CITATION: R. v. Maione and Torcaso, 2016 ONSC 7207

COURT FILE NO.: 7626/15

DATE: 2016-11-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DERECK MAIONE

• and -

David Didiodato, for the Provincial Crown

Michael Bennett, for Dereck Maione

ZACHARY TORCASO

Eric McCooeye, for Zachary Torcaso

HEARD: October 31, 2016

VARPIO, J

reasons for DECISION ON CHARTER APPLICATION, SECTION 11(B)

[1] The accused parties seek a stay of the charges before the Court as a result of an alleged breach of their 11(b) Charter rights as per R. v. Jordan, 2016 SCC 27. The outcome of the Application hinges upon the characterization of a defence adjournment. For the reasons that follow, the adjournment must be considered defence delay. As such, the Application is dismissed.

FACTS

[2] The accused persons were charged with several of the offences before the Court on March 15, 2014. These included breaking and entering as well as crimes of violence as against the complainant Mr. Ryan Gridzak. A preliminary hearing was scheduled for January 28 and 30, 2015. Additional evidence was scheduled to be heard on May 15, 2105 along with submissions. In setting the May 14, 2015 date, the following exchange took place:

The Court: And we’re estimating that we need about another hour-and-a-half.

Mr. McCooeye: Plus submissions, Your Honour.

The Court: Oh, no, plus submissions.

Ms. Pritchard: And to deal with submissions, Your Honour.

Mr. McCooeye: I would say if we have three hours, Your Honour.

The Court: Half a day.

Mr. McCooeye: Yes.

[emphasis added]

[3] On May 14, 2015, neither accused attended the preliminary hearing. The presiding justice suggested that he hear the remaining evidence without the accused’s presence and that he hear submissions at a later date. The evidence was heard May 14, 2015 and the matter was put to May 15, 2015 to set a new date for submissions. The date of July 15, 2015 was ultimately set for submissions.

[4] On July 15, 2015, the Crown sought to have both accused committed on further offences pursuant to section 548 of the Criminal Code. Said submission was based upon evidence that was heard in January 2015. Defence counsel were not given notice that the Crown would advance this position. Defence sought an adjournment to consider the issue:

THE COURT: Ms. Pritchard, what do you say about the defence request to make further submissions on another date about committal on additional charges?

MS. PRITCHARD: I will leave that to Your Honour. I don’t believe that this is a provision that requires any notice at all, in fact, it’s an obligation on Your Honour that you shall commit if there is evidence of any further indictable offence. I don’t think that there is anything improper going on here, nor is it something that is out of the ordinary despite what’s being suggested to Your Honour, so I’ll leave that in your hands.

THE COURT: So the issue that you both wish to address is whether the crown is required to give notice of seeking additional – committal on additional charges, correct?

MR. MCCOOEYE: And whether on the circumstances of all the case, Your Honour, this is a discretionary part for the court – in other words, my friend’s reference to the word “shall” – whether it remains discretionary in the court to commit on other charges, given the way the case was presented. So, it’s not just a matter of notice, Your Honour. We’re not – I’m not suggesting formal notice is required even, I’m saying that this was not in any way addressed to myself as counsel for the defendant and that the court out to allow for submissions on the issue which could not be suggested on anything that was received up to this date.

THE COURT: I’ll let you make submissions on that subject to certain parameters.

[5] The matter was ultimately put over to November 18, 2015 for the preliminary hearing judge to render a decision on whether some form of notice by the Crown was required to engage section 548 of the Criminal Code in the circumstances of this case. In a 17 page decision, Condon J. found against the defence and committed the accused persons on the following charges:

(a) Mr. Torcaso: Utter threat to cause death to Ryan Gridzak, 264.1(1)(a) of the Criminal Code; and assault on Adam Pettenuzzo, s. 266 of the Criminal Code

(b) Mr. Maione: Possess weapon dangerous to the public peace, s. 88 of the Criminal Code; and assault with a weapon on Adam Pettenuzzo, s. 267(a) of the Criminal Code

[6] In his decision, the preliminary judge stated:

[51] The Crown seeks to have Mr. Torcaso committed to trial on the charge that he uttered a threat to cause death to Mr. Gridzak. The threat essentially is “Give me what you own or I’m going to kill you.”

[52] Mr. Gridzak is the only witness who provided evidence about this threat. Initially his evidence was:

But after that, both of them stated, “Give me what you own or I’m going to kill you.

Transcript of January 28, 2015 – Page 58, lines 3-5

[53] Next, he testified:

Ms. Pritchard: When you say brandishing, what do you mean by that?

Mr. Gridzak: Holding it, you know, and then saying, “Give me all your stuff or I’m going to kill you.” So, with the intent to do harm I would say.

Transcript of January 28, 2015 – Page 59, lines 15-19

[54] However, the other evidence of Mr. Gridzak places the knife in the hand of Mr. Maione and not Mr. Torcaso.

[55] Later during the cross-examination of Mr. Gridzak, the following evidence was provided:

Mr. McCooeye: Yeah. Now, a couple of times, especially in examination in-chief, but also in cross-examination, you said they stated, “Give me what you own.” Like, they were doing it like a chorus? Like, they’re saying it exactly at the same time or is one saying it and the other’s doing it like a round-about? How are they doing that?

Mr. Gridzak: Just the one, Zack.

Q: Just one person says it?

A: Yeah.

Q: So, when you said before, “they” and people do this all the time, when you said “they said”. You really meant one person said.

A: Yes.

Q: That’s what you meant. And which person said that?

A: Zack.

Q: The guy without the knife.

A: Yes, sir.

Q: All right. And what did he say?

A: “Give me everything you own or we’ll kill you.”

Q: “We’ll kill you?”

A: Yes, sir.

Q: Not, “I’m going to kill you?”

A: We’ll, plural.

Q: You’re quite certain of that?

A: Yes.

Transcript of January 28, 2015 – Page 169, lines 19-28

[59] The next charge upon which the Crown seeks committal for Mr. Torcaso is that of an alleged assault upon Adam Pettenuzzo.

[60] As set out earlier, Mr. Pettenuzzo testified that he had a confrontation with a male whom he could not identify. Mr. Pettenuzzo testified that, after he arrived at the main floor of the residence and saw a male standing over top of Mr. Gridzak, Mr. Pettenuzzo managed to get himself between Mr. Gridzak and that male. The male came at Mr. Pettenuzzo, grabbed his shirt collar and, perhaps while Mr. Pettenuzzo was pulling away, tore the shirt collar. That torn collar was observed later in the early morning by Constable McLean, who attended at the scene.

[61] Mr. Pettenuzzo also testified that, when this male left him, he went after Mr. Gridzak. Mr. Pettenzuzzo’s attention was then focused upon Mr. Maione.

[62] While Mr. Pettenuzzo has been unable to identify that person, there is evidence from Mr. Pettenuzzo that the person was not Mr. Maione. There is also the evidence of Mr. Gridzak and Ms. Harman that the other male who entered the home was Mr. Torcaso.

[7] The matter proceeded through Superior Court and, on February 17, 2016, a trial date of May 30, 2016 was offered to the accused parties. It is unclear from the transcripts if the Crown was available on May 30, 2016. Neither defence counsel were available for the full sittings:

MR. BARIL: Currently, the sitting of May 30th are available. It’s a two-week sittings beginning May 30th, as well as the week of June 6th.

MR. BENNETT: I’m available the 6th of June, that week.

MR. MCCOOEYE: That’s for one week or that’s the second week…

MR. BARIL: That’s a two-week sitting starting on the 30th of May.

MR. BENNETT: The other thing is the 30th of May is a trial continuation, it’s a matter that’s been going on and on and on...

MR. MCCOOEYE: As it turns out, I’m not available anyway, so that solved that issue. 17th of October is available.

[8] The week of October 17, 2016 was available to the Court, provided a previously set jury matter resolved. Neither Mr. Maione’s counsel, nor the Crown were available for that date in any event. Accordingly, on March 9, 2016, the matter was set for trial in February of 2017.

[9] Earlier this year, R. v. Jordan, 2016 SCC 27 was released by the Supreme Court of Canada. The matter was brought forward on September 17, 2106 and a trial date was set for January 2017 so as to speed up the trial process. Dates in the fall were offered but counsel had already been booked.

THE DELAY ISSUE

[10] All parties agree that the total delay from the laying of the information to the anticipated completion of the trial is 1041 days, or 34 months 14 days.

[11] Mr. Torcaso agrees that 21 days ought to be deducted from his total for defence unavailability which reduces the total outstanding delay to 33 months 23 days.

[12] Mr. Maione’s counsel indicated that he did not comply with the procedural requirements for the filing of facta, etc. (although I note a Notice of Application is filed on Mr. Maione’s behalf) because of solicitor-client issues. Mr. Maione’s counsel further submitted that his argument is identical to that of Mr. Torcaso save and except for the fact that Mr. Maione’s delay calculation will be 4.5 to 5 months shorter than Mr. Torcaso’s calculation as a result of counsel’s unavailability. It would appear, therefore, that Mr. Maione’s total time calculation is, at best, in the 30 month range. The Crown opposes Mr. Maione’s application on both procedural and substantive grounds.

[13] It will be helpful to my analysis to deal with each accused separately. As regards Mr. Torcaso, the issues to be decided centre around:

1. Whether the delay from May 14 to July 15, 2015 can be classified as defence delay (although such an attribution will not affect the 30- month Jordan threshold calculation); and

2. Whether the delay from July 15, 2015 to November 18, 2015 can be described as defence delay.

[14] The issues are identical for Mr. Maione but, as conceded by counsel, there will be a further deduction of time.

THE LAW

Delay

[15] The Supreme Court of Canada recently changed the law regarding acceptable delay in R. v. Jordan. The Court set a 30-month ceiling for getting a case to trial in the Superior Court of Justice. Of note, periods of delay can be subtracted from the total delay if the impugned periods are appropriately described as defence delay:

Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: "The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits" (p. 802).

Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p. 1686).

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 2003 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. [emphasis added]

[16] Of some difficulty is the sentence in the above-referenced passages that states: “[D]efence applications and requests that are not frivolous will also generally not count against the defence”. This calls for some inquiry into the legitimacy of actions undertaken by defence in response to charges.

[17] In his recent decision of R. v. Gandhi, 2016 ONSC 5612, [2016] O.J. No 4638, Code J. examined the concept of defence delay as defined by the Supreme Court in both Jordan and under the old case-law. At paragraphs 21 to 23 of Gandhi, Code J. examined the concept of defence delay in light of the jurisprudence as it developed prior to Jordan and with its imposition:

The second form of defence delay, namely, "delays caused solely or directly by the defence's conduct," is somewhat more complex. Prior to Jordan, there was a substantial body of s. 11(b) case law holding that the time required to conduct certain kinds of pre-trial motions and pre-trial proceedings should be characterized as defence delay. In R. v. Morin, supra at pp. 17-18, Sopinka J. stated that "change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc." were all examples of delay caused by voluntary actions of the accused. Subsequent authority in Ontario repeatedly held that delay caused by a Third Party Records Motion was defence delay. See: R. v. Batte (2000), 2000 5750 (ON CA), 145 C.C.C. (3d) 498 at paras. 17-19 and 67 (Ont. C.A.); R. v. B. (J.G.) (1993), 1993 81 (SCC), 85 C.C.C. (3d) 112 at 117 (Ont. C.A.), aff'd 85 C.C.C. (3d) 117 (S.C.C.); R. v. Herrington (2003), 2003 48074 (ON CA), 68 O.R. (3d) 532 (C.A.); R. v. Horgan (2007), 2007 ONCA 869, 165 C.R.R. (2d) 332 (Ont. C.A.); R. v. M. (N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 at paras. 39-44 (Ont. C.A.); R. v. Kporwodu and Veno (2005), 2005 11389 (ON CA), 195 C.C.C. (3d) 501 at paras. 98-100, 115, 122 and 138 (Ont. C.A.). Similarly, binding authority in a number of provinces consistently held that delay caused by defence motions in the nature of certiorari was delay caused by "actions of the accused." See R. v. Harrison:, [1991] O.J. No. 881 (C.A.); R. v. Cornacchia (1994), 1994 439 (ON CA), 72 O.A.C. 310 (C.A.); R. v. M. (N.N.), supra at paras. 63-5; R. v. Beausoleil (1991), 1991 2882 (QC CA), 66 C.C.C. (3d) 415 at 427-8 (Que. C.A.); R. v. Heikel et al. (1992), 1992 ABCA 142, 72 C.C.C. (3d) 481 at 513 (Alta. C.A.). Finally, delay caused by extradition proceedings was held to be delay due to "actions of the accused," in voluntarily "resisting extradition." See: R. v. White et al. (1997) 1997 2426 (ON CA), 114 C.C.C. (3d) 225 at 241-2 (Ont. C.A.).

A slightly different approach emerged in more recent authorities in Ontario to the effect that the time required for pre-trial motions should "ordinarily" be treated as "part of the inherent time requirements of the case" and, therefore, entitled to "neutral weight" in the s. 11(b) calculus. Only where defence motions were "frivolous and served no legitimate purpose," or where the Crown "acted arbitrarily or in bad faith" in pre-trial proceedings, would delay be attributed to one side or the other. See: R. v. Schertzer et al. (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 113-118 (Ont. C.A.); R. v. Emanuel, 2012 ONSC 1132 at paras. 16-25.

The exact impact of Jordan on the above lines of authority, concerning delay caused by pre-trial motions and pre-trial proceedings initiated by the defence, is not entirely clear and it will inevitably emerge slowly and incrementally from the post-Jordan jurisprudence. However, a number of general propositions can be stated, based on the new Jordan framework:

• "Legitimate" defence actions, such as pre-trial motions with arguable merit, are "generally" included in the 30-month "ceiling." Accordingly, they are no longer excluded as defence delay, nor are they regarded as merely inherent or neutral delay. This is a change from the earlier jurisprudence;

• On the other hand, defence actions that are not "legitimate," such as "frivolous" pre-trial motions, will continue to be treated as defence delay. In this regard, the Jordan majority appears to have followed this aspect of Schertzer;

• Defence unwillingness to proceed or defence unavailability or "other defence actions or conduct" may also directly cause delay, provided "the court and the Crown are ready to proceed." For example, on the facts of R. v. Jordan, supra, at paras. 14 and 120-124, the accused "changed counsel and requested an adjournment" shortly before trial. In addition, counsel was unavailable on the "last day scheduled for the preliminary inquiry," which resulted in the need to set a "continuation date." These two events caused delays of four months and one and a half months, which were both attributed to the defence. In the companion case, R. v. Williamson, 2016 SCC 28 at paras. 21-2, the Court attributed one and a half months' delay to the defence because the accused was not available until the last of four dates offered by the Court for his first appearance after committal. There appears to be no change to the s. 11(b) law, in these circumstances;

• Complex pre-trial proceedings that are particularly associated with substantial delays, such as an "extradition" hearing (and perhaps Third Party Records Motions and proceedings in the nature of certiorari), or a "large number of ... pre-trial applications," or proceedings involving "novel or complicated legal issues" are not "delay attributable to the defence," assuming they are "legitimate" and not "frivolous." However, they may amount to "exceptional circumstances" that justify lengthening the 30-month "ceiling." See: R. v. Jordan, supra at paras. 72, 77 and 81. At the very least, this is a formal or nominal change from the earlier jurisprudence in how this kind of delay is treated. It remains to be seen whether this change will also make a practical difference, in this kind of case, to s. 11(b) outcomes.

[emphasis added]

[18] Ultimately, Code J. determined that, on the facts of his case, delay associated with a change of defence counsel was “defence delay.”

Section 548 of the Criminal Code of Canada

[19] Section 548 of the Criminal Code reads as follows:

548.(1)When all the evidence has been taken by the justice, he shall

a. If in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

b. Discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[emphasis added]

[20] This section of the Code has been in effect for a considerable period of time. In R. v. Goldstein (1988), 1988 7069 (ON CA), 42 C.C.C. (3d) 548 (Ont. C.A.) and R. v. Stewart (1988), 1988 7132 (ON CA), 44 C.C.C. (3d) 109 (Ont. C.A.), the Ontario Court of Appeal set out the applicable tests for committal under section 548(1) of the Criminal Code. Specifically, the Courts held that a preliminary inquiry justice shall commit where the evidence discloses another offence that is closely interwoven with or related to the offences charged in the information. I note that the law has been settled for almost 30 years.

APPLICATION TO THIS CASE

Mr. Torcaso – Jordan Analysis

Section 548 Adjournment

[21] I must first determine whether or not the defence’s position regarding s. 548(1) was “frivolous” as per Jordan. If so, the delay engendered thereby is “defence delay” and the time required to complete submissions does not count towards delay. On the other hand, if the defence position is not “frivolous”, then the delay is not “defence delay” and the time taken to complete submissions is part of the delay calculation.

[22] The defence states that their request to argue the applicability of section 548 was both reasonable and legitimate given:

(a) the lack of notice provided to counsel; and

(b) the fact that the evidentiary basis for the s. 548(1) application occurred six months prior to argument.

It was thus eminently reasonable for defence to ask for an adjournment to consider their arguments. Accordingly, the defence argues that the delay engendered by the adjournment cannot be considered “defence delay” for Jordan purposes.

[23] Despite counsel’s able argument, I find that the defence position advanced at the preliminary hearing was frivolous and, as such, the delay directly relating to the request to consider the defence position is “defence delay” as per Jordan.

[24] I make this finding for several reasons. First, the wording of s. 548 is mandatory. It does not provide any discretion to the preliminary hearing judge beyond the “limited weighing” as described in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. It should not, therefore, come as a surprise to defence counsel that a preliminary hearing judge is obligated to commit an accused when section 548(1) is invoked, provided the test in Goldstein is met.

[25] Secondly, there is no notice requirement under section 548(1). The Crown is free to remind the preliminary inquiry judge about her/his obligations under that section without advising the defence ahead of time. Indeed, the judge is arguably obliged to engage this section of his or her own motion.

[26] Third, the test to be applied under section 548(1) with respect to the “interwoven” factual matrix under Goldstein, et al is well-settled law having been decided almost 30 years ago.

[27] Fourth, section 574 of the Criminal Code states as follows:

(1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of

(a) Any charge on which that person was ordered to stand trial; or

(b) Any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial.

[28] Sub-section 574(1)(b) thus permits the prosecution to add charges to an indictment without notice. It would be a perverse result to require notice under section 548(1) but to enable the Crown to prefer an indictment under section 574(1)(b) without notice. Suggesting otherwise runs contrary to logic, precedent, practice and history and is thus a frivolous position.

[29] Fifth, the relatively simple nature of the evidence and proposed inferences are such that the application was doomed to fail. Accordingly, the application was frivolous.

[30] I note, however, that the word “frivolous” has a pejorative meaning that I do not wish to ascribe to either defence counsel. I understand why they sought an adjournment and why one was granted in the circumstances. Prior to Jordan adjournments were routinely granted to allow defence counsel to consider their position on an issue as a matter of course.

[31] In contrast, the Supreme Court in both Jordan and Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 has attempted to change the manner in which litigation is conducted. This “culture shift” appears aimed at delivering more efficient litigation whereby cases are no longer bogged down in a seemingly endless process. In the criminal context, it would appear that said “culture shift” demands that judges be attuned to both the importance of a given issue and its likelihood of success prior to granting an adjournment lest the time required to consider a weak position count towards Jordan delay.

[32] Had Jordan been released prior to the preliminary hearing, it would have been incumbent on the defence to adequately explain the legal concern raised by the manner in which the Crown proceeded. The Court would have noted that the evidence to be considered in the s. 548 analysis was simple: direct evidence coupled with an inference. Rather than granting an adjournment, the Court should have allowed defence a short break to consider the evidence (presumably from counsel’s notes) and then pressed counsel for submissions that same day.

[33] Despite the foregoing, I do not wish this decision to be used as authority for the proposition that all defence adjournment requests flowing from the unanticipated engagement of s. 548 are frivolous. Had the evidence underlying the adjournment request been more factually complex or had the Crown’s theory of the case been radically altered by the new charges, a more nuanced analysis of frivolity may have been necessary in analyzing “defence delay”. This in turn speaks to the advisability of the Crown providing adequate notice in circumstances where the defence may be surprised by a Crown position. Such notice may prevent the accumulation of Jordan delay in circumstances where the defence reasonably requires time to consider its position on a contentious matter. Such an analysis would, obviously, turn on the facts of each case.

[34] In conclusion, these five reasons make it clear that defence counsel must be ready to argue committal on the evidence heard at a preliminary hearing. Despite the fact that the Crown took no position with respect to the adjournment, and despite the fact that the preliminary judge gave a reasoned decision dismissing the defence’s motion, it must be said that the defence’s argument was doomed to fail. It cannot be said that the motion had arguable merit and, as such, it must be seen as “frivolous”. Accordingly, the delay from July 15, 2015 to November 18, 2015 is “defence delay”.

Mr. Torcaso – Failure of Accused to Attend May 14, 2015

[35] As noted above, had the accused persons attended court on May 14, 2015, there was enough time set aside to make submissions in the normal course. Their failure to attend court delayed the matter for two months. The delay engendered by the accused persons’ failure to attend on May 14, 2015 must thus be considered “defence delay”. Again I note that my finding with respect to this delay is not determinative under Jordan since it does not affect whether the case is above or below the 30 month threshold.

Mr. Torcaso – Total Jordan delay

[36] Given my decisions above, the total Jordan delay in bringing Mr. Torcaso to trial is 27 months, 19 days. Since this number is below the 30 month threshold and since the accused is not arguing that the case ought to have been brought to trial in a more timely fashion (one of the Jordan exceptions), Mr. Torcaso has not met his burden and his 11(b) Application fails.

Mr. Torcaso – Morin guidelines

[37] In Jordan, the Supreme Court outlined a methodology whereby the Court may also consider Morin in those transitional cases where Jordan was released while said case was before the Courts. As a result, if I am incorrect regarding my Jordan analysis, I will also examine the Morin factors as they pertain to Mr. Torcaso.

[38] The record makes clear that Mr. Torcaso was brought to trial within a reasonable period of time under Morin. In oral argument, Mr. Torcaso concedes that the period from March 15, 2014 until September 8, 2014 is intake and is neutral delay. Mr. Torcaso submits that, beyond that intake period, the following time frames ought to be counted as Crown and/or institutional delay:

1. from September 8, 2014 to May 14, 2015 as the period of time it took to set and complete the preliminary hearing;

2. from July 15, 2015 to November 18, 2015 as the time legitimately required to pursue the s.548 argument;

3. February 9, 2016 to March 9, 2016 since the Crown had to determine witness availability; and

4. March 9, 2016 to January 20, 2017 which was required to set the jury trial date.

[39] Mr. Torcaso submits that this approximate total of 24 months falls outside the Morin guidelines of 18 months for a trial in Superior Court. Of note, however, Mr. Torcaso did not provide an affidavit in this matter and, as a result, no prejudice beyond inferred prejudice can be attributed.

[40] The Crown differs from Mr. Torcaso’s approach and submits that:

1. March 15, 2014 to January 30, 2015 is inherent delay;

2. January 30 to May 14, 2015 is Crown/institutional delay;

3. May 14, 2015 to July 15 is defence delay (non-attendance of accused persons) ;

4. July 15, 2015 to November 18, 2015 is defence delay (illegitimacy of adjournment per s. 548 argument);

5. November 18, 2015 to February 10, 2016 is inherent delay;

6. February 17, 2016 to March 9, 2016 is Crown delay (determination of witness availability);

7. March 30, 2016 to October 17, 2016 is Crown/institutional delay (setting of trial date); and

8. October 17, 2016 onwards is neutral delay since this date was offered and no one was available.

[41] As I indicated in my Jordan analysis, I find that the s.548 argument was frivolous. Accordingly, as per Schertzer, I find that the July 15, 2015 to November 18, 2015 time period is delay attributable to the defence.

[42] Upon review of the transcripts, on February 17, 2016, the Court offered a trial date of May 30, 2016 to the defence, neither of whom were available for trial. It is unclear from the transcripts if the Crown was available for same. Accordingly, the time that flows from May 30, 2016 to October 17, 2016 is neutral delay because the accused persons were unable to proceed: R. v. Tran 2012 ONCA 18 (at para. 32).[^1]

[43] The same can be said for the time period from October 17, 2016 to the current trial date since the Court also offered October 17, 2016 to the parties and Mr. Maione was not available.

[44] Thus, given the findings I have made regarding the trial dates, I find that the total Crown/institutional delay in this matter is as follows:

1. September 8, 2014 to May 14, 2015;

2. February 9, 2016 to March 9, 2016; and

3. March 9, 2016 to May 30, 2016.

[45] This is a total Crown/institutional delay of approximately 12 or 13 months. Even if I add the October 17, 2016 to January 2017 time period to this calculation, Mr. Torcaso only suffers from approximately 17 months of Crown/institutional delay. This calculation falls below the Morin threshold. Given the lack of any evidence of real prejudice, the speed with which the matter proceeded to trial is such that Mr. Torcaso’s 11(b) Application is dismissed under Morin.

MR. MAIONE’S APPLICATION

[46] At the outset, the Crown argued that Mr. Maione did not comply with the rules regarding filing and the like and should not be allowed to argue his position without reasonable compliance. I agree with the Crown’s position.

[47] Mr. Maione’s counsel argued that he could not, as a result solicitor-client privilege that could not be put on the record, argue the matter or file further materials other than the Notice of Application. Mr. Maione’s counsel did not seek to adjourn the 11(b) argument. Counsel submited that he largely relied upon Mr. Tarasco’s submissions.

[48] As seen above, the quantum of time under both Jordan and Morin was reasonable in Mr. Tarasco’s circumstances. Thus, rather than simply dismissing Mr. Maione’s Application on a procedural basis (which I am nonetheless content to do), I also note that Mr. Maione’s Application was doomed to fail since the matter proceeded through the system in a relatively expeditious manner. Mr. Maione’s time calculations under both Jordan and Morin would have been no better than those described in Mr. Tarasco’s application. Simply put, Mr. Maione has no realistic 11(b) argument to advance. His application is dismissed.

CONCLUSION

[49] Application dismissed.

Varpio, J.

Released: November 22, 2016

CITATION: R. v. Maione and Torcaso, 2016 ONSC 7207

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DEREK MAIONE

• and -

ZACHARY TORCASO

REASONS FOR DECISION on CHARTER APPLICATION, SECTION 11(B)

Varpio J.

Released: November 22, 2016

[^1]: I have not dealt with the proffered May 30, 2016 trial date in my Jordan analysis since neither counsel referenced it in argument. In fairness to counsel, some of the relevant transcripts were only available at the last minute and this may have been an oversight.