.2 of the Criminal Code. The order was made in the course of written reasons, and directed that the Acting Manager of Court Operations was to produce an extensive amount of specified documentary material within 30 days. That material was to be provided to counsel and was subject to certain confidentiality provisions to protect the privacy of members of the jury panels involved.

[124] On the afternoon of July 16, 2014 Justice Durno offered trial dates in Owen Sound commencing between October 1 and October 8, 2014. The focus was to get the case started in the sessions in Owen Sound scheduled for October 6, 2014. Crown counsel indicated he was ready and available. Ms. Pennypacker on behalf of Mr. Poersch was not available until December 29, 2014. Ms. Shemesh on behalf of Mr. Mallozzi was not available until April 13, 2015. The trial was fixed for April 13, 2015.

[125] If I were to apply A.J.W. and A.C. in a mechanical fashion to this time frame I would attribute the 2.75 month period from July 16, 2014 to October 6, 2014 to institutional delay. I would characterize the period of approximately 6.25 months from October 6, 2014 to April 13, 2015 as neutral or inherent time.

[126] However, it seems to me that what led to the second mistrial in this case was extraordinary. The mistrial was not simply the result of a lack of institutional resources as in A.J.W. This was not a mistrial that resulted from an overburdening of the system. It was not a mistrial that arose from the normal functioning of the court process. Here there was a much more fundamental failure within some part of the institution charged with the primary responsibility to provide the accused with a fair trial. Here a fundamental error was made that tends to undermine public confidence in the functioning of the justice system.

[127] The purpose of the exercise I am engaged in is not to determine with precision how the error with the jury panel occurred or who or what is responsible for the error. The parties were advised by Durno J. that if they sought a stay on that basis a judge from outside the region would be required. After reviewing the material ordered disclosed by Durno J. the parties have been content to proceed solely on the basis of an alleged s. 11(b) violation.

[128] Despite the fact that neither specific blame nor responsibility are being assessed, it is clear that there was a fundamental error made somewhere in the process of compiling the jury panel that was utilized for the jury selection conducted on July 14, 2014. The entire delay from July 16, 2014 to April 13, 2015 has its origin in that serious error. The error may have been made by the court or within one of its supporting institutions. Either way, this is a cause of delay that is more akin to Crown caused delay than any other typical cause of delay. Crown caused delay can, depending on its nature and its relationship to the Crown’s obligation to bring the accused to trial, have an impact on the s. 11(b) analysis which goes beyond what the length of the delay considered alone might suggest. Just as the Crown has the obligation to bring an accused to trial, the court, and the institutional structures provided by government to support the court’s operations, must act in a reasonably competent fashion to provide a fair trial.

[129] This is a factor I can take into account when I come to my final assessment of whether there is a violation. However, it seems to me that these circumstances should also inform my decision about how much delay from this time frame goes into the scale and is taken into account in assessing whether there is a s. 11(b) violation. In these unusual circumstances, I conclude the entire period of delay should be weighed against the state in determining whether the state has brought the accused to trial within a reasonable time. I have decided I should not treat any part of this delay as neutral time. While it is not classic institutional delay, I will attribute the entire period of delay within this time frame to institutional delay to ensure that it is weighed against the state in the s. 11(b) analysis.

[130] I conclude the delay during this time frame of nine months should all be considered to be the equivalent of institutional delay.

The Final s. 11(b) Analysis

[131] Mr. Poersch and Mr. Mallozzi are in different positions based on Mr. Mallozzi’s express waiver of an extensive period of delay from March 20, 2012 to the commencement of the first trial. That trial was scheduled for October 7, 2013 and actually commenced on October 14, 2013 with pretrial motions.

[132] I have found that while Mr. Poersch acquiesced in a substantial period of delay associated with Mr. Mallozzi resolving the Orangeville charges, he did not waive any time periods. However, even if I am incorrect and Mr. Poersch’s acquiescence constitutes an implied waiver, it did not extend to the October 2013 trial date as Mr. Mallozzi’s waiver did. Ms. Pennypacker, on behalf of Mr. Poersch, was only acquiescing in the period of delay which ended when the Orangeville matters were resolved and counsel were ready to set a trial date on November 5, 2012. Consequently, if there was an implied waiver for Mr. Poersch the period of waiver ended at the same time I conclude a prolonged period of inherent time ended. As both waived time and inherent time must be removed from consideration for s. 11(b) purposes, whether Mr. Poersch waived this period or it is inherent time makes no difference to the quantum of delay that matters for s. 11(b) purposes.

[133] I have found that adding up the numbers in what appears above for Mr. Poersch and Mr. Mallozzi separately does not yield exactly the same total for each or correspond precisely with the exact amount of time known to have elapsed. However, the variation is, by my calculation, so slight that I consider this to be a “rounding error” resulting from my attempt to convert days into parts of months based on a decimal system, for the purpose of calculating totals.

[134] What is significant for s. 11(b) purposes is the following. I conclude there is no Crown delay in this case. The institutional delay includes the entire delay caused by the second mistrial.

[135] In summary, I conclude that the total institutional delay for Mr. Poersch is approximately 20.3 months. The total institutional delay for Mr. Mallozzi is approximately 15.3 months. Consequently, the delay for Mr. Poersch falls outside the Morin guidelines of 14 to 18 months for a case that proceeds to trial in the Superior Court, while the delay in Mr. Mallozzi’s case remains within those guidelines.

[136] It is not simply this calculation that leads to my decision that the charges against Mr. Poersch should be stayed for a violation of s. 11(b) while the charges faced by Mr. Mallozzi should not. I will explain how I have arrived at my ultimate conclusion by discussing a number of issues utilizing the framework for analysis required by Morin.

[137] The first two Morin factors are the length of the delay and the waiver of time periods. Clearly a delay of over five years calls for a careful review of what has occurred. I have already found there was a substantial waiver by Mr. Mallozzi and explained that while I do not find a waiver by Mr. Poersch, if there was an implied waiver its duration corresponded with a period that I have characterized as neutral inherent time, making no difference in the amount of time to be removed from consideration.

[138] I turn now to the reasons for the delay.

Inherent Time Requirements of the Case

[139] I have already explained that the proceeds of crime investigation that led to charges against Mr. Mallozzi in Orangeville was related to this case. I am advised that investigation grew out of a statement made by a co-accused who was resolving his charges. As I understand it, that investigation did not start until after the charges I am dealing with were laid. I have already explained why this understandably delayed the case. There were originally five accused and this is also a factor that affected the length of time required to process the case.

[140] Nonetheless, these factors are inadequate to explain a total delay of over five years. By November 5, 2012 only the applicants remained before the court. There was nothing inherent in the case which would explain a further two and a half years to get to trial.

Actions of the Accused

[141] It seems to me that Mr. Mallozzi, in particular, was not in any hurry to get his case to trial. There is no indication in the transcripts that I have reviewed that he was pressing for early dates at any time. Quite the contrary is true. It was his counsel’s busy schedule that time and again added to the delay. This was apparent to all and it would have been apparent to Mr. Mallozzi. While Mr. Mallozzi certainly has the right to counsel of choice, choosing a very busy lawyer whose office is distant from the jurisdiction will obviously have implications in terms of scheduling. If he was not aware of that at the beginning he certainly would have become aware of it as the case dragged on.

[142] Mr. Poersch also chose counsel from outside the jurisdiction. There is little evidence he pressed for an early date but his counsel was generally always available on earlier dates than was Mr. Mallozzi’s. In addition, Mr. Poersch strenuously objected to the adjournment sought by Ms. Shemesh on behalf of Mr. Mallozzi prior to the start of the second trial.

[143] During submissions Ms. Pennypacker alluded to the fact that the Crown would not proceed against Mr. Poersch should Mr. Mallozzi resolve his charges. Crown counsel did not object to or refute that submission. This is a factor which may reasonably have led Mr. Poersch to acquiesce in some delays in the hope that he might benefit by doing so should Mr. Mallozzi decide to plead guilty. This helps to explain why counsel for Mr. Poersch did not press harder for an early trial.

[144] It also does not appear to me that Mr. Poersch had grounds for severance and, in many ways, he was caught up in what was going on with Mr. Mallozzi.

Actions of the Crown

[145] A review of the transcripts demonstrates that the Crown was always ready to proceed when early dates were offered, with the possible exception of the December 2, 2013 date offered by Ricchetti J. after the first mistrial. Even then the Crown would have been ready by December 6.

[146] From the outset the Crown appears to have acted expeditiously. Initial disclosure was sent to counsel shortly after the bail hearings and prior to May 20, 2010. Crown counsel and Morneau J. facilitated early access to edited informations to obtain warrants. Further disclosure seems to have been sent out even before counsel asked for it. At every step of the case it appears to me the Crown was ready to proceed expeditiously. As the case dragged on Crown counsel said that even with a waiver of s. 11(b) by Mr. Mallozzi the Crown was concerned about delay.

Limitations on Institutional Resources

[147] I see little evidence in this case that limitations on institutional resources played a role in the delay. This is particularly so with respect to the court system. Based on the transcripts, the Ontario Court of Justice acted as a model of efficiency when the case was at the preliminary inquiry stage. Given that there were multiple accused and the potential for delay, that court’s regional office became involved and Justice McGowan conducted pretrials.

[148] The only delay in the Ontario Court of Justice was caused by the accused when they did not provide dates in March 2011 for a preliminary inquiry when the court was expecting to schedule one in March.

[149] Based on the record, the Superior Court was consistently able to offer trial dates within three to four months of any given court date. Numerous pretrials have taken place. The record shows that at every step the court had resources available to deal with the case in a timely fashion. As I previously mentioned, I conclude there is no merit in the submissions that the “sittings” method of scheduling cases in Owen Sound offered an impediment to dealing with this case in a timely fashion. The contrary is true. There always seemed to be time in the next sittings, but counsel were unavailable. The court responded with dates outside the scheduled sittings. When mistrials occurred the court responded promptly and gave the case special consideration.

Other Reasons for Delay

[150] This is a significant heading in analyzing the delay in this case. Some of the things I will mention here might have been discussed under other headings as well.

[151] As mentioned previously, counsel seldom appeared to set dates. Ms. Pennypacker was occasionally present. Ms. Shemesh never appeared. Counsel sometimes, but not always, had an agent speak to the matter. The agents did not always have complete instructions or information about counsel’s entire schedule. This is reflected in the fact that on more than one occasion a judge had to ask the accused or counsel’s agent to telephone counsel’s office. This did not really help. I have formed the impression that counsel would send dates to the Crown or to their agent without any real understanding of the court’s schedule. This, in my view, contributed to the delay. See R. v. Nguyen, 2013 ONCA 169, at para. 75.

[152] Second, the appointment to the court of Justice Conlan, who had been prosecuting the case, caused some delay. This is neutral time but it did contribute to the delay to some degree.

[153] Third, I am advised there was some debate about whether the provincial or federal Crown would prosecute the proceeds of crime charges in Orangeville.

[154] Fourth, there were the two mistrials. In the overall, these are perhaps the most significant causes of delay other than the delays related to the busy schedules of defence counsel, and in particular that of Ms. Shemesh. The first mistrial stemmed from the jury panel being exhausted. However, when the applicants decided to launch a constitutional challenge to s. 642 of the Criminal Code, that had significant implications. While counsel had the right to take that approach if they wished to, it was ultimately what prevented the completion of jury selection at the first trial. Had the applicants followed through to complete the selection the trial may well have proceeded to a conclusion in October 2013.

[155] The second mistrial was indeed unfortunate. It was the result of some form of institutional error for which the applicants bear no responsibility.

Prejudice to the Accused

[156] Under this heading I keep in mind that s. 11(b) is concerned with prejudice which arises from the delay in the processing of the case and not from the fact that the applicants have been charged: R. v. Rahey (1987), 1987 CanLII 6797 (NS CA), 35 C.C.C. (3d) 289 (S.C.C.), at p. 312, 321; R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (C.A.).

[157] As held by the Supreme Court of Canada in Godin, at para. 30:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

[158] Each of the applicants has filed an affidavit addressing the issue of prejudice. Neither alleges that their ability to defend the case has been limited by the delay.

[159] Mr. Poersch’s affidavit tends to focus on security of the person considerations. I find his affidavit evidence in this regard to be quite compelling. Crown counsel did not cross-examine Mr. Poersch or otherwise dispute Mr. Poersch’s affidavit.

[160] In his affidavit Mr. Poersch makes the point that he lives in the relatively small community of Owen Sound. He often works in the field of heating and air conditioning. This requires him to enter people’s homes. He points out that there has been considerable notoriety to the case in the Owen Sound area. The use of the “talesmen” procedure after the jury panel was exhausted on October 21, 2013 attracted a good deal of local publicity due to the fact that one person summoned by the sheriff had to be taken to the hospital by ambulance, and a woman who was taken by the sheriff was reported to the police by her husband as having been kidnapped. Mr. Poersch also notes that people remember his name because it is similar to a famous brand of sports car. He recounts in considerable detail how the delay, not just the fact he has been charged, has impacted him. His affidavit is carefully and fairly drafted and I am satisfied his claims are not overstated.

[161] Mr. Poersch’s affidavit makes it clear that he is not a man of means. As the case has dragged on his financial resources have been depleted. He has had to move into a small cottage. The case has had a negative impact on his family relationships.

[162] Mr. Poersch also describes how he sometimes works as a truck driver travelling across Canada. He is unable to enter the United States and this has affected his ability to earn a good living as a truck driver.

[163] Mr. Mallozzi’s affidavit includes considerable reference to his liberty interests. It is, in my view, far less compelling than Mr. Poersch’s affidavit. While the Crown initially wished to cross-examine Mr. Mallozzi on his affidavit, Mr. Bailey and Ms. Shemesh agreed on additional information being provided to the court which made that cross-examination unnecessary.

[164] It was agreed that Mr. Mallozzi’s bail was revoked on July 27, 2014 and that any prejudice associated with his bail restrictions, which are emphasized in his affidavit, ended at that time. Other information I received indicates that Mr. Mallozzi was charged with other offences. He was detained on those offences in Toronto. He was unsuccessful in obtaining release on an initial bail review in Superior Court and at that time his bail on these charges was cancelled pursuant to s. 524 of the Criminal Code. Mr. Mallozzi was eventually re-released following a subsequent bail review on the basis of substituting a new surety for his former surety. I understand his current bail includes all charges he faces, including the new charges, which are obviously serious in nature.

[165] It has also been agreed that Mr. Mallozzi’s bail has been varied from time to time to allow him to be out in the community to work for two employers, to allow him to leave the country for a vacation and to leave the province for a funeral.

[166] In his affidavit Mr. Mallozzi states that due to these charges all his money and life savings have been depleted. It was in response to this claim that I was advised that Mr. Mallozzi forfeited $50,000 and paid a fine in lieu of forfeiture of $350,000, in relation to the resolution of the proceeds of crime charges in Orangeville. It is agreed this is a circumstance that has a bearing on that part of Mr. Mallozzi’s affidavit.

[167] A number of stresses and strains Mr. Mallozzi deposes to relate to the stress of the actual court proceedings themselves and what was occurring during those proceedings. Much of this is stress and strain that arises from being charged and, in my view, not from the delay.

[168] I accept that with a delay of five years each of the applicants has suffered some prejudice. However, it seems to me that Mr. Mallozzi has suffered considerably less prejudice than Mr. Poersch. I note the institutional delay in Mr. Mallozzi’s case is within the Morin guidelines. Mr. Mallozzi lives in Orangeville and has not had to endure the same problems in his day to day life that Mr. Poersch has. It is alleged he violated his bail and committed further serious offences. This affects how I view any prejudice related to bail.

[169] My conclusion with respect to prejudice plays a significant role in my decision. However, there are other factors as well that I will refer to momentarily.

Final Balancing Pursuant to s. 11(b)

[170] As indicated in Morin and many other cases, the determination whether s. 11(b) has been violated is not based on a mathematical calculation but on an overall assessment of the situation taking all circumstances into account, and in particular the interests that s. 11(b) is designed to protect. These include societal interests in a trial on the merits.

[171] In the case of Mr. Poersch the institutional delay falls about two and one half months outside the top end of the Morin guidelines. In such a close case prejudice is an important consideration. I have already said why I conclude Mr. Poersch has suffered considerable prejudice arising from the delay. I also note that it is not suggested he was a major player or directing mind in connection with this very large scale marijuana grow operation. Rather, it is alleged he was working as a gardener to care for some of the plants. There is no evidence I am aware of that he earned large amounts of money or directly shared in the profits. As I previously mentioned, he has been dragged along in these proceedings with reason to believe that if Mr. Mallozzi eventually pleaded guilty the Crown would not proceed further against him.

[172] I also observe that had the Crown been more firmly interested in prosecuting Mr. Poersch the Crown could have severed him and prosecuted him separately.

[173] I also emphasize that what I have said about Mr. Poersch so far must all be considered in the context of a delay of over five years. That is an exceptionally long period of time to be under the shadow of criminal charges, remembering that Mr. Poersch’s role in the marijuana growing operation is alleged to be somewhat limited. The societal interest in a trial of Mr. Poersch on the merits is, in all of these circumstances, outweighed by both the private and societal interests inherent in a trial within a reasonable time that s. 11(b) protects.

[174] I am satisfied on a balance of probabilities that Christopher Poersch’s s. 11(b) rights have been violated. Accordingly, I enter a stay of proceedings in respect of all charges against him on this indictment.

[175] I am not persuaded on a balance of probabilities that Itolo Mallozzi’s s. 11(b) rights have been violated. The institutional delay in his case is within the Morin guidelines. He has suffered less prejudice then Mr. Poersch and, in absolute terms, the prejudice he has suffered is not great considering he now faces other serious criminal allegations. I say this because one of the main components of his claim of prejudice relates to his strict bail conditions. There is now greater reason to think they were required. The Crown was also willing to vary the bail conditions prior to the new charges being laid.

[176] Of considerable significance is the fact that a speedy trial has not been part of Mr. Mallozzi’s litigation strategy. He has been content with the pace of proceedings and his counsel’s busy schedule has been a significant contributing factor to the delay.

[177] The societal interest of a trial on the merits carries more weight in the case of Mr. Mallozzi than it does in the case of Mr. Poersch. Mr. Mallozzi is alleged to be centrally involved and to have profited substantially from this large scale marijuana growing operation. As previously mentioned, marijuana valued at $12,000,000 was seized. The penalty imposed on Mr. Mallozzi on the related proceeds of crime charges is an indication of Mr. Mallozzi profiting substantially. In his case I find the scale tips the other way.

[178] Itolo Mallozzi’s s. 11(b) application is dismissed.

F. Dawson J.

Released: April 16, 2015