CITATION: R. v. Cristoferi-Paolucci, 2016 ONSC 6923

COURT FILE NO.: CR-15-50000587-0000

DATE: 20161108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JORDAN CRISTOFERI-PAOLUCCI

Applicant

Michael Wilson, for the Crown

Peter V. DeJulio, for Mr. Cristoferi-Paolucci

HEARD: October 13, 2016

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON 11(b)

[1] The Applicant is charged with various offences related to child pornography and communicating with someone under 18 for the purposes of facilitating child pornography. He was a basketball coach. The allegations concern some of his players.

[2] The Applicant was arrested on May 29, 2013. His trial is set for November 14, 2016 and will be completed on December 2, 2016. That means the total delay is about 43 months. Mr. DeJulio, the Applicant’s counsel, concedes that defence delay amounts to about 7 ½ months, which means that the net delay is about 35 ½ months. That, of course, exceeds the ceiling set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. The Applicant says that his right to a trial within a reasonable time has been infringed. He says that it has been infringed under either the Jordan framework or the older Morin framework: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The Applicant says that he is entitled to a stay of proceedings for unreasonable delay.

[3] Crown Counsel, Mr. Wilson, concedes that the Jordan ceiling has been breached, although he argues that slightly different numbers apply. Mr. Wilson submits that the total delay is 42 months and 3 days. He says that the defence delay totals 10 months and 10 days, which means that the net delay is 31 months and 27 days. That is just shy of two months over the Jordan ceiling. He argues that discrete events caused a further delay of 3 months and 17 days, which takes the net delay to 28 months and 10 days. That is below the Jordan ceiling. Accordingly, he argues, there is no need to engage in an analysis of whether transitional exceptional circumstances apply. If there is, he argues that Crown and institutional delay are within or close to the Morin guidelines. The case, therefore, should not be stayed.

[4] For the reasons that follow, I find that the Applicant’s right to a trial within a reasonable time has not been infringed. The Application is dismissed.

ANALYSIS

The framework for analyzing unreasonable delay was recently altered by the Supreme Court in Jordan. Delay beyond 30 months is presumptively unreasonable: Jordan, at para. 46. Gillese J.A. described the new framework in R. v. Coulter, 2016 ONCA 505 at paras. 34-41:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

[5] The charges in the case were laid well before Jordan. If net delay is beyond the Jordan ceiling, then a court must determine whether transitional exceptional circumstances apply.

(a) What are the periods of defence delay?

Crown counsel, Mr. Wilson, argues that the total defence delay in this case is 10 months, 27 days. I do not entirely agree with his characterization of all of the periods of delay. In my view, defence delay amounts to 6 months, 20 days.

Mr. Wilson describes the delays as follows:

• An un-necessarily lengthy remand from November 8, 2013 to January 24, 2013 (1 month and 24 days);

• The first delay in setting the preliminary inquiry from February 14, 2014 to April 16, 2014 (2 months, 2 days);

• The second delay in setting the preliminary inquiry from April 16, 2014 to May 1, 2014 (15 days);

• Unavailability of defence counsel from March 2, 2015 to April 30, 2015 (1 month, 29 days);

• The delay in committal for trial from July 7, 2015 to September 2, 2015 (1 month, 26 days);

• The delay in setting a trial date from December 15, 2015 to February 19, 2016 (2 months, 4 days).

[6] I will deal with each of these in turn.

[7] An un-necessarily lengthy remand from November 8, 2013 to January 24, 2013: On November 8, 2013 Mr. DeJulio indicated on the record that he had just received disclosure and needed time to review it. He pointed out that it was substantial disclosure consisting of three discs with hundreds of text messages and photographs. The Crown’s position is that an adjournment of no more than 2-3 weeks was required to review the material.

[8] That assertion must be viewed against the backdrop of the defence disclosure requests. At that point there had been initial Crown disclosure. On September 13, 2013 Mr. DeJulio sent a detailed further disclosure request to the Crown’s office. He followed up with an email on September 17, 2013 and further letters on October 17 and November 7, 2013. The Crown’s office did not respond to any of these letters. As Mr. DeJulio noted, the disclosure was voluminous and complex. His client was living out of town. While the remand was lengthy, I would not count it as defence delay. There was no waiver (either explicitly or implicitly) and there is no suggestion that Mr. DeJulio was “papering” the file and engaging in unacceptable tactics. Furthermore, there is nothing to contradict Mr. DeJulio’s assertion that the material was voluminous. I accept that he required more time than usual to review it and consult his client. Accordingly, I do not find that this period of one month and 24 days constituted defence delay.

[9] The first delay in setting the preliminary inquiry from February 14, 2014 to April 16, 2014: The parties agree that the defence waived this period of 2 months and 2 days.

[10] The second delay in setting the preliminary inquiry from April 16, 2014 to May 1, 2014: The parties agree that the defence waived this period of 15 days.

[11] Unavailability of defence counsel from March 2, 2015 to April 30, 2015: On May 1, 2014 all parties appeared in the Ontario Court of Justice and set a preliminary inquiry for four days commencing May 5, 2015. Earlier dates were offered to the parties. Crown counsel was not available for part of that time. Defense counsel was not available for this period of time. The parties agree that this is a period of 1 month, 29 days is defence delay.

[12] The delay in committal for trial from July 7, 2015 to September 2, 2015: The evidence portion of the preliminary inquiry was completed on July 7, 2015. Mr. DeJulio, on behalf of the Applicant, did not contest committal for trial. Mr. DeJulio did request an exit pre-trial with the preliminary inquiry judge, Justice Merenda. Crown counsel was certainly willing to have an exit pre-trial that day, but Mr. DeJulio asked for time to consider his position.

[13] I my view, this period should not count as defence delay. The defence may waive delay, as Mr. DeJulio did from time to time during the course of this case. Waiver must be explicit or implicit. Delay may also be of a kind that is deliberately calculated to delay the trial: Jordan, at para. 63. Deliberate tactics, such as frivolous motions, are examples of deliberate attempts at delay. On the other hand, legitimate tactics taken to respond to charges do not count as defence delay: Jordan at para. 65. A short adjournment for the defence to consider its position at the end of the evidence at a preliminary inquiry can be legitimate. On the one hand, there was nothing wrong with Crown counsel pressing to get on with the exit pre-trial; on the other hand, consultations, evaluations, and pre-trials that may result in a resolution or a more focused trial are to be encourage. Generally, of course, the longer the delay the less likely it is that the adjournment request is legitimate. My review of the transcripts in this matter does not suggest that this request was frivolous or a delaying tactic. I accept that Mr. DeJulio was legitimately considering different courses of action. That required time. So did consulting his client.

[14] The delay in setting a trial date from December 15, 2015 to February 19, 2016: Defence waived delay during this period. The parties agree that this period of 2 months and 4 days is defence delay.

[15] The defence delay in this case of 6 months, 20 days is to be subtracted from the total delay of approximately 43 months. I therefore find that the net delay, before finding exceptional circumstances, is actually just over 36 months (36 months, 10 days). That, of course, exceeds the Jordan ceiling by about six months.

(b) Do exceptional circumstances exist under the Jordan framework?

[16] The delay in this case is therefore presumptively unreasonable. The Crown may, however, rebut the presumption by showing that exceptional circumstances exist.

[17] As the Supreme Court noted, “exceptional circumstances are those that lie outside Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan at para. 69. Discrete events and particularly complex cases may constitute exceptional circumstances: Jordan, para. 70.

[18] Mr. Wilson, Crown counsel, points to two discrete events that he argues constitute exceptional circumstances.

[19] The first discrete event is what he refers to as the “Dawson confusion”. Detective Manherz was the investigating officer. He had also been the affiant on the warrant to search the Applicant’s electronic devices. Mr. DeJulio had indicated at a judicial pre-trial that he wished to cross-examine the officer. Crown counsel at the time, Mr. Townsend, assumed that Mr. DeJulio meant to cross-examine on the results of the search. On May 6, 2015, the second day of the preliminary inquiry, Mr. DeJulio and Mr. Townsend discussed the cross-examination. It quickly transpired that Mr. DeJulio also wished to cross-examine on the pre-conditions for granting the warrant. That, of course, required leave of the court: R. v. Dawson (1998), 1998 CanLII 1010 (ON CA), 39 O.R. (3d) 436 (C.A.). Crown counsel insisted, as was his right, on a formal application.

[20] There is no question that both parties were legitimately confused. Mr DeJulio appears to have sincerely believed that the Crown would not oppose the proposed cross-examination. Mr. Townsend appears to have sincerely believed that Mr. Julio was limiting his cross-examination. As a result, the preliminary inquiry was adjourned until July 6, a period of two months, so that a Dawson application could be brought. Ultimately, Mr. DeJulio elected not to bring one.

[21] Mr. DeJulio argues that the Crown might have consented to the Dawson application in order to expedite the preliminary inquiry. The Crown has a responsibility to take steps to mitigate delay. By choosing not to consent the Crown failed to mitigate. As a result, the delay should not be considered an exceptional circumstance.

[22] I respectfully disagree with Mr. DeJulio on that point. Crown counsel have a duty to try cases in a fair and balanced way. Defence counsel have a duty to the Court but their primary duty is to their client. Crown counsel, on the other hand, have a duty to the administration of justice that is broader. Crown counsel sometimes need to balance their various obligations. Sometimes those obligations are in conflict. The Court may not second-guess the decisions made by Crown counsel unless there is some form of abuse of process. In any event, the Crown is no more obligated to sacrifice its procedural rights than is the defence.

[23] I agree with Crown counsel that this “Dawson confusion” constitutes a “discrete event” as described by the Supreme Court in Jordan at paras. 71-74. Exceptional events may occur during the course of a trial. Complainants, as the Court noted, recant. Examinations sometimes take longer than anticipated. Lawyers may have a car accident, as occurred in Coulter (see para. 81).

[24] I also note that in this case the delay was somewhat mitigated. The preliminary inquiry was able to resume only two months after the adjournment. That is a relatively quick turn-around by the standards of the busy Ontario Court of Justice in Toronto.

[25] The second discrete event was the aborted exit judicial pre-trial. The parties had set September 2, 2015 for that. Justice Merenda had indicated that he was available. Unfortunately, Justice Merenda turned out not to be available. The exit judicial pre-trial had to be scheduled to October 19, 2015. The Crown argues that this period of 1 month, 17 days also constitutes a discrete event.

[26] It is not clear from the record why Justice Merenda was not available, and it is irrelevant. In my view, this was an event that was entirely beyond the control of the parties. I agree that it constituted a discrete event.

[27] Thus, the two discrete events total 3 months, 17 days, or about 3 ½ months. The net delay after subtracting defence delay was 36 months, 10 days. After subtracting discrete events the net delay is just under 33 months (32 months, 23 days). That, of course, exceeds the Jordan ceiling by 2 months and 23 days, or just under three months. The delay is unreasonable under the Jordan formula.

(c) Do transitional exceptional circumstances apply?

[28] Mr. DeJulio argues that transitional exceptional circumstances do not apply. I respectfully disagree.

[29] Transitional exceptional circumstances apply where the time taken is justified based on reasonable reliance by the parties on the law as it stood before Jordan. The onus is on the Crown to show that exceptional circumstances apply. The approach taken is a contextual one. Prejudice to the accused and the seriousness of the offence play roles in the analysis of transitional cases; they will play no role in the future under a strict Jordan analysis: Coulter, para. 56; Jordan, para. 96.

[30] I find that this case would have survived a motion to stay for delay under the Morin framework. On a rough analysis the time between arrest and the judicial pre-trial in the Ontario Court of Justice was about 8 ½ months (May 29, 2013 to February 14, 2014). The first round of disclosure was not made until August 23, 2013. That was just under three months. That generated a request for a significant amount of further disclosure. There is no suggestion that this request for further disclosure was a delay tactic. It was a legitimate request. On January 24, 2014 when the judicial pre-trial was set Mr. DeJulio initially asked for extra time to review some recently received disclosure. An adjournment was initially granted, but Mr. Townsend, who by that point was the assigned Crown, came back into the courtroom. He asked for the matter to be called again and insisted that a judicial pre-trial be set that day. A pre-trial date of February 16, 2014 was set. The three weeks from January 24 to February 16, 2014 was, by Mr. DeJulio’s estimation, neutral. The Crown and defence have substantially different views of the rest of the 7 ¾ months. Mr. DeJulio argues that most of that time was taken up waiting for disclosure. Mr. Wilson points to two lengthy adjournment requests.

[31] In my view, given the voluminous disclosure, and taking a somewhat arbitrary view of it, 5 months ought to be considered as intake or neutral. As I understand it the police seized numerous electronic devices that had to be searched, the material downloaded and analyzed (including thousands of text messages and photographs), and then organized for disclosure purposes. Given the nature of the case, the police did not have the luxury of doing that work pre-arrest. Some allowance must be made for that. Thus, I find that 2 ¾ months should be attributed to the Crown and three weeks to institutional delay, for a total of 3 ½ months.

[32] On May 1, 2014 a preliminary inquiry date of May 5, 2015 was set. That was over a year away. I would attribute two months of this time to neutral preparation time: R. v. Lahiry, 2011 ONSC 6780. This time also includes the period from March 2 to April 30, 2015 (1 month, 29 days) that the parties agree should be attributed to the defence. Accordingly, of this almost-one year period, I attribute 8 ¼ months to institutional delay.

[33] The preliminary inquiry commenced on May 5, 2015. Committal for trial occurred on October 19, 2015. This period, as I have noted, constituted the preliminary inquiry, the “Dawson confusion”, and the exit pre-trial. I have already found that these were “discrete events” under the Jordan framework. If something is a discrete event under the Jordan framework then it is likely neutral delay under the Morin framework. That is how I would characterize it in this case.

[34] Accordingly, the total delay in the Ontario Court of Justice was 11 ¾ months, which exceeds the Morin guidelines of 8-10 months for cases in that Court.

[35] Turning to the Superior Court of Justice, first appearance in this matter was November 26, 2015. The parties agree that the period from October 19 to November 26, 2015 is neutral delay. The trial is anticipated to end on December 2, 2016. That is a period of 12 months, one week. The parties agree, as I noted above, that two months and four days should be attributed to defence delay due to waiver in setting dates. I would also attribute two months for defence preparation. That means that institutional delay in the Superior Court is just about 8 months, which is just within (or just outside by a couple of days) the Morin guideline in the Superior Court of 6-8 months.

[36] The total amount of institutional delay in both courts that exceeds the Morin guidelines is only about 1 ¾ months. That is part of the context.

[37] The efforts taken by the Crown and the defence are also part of the context. I find that these are mostly neutral. For example, Mr. DeJulio argues that the defence did nothing to delay the case, other than during those periods where he waived 11(b). He says, rather, that the Crown prosecuted the case in a leisurely way. Mr. Wilson argues the opposite. He says, for example, that Mr. Townsend’s intervention to set a judicial pre-trial date is an example of the Crown seeking to expedite. That is true. It is also true that Mr. DeJulio wrote to the Crown’s office asking for the status of the disclosure three times and received no response.

[38] Further context is provided by the seriousness of the case and the prejudice to the accused. These are the traditional Morin measures.

[39] There is no doubt that the Applicant suffered prejudice, but I find that he did so mostly as a result of the nature of the charges. The Applicant was a law student when he was arrested. He was about to start second year. He has since graduated. He was unable to take the bar exam while these charges were outstanding because he did not believe he could get past the Law Society’s good conduct requirement. He has mitigated, however. He completed a Master of Laws degree in the interim. He has been able to work. After observing him carefully, I find that he exaggerated his prejudice and was not fully forthright. He did not initially reveal, for example, that he had been able to work while on bail and completing his master’s degree. He is obviously intelligent and sophisticated. He well understood the nature of the evidence that a court would require to find significant prejudice.

[40] The charges are serious. They include allegations of child luring, child pornography, and sexual assault. The Crown alleges that the Applicant was in a position of trust.

[41] I find that the strong societal interest in a trial on the merits outweighs the minimal prejudice to the Applicant. This is especially so given that the Morin guidelines were only marginally exceeded.

DISPOSITION

[42] The application is dismissed.

R.F. Goldstein J.

Released: November 8, 2016

CITATION: R. v. Cristoferi-Paolucci, 2016 ONSC 6923

COURT FILE NO.: CR-15-50000587-0000

DATE: 20161108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JORDAN CRISTOFERI-PAOLUCCI

Applicant

REASONS FOR JUDGMENT ON 11(b)

R.F. Goldstein J.