R. v. Gatt, 2017 ONSC 3563
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Tanya Lynn Gatt, Wayne Anthony Locknick, Shaun Gregory Garrity and Kyle Daniel McKnight
Accused
COUNSEL:
Edward J. Posliff, for the Crown
Evan Weber, for the Accused, Tanya Lynn Gatt
Frank Miller and Shannon L. Pollock, for the Accused, Shaun Gregory Garrity
Maria Carroccia, for the Accused, Wayne Anthony Locknick
HEARD: December 5, 6, 8, 2016
ORAL REASONS GIVEN: January 27, 2017
RULING ON S. 11(b) APPLICATION FOR A STAY
Verbeem J:
INTRODUCTION
Preface
1On January 26, 2017, I provided oral reasons that comprehensively explained the path of my reasoning in dismissing applications to stay this proceeding that were brought by Mr. Locknick, Ms. Gatt and Mr. Garrity on the basis that their respective 11(b) rights were infringed. Those reasons explained how I arrived at my finding on the various issues before me and were responsive to the submissions of the Crown and the accused persons, on the various issues raised on the application.
2My oral reasons did not contain a detailed recitation of the chronology of the proceeding, to date (as evidenced by the transcripts of the various attendances before the Ontario Court of Justice and the Superior Court of Justice, when scheduling was discussed) nor did they contain my specific attribution of every period of delay under the Morin framework (in the consideration of the transitional exceptional circumstances) although my findings of total institutional delay at each level of court were set out. I advised the parties of my intent to provide them with written reasons including that additional information.
3At the commencement of trial on February 21, 2017, I received a joint request from counsel for Mr. Locknick and the Crown to sever counts 2 and 3, as they relate to Mr. Locknick, from the indictment, and that the newly constituted proceeding against Mr. Locknick be adjourned to a date in March 2017 to be resolved. At a subsequent assignment court, the return date was specifically scheduled for March 21, 2017.
4Over the course of February 21-22, 2017, the counts against Mr. Garrity and Mr. McKnight were withdrawn and the count against Ms. Gatt was stayed at the request of the Crown.
5On March 21, 2017, Mr. Locknick consented to the Crown reading in a set of facts, which he then admitted. He conceded that the facts supported findings of guilt on counts 1 and 2 of the new indictment, and those findings were made.
6Given the manner in which the proceeding resolved, I inquired whether counsel continued to require written reasons on this application.
7Mr. Locknick’s counsel indicated that she would advise the court, through trial coordination, if written reasons were required. On May 25, 2017, Mr. Locknick’s counsel advised that her client wanted a copy of the decision in writing.
8This written ruling reproduces the reasons I delivered on January 26, 2017, together with the appropriate contextual background information, a summary of the parties’ positions on specified issues, a chart setting out a complete attribution of periods of delay under the Morin framework (which demonstrates how the period of institutional delay I referenced on January 26, 2017 was calculated) and statement of the legal principles I applied in determining the applications.
Nature of the Application
9In this proceeding, four accused are varyingly charged on a three count indictment alleging three distinct conspiracies contrary to s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, to traffic in a controlled substance contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA).
10Count one alleges that Tanya Lynn Gatt, Wayne Anthony Locknick and Shaun Gregory Garrity conspired with one another, together with others who are not indicted, between July 18, 2013 and August 5, 2013, to commit an offence, contrary to s. 5(1) of the CDSA.
11Count two alleges that Tanya Lynn Gatt, Wayne Anthony Locknick and Daniel McKnight conspired with one another, and others who are not indicted, between August 5, 2013 and September 2, 2013, to commit an offence, contrary to s. 5(1) of the CDSA.
12Count three alleges that Wayne Anthony Locknick, conspired with others who are not indicted between July 30, 2013 and August 2, 2013, to commit an offence, contrary to s. 5(1) of the CDSA.
13The charges generally arise from a foundational allegation that Mr. Locknick conspired with other individuals to traffic in a controlled substance, by directing such activity, over the telephone, while incarcerated in various correctional facilities.
14The original information was sworn against each of the accused on September 19, 2013. The anticipated end of trial is March 3, 2017. All of the accused posit that, presumptively, the amount of time between those two events, calculated as 41.5 months, constitutes an unreasonable delay.
15They have each brought an application for a stay of proceedings on the basis that their respective rights pursuant to s. 11(b) of the Charter of Rights and Freedoms have been infringed.
16On January 26, 2017, I provided oral reasons dismissing the s. 11(b) applications brought by Mr. Locknick, Mr. Garrity and Ms. Gatt, with further written reasons to follow. These are those reasons.
17Mr. McKnight’s s. 11(b) application was dismissed on February 21, 2017, however, the charge against him was subsequently withdrawn. As a result, I will not add to these reasons further dispository commentary as it relates to his application, which I delivered on February 21, 2017.
CHRONOLOGY AND CONTEXT
18All of the applicants were charged, together with 19 other individuals, in a single 65-count information principally alleging offences under the CDSA. The charges were the result of an ongoing investigation conducted by the Windsor Police Service, identified as “Project Nessie”. A number of the charges against persons other than the applicants were disposed of, in various ways, as the matter proceeded through the Ontario Court of Justice.
19The original information was eventually withdrawn and replaced by a new information.
20Mr. Locknick was in custody in relation to unrelated charges at the time the original information was sworn. Eventually he pled guilty to some of those unrelated charges. He remained in custody, as a sentenced prisoner for some time while the charges at issue in this proceeding were pending. He continued to remain in custody for a period of time even after his unrelated sentence was served. Eventually, he applied for and received bail in December 2015.
21A significant amount of the evidence against the applicants and a majority of the other accused is comprised of the content of intercepted private communications made pursuant to an authorization granted by Patterson J. on July 18, 2013.
22Scheduling, particularly before the Ontario Court of Justice, was problematic owing to the number of accused and the corresponding number of defence counsel. Further, while the majority of the 65 counts related to CDSA offences, prosecuted by the federal Crown, there were also specific counts that were prosecuted by the provincial Crown.
23The Crown made initial disclosure to Mr. Locknick’s counsel on September 30, 2013 and provided ongoing periodic disclosure thereafter, with a substantial amount of material disclosed in mid-November, 2013.
24In support of their requests for a stay of proceedings, the applicants have filed transcripts relating to over 25 court appearances before both the Ontario Court of Justice and the Superior Court of Justice, which evidence the chronology that follows.
25In reviewing the transcripts, a number of things are evident, particularly as it relates to the appearances before the Ontario Court of Justice:
Transcripts of every appearance before the court have not been filed.
Many of the transcripts that have been filed are incomplete. It appears that an attempt was made to secure only those portions of the transcripts evidencing scheduling submissions and dispositions. However, it appears that for some appearances there were other scheduling submissions which transpired that are not captured in the portion of the transcripts filed on this application. In that regard, many of the transcripts were filed by counsel for Mr. Garrity, on behalf of all the applicants. Those transcripts appear to focus on discussions and submissions that were centred on Mr. Garrity.
Contextually, from the transcripts filed, it appears that on an ongoing basis, discussions with respect to scheduling took place amongst counsel and between counsel and court administration staff while “out of court” (and correspondence exchanged via e-mail communications). The specifics of such “out of court” discussions are not before the court, in transcript form.
26Despite the absence of a “complete” transcript record, the applications are capable of being heard and disposed. Through submissions, counsel were able to provide a fulsome and non-contentious chronology of the proceeding’s history. Although the Crown and the applicants differ on the proper characterization of certain elements of delay within the Jordan framework, their contest lies in the mechanics of the framework’s application rather than in a factual dispute about “what was said” at and between the various documented court appearances.
27Below, I will summarize what transpired at the various court appearances for which transcripts (or a portion thereof) were provided.
(i) Ontario Court of Justice
28On October 23, 2013, the original information (13-1802) was withdrawn and replaced with a new information (13-850) as against Jen Locknick (not named on the indictment before this court). Ms. Carroccia (who currently represents the applicant, Mr. Locknick) represented Jen Locknick at that time. At Ms. Carroccia’s request, the Jen Locknick matter was adjourned to October 28, 2013, which was identified by the court as “the day many others are coming back”. Ms. Carroccia indicated that her adjournment request was made in order to “keep it together”. She stated that she did not anticipate having disclosure by that date, as the Crown had indicated it was “still going to be a couple weeks”.
29A transcript of the October 28, 2013 attendance, if it occurred, was not filed.
30On November 1, 2013, Mr. Locknick appeared before the court. Disclosure was not complete. The Crown advised the court that a “hard drive” of evidence would eventually be delivered to all defence counsel, but some of the information still needed to be “reviewed and vetted”. Ms. Carroccia, representing Ms. Gatt, Mr. Locknick and another accused named Felicia Doucet, advised the court that without full disclosure, she could not set a pre-trial date or a bail hearing. She observed that there had been a nearly “two month delay” in receiving disclosure, up to that point. She conceded that Mr. Locknick was in custody for unrelated reasons, but correctly stated that she still required disclosure. She acknowledged that disclosure would consist of “a lot of information” in the form of “police reports, intercepted phone conversations, surveillance reports and search warrants”. She requested an adjournment to November 15, 2013, to obtain and review same.
31On November 15, 2013, Mr. Locknick appeared before the court with counsel, and requested an adjournment to November 29, 2013. [The transcript indicates that Mr. Locknick had already appeared before the court on one prior occasion with respect to the replacement information but the date of that appearance is not specified.]
32On November 25, 2013, the original information was withdrawn against Mr. Garrity, among others, and replaced with the new information. The Garrity matter was then adjourned to December 9, 2013.
33On November 29, 2013, Mr. Locknick appeared before the court by video conference, for remand. He requested a two-week adjournment, to December 13, 2013, which was granted.
34The transcript of a portion of an appearance on December 9, 2013 was filed and evidences that an accused on the information other than the applicants, was before the court and the matter was adjourned to January 6, 2014, for the purpose of “disclosure review and client instructions”.
35On December 13, 2013, Mr. Locknick appeared before the court, by video, for remand, and requested a further adjournment to December 27, 2013, for continuing review of disclosure.
36On December 27, 2013, Mr. Locknick appeared before the court, and his counsel requested that the matter be adjourned to January 6, 2014, to set a pre-trial date.
37On January 6, 2014, the proceeding was adjourned to January 13, 2014, again for the purpose of setting a pre-trial date.
38On January 13, 2014, a judicial pre-trial for all 23 accused persons was scheduled for January 22, 2014.
39The pre-trial conference proceeded but was not completed on January 22, 2014. A second pre-trial conference was scheduled for March 3, 2014. Although the transcript evidences that some “disclosure issues” related to “some of the accused” remained outstanding, those issues and the specific affected accused persons are not identified.
40On March 3, 2014, the proceeding was adjourned to March 10, 2014, for the accuseds to elect mode of trial.
41A transcript of the March 10, 2014 appearance was not filed.
42On March 17, 2014, the Garrity matter was adjourned to March 24, 2014. Although a complete transcript of the March 17, 2014 appearance was not filed, contextually, the portion of transcript that was filed indicates the entire proceeding was also adjourned to that date.
43On March 24, 2014, the proceeding was adjourned to March 31, 2014, to set a preliminary hearing date.
44The portion of the transcript of the March 31, 2014 appearance, as filed, only relates to Mr. Garrity. Contextually, it appears that the entirety of the proceeding was adjourned to April 7, 2014, for the purpose of scheduling the preliminary hearing.
45On April 7, 2014, the proceeding was adjourned to April 9, 2014, to set a date for the preliminary hearing.
46On April 8, 2014, the federal Crown forwarded an e-mail to the Ontario Court of Justice trial coordinator stating, in part:
In light of the significant difficulties that are making it virtually impossible to set a 2 week PH in this matter, I have a proposal to split up the PH into smaller blocks for ease of scheduling, and likely, for ease of flow of evidence. I am suggesting that we set the two week PH in 5 smaller blocks. In each block, we will cover evidence from a distinct section of the case, dealing with specific counts, specific accused, and therefore specific counsel. Please see below.
47One of the five preliminary hearing “blocks” proposed by the federal Crown included all of the accused persons named on the indictment before this court, together with four other accused persons (two of whom were also represented by Ms. Carroccia). A total of 12 counts were involved, including some prosecuted by the provincial Crown. The federal Crown estimated that four days was required to complete this aspect of the preliminary hearing.
48Shortly thereafter, the court and all defence counsel agreed to the Crown’s proposal to segment the preliminary hearing. However, there was still some delay associated with scheduling the various preliminary hearing blocks.
49When the matter came before the court on April 9, 2014, it was adjourned to April 16, 2014 to set a preliminary hearing date. A pre-trial conference had been scheduled for April 14, 2014, to be held for the purpose of developing preliminary hearing dates.
50Based on the incomplete portion of the transcript of the April 14, 2014 court appearance, as filed, it appears that counsel and the court were actively working towards implementing the “block based” preliminary hearing proposed by the federal Crown and that hearing dates for some of the blocks had been discussed by counsel and trial coordination prior to this court appearance. On the record, the trial coordinator advised the court that dates “had been found for all of the blocks except [the one involving Mr. Locknick and the balance of the applicants]”. Ultimately, the portion of the preliminary hearing related to the applicants was not scheduled on April 14, 2014. Ms. Gatt, Mr. Locknick, Mr. McKnight and others, elected trial in the Superior Court of Justice by judge alone on April 14, 2014. Mr. Garrity did not elect that day. The proceeding was then adjourned to April 23, 2014 to continue efforts to schedule preliminary hearing dates.
51Mr. Locknick was remanded before the court, by video, on April 16, 2014. At the request of duty counsel, the matter was adjourned to April 24, 2014, “to try to arrange a preliminary hearing date.”
52On April 24, 2014, further efforts were made to schedule the preliminary hearing block relating to, among other things, the counts and accused before this court. On the record, the court was advised that prior to the April 24, 2014 appearance, the trial coordinator had proposed dates in January 2015 to the parties, for that portion of the preliminary hearing involving the accused before this court. Ms. Carroccia advised the court that: her clients (which included Mr. Locknick and Ms. Gatt at that time) did not waive delay; that she was available before January 2015 to conduct the preliminary hearing; and that Mr. Locknick was in custody. In response, the court offered the period of November 4 to November 7, 2014 for the preliminary hearing, and it was scheduled accordingly, with a focus hearing scheduled for July 14, 2014.
53The focus hearing did not proceed on July 14, 2014. A reporter’s note in the transcript states: “Focus hearing – not dealing with the next court date. Proper paperwork not filed – Crown seeking adjournment.” The focus hearing was rescheduled for August 19, 2014.
54Apparently, a meaningful focus hearing did not take place on August 19, 2014. A reporter’s note in the transcript indicates “Discussions not related to date setting. Charges against Wolters now withdrawn. Calling trial coordination down to re-set date for meaningful focus hearing.” A new date was set for September 10, 2014 – in chambers.
55A transcript was not filed for the September 10, 2014 appearance, if it occurred.
56The preliminary hearing involving, among others, the accused persons before this court, commenced on November 4, 2014, as scheduled. At that time Ms. Carroccia represented Mr. Locknick, Ms. Gatt and Ms. Doucet, another alleged co-conspirator.
57Mr. Locknick did not contest committal. The Crown adduced evidence throughout November 4, 2014. At the end of that day, the Crown indicated that it would adduce the balance of its evidence the following day and suggested that after its evidence was complete, the preliminary hearing should be adjourned to November 7, 2014, instead of November 6, in order to allow counsel to prepare focussed submissions on committal, as the Crown intended to refer to documentary evidence in the form of transcripts of intercepted communications, during submissions.
58Upon inquiry by the court, all defence counsel agreed to that course of action. Counsel for Mr. Locknick (and at the time Ms. Gatt and Ms. Doucet) specifically confirmed that she anticipated that if the Crown’s request was granted, the preliminary hearing would still conclude that week (as scheduled). None of the other counsel expressed a concern to the contrary.
59On November 5, 2014, after the Crown’s evidence was complete, Crown counsel renewed her request that submissions be adjourned to November 7, 2014. Counsel for Mr. Locknick (and at the time Ms. Gatt and Ms. Doucet) advised the court that was her preference as well. Counsel for Mr. Garrity and Mr. McKnight agreed to the request to adjourn to November 7, 2014 and the preliminary hearing was so adjourned.
60On November 7, 2014, the Crown began, but did not complete, its submissions on committal. The complete transcript of the November 7, 2014 appearance was not filed. The modest portion of the transcript that was filed, does not evidence the reason that all parties’ submissions were not completed that day, particularly in light of the Crown and defence counsel’s stated view that the preliminary hearing would conclude that week, even if the parties did not utilize the “in court time” that was available on November 6, 2014.
61In response to my specific inquiry on that issue, the Crown on this application, advised that committal submissions lasted much longer than anticipated because the preliminary hearing judge requested that in the course of her submissions, Crown counsel review the specific content of each individual intercept, which are said to be voluminous. None of the applicants contested or otherwise took issue with the Crown’s submission in that regard.
62The matter was adjourned to November 17, 2014 to set a date for the continuation of the preliminary hearing.
63On November 17, 2014, Ms. Carroccia, appearing on behalf of all of the co-accused, advised the court that the Crown and the three defence counsel involved were “trying to figure out a date” for the continuation of the preliminary hearing. The proceeding was adjourned to November 18, 2014, to accommodate that process.
64On November 18, 2014, Ms. Carroccia advised the court that counsel, in conjunction with the trial coordinator, were still attempting to arrange the continuation of the preliminary hearing. She advised that there were “some issues because we don’t want to put the continuation too far into the future. So the trial coordinator has asked that we give her until Monday and she’s trying to rearrange court so that we can have an earlier PH continuation date.” The court confirmed Mr. Locknick’s understanding that his counsel was requesting the matter to be adjourned until the following Monday, in order to arrange a date for the continuation of the preliminary hearing. Ms. Carroccia also confirmed that dates that counsel were available to continue the hearing had been provided to the trial coordinator. The proceeding was adjourned to November 24, 2014.
65On November 24, 2014, Ms. Carroccia appeared and requested that the proceeding be adjourned one week to address an issue with respect to the availability of one of the other defence counsel – who was said to be unavailable for the continuation of the preliminary hearing until May, 2015.
66On December 1, 2014, Mr. Locknick was remanded before the court and, at the request of Ms. Carroccia, the proceeding was adjourned to December 3, 2014 to come before the preliminary hearing judge to set a continuation date.
67On December 3, 2014, the matter returned in front of the preliminary hearing judge. Ms. Carroccia advised the court of both the parties’ efforts and the court’s efforts to schedule the continuation of the preliminary hearing. She specifically stated: “We’re trying to get a date in, you know, the next two or three months I think would be reasonable. I just think six months is just unreasonable to adjourn – my client’s in custody.” The court advised counsel that it would have “to fix a date that may not be satisfactory to some schedules” because one of the accused was in custody and committal was not an issue for him. Despite the very fulsome calendars of some defence counsel, the court was eventually able to identify January 22, 2015 as the earliest date that all defence counsel could be available. After rescheduling other pending matters, the court and the Crown also made themselves available and the preliminary hearing was then scheduled to continue on that date.
68On January 22, 2015, the Crown completed its preliminary hearing submissions. Although I have not been provided with a complete transcript of that appearance, it appears that the remainder of the Crown’s submissions consumed the entire day. Thus, another continuation date was required. Several dates were offered by the court in February 2015, none of which were available for all defence counsel. The Crown confirmed its availability for each of the dates that it was specifically asked about. After substantial discussions about defence counsels’ competing schedules, the preliminary hearing was tentatively scheduled to continue on February 10, 2015. That date was confirmed on January 28, 2015.
69On February 10, 2015, defence counsel completed their respective submissions on committal and the preliminary hearing judge reserved his decision to March 2, 2015.
70On March 2, 2015, all accused except Ms. Doucet were committed to stand trial and the proceeding was adjourned to an April 10, 2015 assignment court date in the Superior Court of Justice.
71In total, the proceeding was before the Ontario Court of Justice for 17.5 months.
(ii) Superior Court of Justice
72The proceeding arrived in the Superior Court of Justice on April 10, 2015. A judicial pre-trial conference was held on May 14, 2015. The proceeding next came before the court on an assignment court date on May 15, 2015. At that time, Ms. Carroccia continued to represent both Mr. Locknick and Ms. Gatt.
73During the course of the assignment court appearance, the court was advised that the accuseds intended to bring a joint Garofoli application to challenge the admissibility of the intercepted communications and that an accused on a separate indictment, Mr. Meraw, who was represented by Mr. Marley, also had an interest in the anticipated application. The Crown promptly advised the assignment court judge that delay had been raised as an issue by Mr. Marley on behalf of Mr. Meraw. The application was estimated to require a seven to eight day hearing. The assignment court judge was advised that while a tentative seven to eight day period commencing February 1, 2016 had been identified and discussed at the pre-trial conference, Ms. Joy, counsel for McKnight, was not available during that time, owing to a scheduled trial in the Ontario Court of Justice. The court responded as follows (specifically addressing Ms. Joy’s agent):
Alright. Well, the difficulty I see is that we have a number of individuals that have a joint interest in the this issue and the s. 11(b) clock is running.
…And while – while the accused has a right to counsel of choice, that right is subject to limitations including whether the counsel of choice can be available within a reasonable period of time. So, I have to determine whether I schedule this for February 1st despite Ms. Joy’s unavailability in the anticipation that either she will free herself up or arrange for someone else to represent her client’s interests during that hearing. So I’m… I’m prepared to hear you on that, but I’m concerned that there is a – an imperative to have this heard expeditiously to protect the section 11(b) interest of the co-accused.
74In essence, Ms. Joy’s agent indicated that he was not aware of any reason why the competing Ontario Court of Justice trial could not be adjourned. He submitted that Ms. Joy’s client’s right to counsel of his choice could be accommodated “in that fashion while also protecting the 11(b) rights…of Mr. Marley’s client.” Counsel for the other accused persons in this proceeding did not expressly raise s. 11(b) concerns before the assignment court judge on that date, although Ms. Carroccia advised the court that Mr. Locknick was in custody as a result of the charges in this proceeding, and in relation to unrelated charges.
75Although the Crown confirmed its availability for February 1, 2016, it also inquired whether any earlier dates were available for the hearing of the anticipated application. In response, the court offered dates for the Garofoli application in June 2015. Collectively, the Crown and all of the co-accuseds were not prepared to proceed at that time.
76The court then offered dates for the seven to eight day Garofoli application commencing September 21, 2015; commencing October 13, 2015 and commencing November 23, 2015. The Crown was available on all dates offered. Counsel for Mr. Garrity was not available for any of those dates. Counsel for Mr. Locknick and Ms. Gatt was not available continuously for any of those two-week blocks. She was also available to start the application during the week of October 13, 2015, however, she was not available to continue the following week. Counsel for Mr. McKnight was prepared to make herself available for all dates offered. As a result of the schedules of various defence counsel, the Garofoli application was ultimately scheduled to be heard February 1 to 5 (inclusive), 8, 9, and 11, 2016.
77On December 14, 2015, Mr. Weber replaced Ms. Carroccia as Ms. Gatt’s counsel of record. Ms. Carroccia continued to represent Mr. Locknick.
78The Garofoli application commenced before Mr. Justice King on February 1, 2016 (slightly less than 9 months after the proceeding arrived in Superior Court). The co-accuseds were arraigned on that date.
79The application was primarily driven by Mr. Locknick.
80The affidavit in support of the wiretap authorization referenced information that was obtained by police through the execution of four prior judicial warrants that authorized the use of various number recorders and tracking devices, together with associated production orders and orders of assistance. The information obtained pursuant to those warrants was said to corroborate confidential informant information which was said to indicate that Mr. Locknick, while incarcerated in the county jail in Windsor, directed a drug trafficking network by using a jailhouse payphone to call his girlfriend, Felicia Doucet, who would then facilitate three-way calls to other individuals, including an individual identified as Michael Stiller. It was said that during those calls, Mr. Locknick would provide instructions to the individuals with whom Ms. Doucet would facilitate contact, who would then carry out the sale and distribution of controlled substances, particularly cocaine, as directed by Mr. Locknick.
81Although the other accused delivered their own respective applications challenging the issuance of the various warrants and authorizations, those applications were withdrawn on the first day of the hearing. Mr. Locknick’s application remained before the court.
82The court then heard lengthy submissions on the issue of Mr. Locknick’s standing to challenge the four number recorder warrants (and related orders). On February 2, 2016, King J. reserved his ruling on the issue of Mr. Locknick’s standing to May 3, 2016 and the proceeding was adjourned accordingly. The balance of the application did not proceed in February 2016.
83On March 30, 2016, counsel were notified through an e-mail communication sent by the trial coordinator, that King J. had declared a conflict of interest with respect to the proceeding and therefore, he could not proceed as the trial judge. In a detailed memorandum that was delivered to counsel on December 3, 2016, King J. explained the specific nature of the conflict. Briefly, sometime after the Garofoli application was adjourned, while the court’s determination of standing was pending, a member of the law firm representing Ms. Gatt, accepted a retainer to act for an individual in a proceeding involving King J., in his personal capacity.
84For the purpose of this application, all counsel agree that the nature of the conflict precluded King J. from continuing to preside over the trial. The conflict did not exist when King J. heard submissions on the standing issue. The conflict did not arise as a result of the actions of the Crown and it could not reasonably have been foreseen by any of the parties, or the court, at any time before it materialized in late March, 2016. Although the parties agree that the conflict (and the mistrial resulting therefrom) is a discrete exceptional circumstance within the Jordan framework, they dispute the amount of the “delay” properly attributable to that event. Later in these reasons, I will outline their positions more fully.
85After the conflict was declared, the matter was brought forward to an assignment court date on April 8, 2016. All parties were prepared to schedule new dates for the Garofoli application and for trial. The Crown stated that it was “anxious to get this thing back on the rails” and proposed to the court that dates for the application be scheduled based on the availability of the Crown and Mr. Locknick’s counsel only, because he was the only accused person with a “live Garofoli application”. The Crown requested dates for both the Garofoli application, which was now estimated to require five days, and the trial.
86Rescheduling the application proved to be a somewhat complicated endeavour. For various reasons, 6 of the 12 trial judges who regularly sit in the City of Windsor were conflicted from presiding over this proceeding. Nonetheless, the court offered four days commencing September 13, 2016, to start the application. The Crown was available, Mr. Locknick’s counsel was not. However, both the Crown and Mr. Locknick’s counsel were available for four consecutive days, beginning September 20, 2016, and five consecutive days beginning October 3, 2016. The court was unable to accommodate either of those proposed dates and the court was unable to offer any time during the week of October 31, 2016, when that week was subsequently proposed by Ms. Carroccia. The court did not have any dates available in November 2016 and, accordingly, the parties’ availability that month was not canvassed.
87The Crown and Ms. Carroccia were both available for the Garofoli application for a five day block beginning December 5, 2016, which the court was able to accommodate.
88All counsel, save counsel for Mr. McKnight, were available for trial any time in February 2017. Mr. McKnight’s counsel was not available until February 20, 2017. The trial was scheduled for February 21, 2017, for nine days.
89No issues related to delay or potential s. 11(b) violations were raised during the course of the April 8, 2016 assignment court appearance. None of the accused expressed an intention to bring an application to stay the proceedings based on a violation of his or her respective s. 11(b) right and, therefore, no dates were scheduled for the hearing of such applications.
90On July 8, 2016, the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
91On November 8, 2016, Mr. Locknick served an application to stay the proceeding against him, based on an asserted violation of his right, pursuant to s. 11(b) of the Charter. Each of the remaining co-accused served similar applications in the period between November 8, 2016 and December 5, 2016. A pre-trial conference with respect to the application was held in accordance with the applicable Superior Court of Justice practice direction.
92The applications were argued on December 5 and 6, 2016 (the first two days scheduled for the Garofoli application), with additional submissions on December 8, 2016. The Garofoli application was heard intermittently through December and January 2016. The trial remains scheduled to commence February 21, 2016. It is within that chronological context that the accuseds’ applications to stay the proceeding must be determined.
APPLICABLE LEGAL PRINCIPLES
The Jordan Framework
93The analytical framework applicable to the determination of whether an accused’s s. 11(b) right has been infringed changed dramatically on July 8, 2016, with the release of the Supreme Court of Canada’s decision in Jordan and its companion case R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741. The applicable framework has shifted from a categorical parsing of pre-trial delay and balancing of factors to determine if the delay is unreasonable, to one where delay beyond a specified time period is presumptively unreasonable.
94The fundamental principles of the Jordan framework are set out in para. 105 of that decision as follows:
(a) There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the Provincial Court and 30 months for cases tried in the Superior Court. “Defence delay” must be subtracted from the “total delay” and the net result is measured against the presumptive ceiling.
(b) Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance legitimately arises from the case’s complexity, the delay is reasonable.
(c) Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps to demonstrate a sustained effort to expedite the proceeding; and (2) the case took markedly longer than it reasonably should have.
(d) For cases currently in the system, the framework must be applied “flexibly and contextually” with due sensitivity to the parties reliance on the previous state of the law.
95In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, the court expressly sets out the steps in the calculus to determine whether the delay associated with a proceeding exceeds the presumptive ceiling at paras. 34-40 as follows:
a) Calculate the total delay – which is the period from the date the accused was charged to the actual or anticipated end of trial.
b) Subtract defence delay from the total delay which results in the “net delay”.
c) Compare the net delay to the presumptive ceiling.
d) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut that presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, a stay will follow.
e) Subtract delay caused by discrete exceptional circumstances from the net delay leaving the “remaining delay” for the purpose of determining whether the presumptive ceiling has been reached.
f) If the remaining delay is greater than the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
g) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
CALCULATION OF NET AND REMAINING DELAY
The Parties’ Calculations of Net Delay and Remaining Delay
96On behalf of Mr. Locknick, Ms. Carroccia observes that there is an actual delay of 41.5 months between the date of the original information (September 19, 2013) and the anticipated date of the trial’s conclusion (March 3, 2017).
97She submits that Mr. Locknick did not waive delay, within the meaning of Jordan, at any time. A total of three weeks of delay is solely attributed to Mr. Locknick – specifically arising from the application dates offered during the weeks of September 21, 2015, October 13, 2015 (when she was not available the following week to continue the anticipated 7-8 day hearing) and November 23, 2015. Accordingly, the net delay as calculated by Mr. Locknick is 40.75 months.
98Mr. Locknick concedes that the development of King J.’s conflict and the resulting mistrial constitute a discrete exceptional circumstance. He attributes 5.5 months of delay to that event, consisting of the period from April 8, 2016 (the date of the “post-conflict” assignment court, which in his submission is the first date that the parties “could have done something about [the issue]”) and September 20, 2016 (when Mr. Locknick’s counsel was available to commence the fresh Garofoli application but the court did not have available resources). Therefore, he calculates the remaining delay as 35.25 months, which is presumptively unreasonable.
99Ms. Gatt adopts Mr. Locknick’s submissions and calculations. She submits that since she and Mr. Locknick were represented by the same counsel at the time the only period of “defence delay” accrued, which she agrees is three weeks, that is the total amount of defence delay attributable to her. She therefore appropriates Mr. Locknick’s calculation of remaining delay at 35.25 months, as her own as well.
100As it relates to his application, Mr. Garrity concedes defence delay of two months, during the period from September 23, 2015 to November 23, 2015, because his counsel was not available for any of the dates for the Garofoli application, as offered, during that time period. He therefore calculates a net delay of 39.5 months. He adopts Mr. Locknick’s submissions and calculations of the delay attributable to the discrete exceptional “conflict” circumstance, and correspondingly calculates the remaining delay, as it relates to him, as 34 months.
101The Crown agrees that the total delay is 41.5 months. It asserts that Mr. Locknick’s multiple adjournment requests early in the proceeding, for the purpose of reviewing disclosure and obtaining instructions which account for 1.5 months of delay, must be characterized as “waiver” or defence delay.
102The Crown says that the 1.5 month period between March 10, 2014 and April 24, 2014 must also be counted as defence delay. It says the “delay” in that period is solely attributable to efforts to schedule the preliminary hearing around the schedule of various defence counsel. The Crown remained ready to set dates at all appearances. The Crown also observes that Mr. Locknick deferred electing his mode of trial a total of ten times before April 14, 2014. This, it says, must be considered defence delay, since the Crown cannot be faulted for delay in scheduling the preliminary hearing, when the necessity of the preliminary hearing could not be ascertained until the accused elected their mode of trial.
103The Crown also contends that the entire period from September 21, 2015 to February 1, 2016, approximately 4.5 months, is properly viewed as defence delay on the part of all defendants. Both the Crown and the court were available for the hearing of the original Garofoli application starting on September 21, 2015, and on subsequent dates thereafter, as offered to the parties. Despite the Crown and the court’s availability, the Garofoli application was scheduled for February 1, 2016, solely as a result of the combined lack of availability of defence counsel. In the Crown’s submission, for the purpose of calculating defence delay, it is inappropriate to parse that period of time any further, on the basis of which defence counsel were available for the specific dates offered by the court and which were not, in the circumstances of this proceeding, where the co-accuseds are charged on a multi-count conspiracy indictment.
104Accordingly, the Crown calculates the net delay as 41.5 months less 7.5 months defence delay for a total of 34 months.
105In calculating the remaining delay, the Crown submits that there are two distinct discrete exceptional circumstances operable in this instance. The first arises out of the delay inherent in the failure to complete the preliminary hearing within the time originally scheduled, despite the parties’ best estimates to the contrary. The Crown explains that the actual duration of submissions during the preliminary hearing markedly exceeded the parties’ reasonable expectations because the presiding judge requested that the Crown specifically review the content of the transcript of each individual intercepted communication submitted in evidence. That explanation was not contested by any of the co-accused during this application.
106In the Crown’s view, the court’s direction to Crown counsel, regarding the manner in which she was to make submissions on committal resulted in an unavoidable delay of 5 months (November 7, 2014 to March 2, 2015) that was both unforeseeable by, and beyond the control of, the Crown. The Crown mitigated the delay by making itself available on all of the continuation dates proposed by each of the defence counsel.
107Turning to the declaration of conflict by the original trial judge, the Crown posits that the amount of delay attributable to that exceptional circumstance is 12.5 months, which consists of the period beginning on the date the original Garofoli application was originally scheduled to end (February 11, 2016) to the anticipated completion date of the now pending trial (March 3, 2017).
108In the result, the Crown calculates the remaining delay as 34 months less 17.5 months (5 months related to the preliminary hearing and 12.5 months related to the conflict) for a remaining delay of 16.5 months, which is well below the 30 month ceiling.
109Before disposing of the issue, I observe that the Crown’s position is, to some extent, “Locknick-centric”. Although the Crown did not make express submissions on the net and remaining delay calculations for Ms. Gatt and Mr. Garrity – I do not take the Crown to suggest that its characterization of 1.5 months of delay “as waiver on the part of Mr. Locknick” extends to the other co-accused persons who were not before the court on the various appearances during that 1.5 months. Instead, I take the Crown’s position to be that apart from the alleged waiver by Mr. Locknick, the balance of its submissions apply to the other accused – and therefore, it calculates the remaining delay to be 18 months for each of Mr. Garrity and Ms. Gatt.
The Court’s Calculation of Net and Remaining Delay
(i) The Total Delay
110The “total delay” between the date of the original charges and the date of the anticipated end of trial is 41.5 months, which is above the 30 month ceiling. While the total delay is presumptively unreasonable – the issue does not end there.
111Any defence delay must be subtracted from the total delay which results in the net delay. Jordan recognizes two components of defence delay. First, waiver and, second, delay caused solely by the conduct of the defence.
112While waiver can be explicit or implicit, it must be clear and unequivocal and the accused must have full knowledge of his or her rights, as well as, the effect of waiver on those rights.
(ii) Calculation of Net Delay in this Case
113In my view, there is no evidence of waiver by any of the accused at any point during the course of the proceeding. I specifically reject the Crown’s submission that Mr. Locknick’s early and multiple requests for brief adjournments for the purpose of reviewing “voluminous disclosure” in the 1 ½ month period between November 29, 2013 (Mr. Locknick’s first remand date after substantial Crown disclosure in mid-November 2013) and January 13, 2014 (when the first judicial pre-trial date was set) constitutes waiver on the part of Mr. Locknick. Defence waiver was not operative during that period of time.
114The Crown’s waiver submission is founded in several “video conferenced” court appearances by Mr. Locknick, in which he confirmed his understanding that his lawyer had requested brief adjournments. That is simply not enough to make out a waiver of his s. 11(b) Charter right. Specifically, I am unable to find that Mr. Locknick had full knowledge of his 11(b) right and the effect of waiver on that right and that he clearly and unequivocally, albeit implicitly, waived his right by confirming that his lawyer was requesting an adjournment. Legitimate adjournment requests to review recent and voluminous disclosure, without something more, do not constitute waiver within the meaning of para. 61 of Jordan.
115If it is not waiver, is it defence delay? No, it is not. During the subject time period, the defence was reviewing extensive disclosure, including a substantial number of intercepted private communications that the Crown provided in the middle of November 2013. Jordan is clear that this type of defence action is not to be deducted from the total delay. Specifically, defence actions legitimately taken to respond to charges fall outside the ambit of defence delay (Jordan, para. 65), which was precisely what Mr. Locknick’s counsel was doing during the time period identified by the Crown.
116Next, I will turn to the period of March 10, 2014 (the date of the conclusion of the second judicial pre-trial in the Ontario Court of Justice) and April 14, 2014 when the co-accused, before the court, excepting Mr. Garrity, made their respective elections with respect to mode of trial.
117In considering the Crown’s characterization of this period as “defence delay”, I make the following observations, founded in the transcripts of court appearances as filed, which occurred during this time:
a) The majority of the transcripts of court appearances during this period of time were filed by counsel for Mr. Garrity. The transcripts appear to be “Garrity centric” and do not include a transcription of all of the happenings in court on each respective appearance.
b) While the co-accused before the court (save Mr. Garrity) did not elect a mode of trial until April 14, 2014, it is clear that the Crown and the court were aware that a preliminary hearing or hearings would be required, well before that time. For example, on each of March 24, March 31 and April 7, 2014, the proceeding was adjourned to a new date in order to set a preliminary hearing date.
c) Clearly, the Crown and counsel for the various accused on the information, together with court administration were engaged in “out of court efforts” to schedule a preliminary hearing date before the co-accuseds elected mode of trial on April 14, 2014. For example, on March 17, 2014 the court inquired as to whether Mr. Miller (Mr. Garrity’s counsel) had submitted dates for a preliminary hearing. On April 14, 2014, when dates for preliminary hearing were being canvassed in court, Ms. Carroccia advised that she had submitted available dates “some time ago” and she was no longer available on a specific date offered by the court for another proposed preliminary hearing block, in which she was involved. Finally, the Crown’s e-mail of April 8, 2014 references the “significant difficulties” experienced in setting a two week preliminary hearing in the matter, followed by the Crown’s proposal to divide the hearing into smaller blocks for ease of scheduling.
118As a result of the foregoing, in my view, the Crown’s position that this period ought to be characterized as defence delay because of the co-accuseds’ “delay” in electing mode of trial is ill-founded. The delay during this period did not result from the co-accuseds’ failure to elect mode of trial at some earlier date. Based on the transcripts filed, it is clear that during this time period the parties contemplated that a preliminary hearing would be required and they were taking steps, together with court administration personnel, to schedule that hearing. Not surprisingly, given the number of accused and counsel involved, efforts in that regard proved to be difficult. The delay during this time period is the result of the difficulties that all parties experienced in identifying a single date that could accommodate the competing schedules of several (more than 10) criminal defence counsel. On this application, the Crown has not demonstrated that the delay during that period resulted from the unavailability of counsel for any particular co-accused. For the foregoing reasons, the delay during this period is not considered defence delay within the Jordan framework.
119Instead, this period of delay is, in my view, attributable to the manner in which the Crown chose to structure the original prosecution – over 60 counts and over 20 accused persons named in a single information. I find that reasonably, it was foreseeable that the structure of such a prosecution would inherently result in delay attributable to difficulties in scheduling a preliminary hearing, if one was required, based on the competing time commitments of a large number of criminal defence counsel. This does not mean that the joint prosecution of the co-accused was not in the interests of justice in this instance. However, under the Jordan framework, considerations related to “delay of that character” are best considered under the “complex exceptional circumstance”. In that regard, the Court in Jordan states at para. 77, “… proceedings jointly against multiple accused, so long as it is in the interests of justice to do so, may impact the complexity of the case.”
120In terms of scheduling the original Garofoli application, I reject the Crown’s position that the entire period from September 21, 2015 to February 1, 2016, approximately 4.5 months, is properly viewed as defence delay on the part of all of the defendants.
121Recall that the first judicial pre-trial conference in Superior Court occurred on May 14, 2015. The matter was then returned before an assignment court on May 15, 2015. At that time, the court was advised that a seven to eight-day block was required for the hearing of a pre-trial Garofoli application and that the parties had canvassed dates with the trial coordinator on May 14, 2015. The court was advised that an eight-day block for the application beginning February 1, 2016 was available for all counsel, except counsel for Mr. McKnight, who then indicated through an agent, that she could make herself available for that date.
122During the assignment court appearance, the Crown canvassed the possibility of earlier dates with the court. The trial coordinator, who was present, confirmed that the court’s first availability for the application was offered as “June 2015”. That date had been offered to the parties on May 14, 2015 and all counsel agreed that “it was too soon”. The specific date in June that was offered is not disclosed in the transcript. The assignment court offered three other dates earlier than February 1, 2016, for the application - an eight-day block beginning September 21, 2015, an eight-day block beginning October 13, 2015 and an eight-day block beginning November 23, 2015. Counsel for Mr. Garrity was not available for any of those blocks. Counsel for Mr. Locknick and Ms. Gatt was not available for any of those blocks continuously, although she was available for one week of the block offered in October 2015. The Crown was available for all dates offered.
123Under the Jordan framework, the period of delay resulting from the unavailability of defence counsel is subtracted from the total delay. However, periods of time which the court and the Crown are also unavailable will not constitute defence delay even if defence counsel is also unavailable during those times.
124In accordance with the parties estimated length of the pre-trial application, the court offered three two-week blocks of time, a total of six weeks, for which the Crown was available and counsel for Mr. Garrity, Mr. Locknick and Ms. Gatt were not. In my view, it is appropriate to allocate six weeks of defence delay to them, respectively. I appreciate that counsel for Mr. Locknick and Ms. Gatt was available for a portion of the block of time offered by the court in October 2015. However, her availability was not consistent with the parties’ good faith estimation of the time required for the application. In my view, when assessing whether a particular portion of the total delay should be characterized as defence delay, it is appropriate to consider whether defence counsel is available for the entirety of the time the parties reasonably estimate is required to complete the scheduled event, when the court and the Crown are otherwise available. Where the court and Crown are available for a particular block of time that accords with the parties’ estimate of the time required, but the event is not scheduled for that block because defence counsel is available for some, but not all, of that time, it appears reasonable, at least in this case, to characterize the resulting delay as defence delay. Of course, each case remains to be determined in accordance with its own circumstances.
125I specifically reject the Crown’s position that because the co-accused are named on a multi-count conspiracy indictment, the delay of one (or more) ought to be viewed as the defence delay of all. The Jordan framework requires an assessment of each individual accused’s acts and whether his or her acts directly caused the delay and/or whether the acts of an individual accused can be shown to be a deliberate and calculated tactic employed to delay the trial.
126Even in the case of a joint prosecution, the Jordan analysis remains an “individual accused” specific inquiry. For example, had I determined that Mr. Locknick had “waived” 1.5 months of delay early in the proceeding, as submitted by the Crown, it could not be said that the other twenty-plus co-accused (at the time) were deemed to waive that delay as well. Similarly, in my view, if counsel for one accused is not available on a specific date offered for trial, the delay resulting from that counsel’s unavailability cannot be said to have been caused by the actions or inaction of his or her co-accused.
127The point is further illustrated by the result in Jordan, where the total delay was 49.5 months. Mr. Jordan was found to have waived four months of delay and was solely responsible for another 1.5 months of delay with a calculated net delay of 44 months. He was initially prosecuted together with nine other accused, although by the time of trial only one co-accused remained. None of the delay caused by any of the other co-accused was considered in the calculation of the net delay as it related to Mr. Jordan.
128As I observed previously, the potential consideration of delay which arises from the nature of a joint prosecution, is not rendered moot in the Jordan analysis. Rather, it finds its analytical home in the determination of whether an exceptional circumstance based on complexity, that justifies a delay exceeding the ceiling, is operable, in any particular case.
129Finally, while I would otherwise attribute an additional week of defence delay to Mr. Locknick based on his counsel’s unavailability for the September 13, 2016 date offered by the court and available to the Crown for a fresh Garofoli application, in the circumstances of this case, that period of delay falls within a period of delay attributable to a discrete exceptional circumstance (as I will explain below), which is how it shall be accounted for.
130As a result of the foregoing, I calculate the “net delay” with respect to:
a) Mr. Locknick as 40 months (41.5 months total delay minus 1.5 months defence delay);
b) Ms. Gatt as 40 months (41.5 months total delay minus 1.5 months defence delay); and
c) Mr. Garrity as 40 months (41.5 months total delay minus 1.5 months defence delay).
131The net delay remains above the ceiling of presumptive reasonableness for matters tried in Superior Court. Accordingly, the delay is presumptively unreasonable. The Crown may rebut that presumption by showing that the delay is reasonable because of the presence of exceptional circumstances which typically fall into two categories:
a) Discrete events; and
b) Particularly complex cases (see Jordan, at paras. 68 and 71).
132I will consider each category, in turn, starting with discrete exceptional circumstances.
(iii) Calculation of Remaining Delay – Discrete Exceptional Circumstances
133Exceptional circumstances are those that lie outside the Crown’s control in the sense that:
They are reasonably unforeseen or reasonably unavoidable; and
Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.
134If the Crown can demonstrate those two factors, the circumstance will be considered exceptional. There is no requirement to demonstrate that the particular circumstance is “rare or entirely uncommon”.
135The parties agree that the conflict declared by King J. approximately two months after he reserved his ruling on the standing issue in the original Garofoli application, constitutes a discrete exceptional circumstance within the Jordan framework. They dispute the amount of the total delay attributable to that event. The co-accused have all adopted Mr. Locknick’s position that the delay from this circumstance is 5.5 months from April 8, 2016 (the first assignment court date after the conflict arose) to September 20, 2016 (the first date Mr. Locknick’s counsel was available after the conflict arose but the court did not have available time). The Crown contends that 12.5 months of delay is attributable to that circumstance – from February 11, 2016 to March 3, 2017.
136For reasons that follow, I do not accept either position.
137In my view, the delaying effect caused by the event resulting in the conflict extends back to February 1, 2016 – the first day King J. presided over the original proceeding. The conflict necessitated a mistrial and the parties were required to embark on the trial scheduling process again. I appreciate the defence position that the delay associated with the event causing the conflict should commence on April 8, 2016 – when the parties were first in a position to take the rescheduling action necessitated by the conflict. However, the opportunity for the case to meaningfully progress from February 1, 2016 to April 8, 2016 was neutered, solely as a result of the event resulting in the conflict. By necessitating a mistrial, that event retroactively converted a period of “actual progress” in the case (from February 1, 2016 to April 8, 2016) to a “period of delay”.
138I will now consider when the delay attributable to that exceptional circumstance ended. I reject the Crown’s position that reasonably, the delay attributable to the exceptional circumstance terminates at the anticipated end date of the pending trial. The Crown’s position is founded on the “assumption” that the original anticipated end of trial date was February 11, 2016. That is not accurate for two reasons.
139First, the May 15, 2015 assignment court transcript evidences that the Garofoli application was scheduled in February 2016, not the trial proper. Second, the application did not end on or before February 11, 2016. The trial judge reserved on a preliminary issue to May 2, 2016. Had a conflict not developed, the proceeding necessarily would have continued beyond May 2, 2016.
140The record is unclear whether the balance of the Garofoli application would have been heard during the first week of May 2016 (after the standing ruling was made) but it does not appear so. There is no indication, in the record, that dates had been specifically scheduled for the continuation of the application during the first week of May, 2016, or at all, at the time the conflict was declared. Assuming there was no conflict, then once the application was heard and rulings were made with respect to the s. 8 and s. 24(2) Charter issues, presumptively the matter would have proceeded to a trial on the merits. In short, the anticipated date for the end of the original trial “but for the conflict” posited by the Crown, is factually inaccurate.
141Second, while the period of delay caused by any discrete exceptional circumstance must be subtracted from the total delay, the Crown and the justice system “must always be prepared to mitigate the delay resulting from [such a] circumstance. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events…Thus, any portion of the delay that the Crown and the justice system could reasonably have mitigated may not be subtracted” (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional circumstances). (See Jordan, para. 75.)
142In this instance, the proceeding was returned to the first available assignment court date after the conflict was declared. The first date offered by the court for the parties’ revised estimate of “a one week Garofoli application” was September 13, 2016. The date was not available to defence counsel. The court’s next available date was December 5, 2016. The court could not accommodate other dates in September or October when Mr. Locknick’s counsel and the Crown were available. Mr. Locknick’s counsel was first available the week of September 20, 2016. The court could not offer any dates in November at all.
143I am mindful that the court’s ability to reschedule the proceeding before a new justice was impaired, to some extent, because 6 out of the 12 justices regularly sitting in Windsor were conflicted from presiding over this matter.
144However, it remains that the justice system could only offer the parties one week in all of the 9 month period from April 8, 2016 to December 5, 2016, in order to mitigate the effect of the unforeseeable judicial conflict. In my view, that does not accord with the justice system’s duty to mitigate the delay resulting from a discrete exceptional circumstance or the necessity to prioritize cases that have faltered due to an unforeseen event – particularly in a post-Jordan world.
145As a result, the entire period of delay from April 8, 2016 to December 5, 2016 ought not to be subtracted from the net delay. Instead, I find, as Mr. Locknick submits, the period of exceptional discrete delay attributable to King J.’s conflict terminates on September 20, 2016, which is the first evidenced date that both Mr. Locknick’s counsel and the Crown were available for the fresh Garofoli application. Indeed, Mr. Locknick’s counsel and the Crown were available on several subsequent dates but the earliest date offered by the court was December 5, 2016 (I appreciate that the schedules of all defence counsel were not canvassed for all of the dates that Mr. Locknick’s counsel was available for – however, it remains that the justice system did not have those dates available in any event).
146Viewing September 20, 2016 as the termination date for the discrete event results in the court having had 5 months to mitigate the delay caused by the discrete exceptional “conflict” circumstance, which I find to be reasonable in this case, particularly in light of the additional institutional constraints created by the unusual number of judges that were conflicted from presiding over the trial.
147Ultimately, the date that was scheduled in December 2016 was the product of unavailability of defence counsel on September 13, 2016, the number of justices conflicted from hearing this matter, the remaining judicial resources available and the anticipatory demand already placed on those resources. However, it remains that the system reasonably ought to have responded more proactively to the exceptional circumstance created by the conflict.
148The week of September 13, 2016 that the court offered for the fresh Garofoli application evidences an attempt by the justice system to reasonably mitigate the delay caused by the discrete exceptional circumstance, which was frustrated by Mr. Locknick’s counsel’s lack of availability. I have included that week as part of the delay caused by the discrete exceptional event as opposed to pure defence delay (i.e. the one week period from September 13 to September 20, 2016).
149In the result, I calculate the delay attributable to this discrete exceptional circumstance as 7.75 months (February 1, 2016 – September 20, 2016).
150I will now consider the Crown’s submission that the five month period between November 7, 2014 (the last day of the preliminary hearing, as originally scheduled) and March 2, 2015 (the date of committal) should be treated as delay attributable to a discrete exceptional circumstance.
151The Crown’s evidence at the preliminary hearing ended on November 5, 2014. Crown counsel and counsel for the co-accused who are before this court, were confident that the preliminary hearing would conclude on November 7, 2014, even if the parties spent November 6, 2014 “out of court” preparing focussed submissions. The Crown submits that because of the level of specificity taken by the court during the course of submissions, including a systematic review of the content of the transcript of each intercepted communication submitted in evidence, the parties’ mutual good faith efforts to establish a realistic time estimate for the completion of the preliminary hearing were frustrated.
152I accept that that development was not reasonably foreseeable or avoidable by the Crown. Indeed, counsel for the defence did not raise any concerns on November 5, 2014 that the preliminary hearing would not be completed on November 7, 2014. To the contrary, Ms. Carroccia expressed a view that it would still be completed. The delay attributed to that happening was therefore unforeseeable, unavoidable and amounts to an exceptional circumstance, in my view.
153To mitigate the unforeseeable delay, the Crown made itself available on all return dates proposed by defence counsel for the continuation of the preliminary hearing. The transcripts evidence that the scheduling of the continuation of the preliminary hearing proved difficult because of the competing schedules of defence counsel. Through proactive steps to minimize delay, the court and the Crown made themselves available on the first dates available to the defence in January and subsequently in February 2015, when a second continuation date became necessary.
154In accepting the Crown’s position that the delay related to the continuation of submissions on the preliminary hearing constitutes a discrete exceptional circumstance in the circumstances of this case, I am mindful that in Jordan, a significant amount of delay occurred in the Provincial Court as a result of the parties underestimation of the time required for the preliminary hearing. Mr. Jordan was arrested in December 2008 in relation to an alleged “dial a dope” operation, and was eventually charged with nine other co-accused on a 14-count information alleging various CDSA offences. By May 2009, all counsel had agreed that the preliminary inquiry would require approximately four days and it was scheduled for four days in mid-May of 2010 (a one year delay).
155Prior to the preliminary inquiry, several co-accused entered guilty pleas and were severed from the information. At the time the preliminary inquiry commenced, there were five co-accused left, including Mr. Jordan. The Crown presented all of its evidence against the four co-accused during the four days scheduled for the inquiry but indicated it would require “significantly more time” to present the substantial amount of evidence it had with respect to Mr. Jordan. The parties sought and obtained continuation dates throughout 2010 and into 2011.
156Eventually, in May 2011, two years after the original preliminary inquiry dates were set, Mr. Jordan was committed to stand trial. The preliminary inquiry consumed nine days of court time but had taken a full year to complete. In its reasons in Jordan, the Court did not attribute any delay to a discrete exceptional circumstance involving the underestimation for the preliminary inquiry. Instead, it attributed a small amount of that time to defence delay, with the remainder tolling against the presumptive ceiling.
157I find the circumstances of this case to be distinguishingly different than those in Jordan. In that case the delay was caused by counsel’s underestimation of the time required to complete the preliminary hearing, at the time it was originally scheduled, with knowledge of the volume of evidence that had to be adduced. The delay in completing the preliminary hearing in this case was not caused by the Crown’s failure to account for the time required to adduce a substantial amount of evidence against any of the co-accused. Instead, after all of the evidence at the preliminary hearing was adduced in just under two days, all counsel were content that the matter go to November 7, 2014 for submissions and appeared confident that the matter would be completed within the time originally scheduled, particularly because counsel were taking additional time to prepare “organized and focussed submissions”. On the evidence before me, I cannot conclude that any of the parties underestimated the time that would be required to complete their submissions on committal, as they intended to make them. Then, something else happened.
158It appears that none of the parties contemplated that the court would request detailed systemic submissions from the Crown with respect to each intercepted communication and, as a result, they did not estimate the time to complete the matter on that basis. Despite the parties’ good faith efforts to estimate the time required to complete the preliminary hearing, which were made after all of the evidence was adduced, the hearing was not completed, as anticipated. The parties anticipated that one further day was required. It turned out that two were required, which proved difficult to schedule because of the competing schedules of defence counsel.
159When it advocates that the nature of the circumstances surrounding the delay in completing the preliminary hearing are an “exceptional circumstance”, the Crown is not simply pointing to a past difficulty in order to justify a breach of the ceiling. The Crown took all reasonable and available steps to avoid and address the overall impact of the additional length of, and scheduling required for, the preliminary hearing, on the total delay, before the total delay exceeded the ceiling.
160Specifically, in all of the circumstances, the Crown and the justice system acted reasonably to mitigate the delay caused by the additional time required to complete the preliminary hearing, by offering availability for continuation on January 22, 2015, in accordance with defence counsels’ first availability. A further one day was required after that and, again, the Crown and the justice system acted reasonably to mitigate the delay by accommodating the schedule of defence counsel, ultimately agreeing to their first availability on February 10, 2015, to continue the matter.
161Further, once the matter arrived in Superior Court, the Crown remained vigilant in addressing and mitigating delay. It made itself available for every date offered by the court. At the May 15, 2015 assignment court it took the initiative to canvass dates earlier than February 1, 2016 for the hearing of the original Garofoli application, which resulted in three earlier dates being offered, but counsel for three of the four co-accused were not available.
162At the April 8, 2016 assignment court (post conflict), the Crown indicated it was anxious to “get the matter back on the rails” and to streamline scheduling issues. It suggested that the second Garofoli application be scheduled based on Crown and Ms. Carroccia’s availability (as counsel for the only accused with a pending application) which was ultimately the basis upon which scheduling proceeded.
163In my view, in all the circumstances, the Crown took meaningful and reasonable steps to mitigate the delay caused by the additional time required to complete the preliminary hearing at every opportunity that it had to do so, including before the 30 month ceiling was reached (in total delay).
164The circumstances resulting in the period of delay from November 7, 2014 to February 10, 2015 were not within the Crown’s control. Unlike the circumstances in Jordan, the additional time required to complete the preliminary hearing did not result from the Crown’s failure to adduce all of its evidence relevant to committal of all accused within the time originally estimated for the preliminary hearing. Rather, the need for additional time resulted from legitimate requests for assistance made by the preliminary hearing judge during submissions that the Crown and defence counsel did not reasonably anticipate as of November 5, 2014. Based on the foregoing, I find the Crown has demonstrated that the corresponding delay resulted from a discrete exceptional circumstance.
165I find the “delay” attributable to this discrete exceptional circumstance is three months (November 7, 2014 – February 10, 2015). Contrary to the Crown’s submission, I do not consider the period of time from the last day of submissions to the date of committal to be part of the delay attributable to this discrete exceptional circumstance. There is nothing in the record before me, or in submissions of counsel, that indicates that the amount of time required for the preliminary hearing judge to render his decision on committal resulted from the operable exceptional circumstance and, accordingly, it cannot be subtracted.
166As a result of the foregoing, I calculate the remaining delay with respect to each of the accused as follows:
a) Mr. Locknick: 40 months net delay minus 7.75 months minus 3 months equals 29.25 months;
b) Ms. Gatt: 40 months net delay minus 7.75 months minus 3 months equals 29.25 months; and
c) Mr. Garrity: 40 months net delay minus 7.75 months minus 3 months equals 29.25 months.
167In the result, the remaining delay for each of Mr. Locknick, Ms. Gatt and Mr. Garrity falls below the presumptive ceiling of reasonableness. Even if the defence delay attributable to Mr. Locknick and Ms. Gatt is reduced by one week because Ms. Carroccia was available for one week of the two-week block offered by the court in October 2015, the remaining delay with respect to each of them would be calculated at 29.5 months and would, therefore, still fall below the presumptive ceiling of reasonableness.
168The Jordan framework contemplates a delay may be unreasonable even if it falls below the presumptive ceiling. In those circumstances, the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish:
It took meaningful steps that demonstrated a sustained effort to expedite the proceeding; and
The case took markedly longer than it reasonably should have.
169Jordan contemplates that stays beneath the ceiling will be granted only “in clear cases”. None of the accused submit that if the calculated remaining delay for any of them, respectively, falls beneath the ceiling, the delay is nonetheless “unreasonable”.
170In the result, as the calculated remaining delay for Mr. Locknick, Ms. Gatt and Mr. Garrity falls below the 30-month ceiling, the delay is not unreasonable and their respective rights under s. 11(b) of the Charter have not been infringed. A stay of proceedings is, therefore, not warranted.
171In the event that I have erred in my attribution of specific elements of the total delay, I have also considered whether the delay is justified “by the proceeding’s complexity” or based on the “transitional exceptional circumstance”, to the extent that the remaining delay exceeds the ceiling. In both instances, I conclude that it is. I will explain.
(iv) Exceptional Circumstance – Particularly Complex Case
172The concept of exceptional circumstances embraces a second category, specifically cases that are “particularly complex”. “Particularly complex cases” are those that because of the nature of the evidence or the nature of the issues require an inordinate amount of trial preparation time such that the delay is justified. The nature of the evidence in a particular case may be complex if factors such as voluminous disclosure, a large number of witnesses, significant requirements for expert evidence and/or charges covering a long period of time are present (Jordan, at para. 77).
173Particularly complex cases arising from the nature of the issues may be present if there are, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and/or a large number of significant issues in dispute. Further, as I previously observed, proceeding jointly against multiple accused, so long as it is in the interest of justice to do so, may impact the complexity of the case (see Jordan, para. 77).
174In determining whether a specific case is of particular complexity such that delay above the presumptive ceiling is nonetheless reasonable, the trial judge must consider whether the Crown, in what could reasonably be expected to be a complex prosecution, has developed and followed a concrete plan to minimize the delay caused by the complexity of the case.
175The Crown submits that in the event that the remaining delay is calculated to exceed the presumptive ceiling for any of the co-accused, the delay is nonetheless reasonable because of the particular complexity of this case. It submits the following factors have resulted in significant complexity:
a) Originally there were 23 accused;
b) Originally there were 65 counts;
c) The existence of a Part VI wiretap authorization;
d) The type of offences charged – multiple conspiracies to smuggle drugs into correctional facilities;
e) The number of remaining accused and the number of remaining counsel; and
f) The late removal of Ms. Carroccia as counsel for Ms. Gatt (on November 14, 2015).
176The applicants submit there is nothing particularly complex about either the evidence or the legal issues involved that would justify a delay in excess of the 30-month ceiling.
177I accept that there are elements of complexity to the prosecution. The accused are charged on a multi-count conspiracy indictment involving an alleged drug trafficking network, which Mr. Locknick is said to have directly controlled while he was incarcerated in various correctional facilities. At this point in the proceeding, I know relatively little about the substance of the evidence to be adduced at trial – other than that the Crown is placing heavy reliance on intercepted private communications obtained through a wiretap authorization granted in July 2013. There are three distinct conspiracies at issue in the indictment, all involve Mr. Locknick, two of three involve various combinations of the remaining co-accused. All of them involve unindicted co-conspirators.
178The wiretap authorization from which the relevant intercepts were obtained is subject to a complex s. 8/24(2) Charter challenge by Mr. Locknick and Mr. Garrity. The complexity arises, in part, because, in addition to the authorization, Mr. Locknick challenges the issuance of four prior warrants for number recorder warrants, production orders and related orders to assist. Confidential informant information is a critical aspect of the ITOs in support. The ITOs were amplified, on review, by viva voce evidence of three witnesses, a transcript of the evidence from the trial of another proceeding against Mr. Locknick that was given by the police officer who swore the ITOs relied on in support of the search warrants at issue in this proceeding, and extrinsic evidence in the form of correspondence from the issuing judge dated in April 2013.
179Apart from a traditional Garofoli review, Mr. Locknick challenges the issuance of the number recorder warrants on the basis of a reasonable apprehension of bias on the part of the issuing judge. In addition, the basis upon which Mr. Locknick asserts standing to challenge the number recorder warrants engages novel informational privacy issues, including whether provisions of the Ministry of Correctional Services Act ground an inmate’s reasonable expectation of privacy in certain information that was ultimately provided to police by a jail employee and relied on in the respective ITOs. The issues and evidence are of such complexity that the Garofoli application was originally scheduled for an eight day hearing to be followed by a two week trial.
180Further, I am advised that one of the co-accused may take issue with respect to voice identification and the actual content of relevant intercepted communications, which may add to the complexity of the trial (if that evidence is ultimately ruled admissible). I am also advised that other co-accused and the Crown are making efforts to streamline evidence with respect to the content of intercepted communications (if that evidence is ruled admissible).
181Invariably, the original structure of the information added complexity to the proceeding – placing a large number of accused persons and a large number of counts before the court in one prosecution. The delay that potentially could have resulted from the manner in which the original prosecution was structured was substantial. To the Crown’s credit, it recognized that potential, early on. In Crown counsel Malott’s e-mail of April 8, 2014 she proposed a concrete plan to facilitate the timely scheduling of a block-based preliminary hearing. The court and defence counsel agreed to the plan, with the result that five different preliminary hearing blocks were scheduled, with the latest being the November 2014 preliminary hearing block, which related to the charges forming the subject matter of the indictment before this court.
182When the matter arrived in Superior Court, with four co-accused on the indictment, the Crown again took proactive steps to immediately mitigate and minimize the delay caused by the nature of the joint prosecution by requesting and making itself available for dates for the Garofoli application before February 1, 2016.
183As the justice system transitions into the Jordan framework, it is helpful to recall the legal principles that underwrite the determination of whether a joint prosecution is in the interests of justice and, whether it remains so, as the time that the proceeding remains outstanding accrues.
184In R. v. Ny and Phan, 2016 ONSC 8031, 343 C.C.C. (3d) 512, Fairburn J. summarizes a number of relevant principles in the context of multi-accused trials at paras. 34 through 49, which include the following:
a) The interests of justice are most often, best served by having people who are alleged to have committed crimes together, tried together and their guilt or innocence determined together.
b) A single trial for two or more accused generally conserves judicial resources, avoids inconsistent verdicts and avoids witnesses having to testify more than once: see R. v. Whylie, 2006 CanLII 9037 (ON CA), at para. 24.
c) The presumption of a joint trial, particularly where individuals are said to have worked in concert, will only be displaced where the interests of justice requires separation as per s. 591(3) of the Criminal Code: see R. v. Savoury 2005 CanLII 25884 (ON CA), at para. 22.
d) The interests of justice encompass those of the accused, the co-accused and the community as represented by the prosecution: see Savoury, at para. 22.
e) The new section 11(b) framework absorbs the policy rationale imbedded in the jurisprudence pertaining to joint trials specifically as it relates to the interests of justice being served – “[p]roceedings jointly against multiple co-accused, so long as it is in the interests of justice to do so may also impact the complexity of the case”, emphasis added,: see Jordan at para. 77.
f) The important policy rationales for keeping joint trials intact must not be lost in the increasing shadow of an approaching ceiling. Severance is not a panacea when delay arises in a multiple accused trial: see R. v. Singh, 2016 BCCA 427, 344 C.C.C. (3d) 516, at para. 83.
g) The implications of proceeding too quickly to sever accused simply because the ceiling is approaching are obvious and striking. Severance resulting in the Crown conducting virtually the same trial more than once would potentially add to delay in the system: see R. v. Kourz, 1992 ABCA 144, 125 A.R. 161, at para. 83.
h) Delay caused by proceeding against multiple co-accused must be accepted as fact of life and must be considered in deciding what constitutes a reasonable time for trial: see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6.
i) The concept of “reasonable time” within s. 11(b) may fluctuate depending on whether accused are standing alone or together. Provided it is in the interest of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one. The Crown has an obligation to continuously assess whether the decision to proceed jointly remains in the interest of justice although an accused who is being proceeded against jointly is not necessarily entitled to a trial in the same time as an accused proceeded against on his own. An accused cannot be held “hostage” by his or her co-accused’s actions and inactions: see Vassell, at para. 7; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 323.
j) The Crown must remain vigilant in assessing the interests of justice and whether they continue to be served by a joint approach and it must ensure that the decision to proceed jointly does not compromise the s. 11(b) right of an individual accused.
185In addition, the following principles are set out in Manasseri, at para. 323:
a) Where proceedings are constituted as a joint prosecution, delay caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to be tried within a reasonable time has been breached.
b) The Crown cannot ignore the circumstances of an accused who has done everything possible to move the case along only to be held hostage by his or her co-accused and the ability of the judicial system to provide earlier dates.
c) Sometimes the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interest of one burdened down by another for whom trial within a reasonable time seems anathema.
186I am of the view that, from an evidentiary perspective, the proceeding is moderately complex. Although I say that with limited knowledge of the specifics of the evidence, it primarily consists of the content of intercepted communications, potentially the results of the execution of number recorder warrants, tracking warrants and production orders, together with observations made during physical surveillance. Given the nature of the counts, the co-conspirators exception to the hearsay rule will likely be engaged, depending on the admissibility of the intercepted communications. It appears that disclosure was voluminous and took nearly two months to review. The trial is scheduled for two weeks. I am uncertain about the number of witnesses the Crown intends to call.
187The legal issues raised in the context of the Garofoli application which I have already summarized are, in combination, of “moderate to marked” complexity.
188Based on the nature of the offences, the nature of the evidence and the legal issues involved, particularly on the pre-trial applications (I have not been advised of any significant legal issues at trial), I find this case shades above “moderate” in its complexity.
189Jordan also recognizes that the nature of a joint trial, where in the interests of justice, may also inform the complexity of a case. As the court stated in R. v. Vassell, 2016 SCC 26, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial.
190In this case, some delay was occasioned in the Ontario Court of Justice because of the structure of the original information – notably, the need for a second judicial pre-trial and the scheduling of the preliminary hearing. Given the nature of the counts in the information (the majority of which appear to have arisen as a result of intercepted communications pursuant to the authorization subject to challenge in this proceeding), I find that it was in the interests of justice to structure the prosecution as the Crown did. Further, the Crown proposed and executed a concrete plan to minimize the impact of a joint prosecution on the overall delay, while the matter was before the Ontario Court of Justice.
191In addition, I find that the interests of justice strongly favour a single trial on the three count conspiracy indictment before the court, which represents an efficient manner of dealing with the charges that promotes judicial economy. For reasons that I have previously stated, I find that the Crown took steps designed to mitigate and minimize delay to all of the accused every time the matter was before an assignment court, in the Superior Court of Justice.
192I do not find that there was any significant delay occasioned to any particular accused because of the action or inaction of his or her co-accused. None of the accused (or the Crown) requested an adjournment of scheduled events in the Ontario Court of Justice or the Superior Court. While Ms. Gatt’s counsel changed in November 2015, that did not disrupt the scheduled hearing of the original Garofoli application on February 1, 2016.
193This is not a case where one or more accused have been held hostage from a “delay” perspective by a joint proceeding because other co-accused persons have demonstrated no desire to have a trial. There were potential “additional” periods of delay that could have been caused by the unavailability of counsel for co-accused persons in the proceeding, which Ms. Carroccia successfully resisted. For example, the potential that the preliminary hearing was originally going to be scheduled to commence on or after January 2015 – which was mitigated by the court offering to sit during a week in November 2014 which, based on the transcripts filed, was otherwise scheduled for a judicial conference. There was also a potential that the first continuation date for the preliminary hearing would be scheduled in May 2015 – which was mitigated by the Crown and the court making a date available in January 2015. Overall, I find that, in all the circumstances, none of the accused persons incurred marked or unreasonable delay in reaching trial as a result of the conduct and availability of counsel for his or her co-accused. As a result, I do not find this to be a case where the Crown ought to have severed any of the co-accused or counts on the indictment.
194Ultimately, complexity must be assessed for its reasonableness in all of the circumstances. The complexity here arises from the nature of the charges, the nature of the legal issues involved in the pre-trial applications and in the joint nature of the prosecution. I am satisfied that in all of the circumstances, this is a particularly complex case, that justifies the anticipated time it will take for the trial to conclude.
195Therefore, to the extent I have erred in my calculation of the net delay and remaining delay and/or my findings with respect to the nature and duration of discrete exceptional circumstances, I am of the view that even if the remaining delay was determined in accordance with the “remaining delay calculus” proposed by each of the applicants, it is “reasonable” based on the particular complexity of the prosecution.
(v) The Transitional Exceptional Circumstance
196The Jordan framework represents a substantial departure from the law that was applied to s. 11(b) applications in the past. While a judicial change in the law is presumed to operate retroactively – slightly more relaxed rules apply to judicial changes to the interpretation of constitutional provisions. Transition periods, among other things, are part of the discretionary remedial framework of our constitutional law (Jordan, at para. 93).
197In Jordan, the Court identified a variety of reasons to apply the new framework contextually and flexibly for cases in the system at the time its decision was released.
198First, it is not fair to strictly judge participants in the criminal justice system against a standard for which they had no notice.
199Second, while the new framework creates incentives for both the Crown and the defence to expedite criminal cases, in jurisdictions where prolonged delays are the norm, it will take time for such incentives to shift the culture.
200Finally, the administration of justice cannot tolerate a reoccurrence of what transpired after the release of Askov. The contextual application of the framework to “transitional cases” is intended to ensure that a post-Askov situation is not repeated (Jordan, at para. 94).
201Accordingly, the new framework including the presumptive ceiling applies to cases currently in the system subject to two qualifications – one deals with cases where it may be appropriate to stay a proceeding even though the calculated remaining delay falls below the ceiling for presumptive unreasonableness. The second qualification, and one which merits consideration in this instance is grounded in a transitional exceptional circumstance, which may arise in cases where the charges were brought before the release of Jordan (Jordan, at paras. 95-97).
202The transitional exceptional circumstance applies where the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law, as it previously existed.
203The transitional exceptional circumstance recognizes that change takes time and institutional delay – even if significant – will not automatically result in a stay of proceedings (Jordan, at para. 97). Ultimately, for most cases in the system, the release of Jordan should not automatically transform what would have previously been considered a reasonable delay into an unreasonable one (Jordan, para. 102).
204In Williamson, the Court identifies the following relevant considerations in the contextual determination of whether the Crown has discharged its onus to 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:
The complexity of the case
The period of delay in excess of the Morin guidelines
The Crown’s response, if any, to any institutional delay
Defence efforts, if any, to move the case along; and
Prejudice to the accused.
205I will address the foregoing considerations, below.
(a) Complexity
206I have previously described the relatively complex nature of this proceeding, which is informed by the nature of the offences, the anticipated wiretap evidence, the nature of the legal issues – particularly in the context of the Garofoli application and the prosecution against multiple co-accused in the same proceeding, which is in the interests of justice in this case.
(b) The Morin Framework
207Turning to the period of delay in excess of the Morin guidelines, Ms. Carroccia concedes that although the original trial was scheduled to start 29 months after the information was sworn, it was unlikely that the proceeding would have been stayed under the Morin framework, at that point. However, she submits that with the current anticipated total delay of 41.5 months this proceeding would have been vulnerable to a stay under Morin.
208The Crown has provided a chart, in which it roughly calculates the “inherent time requirements” for the proceeding as 17 months – with the balance of the delay attributable to neutral or defence related delay.
209The Crown’s chart does not address any period of time after King J. reserved on the standing issue – including the ensuing mistrial and the scheduling and conduct of the current trial. I am left to infer that the Crown suggests all of that time is neutral.
210I am satisfied that under the prior state of the law, an inquiry under the Morin framework would have been warranted based on the total delay.
211Under the Morin framework the right to be tried within a reasonable time was a multi-factored, fact-sensitive and case-sensitive inquiry that was complex in its application. The following general principles applied:
(i) The length of delay was calculated from the date the information was sworn to the date of the end of trial;
(ii) Waiver by the accused could be explicit or implied, but it had to be clear and unequivocal, with the accused’s full knowledge of the rights protected by s. 11(b) and the effect that waiver would have on those rights;
(iii) There were inherent time requirements for any case that should be treated as neutral, which included such things as intake, and the time to complete certain steps in the proceeding, such as the preliminary hearing. Inherent time requirements of the case also included the time required for the Crown and defence to be available for trial, and for time to prepare the case – “counsel for the prosecution and the defence were not required to hold themselves in a state of perpetual availability”;
(iv) Any delay caused by the defence was attributable to “actions of the accused”;
(v) Any delay caused by the Crown was attributable to “actions of the Crown”;
(vi) Institutional delay was considered as any period of time that results from the inadequacy of institutional resources. The period of institutional delay starts to run when the parties are ready for trial but the system cannot accommodate them. The Court established that institutional delay in the range of 8 to 10 months in provincial court and 6 to 8 months between committal and the start of trial in Superior Court constituted an acceptable allowance for limitations on resources.
(vii) The general presumption prior to Jordan was that co-accused delay was considered neutral delay in the s. 11(b) analysis (see: R. v. L.G., 2007 ONCA 654, 229 O.A.C. 89, at para 62).
(viii) Prejudice to the accused and the seriousness of the charge were also considered in the application of the Morin framework. Prejudice could be actual or inferred from the length of the delay. The longer the delay, the more likely the inference would be drawn. Prejudice had to result from the delay and not the charge itself. Actual prejudice could be shown where, among other things, the accused’s liberty interests were prejudiced as a result of pre-trial incarceration.
212After attributing various aspects of the delay in this proceeding to “intake” (both in the Ontario Court of Justice and the Superior Court of Justice), and other “inherent time requirements” of the case at both levels of court, “neutral delay” and “defence delay” – I have determined that the cumulative institutional delay in the Ontario Court of Justice totals 7 months and the cumulative institutional delay in the Superior Court of Justice totals 5.5 months, resulting in total institutional delay of 12.5 months – which falls within the range of acceptable institutional delay of 14-18 months permitted under the Morin guidelines. Notably, I find no period of Crown delay in either court. A summary of my specific attributions of delay amongst the various “Morin framework” categories is set out in the chart below.
Attribution of Delay – Morin Framework
Ontario Court of Justice
| Period of Time | Explanation | Characterization | Amount of Delay |
|---|---|---|---|
| September 16, 2013 – November 27, 2013 | This is the initial intake period and includes Crown disclosure and review of same in the context of a complex prosecution. Ms. Carroccia indicates that disclosure was voluminous – a substantial amount of disclosure was made in November 2013. I am satisfied that the timing of the disclosure was reasonable based on its nature and the complexity of the case. | Intake (disclosure) | 2.25 months |
| November 28, 2013 – January 13, 2014 | This period consists of time from the first appearance after disclosure was completed to the date the defence was ready to set a JPT date in OCJ. Defence was engaged in disclosure review. | Inherent Intake (disclosure review) |
1.5 months |
| January 13, 2014 – March 3, 2014 | This period consists of the time from the date the first JPT was set in OCJ to the completion of the second JPT in OCJ. | Inherent (JPT) | 1.5 months |
| March 3, 2014 – April 24, 2014 | This period consists of the time from the date the second JPT concluded until the date of the Preliminary Hearing (PH) was scheduled. The accused persons before the court, save Mr. Garrity, elected mode of trial on April 14, 2014. Clearly, some delay was incurred because of the logistics of attempting to schedule a PH involving 20+ accused persons and 10+ defence counsel. At one point, counsel for McKnight advised she was not available to conduct the PH until January 2015. The court took a proactive approach to schedule the relevant portion of PH in November 2014. The evidence about the difficulties experienced in setting dates during this time is incomplete because many of the interactions between counsel and court administration took place out of court. | Inherent Institutional |
.75 months 1 month |
| April 24, 2014 – November 3, 2014 | This period consists of the time the PH was scheduled to the date the PH commenced. In my view, 1 month would reasonably be required for preparation for the PH. The balance of this delay is institutional. | Inherent (preparation) Institutional |
1 month 5.5 months |
| November 4, 2014 – November 7, 2014 | Conduct of PH. | Inherent | 4 days |
| November 8, 2014 – January 22, 2015 | This period includes the time from the end of the initial period during which the PH was heard to the first continuation date of PH. The transcripts reflect that the difficulty scheduling the continuation date resulted from the competing schedules of defence counsel. | Neutral | 2.5 months |
| January 22, 2015 | Continuation of PH. | Inherent | 1 day |
| January 23, 2015 – February 9, 2015 | This period consists of the time between the first and second continuation dates for the PH. While the transcript reflects difficulty scheduling the second continuation date due to the competing schedules of counsel – the earliest date offered by the court, on the record, was February 10, 2015. | Institutional | .5 months |
| February 10, 2015 | Continuation of PH. | Inherent | 1 day |
| February 11, 2015 – March 3, 2015 | This period consists of the time from the second continuation date of the PH to decision on committal. This is inherent delay, as the time required to decide the case. | Inherent | .75 months |
Superior Court of Justice
| Period of Time | Explanation | Characterization | Amount of Delay |
|---|---|---|---|
| March 4, 2015 – May 15, 2015 | This period consists of the time from committal to the date of the first assignment court in SCJ. | Inherent Intake |
2.5 months |
| May 16, 2015 – June 1, 2015 | This period consists of the time from the first AC in SCJ to the first date offered by the court for the Garofoli application. I have used June 1 because the specific date in June was not identified by the court, on the record. None of the parties were prepared to proceed in June 2015. | Neutral | .5 months |
| June 2, 2015 – September 20, 2015 | The court and Crown were prepared to proceed with the Garofoli application on September 20, 2015. Counsel for Locknick, Gatt and Garrity were not. September 20, 2015 was the first date offered by the court after June 2015. Two months was inherently required to prepare, serve and respond to the Garofoli application and thereafter prepare for the hearing (given the nature of the issues involved). The balance of this time is institutional delay. | Inherent Institutional |
2 months 1.75 months |
| September 21, 2015 – November 23, 2015 | This period consists of time that the court and Crown were available on various dates for the Garofoli application hearing – but counsel for Locknick, Gatt and Garrity were not. | Defence Delay | 2 months |
| November 24, 2015 – January 31, 2016 | No further dates offered by court for Garofoli application until February 1, 2016 (no indication if Crown/defence available during this time). | Institutional | 2 months |
| February 1, 2016 – March 30, 2016 | This is the period of time from the date the Garofoli application commenced before King J. to the date the conflict was declared. This period falls into the time inherently required to hear and decide the case, as the standing ruling was on reserve. | Inherent | 2 months |
| April 1, 2016 to April 7, 2016 | The time from the declaration of conflict to the next AC in SCJ. | Inherent /Intake/Neutral | 1 week |
| April 8, 2016 to September 13, 2016 | This is the period of time from the second AC to the first date offered by the court for the fresh hearing of the Garofoli application, as a consequence of the mistrial. For the reasons set out further below, this delay is characterized as neutral. | Neutral | 5.25 months |
| September 14, 2016 to September 20, 2016 | Defence counsel not available week of September 13, 2016, but available following week. | Defence delay | 1 week |
| September 21, 2016 – December 4, 2016 | Despite Crown and defence availability during this time, the court was unable to offer any further dates for the fresh Garofoli application before December 5, 2016. | Institutional | 2.5 months |
| December 5, 2016 to March 3, 2017 | This period of time commences on the first day of the scheduled hearing of the fresh Garofoli application and ends on the presumed date of the completion of trial. The parties agreed to stagger the application and trial dates to permit time to decide the Garofoli application in advance of trial. This period of time also includes the inherent time required to prepare for the trial proper. | Inherent time required to hear and decide case and to prepare for trial. | 3 months |
213While the content of the chart is generally self-explanatory, I will expand on the following two points.
214First, I have characterized the 2.5 months of delay between the last day of the originally scheduled preliminary hearing on November 7, 2014 to the first continuation date on January 22, 2015 as “neutral”. A review of the transcripts evidences that the difficulty in scheduling the continuation was the result of competing schedules of defence counsel. After the court indicated it would set a date that “might not be satisfactory to all defence counsel’s schedules” – and after defence counsel identified some other commitments that could be rearranged – the court and the Crown accommodated January 22, 2015 – which was the first available date for all defence counsel. Under the Morin framework – it is appropriate to treat such delay as neutral, subject to the considerations set out in Vassell (see: R. v. L.G., at para. 62).
215Second, I have characterized the delay between April 8, 2016 (the date of the post conflict assignment court) and September 13, 2016 (the first date offered by the court for the rehearing of the application after the conflict) as “neutral”, because the mistrial resulted from an unforeseeable event that was not attributable to the court or the Crown (see R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165, at para. 63). The purpose of the mistrial declaration was to preserve the court’s appearance of fairness and impartiality. Such unfortunate events necessarily increase the inherent time requirements of the case.
216Even if the time between November 7, 2014 and January 22, 2015 was considered institutional (2.5 months) and the “neutral” period after the April 8, 2016 assignment court date to permit rescheduling after the mistrial was limited to 3 months (resulting in a further 2.25 months of institutional delay) - the total institutional delay to the end of trial (March 3, 2017) would be 17.5 months – again within the Morin guidelines.
(c) The Crown’s Response, If Any, to Any Institutional Delay
217I find that the Crown made good faith efforts to minimize the accrual of delay throughout the conduct of this proceeding. Although the Crown exercised its prosecutorial discretion to join a significant number of accused persons and counts in one information, which potentially attracted delay inherent in the logistics of scheduling matters before the court, the Crown also crafted and executed a concrete plan to mitigate that potential for delay with the cooperation of the defence and the justice system. The preliminary hearing was segmented into a number of smaller blocks, reducing the preliminary hearing “time” ultimately required for the counts in the indictment before the court, to six hearing days and a subsequent appearance for decision on committal. I accept that the Crown’s proactive approach mitigated the potential delay that could have resulted from the structure of the information.
218Once the matter arrived in Superior Court, the Crown was anxious to secure the earliest practicable date for the Garofoli application, as offered by the court, including a date that was 4 ½ months earlier than the application date of February 1, 2016, which was ultimately scheduled. The Crown was available for three other dates offered by the court that were earlier than February 1, 2016. I am mindful that the Crown agreed with the defence that the first date offered by the court in June 2015 was not acceptable. I find that position was reasonable given that the date offered was 1 month after the assignment court date and, at that time, the Crown had not been served with any notices of application or other application materials for the anticipated Garofoli application and there were multiple judicial authorizations potentially at issue.
219After the conflict was declared the Crown made itself available for all dates offered by the court for a fresh application and for trial.
220All of the Crown’s efforts to expedite this matter occurred before the release of Jordan. Although the Crown was not aware that its conduct would eventually be reviewed in the context of the Jordan framework, it nonetheless adopted positions throughout this proceeding that were designed to minimize delay.
(d) The Defence Efforts, If Any, To Move the Case Along
221In my view, none of the applicants or the applicants’ counsel, respectively, appreciably and unnecessarily added to the overall delay in the proceeding. All of them agreed to the segmented preliminary hearing process proposed by the Crown. When the matter arrived in Superior Court, none of the parties, including the Crown, were prepared to accept the first date offered by the court for the Garofoli application in June 2015. The Crown was available for all dates offered by the court thereafter. As a result of legitimate scheduling reasons, counsel for Mr. Locknick and Ms. Gatt (at the time) and counsel for Mr. Garrity were not available for the dates offered in September, October and November 2015. The Crown was ready to proceed on the first available date offered by the court after the conflict with King J. manifested itself. Counsel for Mr. Locknick was not.
222Counsel for Mr. Locknick (and Ms. Gatt at the time) took steps to ensure that excessive delay was avoided in the Ontario Court of Justice with respect to the original scheduling of the preliminary hearing date and the scheduling of the first continuation date. Her efforts in that regard were well received and accommodated by both the Crown and the court, as well as other defence counsel.
(e) Prejudice to the Applicants
223None of the applicants adduced evidence with respect to actual prejudice except for Mr. Locknick. Mr. Locknick was a sentenced prisoner at the time the charges were laid against him. He remained a sentenced prisoner in custody until January 2015. He remained in custody in relation to the charges in the information and later the indictment until December 2015 when he applied for and received bail. His liberty was significantly restricted. The total delay was approximately 26.5 months at the time of Mr. Locknick’s judicial interim release. It does not appear that Mr. Locknick applied for bail with respect to the charges before the court, until shortly before his release in December 2015.
224The other applicants have not adduced evidence with respect to prejudice. However, inferred prejudice is operable given the length of the delay. Invariably, the applicants have suffered some anxiety and concern as a result of exposure to criminal proceedings and their rights to liberty have been affected to some degree by the terms of their judicial interim release, although I was not directed to any specific overly restrictive bail conditions.
225From a trial fairness perspective, the Crown’s primary evidence in support of the counts is “recorded” in the form of intercepted private communications and is not inherently dependent on the memory of witnesses. To some extent, that mitigates the “evidentiary” prejudice that may otherwise flow from the delay.
226Given my finding that the total institutional delay did not exceed the Morin guidelines and notwithstanding the existence of actual prejudice to Mr. Locknick and moderate inferred prejudice to the balance of the applicants, I conclude that under the previous state of the law, the applicant’s s. 11(b) rights were not infringed. Further, I would have concluded, in all of the circumstances that had there been a demonstrable infringement, the applicants’ respective interests to “trial within a reasonable time” were outweighed by society’s interest in having the matter tried on its merits particularly given the seriousness of the offences with which they are charged.
Conclusion on the Applicability of the Transitional Exceptional Circumstance
227Lending a contextual and flexible application of the Jordan framework to the circumstances of this proceeding, I find that the Crown has satisfied its burden to demonstrate that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it existed before the release of Jordan. The following factors, in addition to the foregoing, influence my finding in that regard:
All of the relevant events, including the December 5, 2016 application date and the February 21, 2017 trial date were scheduled before the release of Jordan. In other words, all prior dates were set while the Morin framework was applicable.
For reasons I have set out above, I do not find that the proceedings against any of the co-accused persons were vulnerable to a stay under the Morin framework.
The subject matter of the proceeding is complex, involving a multi-person prosecution, which, in and of itself, is in the interests of justice, particularly given the subject matter of the charges (conspiracy). Delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in what constitutes a reasonable time for trial. None of the accused’s s. 11(b) rights were subverted through a combination of the Crown’s decision to proceed with a joint trial, coupled with a co-accused’s sloth, in advancing the matter to trial.
The Crown did not adopt a “laissez-faire” attitude towards the accrual of delay in this proceeding. The Crown proposed and executed a concrete plan to minimize delay in the Ontario Court of Justice despite a proceeding that involved 23 accused persons at that time. The Crown has remained proactive in attempting to bring the matter forward to a hearing of the pre-trial applications and for trial as expeditiously as possible.
Counsel for Mr. Locknick concedes that as the proceeding was originally scheduled (with the Garofoli application beginning on February 1, 2016) the proceeding was not likely vulnerable to a stay under the Morin framework, notwithstanding that date was 29 months after the information was sworn. In my view, under the Morin framework, an additional 2.5 months of institutional delay accrued after King J. declared a conflict. That additional institutional delay did not render the proceeding vulnerable to a stay.
There was no Crown behaviour that “required correction” within the meaning of para. 96 of Jordan, throughout the conduct of the proceeding. While the rescheduling necessitated by the conflict required delay mitigating action to be undertaken, I do not find any indication that the Crown failed to take steps to mitigate that delay. The transcript indicates that at the April 8, 2016 assignment court appearance, the Crown expressed its eagerness to get the case “back on the rails” and advance the prosecution. The system could only offer one date before December 5, 2016 to do so. None of the prospective delay facing any of the accused on April 8, 2016 could have been mitigated by the Crown, including through severance. Such an action would likely have resulted in more overall delay in the greater scheme of things as four trials, albeit likely of shorter duration, would have had to have been scheduled instead of one.
While some additional institutional delay accrued as a result of the justice system’s failure to give adequate priority to scheduling the return of the proceeding after the conflict was declared, the second application hearing date and trial date were assigned prior to the release of Jordan. Therefore, I find that the justice system had not had an opportunity to engage in “systemic adaptation” to the Jordan principles when the application and trial dates were assigned on April 8, 2016.
228In the circumstances, as informed by the foregoing considerations, I find that it would be unfair to judge the participants in the justice system by a standard of which they had no notice and for which they had no opportunity to apply when scheduling events in this proceeding. One of the positive aspects of the Jordan framework, which the majority identifies, is that participants in the criminal justice system will know, in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay (Jordan, at para. 108). In this case, none of the participants in the justice system knew, in advance, the bounds of reasonableness, as defined by the Jordan framework, and, accordingly, did not have the opportunity to enact proactive measures to prevent or remedy any unreasonable delay as judged under that framework.
229Therefore, I find that even in the event that the remaining delay is as calculated by Mr. Locknick, Ms. Gatt and Mr. Garrity is accurate, being in excess of 30 months (although I have found it is not) and it is, therefore, presumptively unreasonable, it remains that the parties reasonably relied on, and complied with, the state of the prior law under the Morin framework. As a result, this is a specific case where the release of Jordan should not automatically transform what previously would have been considered a reasonable delay into an unreasonable one: see Jordan, para. 102.
230I observe that the Court in R. v. Williamson, described the application of the transitional exceptional circumstances in that case as a “close call” with: a remaining delay calculated at 34 months in circumstances of a straightforward case against a single accused; with institutional delay exceeding the Morin guidelines by approximately seven months; lack of demonstrative efforts to mitigate institutional delay by the Crown; and repeated efforts to expedite the proceeding by the defence. The circumstances in this case are markedly different than those in Williamson and if that case was a “close call”, then, in my view, the circumstances of this case clearly warrant the application of the transitional exceptional circumstance.
DISPOSITION
231As a result of the foregoing, each of the applicants’ respective s. 11(b) applications are dismissed. None of the co-accuseds’ rights to a trial within a reasonable period of time were infringed. The delay in this matter has not been “unreasonable”. A stay of proceedings against any of the applicants is not warranted.
Original signed by “Gregory J. Verbeem”
Gregory J. Verbeem
Justice
Released: June 9, 2017