Court File and Parties

Court File No.: CR-16-036 Date: 2017-06-26

ONTARIO SUPERIOR COURT OF JUSTICE

Between:

HER MAJESTY THE QUEEN Mr. A. Sadler and Ms. S. Hamilton for the Crown/Respondent Respondent

- and -

GARNER BELCOURT, CODY RYAN DEGIROLAMO, CHRISTOPHER TIMOTHY KIRKPATRICK AND TAYLOR JAMES LECLERC Ms. A. Pollak for Applicant Garner Belcourt Mr. F. Thatcher for Applicant Cody Degirolamo Defendants/Applicants

Heard: May 31, 2017 at Thunder Bay, Ontario

Before: Mr. Justice J.S. Fregeau

Reasons for Judgment

Section 11(b) Charter Application

INTRODUCTION

1The four accused, Garner Belcourt, Cody Degirolamo, Christopher Kirkpatrick and Taylor Leclerc (hereinafter Belcourt, Degirolamo, Kirkpatrick and Leclerc) are charged on a 13 count Indictment dated August 25, 2016.

2Belcourt is charged with nine offences, eight of which relate to a traffic stop on June 8, 2014. Degirolamo is charged with five offences, four of which relate to the same traffic stop on June 8, 2014. In general terms, these charges relate to the accused allegedly being in possession of a handgun, ammunition and illegal drugs at the time of the traffic stop.

3The additional charge for Belcourt and Degirolama alleges they committed an indictable offence for the benefit of a criminal organization, between April 1, 2014 and September 17, 2014 contrary to section 467.12(1) of the Criminal Code. Kirkpatrick is also charged with this offence. The Crown withdrew this count against these defendants at the hearing of this Application.

4Leclerc has resolved his matters and is awaiting sentencing. Belcourt, Degirolamo and Kirkpatrick are scheduled for trial before judge and jury beginning September 11, 2017. Belcourt and Degirolamo (“the applicants”) have brought this Application alleging a violation of s. 11(b) of the Charter of Rights which guarantees the right to trial within a reasonable time. Kirkpatrick did not join in the Application.

OVERVIEW AND HISTORY OF THE PROCEEDINGS

5Belcourt, Degirolamo and Kirkpatrick were originally jointly charged on an 11 count information dated June 9, 2014 (“the first information”). Belcourt and Degirolamo were charged with nine and four counts respectively. All offences against all accused on the first information were alleged to have occurred on June 8, 2014. On September 22, 2014 a new 38 count “replacement” joint information was sworn, adding four more co-accused (“the second information”). Belcourt and Degirolamo were charged with 10 and five counts respectively on this information. As it relates to Belcourt and Degirolamo, the second information added only the criminal organization offence referred to above to the offences they were charged with on the first information. The second information also expanded the material time frame, alleging offences between April 1, 2014 and September 17, 2014. On February 20, 2015 the Crown disposed of the first information by withdrawing all counts against Belcourt and Kirkpatrick and staying all counts against Degirolamo.

6It is anticipated that the defendants’ jury trial will conclude on or about September 22, 2017. The parties are in agreement that the total delay, from the date of the first information to the anticipated end of trial is 39.5 months. The parties also agree that the applicants have not waived any period of delay.

7The issues on this Application require some analysis of the history of the proceedings in order to determine if there were any periods of defence delay, whether there were any exceptional circumstances and whether any transitional exceptional circumstances apply.

Proceedings in the Ontario Court of Justice

8 June 2014 – 22 September 2014

8On June 8, 2014 Belcourt and Degirolamo were arrested and retained in custody. On June 9, 2014 the first information was sworn against the applicants and Kirkpatrick. Both applicants retained counsel shortly thereafter.

9By the end of July 2014 counsel for Belcourt was attempting to set an early trial date in the Ontario Court of Justice. On July 29, 2014 Degirolamo indicated an intention to resolve his charges in the Ontario Court of Justice and terminated his counsel. By August 12, 2014 Degirolamo had retained new counsel and was remanded to August 25, 2014 to enter pleas to two charges on the first information. Belcourt’s counsel again indicated that he wanted a trial date but was content that Belcourt’s matters be adjourned with his co-accused, pending Degirolamo’s plea resolution.

10On August 25, 2014 Degirolamo pleaded guilty to two charges and was remanded to October 14, 2014 to set a date for sentencing. On September 16, 2014 Belcourt was remanded to September 22, 2014, for anticipated plea(s).

11On September 22, 2014 the second information was sworn against Belcourt, Degirolamo, Kirkpatrick and four new co-accused.

22 September 2014 – 25 August 2016

12On September 23, 2014, the second information now having been sworn, the Crown indicated their intention to stay proceedings against Degirolamo on the first information, precluding the anticipated resolution of his charges on that information. He and Belcourt were remanded to September 30, 2014. The court was advised that the RCMP were coming to Thunder Bay to arrest Belcourt and transport him to Alberta to answer to charges there.

13On September 30, 2014 Degirolamo was remanded to October 6, 2014, to complete a bail release plan. He was released on consent on October 10, 2014 and remanded to December 9, 2014. Belcourt was remanded to December 3, 2014 at the suggestion of his counsel, in order to monitor the progress of Belcourt’s Alberta charges.

14On December 3, 2014 Belcourt remained in custody in Alberta and his matters were remanded to January 23, 2015. On December 9, 2014 Degirolamo was remanded to January 13, 2015 at his counsel’s request. Both applicants were next remanded, with all other co-accused, to an Ontario Court of Justice focus hearing on February 20, 2015.

15At the February 20, 2015 focus hearing, the first information was stayed at the request of the Crown. Bryan Essiambre, one of seven co-accused on the second information, elected trial by judge and jury and all co-accused were deemed to have made the same election. It was agreed that the preliminary hearing be scheduled for two two-week blocks with one month in between. On March 10, 2015 the preliminary hearing was scheduled for October 5-8, 2015, October 13-16, 2015, November 16-19, 2015, and November 23-26, 2015.

16On October 5, 2015 Degirolamo’s counsel appeared on the first day of the preliminary hearing and advised that resolution discussions were ongoing but that in the interim Degirolamo was content that the preliminary hearing proceed in the absence of him and his counsel with the issue of committal to be addressed at the conclusion of the hearing if he was unable to resolve his charges. Belcourt appeared, in custody, and without counsel. A bench warrant was issued for one of the co-accused on October 5, 2015 and has not yet been executed. Kirkpatrick consented to committal on all charges on October 5, 2015.

17On October 6, 2015 Belcourt waived his preliminary hearing and consented to committal on all charges. The preliminary hearing proceeded on the scheduled dates without the participation of the applicants. More time was required and a final week was scheduled for February 1-4, 2016.

18On February 4, 2016 Degirolamo’s counsel consented to committal on behalf of his client. On March 7, 2016, the accused who had not consented to committal were committed to stand trial on various charges. None were committed on the criminal organization count. On July 15, 2016, two of the co-accused re-elected and disposed of their charges in the Ontario Court of Justice pursuant to a plea resolution.

19Despite the applicants and Kirkpatrick having consented to committal on the criminal organization charge, the Crown undertook not to proceed on this charge against these defendants because their co-accused had not been committed on this charge. However, this count was included on the indictment and was not withdrawn until the hearing of this Application.

Proceedings in the Superior Court of Justice

25 August 2016 – 30 January 2017

20The Indictment is dated August 25, 2016. At that point in time, of the seven co-accused named in the second 38 count information:

• One was the subject of a bench warrant for failing to appear at the preliminary hearing;
• Two had disposed of their matters in the Ontario Court of Justice; and,
• The two applicants, Kirkpatrick and Leclerc continued on into Superior Court.

21The indictment was served on defence counsel during the morning of August 29, 2016 and the matter was added to the Assignment Court list for that day. Defence counsel were unable to attend Assignment Court. The matter was traversed to September 26, 2016 to set a date for a Superior Court of Justice pre-trial hearing.

22Between August 29, 2016 and September 26, 2016 Crown and defence counsel consulted with the assistant trial coordinator to obtain a pre-trial date. The Court offered four dates; the federal Crown was available for only one of those four dates, November 24, 2016. Counsel for both applicants were not available on November 24, 2016. Counsel were then offered four more dates and all were available for a pre-trial on January 4, 2017.

23At the January 4, 2017 pre-trial, Leclerc was remanded to January 30, 2017 to set a date for a plea. He ultimately resolved his matters on April 19, 2017. The applicants indicated that they intended to bring a Jordan Application. The Court noted that “presently, the matter is set for a trial by judge and jury because of the election by two former co-accused.” As of the date of the pre-trial, the March 2017, Thunder Bay jury sittings were full. Belcourt, Degirolamo and Kirkpatrick were remanded to January 30, 2017 Assignment Court to set a date for the hearing of the Jordan application and to schedule the jury trial.

24At Assignment Court on January 30, 2017 a previously scheduled March 2017 jury trial was vacated, making those sittings available to the Court for this matter. These jury sittings were offered to the applicants and Kirkpatrick but counsel for Kirkpatrick was not available. A March 2017 trial would also have left insufficient time for the Jordan application to be heard and resolved prior to trial. The May 2017 jury sittings were also discussed, but counsel for Degirolamo was not available at this time because he was counsel on a three week jury trial to be heard during those sittings.

25Ultimately, at Assignment Court on January 30, 2017 this Jordan Application was scheduled for May 31, 2017 and the jury trial scheduled to begin September 11, 2017. The trial is anticipated to end on September 22, 2017. The charges going to trial are only those which the applicants and Kirkpatrick were charged with on the first information on June 9, 2014.

THE LEGAL FRAMEWORK

26In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada created a new framework to be applied where a breach of s. 11(b) of the Canadian Charter of Rights and Freedoms is alleged. The new framework is applicable to any case that was in the justice system when Jordan was released. I am therefore required to apply the new framework, with its transitional features, to this application.

27At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the Superior Court (Jordan, at para. 46).

28In R. v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal summarized the Jordan framework, at paragraphs 34-41:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of the trial;
2. Subtract defence delay from the total delay, which results in the net delay;
3. Compare the net delay to the presumptive ceiling;
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
5. Subtract delay caused by discrete events from the net delay (leaving the remaining delay) for the purpose of determining whether the presumptive ceiling has been reached;
6. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable;
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable;
8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the transitional cases).

29In R. v. Cody, 2017 SCC 31, released June 16, 2017, the Supreme Court reiterated and clarified certain components of the Jordan framework.

30Deducting delay caused by defence conduct is intended to prevent the defence from benefitting from its own delay-causing action or inaction. It applies to any situation where the defence conduct has solely or directly caused the delay (Cody, at para. 28). Defence actions legitimately taken to respond to charges fall outside the ambit of defence delay and should not be deducted (Cody, at para. 29).

31The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges (Cody, at para. 30).

32The defence will have directly caused the delay if the court and the Crown are ready to proceed but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence (Jordan, at para. 64).

33In R. v. Brissett, 2017 ONSC 401, Code J. addressed the difficult issue of whether defence delay in cases with multiple accused is personal to the individual co-accused who causes it or whether it is attributable to the case as a whole. Code J. considered and distinguished R. v. Ny, 2016 ONSC 8031, a case in which Fairburn J. held that the delay caused by two co-accused whom the Crown eventually severed should not be attributed to the two other accused who had caused very little delay and were actively asserting their s. 11 (b) rights.

34In the case before him, Code J. found that “there were no lengthy periods of delay caused by some co-accused while the other co-accused vigourously asserted s.11 (b) rights, and there was no point reached where severance was requested or was required in order to mitigate delays being caused by one or more co-accused to the prejudice of other co-accused” (Brissett, at para. 46). In these circumstances, Code J. held that short periods of defence delay due to defence unavailability should be attributed to the case as a whole (Brissett, at para. 48).

35Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. Irrespective of its merit, a defence action may be deemed not legitimate in the context of an s. 11 (b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay (Cody, at para. 32). The Court explained that illegitimacy in this context takes its meaning from the culture change demanded in Jordan. All justice participants – defence counsel included – must now accept that many practices which were formally commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter (Cody, at para 35).

36In Cody, the Court also expanded on the meaning of “exceptional circumstances” in cases where the net delay exceeds the presumptive ceiling. Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases. In addition, transitional considerations may be taken into account as a third form of exceptional circumstances where the case was already in the system when Jordan was decided (Cody, at paras. 45 and 46).

37The exceptional circumstances analysis begins with discrete events which result in quantitative deductions of particular periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted because it could not be reasonably mitigated by the Crown and the justice system (Cody, at para. 48).

38The second category of exceptional circumstances is concerned with particularly complex cases. The presumptive ceilings set in Jordan already reflect the increased complexity of criminal cases since Morin, however, particularly complex cases may still justifiably exceed the presumptive ceilings (Cody, at para. 63).

39Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity is not used to deduct specific periods of delay. Once applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Cody, at para. 64).

40The final category of exceptional circumstances is concerned with cases underway at the time of Jordan’s release. The Jordan framework applies to cases already in the system. In some cases, transitional exceptional circumstances may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan. This is to be the final step in the analysis, taken only where the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity (Cody, at para. 67).

41The transitional exceptional circumstance assessment is also a qualitative exercise, recognizing that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice and that change takes time. The Crown may rely on the transitional exceptional circumstance if it can show that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin (Cody, at para. 68).

42It is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the transitional exceptional circumstance represents a temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due sensitivity to the manner in which the previous framework was applied, within which prejudice and the seriousness of the offence often played a decisive role in deciding whether delay was unreasonable (Cody, at para. 69).

43In Cody, the Court clarified that their decision in R. v. Williamson, 2016 SCC 28, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. Noting the unusual facts of Williamson, the Court noted that “the parties’ general level of diligence may also be an important transitional consideration” (Cody, at para. 70).

44Finally, the Court in Cody instructed that trial judges, when considering the transitional exceptional circumstances, should be mindful of what portion of the proceedings took place before and after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Cody, at para. 71).

THE POSITIONS OF THE PARTIES

THE CROWN

45The Crown submits that the following periods of delay, totaling seven months, are defence delay:

1. January 4, 2017 – January 30, 2017 (26 days); and,
2. March 20, 2017 – September 22, 2017 (186 days).

46The Crown submits that the 26 day period between the pre-trial on January 4, 2017 and Assignment Court on January 30, 2017 is defence delay resulting from defence actions and conduct. The Crown submits that the applicants were not prepared to elect their mode of trial at the pre-trial. While they were deemed to have elected trial by judge and jury as a result of a co-accused so electing, that co-accused had disposed of his matters on July 15, 2016, thus allowing the applicants the opportunity to re-elect trial by judge alone.

47The Crown further submits that the applicants had indicated as early as September 2016 that they intended to bring a Jordan Application, but had not yet ordered transcripts or prepared any materials as of the January 4, 2017 pre-trial, precluding the setting of dates for the Application or trial on January 4, 2017. This resulted in the matter going to January 30, 2017, to set dates, peremptory on the applicants. The Crown submits that this 26 day period is defence delay.

48The Crown submits that the 186 days between the March 2017 jury sittings and the anticipated end of this trial on September 22, 2017 should also be found to be defence delay. At Assignment Court on January 30, 2017, the March 2017 jury sittings became available to the Court. These sittings were also available to the federal and provincial Crowns. However, it was obvious that this would not leave enough time for the applicants’ Jordan application to be prepared, responded to and decided prior to a March trial date. While these dates were not available to counsel for Kirkpatrick, the Crown submits the delay should be attributed to the applicants because they were dilatory in advancing their Jordan application.

49The Crown submits that the May 2017 jury sittings were also available to everyone but for Degirolamo’s counsel, who was counsel on a three week murder trial previously scheduled for the May 2017 jury sittings. The trial was therefore scheduled to begin September 11, 2017.

50The Crown submits that but for the delay in bringing the Jordan Application, including a late request for transcripts, this matter could have proceeded during the March 2017 jury sittings. The Crown submits that the delay between March 20, 2017, and September 22, 2017, is solely attributable to the defence.

51The Crown further submits that the applicants’ choice to be tried by judge and jury, when both had earlier evidenced an intention to proceed in the Ontario Court of Justice, is motivated in part by an attempt to increase delay to bolster their claims in this Application.

52The Crown acknowledges that the “Jordan clock” began to run with the laying of the first information on June 9, 2014. The Crown submits, however, that the second information sworn on September 22, 2014 was materially different from the first information, marked the start of an entirely different type of prosecution and signaled to all parties that the matter had become much more complicated. There were now seven co-accused alleged to have been participants in a large, complex criminal organization.

53The Crown submits that the investigation that culminated in the laying of the second information, which the Crown suggests began only after June 9, 2014, is a discrete event constituting an exceptional circumstance. The Crown submits that the 105 days (three months, 13 days) between June 9, 2014 and September 22, 2014, should therefore be deducted from the net delay.

54The preliminary inquiry was scheduled for four weeks in October and November 2014. As is often the case with multiple co-accused and therefore multiple counsel, further time was required and another week was scheduled in February 2016. The Crown submits that the 72 days (two months, 11 days) between November 25, 2015 and February 5, 2016 should be seen as a discrete event and deducted from the net delay.

55The Crown submits that if the remaining delay is found to exceed the 30 month presumptive ceiling, the delay is nevertheless reasonable due to the complexity of the case, having regard to both the nature of the issues and the nature of the evidence. The Crown submits that this case involves:

1. Thirty four charges on a joint information with seven co-accused;
2. The federal and provincial Crowns;
3. Seven counsel whose schedules had to be accommodated;
4. A Dawson application and this Jordan application;
5. Voluminous disclosure;
6. A post-charge multi-jurisdictional investigation;
7. Multiple pre-trials, including a focus hearing, exit pre-trials and a Superior Court pre-trial;
8. A lengthy preliminary inquiry which ran longer than anticipated, including one Statement of Issues that requested to hear from 39 police witnesses; and,
9. A jury trial.

56The Crown submits that this case is a complex case as defined in Jordan, that the overall time to trial is therefore justified and that the delay has been reasonable.

57The Crown submits that if the remaining delay is found to be below the presumptive ceiling, the Applicants have not discharged their burden of establishing that the delay is unreasonable. The Crown submits that neither applicant attempted to move their matters along after the second information was sworn. According to the Crown, Belcourt was pre-occupied with the more serious charges he faced in Alberta and both Belcourt and Degirolamo failed to effectively participate in an effort to expedite proceedings.

58Finally, the Crown submits that the transitional exception enunciated in Jordan is applicable to this case. It is submitted that the period of time that this case was in the Ontario Court of Justice was essentially all pre-Jordan, during which time the Crown relied upon the existing regime and the Applicants made no effort to expedite matters. The Crown submits that in the Morin context it was appropriate to maintain a joint prosecution. Post-Jordan, the Crown submits that the matter moved expeditiously in the Superior Court of Justice, suggesting that a jury trial was available in either March or May 2017, but for defence counsel unavailability and or the bringing of this application.

BELCOURT

59Belcourt submits that no delay has been caused solely by the conduct of his defence. Belcourt submits that he was in custody in Alberta between September 30, 2014, and October 2016. The prosecution proceeded in his absence without any conduct of him or his counsel contributing to any delay.

60Belcourt submits that his matters have been significantly delayed as a result of the Crown choosing to join his original charges with those of four additional accused on the second information. Belcourt submits that once the Crown chose to proceed in this fashion, it was incumbent on the Crown to be more proactive in expediting his trial in light of the manner in which they chose to proceed. Belcourt submits that the period of time between the first and second informations should not be seen as a discrete event.

61On October 6, 2015, Belcourt consented to committal. It is submitted that no delay related to the preliminary hearing is attributable to him.

62Belcourt acknowledges that his counsel was not available for a pre-trial on November 24, 2016, a date on which the federal and provincial Crowns were available. However, Belcourt submits that counsel for Degirolamo was also unavailable on that date, such that the delay between November 24, 2016 and January 4, 2017 (one month, 11 days), the date the pre-trial was held, is not solely attributable to him.

DEGIROLAMO

63Degirolamo also submits that no delay is attributable solely to the conduct of his defence. Degirolamo submits that he was actively attempting to resolve all matters as early as July/August 2014 and in fact had entered guilty pleas to two charges on August 25, 2014 and scheduled sentencing for October 14, 2014. Degirolamo submits that the Crown accepted these pleas only to later change their position and stay the first information after the second information was laid.

64Degirolamo submits that the delay between Assignment Court on September 30, 2016, and the January 4, 2017, pre-trial (three months, four days) cannot be attributed solely to him. Four available dates were provided by the Court. Only one of four (November 24, 2016) was available to the federal Crown. This date was not available for counsel for Belcourt or Degirolamo. All parties then agreed upon January 4, 2017, for pre-trial.

65Degirolamo submits that any delay associated with setting trial dates is not defence delay attributable to him. At Assignment Court on January 30, 2017, the March 2017, jury sittings became available due to another matter not proceeding. Degirolamo submits that counsel for co-accused Kirkpartick was not available for the March sittings. It is submitted that it is unreasonable to expect three senior criminal defence lawyers to be available for a seven to ten day jury trial on seven weeks’ notice.

66Degirolamo further submits that the non-availability of his counsel for the May 2017, jury sittings, when the Court, co-counsel and Crowns were available, should not be seen as defence delay attributable to him. Counsel for Degirolamo was unavailable at this time because he was counsel on a three week murder trial scheduled for the May 2017, jury sittings. That matter first appeared on the Assignment Court docket on February 22, 2016.

67Degirolamo also submits that jury sittings in the district of Thunder Bay remain backlogged as a result of “multiple year delays and postponement of all trials” as a result of jury representativeness issue arising from the Kokopenance case. It is submitted that any delay arising from defence inability to proceed to trial in May 2017 is not defence delay, but delay partially attributable to an ongoing backlog of jury trials in Thunder Bay.

ANALYSIS

(i) Total Delay

68It is agreed that the total delay, from the date the first information was sworn to the anticipated end of trial on September 22, 2017 is 39.5 months.

(ii) Delay attributable to the defence

69The endorsement from the January 4, 2017 pre-trial indicates that neither of the applicants had filed pretrial briefs and that they “wish to bring a Jordan application but no other pre-trial applications.” Implicit in this endorsement, and supported by the balance of the record, is that neither applicant had done anything to this point in time in preparation for the Jordan application, including ordering transcripts or preparing the application itself. The case was adjourned to Assignment Court of January 30, 2017 “to set a date, peremptory, for the Jordan application and for trial.”

70I find that the 26 day period between January 4, 2017 and January 30, 2017 is defence delay. Jordan was released on July 8, 2016, six months prior to the January 4, 2017 pre-trial. If counsel were intending to bring an application alleging that their s. 11(b) Charter rights had been infringed pursuant to the new Jordan framework, they should have been in a position to set a date for that application, and for the trial, at the pre-trial. They were not and the delay between January 4, 2017 and January 30, 2017 is defence delay.

71I do not accept the Crown’s position that the entire 186 days between the March 20, 2017 jury sittings and the anticipated end of the trial on September 22, 2017 is defence delay. I do find that the 146 days (4.8 months) between the May 2017 jury sittings and the anticipated end of trial on September 22, 2017 is defence delay.

72As of Assignment Court on January 30, 2017, the March 2017 jury sittings were available to the court, the federal and provincial Crowns and counsel for both applicants. However, a March 2017 trial would have left insufficient time for the Jordan application to be scheduled and heard prior to the start of trial. Counsel for Kirkpatrick was also unavailable for the March 2017 jury sittings.

73I accept the submission of Degirolamo that it is unreasonable to expect that three senior criminal defence counsel would be available for a seven to ten day jury trial on seven weeks’ notice. I also accept that a March 20, 2017 trial date would have left insufficient time for this Jordan application to have been prepared, served and resolved prior to trial even if it had been scheduled at the January 4, 2017 pre-trial, as it should have been.

74However, as of Assignment Court on January 30, 2017, the May 2017 jury sittings, beginning on May 8, 2017, were available to all parties but for counsel for Degirolamo. A jury trial beginning May 8, 2017 would have allowed sufficient time for the Jordan application to have been heard and resolved prior to trial if the applicants had been in a position to set a date for the application at the January 4, 2017 pre-trial. Further, pursuant to the reasoning of Code J. in Brissett, I find that the delay caused by the unavailability of Degirolamo’s counsel should be attributed to the case as a whole.

75I do not accept Degirolamo’s submission that delay resulting from his counsel’s unavailability for the May 2017 jury sittings is as a result of the Kokopenace issue and a backlog of jury trials in Thunder Bay. The record does not contain an evidentiary foundation to support such a conclusion.

76I therefore conclude that the delay between the May and September 2017 jury sittings is defence delay.

77Pursuant to the above findings, total defence delay is 172 days or 5.7 months, leaving a net delay of 33.8 months, in excess of the presumptive ceiling.

(iii) Exceptional circumstances; discrete events and case complexity

78I accept the Crown’s submission that the 105 days between the date of the first information on June 9, 2014 and the second information on September 22, 2014 is a discrete event amounting to exceptional circumstances.

79The case encompassed within the first information related to three co-accused charged with drug and gun offences as a result of a traffic stop on June 8, 2014. Between then and September 22, 2014 further investigation resulted in the second information, which added four more co-accused and 27 additional counts and alleged that all co-accused were participants in a large, complex criminal organization between April 1, 2014 and September 17, 2014.

80When the investigation revealed the alleged involvement of the three original co-accused in a criminal organization, together with four new co-accused, the choices available to the Crown were as follows:

1. Not charge the three original accused with the criminal organization count;
2. Continue with the first information against the three original accused, charge these same accused with only the criminal organization count in the second information and conduct separate proceedings on the first and second informations; or,
3. Join all accused and all charges on the second information and stay the first information.

81I accept the Crown’s submission that there were reasonable and probable grounds to believe that the firearm and drug charges against the original three co-accused were part and parcel of the alleged criminal organization and that joining all co-accused on the second information was the obvious and logical choice, in the pre-Jordan era.

82In these circumstances, I accept that the laying of the second information was reasonably unforeseen at the time the first information was sworn and that the Crown’s decision to proceed by way of the second information was reasonably unavoidable. The delay caused by proceeding in this fashion could not be easily remedied or mitigated.

83It was only at the preliminary hearing that the Crown’s case on the criminal organization count began to unravel, with the result that the accused participating in the preliminary hearing were not committed on that count and the Crown undertaking to withdraw this count against those accused who had consented to committal.

84I find that the 105 days (3.5 months) between June 9, 2014 and September 22, 2014 is a discrete event and should be deducted from the net delay of 33.8 months.

85The preliminary inquiry was discussed at the February 20, 2015 focus hearing. All parties agreed at the time that four weeks was required and those four weeks were set aside at the focus hearing and scheduled on the record on March 10, 2015. Despite the fact that three of the co-accused did not participate in the preliminary hearing, a further week was required and scheduled for February 1-4, 2016.

86The delay as a result of the need to schedule a further week to complete the preliminary hearing was unforeseen and unavoidable. I find that this 72 day (2.4 month) delay is a discrete event which must also be deducted from the net delay.

87Subtracting the delay caused by these discrete events (177 days or 5.9 months) from the net delay of 33.8 months results in a remaining delay of 27.9 months, below the presumptive ceiling of 30 months.

(iv) Remaining delay below presumptive ceiling

88As the remaining delay is below the presumptive ceiling, the onus is on the applicants to satisfy the court that the delay has been unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Stays beneath the ceiling will be rare, and limited to clear cases (Jordan, at para. 48). In setting the presumptive ceiling, the Court in Jordan “factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases (Jordan, at para. 83).”

89The applicants have failed to satisfy me that the remaining delay of 27.9 months is unreasonable in all of the circumstances. A review of the entire record fails to disclose that the applicants took any meaningful steps demonstrating a sustained effort to expedite their matters.

90I recognize that both applicants indicated a desire to resolve their charges in the first information in the Ontario Court of Justice prior to the swearing of the second information. However, once the second information was laid the gravity and nature of the case changed significantly. From this point forward, both applicants were content to simply drift along with their co-accused.

91Belcourt was in custody in Alberta between September 2014 and October 2016 and was pre-occupied with those matters. He did not participate in the February 2015 focus hearing, did not have counsel at the time of the October 2015 preliminary hearing and did not participate in the preliminary hearing.

92Degirolama was released from custody on consent on October 10, 2014. He was content to be remanded from time to time to the date of the focus hearing in February 2015. Neither Degirolamo nor his counsel appeared at or participated in the focus hearing or the preliminary hearing.

93The applicants never applied for severance and never took issue with the pace of the prosecution, most notably between the date of committal (March 2016) and the date the indictment was filed in Superior Court (August 25, 2016).

94Subsequent to the July 8, 2016 release of Jordan, the applicants waited until the pre-trial six months later to state their intention to bring a Jordan application. Neither of the applicants was in a position to set a date for the Jordan hearing at this pre-trial.

95As noted in Jordan, at para. 84:

“Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11 (b) application) reasonably and expeditiously.”

96In my opinion, the applicants have failed to discharge this onus.

CONCLUSION

97The applications of Belcourt and Degirolamo are dismissed. This matter shall proceed to trial before judge and jury on September 11, 2017 at 11:00 am, to be spoken to on September 7, 2017 at 9:00 am.

The Hon. Mr. Justice J.S. Fregeau