R. v Chung & Chung, 2017 ONSC 13

Court File and Parties

COURT FILE NO.: 141/13 DATE: 20170103 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JUN-CHUL CHUNG and KATHLEEN CHUNG Applicants

COUNSEL: D. King, for the Respondent J. An, for the Applicant Jun-Chul Chung S. King, for the Applicant Kathleen Chung

APPLICATION HEARD: December 20-21, 2016

RULING ON s. 11(b) of the Charter

MILLER J.

1The Applicants Jun-Chul Chung and Kathleen Chung are jointly charged, together with Kenneth Chung with two counts of Possession of Property Obtained by Crime, Fraud and Proceeds of Crime. Jun-Chul Chung and Kenneth Chung are additionally jointly charged with two counts of Theft and Possession of Property Obtained by Crime. The time frame of the alleged offences spans from December 22, 2003 through to and including September 27, 2010. The charges encompass the alleged theft of lottery tickets, one of which was a $12.5 million winner, and the possession and use of the proceeds.

2The Applicants bring an application for a stay of proceedings pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms on the basis that their rights to be tried within a reasonable time, pursuant to s. 11 (b) of the Charter, have been breached.

3The Respondent Crown concedes that the overall time frame from arrest to the anticipated end of the trial well exceeds the 30 month threshold for Superior Court as set out in the Supreme Court decision in R. v. Jordan, 2016 SCC 27 ([2016] S.C.J. No. 27) but submits that a significant portion of that delay has been waived or caused by the Applicants. For the remaining portion of the delay, it is the Crown’s position that exceptional circumstances apply that would further reduce the delay for both Applicants to below the Jordan threshold and/or justify any additional delay. The Crown’s position is that the Applicants’ rights to be tried within a reasonable time have not been breached.

The Application Material

4At the outset the Crown asked me to address whether Ms Chung’s application would be permitted to proceed as on October 18, 2016 Wein J. had indicated to Ms Chung’s former counsel that if Ms Chung had not filed an application and supporting material by November 21, 2016 Ms Chung’s application would not proceed. Ms Chung did not file her application and supporting material until November 28, 2016. The Crown conceded he was not prejudiced as he did address both Applicants’ applications in his responding material. While the fact that Ms Chung’s material was filed a week late resulted in a delay in getting the Crown’s responding material to the Court, I permitted Ms Chung’s application to proceed.

5Counsel for both Applicants objected to the Court considering certain e-mail communications which were exhibits to the affidavit of Detective Anderson sworn December 12, 2016 and included as part of the responding material to the applications. Exhibit # K was removed upon counsel agreeing on the fact that Kenneth Chung fired his lawyer February 16, 2016 after it had been communicated to him and to Jun-Chul Chung that the Crown was prepared to proceed on the trial set to begin February 22, 2016 against Kenneth Chung and Jun-Chul Chung and without Kathleen Chung.

6Exhibits # B, C, D, and E to Detective Anderson’s affidavit of December 12, 2016, containing details as to resolution discussions in regard to the Applicants were not removed on the assurance of counsel for the Applicants they were confident that the Court could disabuse itself of any such details, and on the agreement of counsel that in the timeframe indicated there were settlement discussions occurring. Beyond noting, as reflected in those exhibits, that the resolution discussions were ongoing and somewhat complicated, I assured counsel that no negative inference would be drawn in respect of either Applicant as to the fact of or the nature of the resolution discussions. Only the fact that resolution discussions were occurring in that time frame and that the discussions were somewhat complicated might be relevant to the reason for any portion of the delay in bringing the matter to trial.

Law

7Section 11(b) of the Charter recognizes the right of every person charged with an offence to be tried within a reasonable time.

8The Supreme Court of Canada in R. v. Morin ([1992] S.C.J. No. 25) defined this right at paragraphs 27 and 28:

The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

9Morin was the governing authority for s. 11 (b) applications until July 8, 2016 when the Supreme Court in Jordan set out a new framework for the analysis in s. 11(b) applications. Notably, the 5:4 majority determined that:

At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. (Paragraph 5)

10The crux of the new framework is set out at paragraphs 47 and 48:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

11It is clear that defence delay that will be subtracted from the overall time from charge to the end of trial encompasses only defence waiver or delay caused solely by the defence. (paragraphs 61-63) The defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. (paragraph 64) Defence delay does not include defence actions legitimately taken to respond to the charges or preparation time, even where the court and the Crown are ready to proceed. Procedural requirements were accounted for in setting the ceiling. (paragraph 65)

12If, after subtracting defence delay from the overall time frame the remaining delay is above the presumptive ceiling, the burden shifts to the Crown to establish exceptional circumstances.

13As indicated at paragraph 69:

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

14In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. (paragraph 71)

15The period of delay caused by any discrete exceptional events, less any portion of that delay that the Crown and the system could reasonably have mitigated, must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. (paragraph 75)

16Particularly complex cases are treated differently. As indicated in paragraph 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified…Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

17Some delay relating to the complexity of a case will be quantifiable as with discrete events and can be subtracted from the overall delay to determine if it remains over the Jordan threshold.

18Other aspects of delay related to the complexity of the case will not be so easily quantifiable. Rather than calculating a specific period of delay attributable to the complexity of the case, where the trial judge finds that the case was particularly complex such that the time the case has taken is “justified”, the delay is reasonable and no stay will issue. No further analysis is required. (paragraph 80) “Compelling case-specific factors” remain relevant to the assessment of reasonableness above and below the presumptive ceiling. (paragraph 51)

19As with discrete events, the Crown must demonstrate they have taken steps to minimize delay occasioned by the complexity of a case. (paragraph 79)

Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection. (paragraph 90)

20In addition, it is clear that the Supreme Court expects judges hearing s. 11(b) applications “to apply the framework contextually and flexibly for cases currently in the system.” (paragraph 94)

21The Court explains how this is to be done at paragraph 96 for charges brought prior to the release of Jordan. The Crown must satisfy the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.

…This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

22And, at paragraph 97, for cases in jurisdictions with significant institutional delay problems, the Court directs that:

Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings.

Timeline of Proceedings

23In this case the charges were first laid in two informations sworn September 22, 2010. Jun-Chul Chung was arrested September 28, 2010. The trial in Superior Court is scheduled to commence February 27, 2017 for four weeks, expected to end by March 27, 2017. The total time from when the Applicants were arrested to the anticipated end of trial will be 2369 days or approximately 79 months.

24All three co-accused were arrested September 28, 2010. Both Applicants were released on bail the following day. The Crown consented to the Applicants’ release on conditions to reside with their respective sureties, to remain within the Province of Ontario, to surrender passports, and not to communicate with co-accused except through or in the presence of legal counsel. The Crown requested an adjournment to October 27, 2010 to effect disclosure.

25Court appearances are set out in the following chart:

• September 28, 2010: Applicant arrested, info sworn.
• September 29, 2010: Bail hearing, Applicant released on terms, adjourned to first appearance October 27, 2010. (1 day delay)
• October 27, 2010: First appearance after show cause. Defence provided initial electronic disclosure (two-thirds of initial disclosure). Matter remanded to January 5, 2011 for further disclosure including ITOs. (28 days delay)
• January 5, 2011: Further disclosure provided November 22, 2010. Adjournment requested by all three defence counsel to review disclosure (noted to exceed 14,000 pages). Matter remanded to February 2, 2011. (70 days delay)
• February 2, 2011: Adjourned at the request of defence counsel to March 2, 2011 for further disclosure. (28 days delay)
• March 2, 2011: Remanded for further disclosure to March 30, 2011. (28 days delay)
• March 30, 2011: More disclosure received March 3, 2011. Adjourned at the request of defence counsel to April 27, 2011 to review disclosure. Resolution discussions with respect to both Applicants ongoing. (28 days delay)
• April 27, 2011: JPT scheduled for July 21, 2011. First dates offered by trial coordinator were at the end of June. Evidence that all three defence counsel were available in June, remanded to July 21, 2011. (28 days delay)
• July 21, 2011: JPT held, and continuing JPT booked for November 1, 2011. Further resolution discussions involving both Applicants ongoing. (85 days delay)
• November 1, 2011: Co-accused Jun-Chul Chung and Kenneth Chung advise that they are discharging their lawyers. Jun-Chul Chung advised he had new counsel Ms An already (retained August 8, 2011). Duplicate disclosure delivered to Ms An as of August 19, 2011. Ms An was not available for the November 1, 2011 JPT. Crown made numerous unsuccessful attempts to get alternate dates from Ms An. Kenneth Chung had not retained new counsel yet. Matter remanded to November 8, 2011 so Kenneth Chung could confirm retainer of new counsel and a further JPT could be set. (103 days delay)
• November 8, 2011: Earliest date for continuing JPT for all counsel is December 22, 2011. Matter remanded to that date. Kenneth Chung still does not have new lawyer but the lawyer he may retain is available that date. (7 days delay)
• December 22, 2011: Continued JPT, disclosure still outstanding. Defence counsel available early Fall. Counsel agree that three weeks would be sufficient for the preliminary inquiry but with an interpreter required for Jun-Chul Chung five weeks is estimated. Counsel agree to set three weeks with a gap before the next two weeks to ascertain if it is necessary. Adjourned to March 5, 2012 for continued JPT and filing of statement of issues. Counsel for Kathleen Chung indicates his availability following June 29, 2012. October 17, 2012 set for Jun-Chul Chung only - to qualify interpreter. PH dates November 6, 8, 9, 13-15, 19, 20, 22, 23, 26, 27, 29, 30 set, second block of dates to be booked at March 5, 2012 JPT date. (44 days delay)
• March 5, 2012: JPT continuation, further preliminary hearing dates set on with or without counsel basis for Kenneth Chung if he does not fully retain counsel. Confirmed November 2012 prelim dates on a with or without counsel basis for Jun-Chul Chung and Kenneth Chung as they had not yet retained counsel for the PH. Further PH dates set for February 4, 5, 6, 7 and 8, 2013. The reason these dates are set in February is that if the prelim finishes in November, these dates can be used for other matters. (74 days delay)
• October 17, 2012: Korean interpreter qualified for co-accused Jun-Chul Chung. (226 days delay)
• November 6, 2012: PH commenced, Justice Baldwin is seized. All counsel agreed to adjourn by 1 p.m. on Fridays to accommodate the religious practices of counsel for Kenneth Chung (now retained). Crown raises the fact that his first witness appears to have had access to OLG documents not in the possession of police or Crown and therefore not disclosed. Counsel for Kathleen Chung tells the court that Crown and defence recognize it would be to everyone’s benefit to access the documents, and acknowledges the efforts being made by Crown counsel. (20 days delay)
• November 8, 2012: As disclosure issues are related to witnesses scheduled for today, Crown requests an adjournment. This is agreed to by all defence counsel although they are anxious the matter proceed expeditiously. Matter adjourned to November 14, 2012, November 9 and 13 dates now not being put to use. (2 days delay)
• November 14, 2012: Again documentation related to witnesses scheduled today is not in the hands of police. All counsel agree that an adjournment is appropriate although they are anxious to move the matter forward. Matter remanded to November 19, 2012, to be spoken to. November 15 date originally booked not being put to use. (6 days delay)
• November 19, 2012: Matter is to be spoken to today. Crown counsel has been corresponding and meeting with defence counsel to make a plan to fully utilize the remaining PH dates, adjourned to November 20 for continuation of preliminary hearing. Crown counsel provides the court and defence counsel with R. v. Girimonte [1997] O.J. No. 4415 with an indication that it will be addressed later. (5 days delay)
• November 20, 2012: PH continues. Crown counsel advises that additional PH time will be required for defence to hear from witnesses to whom the disclosure issues relate. 5 to 10 more days will be required beyond those scheduled in February. He indicates, with reference to the Girimonte case that having spoken with defence counsel there is a middle ground they are proposing - delaying hearing from those witnesses with an 11(b) waiver for the purposes of hearing from them “down the road”. PH judge notes that trial time is booked 10 months in advance in Halton. She offers to contact the trial coordinator immediately. Counsel for Jun-Chul Chung indicates they are ”highly unusual circumstances” and that none of the defence counsel or Crown are happy about the delay. Crown counsel offers to speak to the Trial Coordinator and to the Crown Attorney about moving other Crown matters. PH is to continue November 22, 2012. (1 day delay)
• November 22, 2012: PH continues. Further dates for PH booked for May 2, 6, 8 and 29, 2013. These were the earliest dates offered by the Court. Crown counsel mentions again the “waivers of 11(b)”. Defence counsel agreed to proceed by way of discovery on these dates because if not, the next available dates with Her Honour would be in December of 2013. Crown and defence counsel also agreed to do written submissions on committal. Counsel for Jun-Chul Chung indicates these concessions were made in order to complete the PH earlier. She indicates she is moving other matters to accommodate the new dates. (2 days delay)
• November 26, 2012: PH continues. Remanded to November 27 for continuation. Discussion of dates for discovery. PH judge indicates “we’re packed, every judge here and out-of-towners too” but she will do what she can to assist in making the time available for this case. (4 days delay)
• November 27, 2012: PH continues. PH judge indicates there are no courtrooms available for the discovery dates requested but a request was made of the SCJ for an additional courtroom. Dates offered by the court are March 8, 11-15, 18-22, 25, 26 & 28. Counsel for Kathleen Chung indicates he was available March 4-8 but not for the three weeks after that. Other dates are canvassed. Counsel for Jun-Chul Chung passes on offered dates of April 15 & 22, 2013. Further PH dates agreeable to all counsel are March 8, May 7, 15, 16, 17, 2013. Matter remanded to January 21, 2013 for confirmation of receipt of further disclosure. (1 day delay)
• January 21, 2013: The Applicant Kathleen Chung changes lawyers, David Humphrey is removed as counsel, James Silver files designation and goes on record. Mr. Silver advises court that he has received disclosure from Mr. Humphrey and he is ready to continue on the next date of PH on February 4, 2013. Crown counsel Mr. Dibski advises that a new Crown Mr. David King will be taking over the case. Counsel for Jun-Chul Chung indicates disclosure was received throughout the holidays and on today’s date. (55 days delay)
• February 4, 2013: PH continues. Kathleen Chung asks and is permitted to be absent for the remainder of the PH. Counsel for Kathleen Chung advises that he has read the transcript of November 6, 2012 but does not have copies of any other transcripts. The PH judge offers him copies of her transcripts to “move this along”. (14 days delay)
• February 5, 2013: PH continues. (1 day delay)
• February 6, 2013: PH continues, remarks about outstanding disclosure made by counsel. Crown counsel indicates disclosure is complete and if defence counsel feel they are missing something they should put it in writing so that he can address it. Crown counsel takes the position that OLG documentation was third party records and not disclosure required of the Crown but that Crown counsel facilitated the provision of the third party records in order to expedite the process. Defence counsel disagree with the characterization of the material. (1 day delay)
• February 7, 2013: PH continues. (1 day delay)
• March 8, 2013: Discovery commenced. Counsel for Kathleen Chung indicates that all evidence the Crown wishes to rely on at the PH had been adduced; further proceedings at the PH are at the request of the defence or simply defence conducting a discovery. Crown counsel indicates an intention to adduce evidence of a statement given by Kathleen Chung and asks if voluntariness is in issue. Counsel for Kathleen Chung indicates he will have to take a closer look at the statement and to take instructions as his client is not present. Crown counsel suggests the witnesses be called before the PH judge if a ruling is required. May 2, 6, 8 and 29 are PH dates with her Honour presiding and May 7, 15-17 are set as discovery. (29 days delay)
• May 2, 2013: PH continues, evidence called. Counsel for Kathleen Chung indicates disclosure is outstanding. Crown counsel says it is complete and if defence counsel feel they are missing something they should write him so he can address it. Counsel for Kathleen Chung complains that the Crown witness roster has changed and further PH time rather than discovery time will be needed. Crown counsel indicates the officer witnesses were slated for discovery in any event and he was happy for the officers to give their evidence at the discovery and provide a transcript to the PH judge for a ruling on voluntariness. Counsel for Kathleen Chung advises “of course” voluntariness of her statement is in issue. PH judge indicates she will make herself available for all the remaining dates by cancelling her vacation. Counsel for Kenneth Chung confirms that he waived 11(b) from November to February when the missing documentation from OLG arose. Counsel for Kathleen Chung advises voluntariness of his client’s statement will NOT be an issue at the PH. Discussion of what witnesses are left to be called at the PH and whether the Crown needs to call record keepers at the PH. Counsel for Kenneth Chung indicates again that he had indicated on the record that “we” would be prepared to waive any 11(b) rights from November 26, 2012 until February 2013. (55 days delay)
• May 6, 2013: Counsel for Jun-Chul Chung indicates that after discussion with co-counsel it will not be necessary for the Crown to call record holders at the PH. PH continues. (4 days delay)
• May 7, 2013: PH continues, further discussion of what witnesses to be called. Defence counsel advises there may be an issue of solicitor/client privilege raised by counsel for the OLG for OLG witnesses. (1 day delay)
• May 15, 2013: Information from the OLG provided. Counsel for Kathleen Chung says he will need time to review it. Crown counsel indicates police have labelled everything and there is not much, if anything new. PH continues. (8 days delay)
• May 16, 2013: PH continues. (1 day delay)
• May 17, 2013: PH continues. (1 day delay)
• May 29, 2013: PH continues, evidence completed. All counsel agree to do written submissions. Crown counsel advises he can have his in by June 7 and all defence counsel advise they can have theirs in by July 15, any reply by the Crown to be submitted by July 22, 2013. Adjourned for decision on committal and reasons to September 24, 2013 because of the PH judge’s list of reserves. Reference to all judges in Halton being subject to reserve judgments. (12 days delay)
• September 24, 2013: Applicants and co-accused committed for trial. Matter remanded to October 7, 2013 for first appearance in the Superior Court of Justice. Bail variation application for Kathleen Chung scheduled for October 11, 2013 before the PH judge. (118 days delay)
• October 7, 2013: Superior Court first appearance, counsel for Jun-Chul Chung was late, matter adjourned to November 4, 2013 to set a JPT in her absence. She later attended and confirmed the date. (13 days delay)
• November 4, 2013: JPT set for December 13, 2013. (28 days delay)
• December 13, 2013: JPT held, all defence counsel confirm an 11(b) motion and abuse of process motion will be brought. 3 weeks were booked off for the motions commencing May 12, 2014. An interim date of January 24, 2014 was booked to confirm status and availability of transcripts for the motion. The reason the 11(b)/abuse of process motion was booked first was because if it was unsuccessful, a change of venue motion would be brought next. Evidentiary foundation of the 11(b) would to some degree overlap with the change of venue application. Hence same judge should hear both. The JPT judge addresses the ordering of transcripts, “this isn’t the first time you’ve thought of 11(b)” counsel are not able to say when transcripts were ordered. (39 days delay)
• January 24, 2014: Matter to be spoken to today, transcripts not yet available, only some have been prepared. Half still missing. Counsel for defendants indicates they are on track for the May 12, 2014 motion. Remanded to February 28, 2014 for an update as to status of transcripts. (42 days delay)
• February 28, 2014: Accused remanded to May 12, 2014 for motion. Matter returns March 14, 2014 for an update regarding transcripts. Counsel for Kathleen Chung has indicated he expects to receive the remaining transcripts by next week. (35 days delay)
• March 14, 2014: Remainder of transcripts that were outstanding are filed. Counsel requests the matter be adjourned to March 21, 2014 to see if they will be in a position to confirm the May 12, 2014 11(b)/abuse of process motion. (14 days delay)
• March 21, 2014: Defence counsel confirm they are not in a position to proceed with May 12 motion dates for 3 weeks because they have just received the remainder of outstanding transcripts. Due to the volume of material they will not be able to prepare and file in a timely fashion. Counsel for Kathleen Chung puts on record that counsel commenced ordering transcripts during the PH. The remaining transcripts were ordered upon completion of the committal at prelim. She indicates counsel has been diligent in ordering and following up with transcripts. New motion dates for 11(b) and abuse of process scheduled for 3 weeks commencing week of October 27 and then jumping to weeks of November 10 and 17 (due to week of November 3 being judges conference). (7 days delay)
• June 13, 2014: Counsel for Jun-Chul Chung (Ms An) and counsel for Kenneth Chung (Lou Silver) removed from record. Judge orders Jun-Chul Chung & Kenneth Chung to proceed on October 27, 2014 with or without counsel. Matter remanded straight to October 27, 2014. (85 days delay)
• October 10, 2014: Kenneth Chung without counsel. Matter remanded to October 30, with a potential conference call on October 24. Counsel for Jun-Chul Chung (Ms An retained again as of the week before) indicates she and counsel for Kathleen Chung hope to file material on the 11(b) and abuse of process motions by October 20, 2014. She asks to preserve the motion dates. Judge indicates no one has yet filed a shred of paper for the two applications. Judge questions how an 11(b) motion can be scheduled without a trial date. Counsel for Kathleen Chung indicates that it is the defence position that delay to date is unacceptable. Judge strongly suggests setting a trial date and speaks to the impracticality of arguing an 11(b) without a trial date set. The week of October 27, 2014 is vacated. (120 days delay)
• October 30, 2014: Co-accused Kenneth Chung still does not have counsel. Counsel for the Applicant Kathleen Chung and counsel for Jun-Chul Chung suggest that a re-election be made to judge alone trial, so not requiring a change of venue application that was originally planned to follow the 11(b) application. Counsel suggest booking target dates for trial. Counsel for Kathleen Chung indicates 4-6 weeks for a judge alone trial and three to four months for a jury trial with multiple motions. He suggests waiting to see if Kenneth Chung has counsel and will re-elect judge alone will put counsel in a better position to properly estimate trial time required. Counsel for Jun-Chul Chung and for Kathleen Chung acknowledge they have not filed material on the 11(b). Motion dates set for weeks of Nov 10 and 17 are vacated. Kenneth Chung needs to bring a Rowbotham application. Court suggests matter return in one week November 7, 2014 to set target dates. Court indicates very aware of what higher courts have indicated about moving things along. (20 days delay)
• November 7, 2014: Kenneth Chung had meeting with potential new counsel, counsel would have to bring a Rowbotham application. Kenneth Chung remanded to November 10, 2014 to be spoken to in order to book a Rowbotham application. Counsel for Jun-Chul Chung suggests setting target trial dates but does not have availability of potential counsel for Kenneth Chung. Remaining co-accused remanded to December 1, 2014 to be spoken to. (8 days delay)
• November 10, 2014: Kenneth Chung is up in court to be spoken to. Rowbotham application for him scheduled for December 10, 2014. He is remanded to December 1, 2014 to join his other co-accused on that day. (3 days delay)
• December 1, 2014: December 10 Rowbotham vacated, Crown law civil not available until after January 9, 2015. New Rowbotham scheduled for January 27, 2015. Kenneth Chung remanded to January 5, 2015 to confirm Rowbotham will proceed. Kathleen Chung and Jun-Chul Chung remanded to January 30, 2015 to be spoken to. (21 days delay)
• January 5, 2015: Counsel L. Burke attends for Kenneth Chung and advises court that counsel would like to keep January 27, 2015 date for Rowbotham, but if any problems present themselves she will let trial coordinator know. Kenneth Chung remanded to January 27, 2015. (36 days delay)
• January 27, 2015: The Rowbotham application did not proceed today, counsel for Kenneth Chung requested an adjournment to February 27, 2015. Kenneth Chung remanded to January 30, 2015 to same date as his co-accused. (22 days delay)
• January 30, 2015: Both counsel for Jun-Chul Chung and Counsel for Kathleen Chung express that they are anxious to set trial dates and move the matter forward. However, it is still unknown whether it will be a jury trial because Kenneth Chung has not made an election yet (co-accused expressed desire to re-elect judge alone trial some months ago). Also still unknown as to whether Kenneth Chung will have counsel for trial or will be representing himself. Still don’t know how long to schedule for trial. Matter remanded to March 23, 2015. Crown suggests trying to arrange trial dates ahead of time. (3 days delay)
• March 23, 2015: Counsel for Kathleen Chung appears. Kenneth Chung did not bring a Rowbotham application and it is now not going forward. 8-10 weeks for a JURY trial are booked commencing December 14, 2015, because Kenneth Chung is still unrepresented and hasn’t re-elected as other co-accused wish to. Counsel for Jun-Chul Chung is available starting September 15, 2015 and Counsel for Kathleen Chung is available commencing August 2015. Further JPT booked for June 10, 2015. (52 days delay)
• June 10, 2015: Kenneth Chung still does not have counsel. Trial still set as a jury trial, Judge advises if a change of venue application to be brought it must be brought in advance. Kenneth Chung remanded to July 21, 2015. Both Kenneth Chung and Jun-Chul Chung are to advise if they are going to re-elect by July 20, 2015. Kathleen Chung and Jun-Chul Chung remanded to August 6, 2015 for continuing JPT. (80 days delay)
• July 21, 2015: Kenneth Chung up alone, did not retain counsel. He has not decided about having a judge alone trial. TBST July 27, 2015. (41 days delay)
• July 27, 2015: Kenneth Chung still not retained counsel; still has not decided about re-election. (6 days delay)
• July 29, 2015: Kenneth Chung has retained counsel, remanded to August 6, 2015 for continuing JPT. (2 days delay)
• August 6, 2015: All accused re-elect a judge alone trial. Judge alone trial is scheduled for February 22, 2016 for 6 weeks, December dates vacated. 11(b) is waived by all counsel from December 14, 2015 to February 22, 2016. Counsel to file all Charter/voluntariness/11(b) abuse of process applications 30 days before commencement of trial. 11(b)/abuse of process may be argued at the end of Crown’s case. (8 days delay)
• December 4, 2015: Trial date for February 22, 2016 is confirmed. (121 days delay)
• February 16, 2016: The Applicant Kathleen Chung discharges her counsel James Silver. Kenneth Chung also discharges his counsel Lou Silver. Crown counsel indicates the only pre-trial motion proceeding is a voir dire on voluntariness of Kathleen Chung’s statement. Crown counsel indicates on the record that when Kathleen Chung discharged her lawyer the Crown took the position they would sever Kathleen Chung so the trial could proceed for Jun-Chul Chung and Kenneth Chung but the Crown is not prepared to proceed against Jun-Chul Chung alone. Both Kathleen and Kenneth Chung indicate they wish to apply to adjourn the trial. It was explained to them that they may have to proceed to trial without counsel. They are remanded to February 18, 2016 to address any questions about representing themselves at trial. Adjournment application set for February 19, 2016. (75 days delay)
• February 18, 2016: Neither Kenneth Chung nor Kathleen Chung have retained new counsel. They intend to apply for adjournments on February 19, 2016. (2 days delay)
• February 19, 2016: The Applicant Kathleen Chung and Kenneth Chung brought a motion to adjourn the trial date of February 22, 2016. Jun-Chul Chung did not oppose the application. Crown was opposed to adjournment of the trial but agreeable to a short delay to allow new counsel to prepare. Application to adjourn is granted. Trial judge indicates while a close call he is not persuaded of bad faith. Trial dates vacated and matter remanded to April 4, 2016. (1 day delay)
• April 4, 2016: New target trial dates set for 6 weeks. January 9, 2017 is first date offered by court. New counsel Ms Wells for Kathleen Chung is available commencing late November 2016. Ms An on behalf of Jun-Chul Chung was going to make herself available commencing September 2016. Ms Von Achten on behalf of Kenneth Chung had availability commencing September 6, 2016 to October 14, 2016 and from October 26 to November 14, 2016. Crown is not opposed to bi-furcating a judge alone trial. Matter remanded to June 6, 2016 for continuing JPT with six week trial targeted to begin January 9, 2017. (46 days delay)
• April 15, 2016: Bail variation on consent for Jun-Chul Chung.
• May 9, 2016: As it turns out Kenneth Chung’s lawyer Ms. Von Achten is not available January 9, 2017 for trial. Separate trial dates in October and December 2016 are canvassed. Defence object to Miller, J. hearing the case due to having signed the forfeiture authorisation. Trial date set for February 27, 2017 for 4 weeks. A further JPT is scheduled for June 6, 2016. (36 days delay)
• June 6, 2016: JPT held with Justice Durno and adjourned to August 17, 2016 for continuing JPT, no one appearing for Jun-Chul Chung. (29 days delay)
• August 17, 2016: Continuing JPT held with Justice Durno, no one appearing for Jun-Chul Chung. Matter remanded to September 12, 2016 to be spoken to, with a conference call on September 7, 2016. (73 days delay)
• September 12, 2016: Counsel for Kathleen Chung applies to get off the record. Kathleen Chung has not retained new counsel yet. Ms Currie attends but is not retained. 11(b) application set for two days Dec 20 and 21, 2016, for Jun-Chul Chung. It is indicated that Kathleen Chung may join in the application. Kathleen Chung is remanded to September 23, 2016 to be spoken to. Kenneth Chung is remanded to February 27, 2016. (27 days delay)
• September 23, 2016: Kathleen Chung’s new lawyer Ms. Currie is prepared to go on record for the trial as set commencing February 27, 2017. She is not yet sure if she is joining the 11(b) but will advise on next court date. Matter remanded to October 18, 2016 TBST. (11 days delay)
• October 18, 2016: Ms Currie appears for Kathleen Chung. Court advises Ms Currie that Court is under impression that Kathleen Chung wants to proceed with 11(b). Ms Currie advises court that Kathleen Chung will proceed with or without counsel for the 11(b) on the December 20, 2016 date. Deadline to file materials is imposed for November 21, 2016. Kathleen Chung will have to file through Ms Currie or on her own. (25 days delay)
• November 18, 2016 (NO TRANSCRIPT): Matter brought forward into court by counsel Ms Currie on behalf of Kathleen Chung. Agent appears for counsel Simon King. Ms Currie remains on record until Simon King can appear. Matter remanded to November 21, 2016 for new counsel Simon King to appear and advise the court as to status. (31 days delay)
• November 21, 2016 (NO TRANSCRIPT): Current counsel Simon King appears. Confirms that he is available for trial set in February 2017 and the 11(b) hearing set for December 20, 2016. But materials have not been prepared yet for 11(b), counsel advises would be filed by November 28, 2016. (3 days delay)

(I am grateful to counsel for their assistance in preparing the chart)

Analysis

26Pursuant to paragraph 60 of Jordan, application of the framework begins with calculating the total delay from the charge to the actual or anticipated end of trial.

27In this case the charges were laid in informations sworn September 22, 2010. Counsel for both Applicants and the Respondent calculated the time from when both Applicants were arrested – September 28, 2010. The Respondent submitted that this was the correct beginning of the calculation, as where a person fails to attend court they are likely to be charged that date but may well not be apprehended until some time after. All counsel agreed that the additional 6 days if the calculation was to run from September 22, 2010 would not be determinative of whether the delay in this case was reasonable or unreasonable.

28There is no dispute that the total delay between when the Applicants were arrested September 28, 2010 and the anticipated end of trial March 27, 2017 is 2369 days or approximately 79 months.

29Once the total delay is determined, delay attributable to the defence must be subtracted.

Defence Delay

30The two components of defence delay are delay waived by the defence and delay attributable to conduct of the defence.

Waiver

31Pursuant to paragraph 61 of Jordan, the first component of defence delay is delay waived by the defence. Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal.

32In this case the Crown takes the position that there was an explicit waiver of 181 days by each of the Applicants - 111 days from February 7, 2013 to May 29, 2013 and a further 70 days from the first scheduled trial date December 14, 2015 to the second scheduled trial date February 22, 2016.

33The Crown submits that 111 days of delay were waived by all three accused for the period from February 7, 2013 through May 29, 2013 when additional preliminary hearing dates had to be set for OLG witnesses. These were witnesses defence counsel wished to hear from, and it is the Crown’s position that there was a clear and unequivocal 11 (b) waiver of this time period for both Applicants.

34The preliminary hearing was initially set for 13 days in November 2012 commencing November 6, 2012 with an additional five days in February 2013 ending February 8, 2013.

35At the outset of the preliminary hearing November 6, 2012 Crown counsel indicated there were some disclosure issues. He then called his first witness, Alex Campbell from Ontario Lottery and Gaming (OLG). Alex Campbell had been an employee at OLG who had, in 2004, approved the payout of the lottery prize to Kathleen Chung.

36Crown counsel began cross-examining Alex Campbell about Alex Campbell’s failure to bring with him, in accordance with his subpoena, “…anything in your possession or under your control that relates to the said charge and more particularly the following: any notes, documents, reports, written correspondence or electronic correspondence (email)” Mr. Campbell responded that he did not know what police had already gathered in their investigation, that he had produced what he felt was relevant to questions posed to him by police.

37Crown counsel then proceeded to review with Mr. Campbell all documentation (540 pages) that had been produced to the police (and already disclosed). Mr. Campbell testified that he had retrieved some of that documentation from boxes that had been provided to the Ontario Ombudsman from OLG. Mr. Campbell, at the time of his testimony, was no longer an employee of the OLG and did not have access to documentation held by the OLG.

38After further cross-examining Mr. Campbell, counsel for Kathleen Chung sought an adjournment to obtain further documentation from OLG. The adjournment extended to November 20, 2012 with the PH dates of November 8, 9, 13, 18 and 19 not being used.

39As reflected in the timeline, on November 19, 2012 Crown counsel provided the court and defence counsel with the case of R. v. Girimonte ([1997] O.J. No. 4961) with an indication that it will be addressed later. Girimonte was an Ontario Court of Appeal decision indicating, at paragraph 37, with respect to the “strong tension between the limited judicial purpose of the preliminary inquiry and defence efforts to maximize its value as a discovery vehicle”:

Discovery involves a testing by the defence of the strengths and weaknesses of the Crown's case through the questioning of witnesses. Discovery is a forensic tactic and a means whereby counsel prepares for trial. Unlike disclosure, discovery is not a constitutionally protected right. The Crown has no obligation to afford the defence an opportunity to discover the Crown's case.

40While acknowledging the Crown’s obligation to make timely disclosure the Court of Appeal in Girimonte confirmed that a preliminary hearing justice has no jurisdiction to order disclosure and indicated an adjournment of a preliminary hearing for disclosure purposes would occur in the “rare” case where the Crown has not provided “sufficient disclosure to allow the accused to make a reasonably informed election.” (paragraph 42)

41Girimonte was cited with approval as recently as October 2015 by the Court of Appeal in Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722 ([2015] O.J. No. 5594).

42As reflected in the timeline, on November 20, 2012 Crown counsel advised that additional preliminary hearing time will be required for defence to hear from witnesses to whom the disclosure issues relate and that five to 10 more days would be required beyond those scheduled in February. He indicated, with reference to the Girimonte case, that having spoken with defence counsel there is a middle ground they are proposing - delaying hearing from those witnesses with an 11(b) waiver for the purposes of hearing from them “down the road”. Counsel for the Applicants were present when this statement was made on the record and no one suggested to the court that they had not agreed to an 11 (b) waiver although counsel for Jun-Chul Chung also indicated on the record that they are “highly unusual circumstances” and that none of the defence counsel or Crown are happy about the delay.

43On November 22, 2016 Crown counsel again referred, on the record, to the “waivers” of 11(b). Counsel for both Applicants were present and neither suggested to the court that they had not agreed to an 11 (b) waiver.

44Counsel for Kenneth Chung explicitly acknowledged the 11 (b) waiver twice on the record on May 2, 2013 although it appeared to be his understanding that the waiver was to apply to the period from November 26, 2012 through February 2013. In one of his references he referred to “we” in respect of the waiver of 11(b). Crown counsel (who was different counsel than had been present November 20 and 22, 2012) did not address this by way of any attempt to correct this apparent understanding on the record. Rather than the 111 days of waiver asserted by the Crown, this period would encompass 74 days.

45Counsel for Jun-Chul Chung submits that this 11(b) waiver was not explicit, as it was not acknowledged by her or her client on the record. She submits that if the waiver could be implied it was not “clear and unequivocal” and amounts to no waiver at all. Counsel for Kathleen Chung takes the same position.

46I accept that in this case there was a clear and unequivocal waiver of s. 11(b) by counsel for the Applicants. They did not in any way indicate their disagreement with Crown counsel’s on record representation on behalf of all counsel November 20 and 22, 2012 and counsel for the co-accused explicitly acknowledged the waiver on May 2, 2013. It does not lie in the mouths of counsel for the Applicants to today disavow the waiver.

47While it is more in keeping with the Girimonte decision that the period of waiver would encompass the “extra” days added to the preliminary hearing, thereby extending it from the originally scheduled end at February 8, 2013 to the actual end of the evidence at May 29, 2013, Crown counsel did not in any way attempt to correct, on the record, what he today asserts was misunderstanding as to the period of the waiver as asserted by counsel for Kenneth Chung on the record May 2, 2013. I find that the period of waiver related to the disclosure issues at the preliminary hearing is 74 days.

48The additional 70 days of waiver of 11 (b) rights asserted by the Crown for the period December 14, 2015 through February 22, 2016 is acknowledged by counsel for the Applicants. It was an explicit waiver as reflected in the transcript of August 6, 2015.

49I find the total amount of defence waiver for both Applicants is 144 days.

Conduct of the Defence

50Pursuant to paragraph 63 of Jordan the second component of defence delay is delay caused solely by the conduct of the defence.

51In this case the Crown takes the position that 907 days of the delay are attributable to the conduct of Jun-Chul Chung and his counsel and of that, 828 days of the delay are also attributable to Kathleen Chung and her counsel.

52Counsel for Jun-Chul Chung acknowledges a total of 260 days of delay related to conduct of the defence.

53Counsel for Kathleen Chung acknowledges that the period from February 22, 2016 (the second scheduled trial date) to the commencement of the currently scheduled trial February 27, 2017 was occasioned by her decision to discharge her counsel just before the February 2016 trial date. This would encompass 370 days.

54Of the delay related to conduct of the defence Crown counsel submits 103 days are attributable to Jun-Chul Chung and Kathleen Chung engaging in resolution discussions in the period between July 21, 2011 and November 1, 2011 – the period set aside, without scheduling any preliminary hearing time – for a continuing judicial pre-trial. It is also in this period that Jun-Chul Chung fired his existing counsel and retained new counsel.

55There is evidence on the application that this period, and the continuing pre-trial, was related to resolution discussions for Jun-Chul Chung and Kathleen Chung. Although Jun-Chul Chung retained new counsel as early as August 8, 2011 and Crown counsel attempted, well before the November 1, 2011 date to have her address new dates for the continued judicial pre-trial she did not respond. Counsel for Jun-Chul Chung and for Kathleen Chung do not acknowledge that this is delay attributable to conduct of the defence.

56I find that these 103 days are attributable to conduct of the defence for both Applicants. I accept that the judicial pre-trial was continued over this period, and time for the setting of preliminary hearing dates likely lost as a direct result of counsel engaging in resolution discussions rather than setting preliminary hearing dates while those discussions were ongoing. The failure of counsel for Jun-Chul Chung to address Crown counsel’s attempts to acquire new continuation dates in advance simply emphasizes that this delay was related to conduct of the defence. The total delay related to conduct of the defence for Jun-Chul Chung and Kathleen Chung to this point is 103 days.

57A further adjournment of the continuing judicial pre-trial to accommodate the availability of new counsel for Jun-Chul Chung to December 22, 2011, an additional 51 days, is acknowledged by counsel for Jun-Chul Chung as delay attributable to conduct of the defence. The Crown does not attribute this period of delay to Kathleen Chung. The total delay to this point related to conduct of the defence for Jun-Chul Chung is 154 days.

58The Crown attributes an additional 28 days of delay to conduct of the defence for Jun-Chul Chung for the period October 7, 2013-November 4, 2013. On October 7, 2013 which was the first date in Superior Court after committal for trial counsel for Jun-Chul Chung was late. She had not communicated with counsel for the co-accused so the matter was adjourned in her absence to November 4, 2013 to set a judicial pre-trial. Counsel for Jun-Chul Chung attended later in the day after other counsel had left and confirmed the date.

59I find this 28 days of delay is attributable to conduct of the defence for Jun-Chul Chung. The total delay to this point related to conduct of the defence for Jun-Chul Chung is 182 days.

60The Crown attributes an additional 98 days of delay related to conduct of the defence for both Jun-Chul Chung and Kathleen Chung for the period between December 13, 2013 and March 21, 2014. On December 13, 2013 following a judicial pre-trial in the Superior Court, a three week application was set to begin May 12, 2014. No trial dates were set as the applications were to be for a stay or proceedings due to breaches of s. 11 (b) or an abuse of process. If unsuccessful, the next step in the defence approach to the trial was to be an application for change of venue. On March 21, 2014 counsel for all accused applied for an adjournment of the scheduled applications as they indicated they had just received the transcripts necessary for the applications and would not be ready to proceed on May 12, 2014. The applications were adjourned to October 27, 2014.

61Evidence on this application shows that while some transcripts were ordered during the preliminary hearing others were not ordered until December 2013 and January 2014. It is the Crown’s position that counsel for the defence were not diligent in ordering transcripts in order to be ready to proceed May 12, 2014 and further, as all transcripts were available as of March 7, 2014, it is not clear why defence counsel would not have been able to file material in time for the May 12, 2014 scheduled hearing.

62The position of counsel for Jun-Chul Chung and Kathleen Chung is that counsel were diligent in ordering transcripts and cannot be faulted for institutional delay in the provision of transcripts.

63While I agree that there was some delay in the provision of transcripts, it is clear that all transcripts necessary were available as of March 7, 2014. This was clearly a defence request for adjournment, and it is not apparent to me why defence counsel could not have been ready to proceed with their applications on the scheduled hearing date of May 12, 2014. I find that the delay of 98 days for the period between December 13, 2013 and March 21, 2014 is attributable to conduct of the defence. The total delay to this point related to conduct of the defence for Jun-Chul Chung is 280 days and for Kathleen Chung is 201 days.

64I note that the application which was adjourned from May 12, 2014 to October 27, 2014 was never brought. Nor was it brought, although counsel for the Applicants clearly indicated an intention to do so, in advance of the trial scheduled to begin February 22, 2016.

65The Crown attributes an additional delay of 231 days to conduct of the defence for Jun-Chul Chung and Kathleen Chung for the period between March 21, 2014 and November 7, 2014. As at October 10, 2014 no material had been filed on behalf of any of the accused (apart from the transcripts themselves) in support of the applications scheduled to proceed October 27, 2014. The matter was adjourned that date to October 30, 2014 to be spoken to as Kenneth Chung was in the process of hiring new counsel. On October 30, 2014 the matter was again adjourned to November 7, 2014 in order to set target dates for trial.

66I accept that the period from March 21, 2014 through October 30, 2014, 223 days is appropriately attributed to conduct of the defence for both Applicants. This period of time was set aside, without setting any trial dates, for the Applicants to bring applications for which no material (other than transcripts) was filed. The application for abuse of process was never brought. It was not until October 30, 2014 that counsel for the Applicants raised the possibility of re-election which would obviate the need for any application for change of venue. The total delay to this point related to conduct of the defence for Jun-Chul Chung is 503 days and for Kathleen Chung is 424 days.

67I find that the period from October 30, 2014 through March 23, 2015 during which no trial dates were set is attributable to Kenneth Chung and his professed efforts to retain counsel during this period.

68Crown counsel attributes a further 396 days to conduct of the defence for both Applicants for the period from February 22, 2016 (the second scheduled trial date) and the anticipated end of the trial scheduled to begin February 27, 2017. It is clear, and acknowledged by counsel for Kathleen Chung, that this delay is attributable to Kathleen Chung and Kenneth Chung discharging their counsel just before the trial scheduled to begin February 22, 2016. Kathleen Chung accepts that the delay of 370 days between the two scheduled commencement dates is attributable to conduct of her defence. Jun-Chul Chung does not accept that this delay is attributable to conduct of his defence.

69I find that the 370 day delay for the period between February 22, 2016 and February 27, 2017 is delay attributable to conduct for the defence for both Applicants. While Jun-Chul Chung was not the cause of the delay, he clearly supported the applications for adjournment brought by Kenneth and Kathleen Chung.

70The total delay to this point related to conduct of the defence for Jun-Chul Chung is 873 days and for Kathleen Chung is 794 days.

71The total defence delay (waived and related to conduct of the defence) for Jun-Chul Chung is 1017 days and for Kathleen Chung is 938 days.

72Subtracting the defence delay from the overall delay, the remaining delay is 1352 days or approximately 45 months for Jun-Chul Chung and 1431 days or approximately 47 2/3 months for Kathleen Chung.

73For each of the Applicants this period remains well in excess of the 30 month presumptive threshold for Superior Court matters indicated in Jordan.

74The delay is therefore presumptively unreasonable but the Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

Exceptional Circumstances

75Exceptional circumstances encompass both discrete events and particularly complex cases.

Discrete Events

76I find there were no discrete events accounting for delay in this case apart from what has been dealt with elsewhere in this decision.

Complexity of the Case

77The Crown seeks to establish exceptional circumstances because this case is particularly complex. Counsel for Jun-Chul Chung and Kathleen Chung submit that the only thing particularly complex about this case is the voluminous disclosure.

78Jordan at paragraph 77 recognizes voluminous disclosure as a “hallmark” of a particularly complex case.

79The Crown submits that given the voluminous disclosure it took extraordinary steps to ensure that the case moved forward expeditiously. Police delivered disclosure directly to defence counsel; duplicate disclosure was provided to counsel for Jun-Chul Chung who lost her disclosure; Crown counsel, together with counsel for the OLG moved to provide OLG documentation to the defence without requiring a third party records application; in February 2016 police offered to pick-up disclosure from Kathleen Chung’s former counsel and deliver it to her.

80The Crown provided 2/3 of the disclosure (some 16,000 pages in electronic format) on the first appearance of the accused October 27, 2010. The remainder of the disclosure was delivered by police to counsel for the accused by November 22, 2010 rather than waiting for the next court appearance January 5, 2011.

81Despite having all of the disclosure November 22, 2010, on January 5, 2011 defence counsel requested a further adjournment to February 2, 2011 in order to review disclosure. This further 28 days is exclusively attributable to the amount of the disclosure.

82Further disclosure resulted from the fact that search warrants conducted subsequent to the arrests of the accused resulted in information as to where some of the proceeds may have gone, which required production orders. In addition, there was an ongoing investigation as to the identity of the true lottery winner. In order to assist in that investigation, while the result of the search warrants and production orders were provided as disclosure the informations to obtain remained sealed. The true lottery winner was first identified December 30, 2010 and a further investigation confirmed that as of January 27, 2011, the informations to obtain became then available to defence counsel as was the investigation of some 600+ claimants.

83On the appearances February 2, 2011 and March 2, 2011 it was known that further disclosure was forthcoming. There was an adjournment to March 30, 2011 for the disclosure to be provided. That disclosure was available as of March 3, 2011 when it was again delivered to the offices of defence counsel by police. This unique feature of this particular case accounts for another 56 days.

84Despite receiving the further disclosure March 3, 2011, defence counsel requested another adjournment from March 30 to April 27, 2011. Again the amount of the disclosure accounts for an additional 28 days.

85I find that 112 days of delay is attributable to the voluminous disclosure in this case.

86I do not attribute specific delay to the disclosure issues which arose at the preliminary hearing except as already addressed. I do make the following observations:

87The affidavit of Detective Anderson sworn December 12, 2016 indicates that November 12, 2012 OLG advised they had hired counsel to review and provide any documentation from OLG relevant to the case. November 17, 2012 police delivered material from OLG directly to defence counsel. November 26, 2012 counsel for Jun-Chul Chung advised police she had lost the USB key containing the disclosure. That day, replacement disclosure was provided to her along with additional disclosure to all counsel. December 19, 2012 counsel for OLG provided OLG documentation directly to defence counsel. December 29, 2012 the last of the disclosure was provided to counsel for Jun-Chul Chung and Kenneth Chung. Kathleen Chung had retained new counsel. All disclosure was provided to new counsel for Kathleen Chung on January 9, 2012.

88I note that this does not accord with the transcript of January 21, 2013 wherein counsel for Jun-Chul Chung indicates she received further disclosure in court that morning.

89Jordan at paragraph 77 also recognizes that “Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.”

90It is the Crown’s position that the Crown took steps to move things forward given that there were multiple co-accused. Evidence on the application shows the efforts of Crown counsel to coordinate out-of-town counsel for the co-accused in terms of setting judicial pre-trial dates, and again, once the preliminary hearing was delayed, in reaching a compromise position with counsel in terms of setting discovery dates.

91In this case there are three co-accused. Delay caused by Jun-Chul Chung’s change of counsel has already been addressed as defence delay. Similarly, delay caused by Kathleen Chung’s change of counsel has already been addressed as defence delay. There was also considerable delay caused by Kenneth Chung’s change in counsel.

92Specifically, from October 10, 2014 through to March 23, 2015 no trial dates were set and there were multiple adjournments to facilitate Kenneth Chung bringing a Rowbotham application (which he never did bring) and getting counsel. This was particularly apt because as of October 30, 2014 counsel for Jun-Chul Chung and for Kathleen Chung were indicating a desire to re-elect to judge alone. Further delay was occasioned waiting for Kenneth Chung to acquire counsel because unless he also re-elected, the trial would remain a jury trial and the trial time required was significantly different.

93I find it was reasonable for the Crown to acquiesce to these adjournments in the interest of having a judge alone trial with less trial time required and also greater flexibility in trial dates. I further find, given the nature of the charges and the inter-relation of the co-accused it was reasonable, and in the interests of justice, for the Crown to continue the matter as a joint prosecution rather than severing Kenneth Chung from the others. I note that in February 2016 when at first, only Kathleen Chung had discharged her counsel just before trial, the Crown was prepared to sever her from the other co-accused, in order to have the trial against Jun-Chul Chung and Kenneth Chung proceed as scheduled. It was only when Kenneth Chung also discharged his counsel just before trial that this became impractical.

94In coming to this conclusion I advert to the decision of R. v. Vassell, 2016 SCC 26 ([2016] S.C.J. No. 26). In that case the Supreme Court found that when the Crown chooses to try accused jointly they must take a proactive stance and remain vigilant that its decision does not compromise the s. 11(b) rights of the individual accused.

95This further delay, attributable to there being multiple co-accused and one, Kenneth Chung, causing significant delay in his efforts to reacquire counsel, amounts to an additional 145 days.

96Crown counsel also submits that the complexity of the case accounts for some delay in counsel providing written submission to the preliminary hearing judge following completion of the evidence on the preliminary hearing. The Crown notes that the Crown was in position to provide written submissions within one week of the completion of the preliminary hearing whereas defence counsel required an additional 38 days. I agree and would allocate an additional 30 days of delay to the complexity of the case in this regard.

97The Crown submits that another aspect of the complexity of the case adding to delay is the length of time required for both the preliminary hearing and the trial. This is due to the number of witnesses, the number of co-accused and the fact that Jun-Chul Chung requires the assistance of an interpreter. As acknowledged by counsel for Jun-Chul Chung on the record on December 22, 2011, an additional two weeks of preliminary hearing time is appropriate given the slower pace when an interpreter is involved. In the hearing before me counsel were requested on more than one occasion to slow down the pace of their questions and submissions to permit the interpreter to translate properly.

98Absent those two weeks, the preliminary hearing might have been scheduled to be completed by the end of November 2012 rather than extending into February 2013. I find that another 60 days of delay is attributable to the complexity of the case in respect of time required for the preliminary – distinct from a case of average complexity.

99The total quantifiable delay attributable to the complexity of the case amounts to 347 days. I find as well that the Crown has done its part to ensure that the matter proceeds expeditiously taking into account the complexity. This would reduce the overall trial time to 1005 days or 33.5 months for Jun-Chul Chung and 1084 days or just over 36 months for Kathleen Chung.

Transitional Exceptional Circumstances

100Jordan at paragraph 96 specifically identifies prejudice and the seriousness of the offence as considerations, for cases already in the system, which can inform whether the parties’ reliance on the previous state of the law was reasonable.

Prejudice

101In support of his Application, Jun-Chul Chung swore an affidavit November 20, 2016 wherein he indicates that he was arrested September 28, 2010 and held in jail overnight pending a bail hearing the following day when he was released on a recognizance in the amount of $100,000 requiring that he reside with his surety (since varied to permit him to reside independent of his surety), not leave the Province of Ontario, not to have contact with his co-accused son and daughter except through legal counsel.

102Jun-Chul Chung indicates that because of his bail conditions he was unable to attend “family matters, funerals, weddings or other family events” in South Korea. Mr. Chung further indicates that because of his bail conditions he was unable to have contact with his co-accused son and daughter until December 2010 when this condition was varied. He indicates that despite the variance of this condition he has never been able to contact his co-accused daughter or to see his grand-children because her bail conditions would not permit it.

103Jun-Chul Chung indicates he was anxious from the outset to deal with the matter as soon as possible and immediately retained counsel. He indicates he was frustrated by the amount of time it took to get full disclosure. He indicates that because disclosure was still being provided during the preliminary hearing the completion of the hearing was delayed.

104Jun-Chul Chung indicates that he was very distressed due to the delay. He indicates that he has been emotionally, mentally and physically distraught, having lost approximately 10 pounds, and that his current health condition is “poor and frail”.

105Jun-Chul Chung indicates that he has been unable to seek employment while the charges have been outstanding due to media coverage of the case. He indicates that he faces “mounting debt and soaring legal fees”.

106Jun-Chul Chung indicates that he has become more anxious, depressed and nervous as the case goes on. He takes prescription sleeping medication and has experienced nightmares. He indicates that the stress has led to a break-down in his relationship with his wife and that they have now been separated for two years.

107In cross-examination Jun-Chul Chung insisted he never had any interest in resolving the charges and at all times wanted to proceed to trial. He testified that he was unaware of any media coverage since the preliminary hearing. He agreed that when he was aware, before the last trial date that Kathleen Chung was intended to fire her lawyer he spoke to his son Kenneth Chung about it, and he knew that Kenneth Chung had the intention to fire his lawyer. Mr. Chung testified that he believed it was because Kenneth Chung felt he could not trust his lawyer although Kenneth Chung did not share any details about that.

108Jun-Chul Chung testified that he agreed to adjourn the trial in February 2016 when Kathleen and Kenneth Chung both fired their lawyers because it was the only thing he could do. He testified that he wanted the trial to proceed at that time but he agreed that he did not say so. He was aware that it would take some time for Kathleen and Kenneth Chung to retain new lawyers and for those lawyers to prepare for trial.

109In support of her Application, Kathleen Chung swore an affidavit November 20, 2016, in which she indicates she is married with three young children and that media attention given the case caused an “enormous” amount of stress on herself and her family, caused strain in relationships with friends and family and negatively impacted her husband’s business.

110Ms Chung indicates that her bail conditions prevented her from travelling to Disney World on vacation with her family, and the Crown would not consent to a variation. Ms Chung did not apply for a variation of her bail at the preliminary hearing although the Crown was agreeable to the preliminary hearing judge considering the matter. Ms Chung at no time applied for a bail review.

111Ms Chung indicates that she was emotionally and financially exhausted as a result of the protracted nature of the proceedings and as a result the relationship with her husband deteriorated.

112In cross-examination Kathleen Chung agreed that on many of the court appearances her counsel appeared on her behalf, including some days of the preliminary hearing. She agreed that she had made extensive notes of her meetings with the OLG from 2004 long before police began their investigation of this matter and would be able to refer to those notes, if necessary, to refresh her memory.

113Kathleen Chung testified that the last media report relating to her case she was aware of had been around the time of her arrest. Although her affidavit indicates that police left her house in disarray following the execution of a search warrant at her residence, she was not aware that police had taken photographs and video of the search. She agreed nothing had been damaged in the search.

114Kathleen Chung’s affidavit indicates she was unable to go on vacation to Disney World. She testified that no alternate vacation in Ontario was taken as her children wanted to go to Disney World.

115Kathleen Chung testified that she had decided to fire her lawyer about a month before she actually did (February 11, 2016) but she knew that he was ready for trial and was concerned that another lawyer might have difficulty getting up to speed to conduct the trial beginning February 22, 2016.

116She testified that she always wanted the matter to proceed to trial. She testified that she wanted to bring an 11(b) application before the trial set for February 22, 2016 but did not. She agreed that she decided to proceed with the 11(b) application after she had requested an adjournment of the trial in February 2016.

117For cases in the system before Jordan, Morin provided guidance in respect of prejudice.

118The anxiety, concern and stigma of exposure to criminal proceedings as identified in the affidavits of Jun-Chul Chung and Kathleen Chung are no doubt exacerbated by the protracted nature of the proceedings. The actions of the Kathleen Chung in discharging her lawyer just before trial in February 2016 and of Jun-Chul Chung in agreeing to adjourn the trial played a significant role in protracting the proceedings, however, and call into question the degree to which both Applicants were anxious, at least at that point, to have the matter proceed expeditiously.

119In terms of the restrictions on the liberty of the Applicants, while the amount of bail is significant, in keeping with the nature of the charges, the restrictions have been relatively minimal and were further relaxed for Jun-Chul Chung when he requested variations. Kathleen Chung did not pursue a review of her conditions when she might have done so when the Crown would not consent to her leaving the country. In light of the allegations, which involve moving the proceeds of crime out of the country, the position taken by the Crown is not unreasonable.

120In respect of ensuring that proceedings take place while evidence is available and fresh, there can be no doubt that the passage of time can affect the memory of any potential witness, but in the case of Kathleen Chung, she unusually has the benefit of notes she took in the course of her dealing with the OLG as far back as 2003 and 2004.

Seriousness of the Alleged Offences

121This is a case involving a substantial amount of money and the alleged victimisation of the OLG as well as the individuals who were the rightful lottery winners. There can be no doubt that in the pre-Jordan era the seriousness of the alleged offences would have played a significant role and was no doubt relied on by the parties in assessing the reasonableness of any delay.

122I note that the Applicants did not pursue their 11 (b) application in October 2014 (set originally for May 2014) and only renewed their application pursuant to s. 11 (b) after Jordan was released. This certainly suggests some reliance on the law as it previously existed.

Institutional Delay

123The Crown also relies on evidence that this case has been proceeding in a jurisdiction plagued by lengthy, persistent and notorious institutional delay. The preliminary hearing judge referred to the heavy workload for her and other judges in the region and the typical delay in setting trials in Halton Region. This accounts for what the Crown calculates as 17-20 months of institutional delay as it would have been calculated pursuant to Morin.

124There was substantial delay in getting preliminary hearing time – approximately 11 months from when the dates were selected and in getting trial time – approximately 5 months (for the first trial date) and 9 months (for the present trial date) from when the dates were selected. While these time frames push the guidelines for acceptable institutional delay as set out in Morin they do not greatly exceed them.

125At paragraph 57 of that decision the Court indicated that:

These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The court of appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province.

126There was additionally some delay for the preliminary hearing judge to provide a decision on committal due to her own backlog of reserve decisions.

127I note that the present trial date was set in May 2016 – before Jordan - and that Kathleen Chung, who had several different lawyers in the intervening period, was not able to confirm that she would be bringing an 11(b) application until November 21, 2016.

128Taking all of these factors into consideration, I am satisfied that the Crown genuinely responded to the circumstances of the case including the voluminous disclosure, multiple co-accused and an ever-changing roster of defence counsel by seeking and creating opportunities to streamline the issues and evidence, and adapting to the evolving circumstances as the case progressed. Counsel for Jun-Chul Chung on December 13, 2013 was content to have her pre-trial motions heard in October of 2014. It was the Crown who insisted that if there were 11(b) concerns the matter should be heard on the earlier dates in May 2014. Given the complexity of the case and reasonable reliance on the law as it existed pre-Jordan, I find that the Crown has established that the time the case will have taken, at the anticipated end of trial March 24, 2017, is justified and there is therefore no breach of s. 11(b) of the Charter.

129The applications for stay of proceedings for both Applicants are dismissed.

MILLER J.

Released: January 3, 2017

R. v. Chung & Chung, 2017 ONSC 13

COURT FILE NO.: 141/13 DATE: 20170103 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JUN-CHUL CHUNG and KATHLEEN CHUNG Ruling on S. 11(b) of the Charter MILLER J.

Released: January 3, 2017