R. v. Tsekouras, 2017 ONSC 7112

CITATION: R. v. Tsekouras, 2017 ONSC 7112

COURT FILE NO.: CR-13-0050-00

DATE: 2017-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JOHN TSEKOURAS

Applicant

C. Richer, for the Public Prosecution Service of Canada

J. Wilkinson, for the Applicant

HEARD: October 30, 31 and November 1, 2017, in Thunder Bay, Ontario

MR. JUSTICE PATRICK SMITH

Ruling on Section 11(b) Charter Application

[1] The Applicant brings this motion for a stay of proceedings pursuant to s. 24(1) of the Charter on the grounds that his s. 11(b) right to a trial within a reasonable time has been violated. For the reasons set out below, this application is dismissed.

I. The Facts

[2] Project Dolphin was a multi-year joint forces investigation into drug trafficking in Thunder Bay. The initial takedown for Dolphin took place on June 16, 2011. It will be necessary to review the timeline of the case given that the present motion is a s. 11(b) application alleging unreasonable delay and violation of the Applicant’s Charter rights.

A. Criminal Organization Charge and Proceedings Before the Ontario Court Of Justice

(1) Overview

[3] For a detailed procedural history from June 16, 2011 until June 11, 2013, please see Appendix ‘A’.

[4] On April 12, 2012, an information (#121355) was laid against the Applicant for a number of offences related to the events of June 16, 2011, including the offence of directing a criminal organization under s. 467.13(1) of the Criminal Code.

[5] On April 24, 2013, the Crown laid a new information (#131341) containing the following charges: two counts of possession for the purpose of trafficking (one re. cocaine and one re. marihuana), two counts of trafficking (one re. cocaine and one re. marihuana), and four counts of conspiracy (one to traffic in cocaine, one to traffic in marihuana, one to possess for the purpose of trafficking in cocaine, and one to possess for the purpose of trafficking marihuana).

[6] The charge of directing a criminal organization did not appear on the new information. The April 24, 2013 charges have proceeded to trial by judge alone in the Superior Court of Justice and the Applicant was convicted of possession of marihuana for the purpose of trafficking, trafficking in marihuana, conspiring to traffic in marihuana, and conspiracy to possess marihuana for the purpose of trafficking (R. v. Tsekouras, 2015 ONSC 1470). The Applicant’s appeal was dismissed in R. v. Tsekouras, 2017 ONCA 290, and application for leave to appeal to the Supreme Court of Canada is pending.

[7] On June 12, 2013, the Thunder Bay Police arrested the Applicant on additional charges as part of Project Dolphin. The Applicant was charged with 9 counts under the Criminal Code and the Controlled Drugs and Substances Act, including participating in a criminal organization and directing a criminal organization. The information (#131948) was sworn on June 13, 2013. This Application is with respect to the charges on the June 13, 2013 information.

(2) The Information of June 13, 2013

[8] On June 12, 2013, the Thunder Bay Police arrested the Applicant and charged him with 9 counts under the Criminal Code and the Controlled Drugs and Substances Act, including participating in a criminal organization and directing a criminal organization. On June 13, 2013, the information was sworn. On the same information, Mr. Pelletier was charged with six counts under the Acts.

[9] The “directing a criminal organization” and the “participating in a criminal organization” charges covered a wider time frame than the 2012 “directing a criminal organization” charge. The charge of conspiracy to commit murder is a s. 469 offence and as such the bail hearing for all of the charges had to be held before the Superior Court of Justice. The Crown did not apply to revoke the Applicant’s first release.

[10] On August 7, 2013, the Applicant and Mr. Pelletier appeared in court. The Crown recommended that a judicial pre-trial be set as the trial was likely to take up to eight weeks. Counsel did not set a judicial pre-trial and the matter was adjourned.

[11] The next appearance date for the Applicant was August 19, 2013. Defence counsel confirmed that disclosure had been received “last week”, that the disclosure was a hard drive with “significant information on it”, and that both defence counsel requested an adjournment of three to four weeks to go through it.

[12] On September 13, 2013, the matter returned to court. Mr. Matthews for the Crown indicated that all parties had appeared before the trial coordinator and advised that “both defence and the Crown wish to set a preliminary hearing eventually in this case, but we need a focus hearing first because of the complexity of the matter.” A two-hour focus hearing was set for October 31, 2013.

[13] A focus hearing was held on October 31, 2013 before Baig J. in the Ontario Court of Justice. At the hearing, four weeks were reserved for the preliminary inquiry, with dates to be scheduled by the trial-coordinator.

[14] On November 25, 2013, both accused appeared before the court to confirm the dates for the preliminary inquiry. Unfortunately, the judge assigned to conduct the preliminary hearing declared a conflict and the matter had to be set over to allow the trial coordinator to review the availability of judges including an out-of-town judge given that many local judges had expressed conflicts of interest.

[15] On December 13, 2013, a preliminary inquiry was scheduled to commence on February 25, 2014, with an out-of-town judge presiding. Four weeks of court time were reserved.

(3) The Preliminary Hearing

[23] The preliminary hearing began on February 25, 2014 before Bigelow J.

[24] On May 26, 2014, upon resumption of the preliminary inquiry, the Applicant consented to committal on all counts except for the conspiracy to commit murder. A further date was needed to schedule argument on the remaining count.

[25] Crown counsel and Mr. Wilkinson then agreed to continue the preliminary inquiry as a discovery preliminary inquiry without a presiding justice. The intent as expressed by the Crown and confirmed by defence was to move the matter along.

[26] Scheduling dates for submissions before Bigelow J. on committal for the remaining charge was further complicated by the fact that he was an out-of-town judge. The court offered the end of the week of June 16, 2014 as continuation dates. Defence declined the dates indicating that it was “too short of a turnaround”. Additional dates were offered: July 2, 28 – 31, 2014, and August 26– 27, 2014. Eventually the date of September 22, 2014 was accepted by defence.

[27] On September 22, 2014, the Applicant was committed to stand trial on the remaining conspiracy to commit murder charge, allowing the matter to proceed to assignment court in the Superior Court of Justice. The Applicant was remanded to October 27, 2014.

B. Proceedings Before the Superior Court of Justice (October 27, 2014 to April 30, 2014)

(1) Case Management and Disclosure Phase (October 27, 2014 to January 7, 2016) – 14 months, 17 days

[28] The first assignment court in the Superior Court was held on October 27, 2014. The Applicant appeared unrepresented. Mr. Pelletier was unrepresented and the Crown did not appear. Mr. Poirier, the agent for the Crown, indicated to the court that counsel were seeking a short adjournment to digest the effects of a Charter decision (the matter before Wright J. concerning the information of April 24, 2013 (#131341). Pierce J. adjourned the matter to the next assignment court on November 24, 2014.

[29] On November 24, 2014, the Applicant appeared with counsel. The Crown indicated that it was anticipated that a hearing would take three months of pre-trial motions and three months of trial and suggested that a pre-trial hearing would be beneficial. On consent, a judicial pre-trial (JPT) was set for February 6, 2015.

[30] It is important to note that the Applicant’s trial before Wright J. concerning the April 24, 2013 information (#131341) was proceeding at the same time, which made scheduling dates for the charges of the June 13, 2013 information (#131948) more difficult.

[31] As of November 24, 2014, the Crown continued to assert its right to have a jury trial because of the s. 469 offence contained in the indictment.

[32] A pre-trial date of February 6, 2015 was set but it could not proceed. The Crown had not completed its Judicial Pre-trial Form and there was inadequate information before the court to proceed. The pre-trial was remanded to March 10, 2015 and the Crown was ordered to serve its brief on the defence by February 20, 2015.

[33] On March 10, 2015, a judicial pre-trial was held and adjourned to April 30, 2015. The Applicant advised the court that he would be filing a motion to have a case management judge appointed to hear the pre-trial motions. The matter was adjourned to June 22, 2015.

[34] On June 22, 2015, Mr. Matthews for the Crown stated that he was prepared to have a trial management judge appointed. Neither accused had counsel present. Mr. Tsekouras advised that he would be represented by Mr. Joseph Wilkinson. The court inquired from the Applicant if he was content that the case be adjourned. The Applicant replied “Yes, I am.” The matter was adjourned for one month.

[35] On July 27, 2015, the Applicant appeared in assignment court. Mr. Dubinsky appeared as agent for Mr. Wilkinson and indicated that his instructions were to set a date for a hearing for an application for the appointment of a case management judge. Mr. Dubinsky indicated that Mr. Wilkinson was not available until mid-September. The matter was set for September 23, 2015.

[36] On September 23, 2015, all parties appeared in Superior Court before Shaw J. on the application for the appointment of a case management judge. The Crown consented to the application and stated that it had indicated its consent to Pierce J. on April 30, 2015. An order was made appointing a trial management judge and the matter was adjourned to October 26, 2015 to schedule a date.

[37] On October 26, 2015, it was determined that the first date available to the court for a case management meeting was November 18, 2015. The defence was available but the Crown was not. The next available date was December 8, 2015. With respect to dates for pre-trial motions related to “jury issues”, the court was available the week of February 15, 2016, but the Crown was not because it was involved with the prosecution of the co-accused, Keith Ritchie (“Mr. Ritchie”). Additional dates were canvassed. The Crown was not available during the last week of March, but the court and the defence were. March 31 and April 1, 2016 were booked to argue motions directed at the jury. The court was not available for the remainder of April, but back up dates were selected for May 25 and 26, 2016.

[38] The court offered to make the week of May 30, 2016 available to argue motions. Counsel for the Applicant was not available that week. The Crown was available for the remainder of 2016. Counsel for the Applicant was available the week of June 6 and 11, 2016, but the court was not. The court had the week of June 15, 2016 available. Beyond that, the case management judge did not have a three-month block of time that was requested for the pre-trial motions to be completed. The case management judge was able to offer the week of June 27, 2016 but was booked until the end of 2016 at that point. The case management meeting was adjourned at this time, because the full two hours that were booked were not available to the court. Dates for the remainder of the pre-trial motions and the trial could not be booked. The week of June 27, 2016 was set for a s. 11(b) motion, because it did not appear at that time that the motions could be completed until sometime in 2017.

[39] On, December 8, 2015, all parties appeared before the case management judge, Pierce J. Regarding scheduling the case, she stated: “Well, we are going to need flexibility because this is a bearcat to schedule, I will tell you right now.” Disclosure was discussed. Mr. Wilkinson requested that the discussion be placed in writing due to the fact that “it is nearly impossible to track the comings and goings of this voluminous disclosure without having it in writing… There is just too much stuff, Mr. Richer for us to deal with this in casual conversation…”

[40] The change of venue and challenge for cause motion were discussed. The defence wished to have the motions heard near the end. The Crown stated that delaying the motions would also delay the appointment of a trial judge, which would delay scheduling. With the appointment of a trial judge and a case management judge, it would be possible to deal with the motions much more quickly, but a trial judge couldn’t be appointed if the venue was still an issue. The court agreed that the change of venue was foundational to the scheduling of the trial. Schedules were set for the hearing of pre-trial motions. The defence was to serve the Crown and file its materials by January 29, 2016.

[41] The Crown indicated that they were available for any date in 2016 from May 30,2016 onward. Mr. Wilkinson wished to set the remaining motions as a block of time in the order of 8 to 12 weeks. The court advised him that “the regularly scheduled work of the court has already been slotted in, including the running lists, jury work, road work etcetera. So, there is no three month block of time.” Justice Pierce proposed to continue the case management conference. The defence could not confirm whether there would be a s. 11(b) motion. On several occasions, Mr. Wilkinson proposed using the s. 11(b) dates for other matters if things sped up and the defence did not bring a s. 11(b) application. Dates were set for the week of March 31, 2016; May 25 and 26, 2016; and June 27, 2016 for the change of venue and the disclosure motions, and potentially for the s. 11(b) motion. The dates for the other motions could not be set. Filing dates for the defence’s material were set for January 29, 2016 (defence did not meet this filing deadline). The matter was adjourned to January 7, 2016.

[42] On January 7, 2016, the case management conference resumed before Pierce J. The Applicant abandoned his change of venue application because he did not want to delay the setting of the trial dates. Additional dates were set for the pre-trial motions. The court offered the week of March 14, 2016, but the Applicant’s counsel was not available. The court was also available the weeks of August 8, 15, 29, October 10, 17 and 24, and November 28, 2016. Counsel for the Applicant was available the week of October 10 but not the weeks of the 17 or 24. Counsel for the co-accused Mr. Pelletier was available for all of the weeks offered. The weeks of August 8 and 15 and October 17 and 24, 2016 were booked for motions that were specific only to Mr. Pelletier so that the time could be used. The week of December 12 was also set aside as the court and all counsel were available. The court offered additional weeks of May 9 and May 16, 2016 for Crown motions. Counsel for Mr. Pelletier was not available for either week. The weeks of July 11, 18 and 24were offered as court available weeks, but counsel for the Applicant was not available the week of the 24. The trial proper was set for three months starting February of 2017 as the first date after the pre-trial motions for the court to commence the trial. Everyone agreed to push back the start date of the trial from the first available date of January 2017 to February 6, 2017 to allow a buffer for the completion of rulings on the pre-trial motions.

(2) First Pre-Trial Motions Sittings Adjourned to Original Trial Date (May 25, 2016 to May 31, 2017)

[43] On April 13, 2016, the Applicant and his co-accused Mr. Pelletier brought an application to adjourn the pre-trial motions because the appeal of the Applicant’s conviction before Wright J. would have significant ramifications for the pre-trial motions in this trial.

[44] Regarding the s. 11(b) motion, Mr. Wilkinson stated the following: “We also are now in a position to give the Crown and the court, waivers of 11(b) going forward. And, you know, part of the problem was is back when we set these dates we weren’t really sure what kind of dates the court could give and Mr. Pelletier was in custody. The court, essentially did an admirable job in coming up with a whole bunch of dates to accommodate the pretrial motions, and so given the complexity of the litigation and the dates the court came up with, there was no more 11(b) concern, in my estimation in any event, but because Mr. Pelletier’s now out of custody, there can be 11(b) waivers on both fronts.”

[45] The first pre-trial motion sittings were adjourned from May 25, 2016 to May 31, 2017.

[46] On July 8, 2016, the Supreme Court of Canada released Jordan, 2016 SCC 27, a landmark decision drastically altering the landscape surrounding s. 11(b).

[47] The Applicant’s appeal of that case was heard on September 5 and 6, 2016. The case was spoken to and adjourned from time to time during the period waived to check on the status of the Court of Appeal decision. The Court of Appeal released its decision on April 11, 2017.

[48] On August 15, 2016, the co-accused Mr. Pelletier brought a motion to sever his second set of charges where he was co-accused with Robert Chiodo (“Mr. Chiodo”) and Travis Gordon (“Mr. Gordon”) and join them with the charges where he was co-accused with the Applicant. Mr. Pelletier was represented by counsel on his charges with the Applicant, but had no counsel on the charges where he was co-accused with Mr. Gordon and Mr. Chiodo. The severance and joinder were premised on the evidence and the pre-trial motion in both sets of charges being essentially the same in both trials for Mr. Pelletier. In response to that motion which was to be heard on August 15, 2016, the Crown stayed both sets of charges against Mr. Pelletier.

[49] On September 8, 2016, a decision had yet to be received from the Court of Appeal. On the court’s initiative, a scheduling conference was held. Counsel were to reconsider a motion schedule and file a revised agenda.

[50] On October 14, 2016, a conference was held with Pierce J. The Applicant did not file a transcript for this date. The endorsement on the indictment shows the court reserved the weeks of February 6, 13, 20, March 6, 20 and April 3, 10, 17, 2017, for pre-trial motions. The defence was still awaiting a decision from the Court of Appeal. Mr. Wilkinson was to serve and file his materials by December 2, 2016. The Crown was to respond by January 9, 2017. A further case management conference was scheduled for December 12, 2016.

[51] On December 12, 2016, counsel again appeared before Pierce J. No transcript was provided by the defence for this teleconference. The endorsement notes that the defence did not meet its filing deadlines. The dates for February and March 2017 were vacated. The Court of Appeal had not yet ruled. A further teleconference was set for January 25, 2017 to review the status of the additional dates for pre-trial motions.

[52] On January 24, 2017, a case conference was held. No transcript was provided by the defence for this teleconference. The decision from the Court of Appeal was still pending. Discussion was scheduled to continue for February 14, 2017.

[53] On February 14, 2017, a case conference was again convened before Pierce J. The defence has not provided transcripts for this date. The Court of Appeal decision was still outstanding. The remaining three weeks scheduled for pre-trial motions were vacated by Pierce J. on consent. The matter was remanded to the March assignment court to set a date for pre-trial motions.

[54] On March 27, 2017, all counsel again appeared before Pierce J. Mr. Wilkinson confirmed that there was no decision from the Court of Appeal. Counsel proposed that the matter go to the next assignment court in April. On the basis of the s. 11(b) waiver, the Crown saw no harm in adjourning the matter to April.

(3) New Pre-Trial Motions and Trial Date Are Scheduled (May 31, 2017 to October 30, 2017)

[55] The Court of Appeal released its decision on April 11, 2017 and dismissed the Applicant’s appeal. The Applicant was in custody. On April 18, 2017, to assist the defence, and ensure that the Applicant would be in attendance at his next court date, the Crown obtained an Order to Produce a Prisoner from the Superior Court of Justice for the April 24, 2017 court appearance.

[56] On April 24, 2017, the Applicant appeared in assignment court before Shaw J. Mr. Wilkinson indicated that he had not been able to communicate with his client for about a week. He needed more time “to discuss the setting of dates and the like.” Defence requested a two-week adjournment. The Crown was not opposed for two reasons: (1) Mr. Wilkinson could talk to the Applicant; and (2) the adjournment would create an opportunity to set up time with Pierce J. to schedule the matter or get another trial management judge. Because the Applicant was a sentenced prisoner, the Crown recommended a short remand and a personal appearance before the court, to guarantee he stayed within the jurisdiction and was not sent back to Winnipeg where he was serving his sentence. The Crown noted that Pierce J. was going to become a supernumerary judge in June 2017 and suggested it would make sense that the matter be adjourned to later in the week so counsel could touch base with Pierce J. Mr. Wilkinson agreed. The matter was adjourned.

[57] On April 28, 2017, the matter was brought back before Pierce J. When asked, Mr. Wilkinson confirmed for the court that he did not have complete instructions from his client. The Court offered to conduct a case management conference either on this date or on May 1, 2017. Mr. Wilkinson declined and explained that he was “not prepared to do a case conference today” or on May 1, 2017. Mr. Wilkinson indicated that pre-trial motions would be 8 to 10 weeks. The Crown asked defence if they had a list of the motions that they were still bringing. Mr. Wilkinson indicated that he had not gone back and revised his list. The matter was adjourned to May 8, 2017 before Warkentin R.S.J. for trial management. A pre-trial date was also scheduled before Pierce J. for May 29, 2017. The Crown confirmed for the court that it was bringing the same four motions discussed previously and that it was available for any date in 2017.

[58] On May 5, 2017, Mr. Wilkinson (via email) forward a defence list of 13 proposed motions to the court but also indicated that he was reserving the right to add to the list. The Crown submitted its list of four proposed motions.

[59] On May 8, 2017, all parties appeared before Warkentin R.S.J. to discuss trial management. The timing for pre-trial motions was discussed. Mr. Wilkinson indicated that the estimated time was still 10 to 12 weeks. The court’s intention was to set dates for the pre-trial and trial on May 29, 2017. To set dates, the court required a schedule and time estimate for the motions. Justice Warkentin requested that counsel provide the court with a time estimate and an order for proceeding with the motions prior to the next court appearance so dates could be set. In the intervening time period until May 29, 2017, the court would be working with the trial coordinator and regional manager to ensure that it had dates to provide to counsel.

[60] A case conference meeting was held on May 29 and 31, 2017 before Pierce J. at which time I was assigned as the trial judge. I was available starting the week of June 12, 2017. That week was not available to the defence. The next dates available to the court were the weeks of: October 23, 30 and November 6, 24, December 4 and 11, 2017; January 1, 15, 22, 29, February 5, 12, 19, 26, March 19, 26, April 2, 9, 23, and 30, 2018. The Crown was available for most of 2017 and 2018. The defence was available the following dates which corresponded with the court availability: October 24– 27; October 30 – November 3; November 27 – December 1; December 4– 8; December 11 – 15; January (18) 15 – 19; January 22 – 26; January 29 – February 2; February 5 – 9; February 21 – 23; February 26 – March 2; March 26 – 29; April 4 – 6; April 9 – 13; April 23 – 27; and April 30 – May 4. The Applicant was available during the week of July 24 – 26; October 10 – 13 and 16 – 24. A start date of October 30, 2017 was set for pre-trial motions and a start date of October 22, 2018 was set for trial, with a projected end date of April 2019.

(4) The Trial Dates - October 30, 2017 to April 30, 2019

[61] The pre-trial motions commenced on October 30, 2017 and are set to run intermittently until June 9, 2018. The trial proper is set to commence October 2018 and run for approximately five months to approximately the end of April 2019. That was the first date available to the court after the completion of the pre-trial motions.

II. The Law

[62] In R. v. Jordan, the Supreme Court of Canada established a new framework for assessing whether a s. 11(b) Charter breach has been established by an Applicant. At the heart of this new framework is a presumptive ceiling of the time it should take to bring an accused person to trial. Delay beyond this presumptive ceiling is presumed to be unreasonable, unless it is justified by exceptional circumstances. For a superior court, the framework sets a presumptive ceiling of 30 months (Jordan, at para. 5).

A. The Jordan Framework

[64] In R. v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal succinctly summarized the Jordan framework at paras. 34-41:

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

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

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

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

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

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

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

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

[65] The total delay runs from the day the information is sworn until the anticipated end of trial (R. v. Cody, 2017 SCC 31, at para. 21; Coulter, at para. 62).

[66] In this case, there is an issue as the whether the total delay runs from the swearing of the information on April 12, 2012, or the swearing of the information on June 13, 2013. Both the Applicant and the Crown rely on the case of R. v. Milani, 2014 ONCA 536. In that case, van Rensburg J.A., writing for the court, stated that s. 11(b) is engaged “during any period that an accused person is in fact subject to charges, or when a person no longer actively charged remains subject to the very real prospect of new charges” (Milani, at para. 49). The court cited the case of R. v. Antoine, 1983 CanLII 1743 (ON CA), in which, although s. 11(b) was found to apply to the “gap”, it was significant that the gap was a period of only six days (Milani, at paras. 34, 48).

[67] Defence delay can be divided into two categories: (1) defence waiver, and (2) delay caused solely by the defence (Jordan, at paras. 63, 186). A waiver can be explicit or implicit, but it must be clear and unequivocal (Jordan, at para. 61). Delay caused solely by the conduct of the defence comprises “those situations where the accused’s acts either directly caused the delay. . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Jordan, at para. 63). Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and the Crown are ready to proceed, but the defence is not (Jordan, at paras. 63, 64). However, periods of time in which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable (Jordan, at para. 64).

[68] The defence is entitled to request a postponement of the pre-trial and trial, for example to await the decision of an appeal court. However, the reasonable delays this causes are attributable to the defence (R. v. N.N.M., 2006 CanLII 14957 (ON CA), at para. 65; R. v. Picard, 2017 ONCA 692, at paras. 117, 118).

[69] If the court and Crown are prepared to proceed, then defence failure to set target dates constitutes defence delay. As stated by Quigley J. in R. v. W.H., 2017 ONSC 5014 at para 96:

[96] The proper course of action in the circumstances was to set target preliminary inquiry dates with a confirmation date to address the remote possibility of resolution. If the Applicant had done so and the matter resolved, the dates could be vacated. If the Applicant had done so and the matter did not resolve (which is what happened), no delay would have resulted. In R. v. Teng, in similar circumstances, MacDonnell J. found that failure to set target dates when the Court and Crown are prepared to proceed constitutes defence delay under Jordan.

[70] If the delay (minus defence delay) is above the ceiling, the delay is presumptively unreasonable. The Crown can rebut this presumption by showing the presence of exceptional circumstances (Jordan, at para. 68). Exceptional circumstances are circumstances which 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” (Jordan, at para. 69).

[71] The Crown must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. The Crown is not required to show that the steps it took were ultimately successful, but rather, that it took reasonable steps in an attempt to avoid the delay (Jordan, at paras. 70). Reasonable steps that a Crown could take to mitigate delay might include:

• prompt resort to case management processes to seek the assistance of the court,

• seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or

• resorting to any other appropriate procedural means (Jordan, at paras. 70).

[72] Exceptional circumstances generally fall into two categories: (1) discrete events and (2) cases that are particularly complex due to the nature of the evidence or the issues (or both) (Jordan, at paras. 71, 77). Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience (Jordan, at para. 71).

[73] Like defence delay, discrete events result in quantitative deductions of particular periods of time (Jordan, at para. 75; Cody, at para. 48). Examples of discrete events might include:

• medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge),

• cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction,

• a complainant unexpectedly recanting while testifying, requiring the Crown to change its case,

• if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates, and

• unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling (Jordan, at paras. 72-74).

[74] In assessing whether complexity constitutes an exceptional circumstance, the court should consider whether the Crown did what was in its control to minimize the delay occasioned by the complexity (Jordan, at para. 79). Also, in analysing complexity, the court should consider the entire proceeding and not just the trial, which is the end product (R. v. Baron, 2017 ONCA 772, at para. 71).

[75] Hallmarks of evidentiary complexity include:

• voluminous disclosure,

• a large number of witnesses,

• significant requirements for expert evidence, and

• charges covering a long period of time (Jordan, at para. 77).

[76] Hallmarks of legal complexity include:

• a large number of charges and pre-trial applications,

• novel or complicated legal issues,

• a large number of significant issues in dispute, and

• a joint proceeding against multiple co-accused (Jordan, at para. 77).

[77] If the Crown, having initiated what could reasonably be expected to be a complex prosecution, has failed to develop and follow a concrete plan to minimize the delay occasioned by such complexity, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control (Jordan, at para. 79; R. v. Saikaley, 2017 ONCA 374, at para. 36).

[78] Unlike defence delay and discrete events, complexity cannot be used to deduct specific periods of delay. Instead, once any 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 (Jordan, at para. 80; Cody, at para. 64; Picard, at para. 40).

B. The Transitional Case Exception

[79] For cases in which charges were brought prior to the release of Jordan and in which the delay exceeds the ceiling, the last step in the analysis is to determine whether a transitional exceptional circumstance applies. This step recognizes that the behaviour of the parties “cannot be judged strictly, against a standard of which they had no notice” (Jordan, at para. 96). The transitional exceptional circumstance recognizes that change takes time, and that even significant institutional delay will not automatically result in a stay of proceedings (Jordan, at para. 97).

[80] For a transitional exceptional circumstance to apply, the Crown must show that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). In other words, “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).

[81] The Ontario Court of Appeal has instructed that for transitional cases, a stay may only be warranted in a narrow category of cases (Baron, at paras. 80-81).

[82] In analysing aspects of a case that predate Jordan, the court should focus on the parties’ expectations under the Morin framework (Cody, at para. 71; Picard, at para. 43; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771). For delay that accrues after Jordan was released, courts should focus on the extent to which the parties and the court had sufficient time to adapt (Cody, at para. 71; Jordan, at para. 96).

C. The Morin Framework

[83] In Picard, Rouleau J.A. succinctly summarized the Morin framework (Picard, at paras. 76-79). Under Morin, the reasonableness of the delay is determined by balancing the following factors:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

a) inherent time requirements of the case,

b) actions of the accused,

c) actions of the Crown,

d) limits on institutional resources, and

e) other reasons for delay; and

4. prejudice to the accused (Morin, at pp. 787-788; Picard, at para. 76).

[84] First, the court considers whether the length of the delay from the charge to the end of the trial is long enough to raise an issue as to its reasonableness. Second, the court subtracts periods waived by the defence. Third, if waiver on its own does not resolve the s. 11(b) application, the court goes on to allocate delay to the factors set out in (a) to (e) above (Picard, at para. 77).

[85] The inherent time requirements for becoming available and preparing for the hearing will reflect the complexity of the case. Institutional delay starts to run when the parties are ready for trial, but the system cannot accommodate them (Picard, at para. 78). The period of institutional delay is compared with the Morin guidelines, which are six to eight months between committal and the start of the trial in Superior Court. Crown delay also counts in favour of a finding of unreasonable delay (Picard, at para. 78).

[86] Finally, at the balancing stage, the court looks at the reasons for the delay, the prejudice to the accused, and the interests s. 11(b) seeks to protect. In explaining the purpose of s. 11(b), the majority in Morin observed that there is a societal interest in bringing cases to trial and “[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial” (Morin, at p. 787; Picard, at para. 79).

D. Complexity in Transitional Cases

[87] When the charges predate Jordan, complexity is considered at two stages of the Jordan analysis: (1) to determine whether there was an exceptional circumstance justifying a delay over the presumptive ceiling, and (2) to determine whether the transitional exceptional circumstance applies (Picard, at paras. 53-55).

[88] The analysis of whether a transitional exceptional circumstance applies must always be contextual (Jordan, at para. 98). Even if a case is not sufficiently complex to meet the requirement of exceptional circumstances under Jordan, for transitional cases moderate complexity bears on the reasonableness of the delay (Jordan, at para. 97; Picard, at para. 73; R. v. Pyrek, 2017 ONCA 476, at para. 30).

[89] If the case is a simple one, yet the delay vastly exceeds the ceiling due to repeated missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework (Jordan, at para. 98). In Pyrek, the Court of Appeal of Ontario stated that para. 98 of Jordan can be rephrased as a three-part test, namely, a stay may be warranted where (1) the case is simple; (2) the delay vastly exceeds the ceiling; and (3) the delay was caused by repeated mistakes or missteps by the Crown (Pyrek, at para. 32).

E. Transitional Cases in which the Delay is Below the Ceiling

[90] For cases in the system in which the delay is below the ceiling, 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. These criteria must be applied contextually, sensitive to the parties’ reliance on the previous state of the law (Jordan, at para. 99).

III. Positions of the Parties

A. Position of the Applicant

[91] The Applicant states that the delay in this case is above the presumptive ceiling and cannot be justified under either the particularly complex case or transitional case exceptional circumstances. The Applicant seeks a stay of all charges. In the alternative, if the delay from the joint starting point of June 13, 2013 is justified as reasonable, then the Applicant alleges that the additional year arising out of the earlier start date for the criminal organization charges requires a stay of those charges.

First Calculation of Total Delay (Based on the “Gap” Argument)

[92] The Applicant advances two possible delay calculations. The Applicant’s first delay calculation posits an early start date for the two criminal organization offence charges of April 12, 2012 (referred to by the Applicant as the “gap” argument). The “gap” calculation is based on the Applicant’s argument that the Crown had the information in its possession which would have allowed it to lay both charges on the same indictment on April 12, 2012. The Applicant cites (among other cases) the case of Milani for the proposition that the delay started running from the time that initial criminal organization charge was laid.

[93] In this scenario, the Applicant argues that the total gross time elapsed from the initial criminal organization charge until the projected end of trial (April 12, 2012 to April 30, 2019) is 84 months and 19 days.

Second Calculation of Total Delay

[94] The second delay calculation posits a concurrent start date for all the charges of June 13, 2013. In this scenario, the total gross time elapsed from the joint information to the projected end of trial (June 13, 2013 to April 30, 2019) is 70 months and 18 days.

Defence-Caused Delay

[95] The Applicant alleges that a period of 12 months and 7 days, between May 25, 2016 (the first date of pre-trial motions) and May 31, 2017 (when the court set new dates for pre-trial motions and trial), was waived by the Applicant and his then co-accused.

[96] The Applicant argues that there are no other periods of “defence-only caused delay” that would require subtraction of any additional periods.

Exceptional Circumstances – Discrete Events

[97] The Applicant argues that there are no “discrete events” that would require subtraction of any additional periods.

First Calculation of Net Delay (Based on the “Gap” Argument)

[98] The Applicant alleges that, based on the “gap” argument and after subtracting the period of 12 months and 7 days that was waived, the net delay was 72 months and 12 days.

Second Calculation of Net Delay

[99] The Applicant further alleges that, if the “gap” argument is not accepted and the start date is jointly June 13, 2013, then, after subtracting the period of 12 months and 7 days that was waived, the net delay was 58 months and 5 days.

[100] The Applicant argues that, in either case, the delay is presumptively unreasonable and cannot be justified under either the particularly complex case or transitional exceptional circumstances.

Exceptional Circumstances – Complexity

[101] With regards to complexity, the Applicant argues that the case “is not so complex as to justify the almost doubling of the presumptive ceiling” (Applicant’s factum, at para. 47).

[102] In oral submissions and at para. 51 of its factum, the Applicant argued that the Crown did not take reasonable steps to avoid delay and thus cannot justify the delay based on the complexity exceptional circumstance.

Transitional Case Exception

[103] With regards to the transitional case exception, the Applicant argues that the case “is not entirely transitional” because Jordan was released almost a year before it came time to set the pre-trial motions and trial dates in this case (Applicant’s factum, at para. 52). The Applicant states that the Crown and the court’s approach to the case did not change after the release of Jordan, despite the lengthy delay that had already accrued, and that this fact should make it more difficult to justify the delay. The Applicant also argues that the case would have been stayed under the Morin framework because:

• there was significant prejudice to the accused,

• none of the Crown actions or delay can be explained by reasonable reliance on the Morin framework,

• other than the period of time encompassed by the waiver by the defence no other delay is attributable to the defence,

• there is a significant Crown and institutional delay,

• the Applicant made some efforts to move the matter ahead - attempted to get a case management judge appointed and abandoned his change of venue application.

B. Position of the Crown

[104] The Crown states that the period of delay in this case is below the Jordan presumptive ceiling, that the Applicant has the burden of showing that the delay is nonetheless unreasonable, and that the Applicant has not discharged himself of that burden. If the court were to continue its analysis, the Crown submits that, to arrive at the remaining delay, a further period of time should be deducted for the Applicant’s other criminal matter, which constitutes a discrete event.

[105] In the alternative, if the court finds that the delay exceeds the 30 month ceiling, the Crown argues that the delay can be justified by the complexity of the case. In the further alternative, the Crown submits that the complexity of the case meets the moderate complexity threshold and any delay over the 30 month ceiling is justified under the transitional exception branch of Jordan.

(1) The Crown’s Main Argument

Calculation of Total Delay

[106] The Crown argues that the total delay started to run on June 13, 2013, the date when the charges were laid. The Crown alleges that the Applicant’s “gap” argument is flawed because it includes the investigative phase pre-dating the swearing of the information that led to the charges before the court. The Crown (like the defence) invokes R. v. Milani, 2014 ONCA 536. Relying on paras. 47 and 48 of Milani, the Crown states that charges must be pending and not anticipated or spent in order to attract the protection of s. 11(b) (Crown’s factum, at paras. 71, 127 and at footnotes 57, 117).

[107] The Crown concludes that the total delay under consideration is approximately 70.5 months.

Defence Waiver

[108] The Crown alleges that the defence waived the delay between April 13, 2016 and April

30, 2019, a period of 36.5 months (the time from the defence adjournment request until the anticipated end of trial).

[109] The Crown states that, although the Applicant concedes a s. 11(b) waiver for the 12-month period between May 25, 2016 (the first date of pre-trial motions) and May 31, 2017 (when the court set new dates for pre-trial motions and the trial), the transcripts reflect that the Applicant waived s. 11(b) from April 13, 2016 until the anticipated end of trial.

[110] The Crown states that on April 13, 2016, Mr. Wilkinson requested an adjournment of already scheduled pre-trial motion dates. The Crown opposed the motion to vacate those dates. After Mr. Wilkinson waived s. 11(b) going forward, the court granted the defence request and vacated the pre-trial dates that had taken several months and numerous court appearances to schedule.

[111] The Crown argues that Mr. Wilkinson’s statements on the record from April 13, 2016 clearly reflect a defence waiver from that date until the end of trial.

[112] Further, the Crown states that waiver can be explicit or implicit. Even if the defence did not explicitly waive the period between May 31, 2017 and April 30, 2019 (a period of 23 months), the Crown alleges that the record demonstrates that these dates were waived implicitly.

Alternative to Waiver Between May 31, 2017 and April 30, 2019 – Defence-Caused Delay

[113] Should the court find that the period between May 31, 2017 and April 30, 2019 does not amount to defence waiver, the Crown submits that these 23 months should nonetheless be subtracted as defence-caused delay. The Crown states that an Applicant is entitled to postpone original dates, but he must then accept the reasonable delays that occur as a result (Crown’s factum, at para. 39). According to the Crown, defence could have had the trial but chose instead to request an adjournment to await the decision of the Court of Appeal on his other criminal matter (Indictment CR-12-0100), and that, having caused the adjournment, the Applicant is responsible for the ensuing delay. Defence were aware of the difficulties inherent to scheduling and re-scheduling of the trial dates, and never attempted to reschedule the trial dates (Crown’s factum, at para. 163).

Defence-Caused Delay

[114] The Crown alleges that the defence-caused delay amounts to approximately 8.5 months, based on the following:

• May 26, 2014 to September 22, 2014 (119 days) – defence not available on dates offered by the court for continuing the preliminary inquiry

• October 27, 2014 to November 24, 2014 (28 days) – no counsel appeared for the Applicant on this date, and no instructions were given

• June 22, 2015 to July 27, 2015 – a period of 37 days (on the June 22 appearance, no counsel appeared for the Applicant, no instructions were given, and the Applicant was content for the matter to “go over for one month”)

• July 27, 2015 to September 15, 2015 (50 days) – defence not available until mid-September for appointment (on consent) of case management judge application

• December 8, 2015 to January 7, 2016 (30 days) – motion and trial dates could not be scheduled on December 8. On January 7, defence abandoned its change of venue application.

[115] The Crown concludes that the total defence delay is 45 months (36.5 months for the waiver plus 8.5 months for defence-caused delay).

Calculation of Net Delay

[116] The Crown calculates that total delay minus defence delay (70.5 months minus 45 months) equals a net delay of 25.5 months, which is below the presumptive ceiling. The Crown concludes that the onus then shifts to the Applicant to show that the delay is unreasonable despite being below the presumptive ceiling.

Discrete Event – Other Criminal Matter

[117] If the court were to continue its analysis, the Crown submits that, to arrive at the remaining delay, a further period of time should be deducted for the Applicant’s other criminal matter which proceeded in parallel with the present case and should be considered a discrete event because it created an impossibility for counsel to schedule and proceed quickly with this case. Neither the court nor the Crown could mitigate the fact that the Applicant had another criminal matter. An out-of-town judge was required to conduct the preliminary hearing because every provincial court judge in the Northwest judicial region was conflicted.

[118] The Crown calculates that the discrete event for the other criminal matter amounts to 35 days, or approximately 1 month:

• January 20 to February 24, 2014 (a period of 35 days): The Crown states that this period is a discrete event arising from a conflict judge being needed for the matter, and his unavailability for the first week originally offered by the court before the conflict issue was apparent. Instead of starting on January 20, the preliminary hearing could not start until February 24.

[119] The Crown concludes that net delay minus discrete events (25.5 months minus 1 month) equals a remaining delay of 24.5 months. The Crown states that the Applicant has the burden of showing that the delay is nonetheless unreasonable by establishing defence initiative and that the case took markedly longer than it reasonably should have. The Crown further submits that the Applicant has not discharged himself of that burden. According to the Crown, the Applicant appeared content with the pace of the proceedings and took no concrete, proactive steps to move things along.

(2) The Crown’s Alternative Argument #1: Exceptional Circumstance – Complexity of the Case

[120] In the alternative, if the court finds that the delay exceeds the 30 month ceiling, the Crown argues that the delay can be justified by the complexity of the case.

[121] According to the Crown, the case is complex in three ways: (1) the evidence is complex, (2) the legal issues are complex, and (3) the case is procedurally complex. The Crown notes that the defence has recognized the complexity of the case on the record.

Evidentiary Complexity

[122] To prove evidentiary complexity, the Crown relies on the affidavit of Sergeant Ken Davis. The affidavit describes:

• voluminous disclosure, mostly provided to defence counsel in electronic format (over 60 gigabytes of information form the total vetted disclosure) and voluminous evidence (92 electronic devices seized, significant amounts of property seized,

• a large number of witnesses (at least 164 individuals are potential witnesses at trial, and they span multiple agencies and jurisdictions),

• significant requirements for expert evidence (due to the international component of the drug operation and the use of PGP encrypted devices, coded drug language, tracking technology, and covert vehicles), and

• charges covering a long period of time (the Applicant is charged with 9 counts, for offences alleged to have spanned over approximately 3.5 years, from November 2008 to April 2012).

Legal Complexity

[123] To prove legal complexity, the Crown again relies on the affidavit of Sergeant Ken Davis. The affidavit describes:

• a large number of charges and pre-trial applications (currently 14 pre-trial motions are set for 16 weeks of court time, to be followed by a 6 month trial),

• novel or complicated legal issues (a Marakah motion for third party standing which is an issue currently before the Supreme Court of Canada, a Mapara motion on hearsay, Garfoli applications, a motion to exclude a blackberry seized from the Applicant, motions to exclude evidence from searches at the Applicant’s residence, a lost evidence motion, a disclosure of source information motion, a motion to exclude a one-party consent to the interception of the accused’s communications),

• a large number of significant issues in dispute although the actual number of Crown witnesses required at trial depends on any admissions made and on the Applicant having legal representation at the time of trial), and

• a joint proceeding against multiple co-accused (the Applicant was jointly charged with Rory Pelletier until August 15th, 2016. The presence of the Applicant’s former co-accused for part of the current proceedings did not affect the length of the proceeding, the number of motions, or the length of trial.

[124] The Crown was made aware on October 11, 2017 that the defence was abandoning four of the above motions, but the Crown alleges that this has no bearing on the case’s complexity to date (Crown’s factum, at para. 234).

Procedural Complexity

[125] The Crown alleges that the procedural complexities in this case generally fall into four categories: (1) the Applicant’s other ongoing matter before the court, tried by Wright J., (2) the holding pattern in which the Crown and court were placed, (3) practicalities of scheduling 10 months of sitting court days in Thunder Bay, and (4) the fact that most judges in Thunder Bay were conflicted from hearing this matter.

[126] Furthermore, the Crown alleges that, due to the defence’s application to adjourn the trial, the motions and the trial dates had to be scheduled twice. The Crown states that “awaiting the Court of Appeal’s decision set off a chain of events that persisted as scheduling challenges […]. The case could not recover the time that passed and it would be impossible to expect the court to have dates immediately available to hear the matter when rescheduling could finally occur” (Crown’s factum, at para. 241). Also, the Crown argued that there are unique challenges to scheduling a case of this size and nature in Thunder Bay. The Crown cites Pierce J., who stated during a case management conference on December 8, 2015 that: “this [matter] is a bearcat to schedule” (Applicant’s materials: tab 87 - Proceedings, December 8, 2015 at p. 6).

[127] The Crown states that it made multiple efforts to move this matter forward, and points to the steps outlined at para. 271 of its factum where it sets out its response to delay under the transitional exception analysis:

• made use of JPTs and focus hearings;

• agreed to continue the preliminary inquiry as discoveries to provide the greatest flexibility in scheduling;

• engaged in the case management process from the appointment of a judge (on consent), to suggesting that an additional judge be appointed for the trial to allow the matter to proceed within a faster time frame;

• opposed defence’s request to adjourn the pre-trial dates;

• stayed the charges against Mr. Tsekouras’ co-accused, in light of Jordan; and

• took actions to ensure the Applicant’s attendance in court.

(3) The Crown’s Alternative Argument #2: Transitional Exceptional Circumstance

Moderate Complexity

[128] In the further alternative, if the court were to find that the delay in this case exceeds the presumptive ceiling, and that the delay would not be justified by complexity as an exceptional circumstance, then the Crown submits that the complexity of the case meets the moderate complexity threshold and any delay over the 30 month ceiling is justified under the transitional exception branch of Jordan.

[129] The Crown states that the factors that weigh towards complexity as outlined in the exceptional circumstances analysis apply equally in the transitional case analysis. Even if the court does not find that this case is complex as an exceptional circumstance, the Respondent submits that it qualifies as moderately complex as a transitional exception.

The Morin Framework

[130] The Crown alleges that, prior to the release of the Supreme Court of Canada’s decision in Jordan the parties clearly relied on the Morin framework (Crown’s factum, at para. 262). More particularly, the Crown states that:

• the delay fell well within the Morin guidelines for institutional delay,

• the Crown made multiple efforts to move this matter forward,

• the Applicant showed little effort in moving the case along,

• there was no prejudice caused to the Applicant by the delay,

• the 9 charges against the Applicant are serious, and

• this was a case, like Pyrek, which did not fall within the narrow category of transitional cases to be stayed (Crown’s factum, at paras. 262-277).

IV. Analysis & Decision

[131] I find that the calculation of total delay is measured between the date when charges were laid (June 13, 2013) and the anticipated end of the trial (April 30, 2019) which totals 70.5 months.

[132] I reject the “gap” argument advanced by the Applicant that the total delay calculation begins on April 12, 2012 because it includes the investigative stage pre-dating the swearing of the information and the charges before the court. The Applicant argues that the criminal organization charge related to his previous charge is the same as the two counts charging separate offences on the current information. The Court of Appeal in R. v. Milani, 2014 ONCA 536 stated that charges must be pending and not simply anticipated in order to attract the protection of s. 11(b). I find that the charges contained in the information before the court were not pending until the June 2013 information was laid and therefore the gap argument is rejected.

Defence Waiver

[133] Before comparing net delay against the presumptive 30-month ceiling set out in R. v. Jordan, 2016 SCC 27, defence delay must be considered.

[134] The Applicant concedes a waiver of his s. 11(b) rights for the 12-month period between May 25, 2016 (the first date of pre-trial motions) and May 31, 2017 (the day that new dates were set for pre-trial motion and the trial). The Respondent submits that the proper duration of the waiver is from April 13, 2016 to April 30, 2019 – a period of 36.5 months (the time from the defence adjournment until the anticipated end of the trial).

[135] Thirteen weeks of pre-trial motion dates and three months of trial dates had already been set for this present case when, on April 13, 2016 defence sought to vacate the pre-trial motion dates. The Crown opposed the motion but the adjournment was granted by the presiding judge after defence counsel stated on the record that he was waiving the Applicant’s s. 11(b) rights going forward.

[136] The court transcript for April 13, 2016 indicates the following statements were made by the Applicant’s counsel on the record:

“…we are also now in a position to give you, to give the Crown and the court, waivers of 11(b) going forward” (Court transcript, at p. 7).

“The court did an admirable job in coming up with a whole bunch of dates to accommodate the pretrial motions, and so given the complexity of the litigation and the dates that the court came up with, there was no more 11(b) concern in my estimation in any event” (Court transcript, at p. 8).

“… I appreciate that, and we both know that obviously us requesting the adjournment and putting the 11(b) waiver on there entails that, you know, the currently scheduled trial dates which we’re now eating into won’t be our trial dates necessarily, and that any delay beyond the pre-trial motion time frame that is occasioned by that falls at our feet.” (Court transcript, at p. 22).

[137] Justice Pierce, the presiding judge, endorsed the record as follows: “The two defendants, Tsekouras and Pelletier, now waive their right to be tried within a reasonable period of time under Section 11(b) to the Charter.”

[138] After Pierce J. rendered her decision on the motion, and given that dates would eventually be scheduled anew, the Crown sought clarification of Mr. Wilkinson’s waiver and asked: “with respect to 11(b) that there may be some difficulty, given the other ongoing prosecutions, that there may be some difficulty with the Crowns, in terms of scheduling the trial, simply because of the other prosecutions that will now intervene, and the defence is on notice of that.” Mr. Wilkinson responded: “any delay beyond the pre-trial motion time frame … falls at our feet.”

[139] In my view, the waiver of the Applicant’s s. 11(b) rights was unequivocal and not time limited and therefore “going forward” must be understood to run from April 2016 until the anticipated end of trial.

Defence Delay

[140] In addition to defence waiver there are defence delays when counsel was not available to accommodate dates proposed by the court that must also be subtracted from total delay.

[141] I accept the analysis of defence delay set out in paras. 143 to 163 of the Crown’s factum:

• May 26, 2014 to September 22, 2014 (119 days) – defence not available on dates offered by the court for continuing the preliminary inquiry

• October 27, 2014 to November 24, 2014 (28 days) – no counsel appeared for the Applicant on this date, and no instructions were given

• June 22, 2015 to July 27, 2015 (37 days) – on the June 22 appearance, no counsel appeared for the Applicant, no instructions were given, and the Applicant was content for the matter to “go over for one month”

• July 27, 2015 to September 15, 2015 (50 days) – defence not available until mid-September for appointment of case management judge application

• December 8, 2015 to January 7, 2016 (30 days) – motion and trial dates could not be scheduled on December 8. On January 7, defence abandoned its change of venue application.

• May 31, 2017 to April 30, 2019: the Respondent submits that this period should nonetheless be subtracted as defence-caused delay, regardless of whether or not this period was waived by the defence.

[142] The first suggested dates of the preliminary inquiry were February 25 to 28, 2014. The matter did not proceed and was adjourned to the court’s next sitting date of May 26, 2014. On May 26, the Applicant consented to committal on all counts except for conspiracy to commit murder. These new developments necessitated revisiting the scheduling of the remaining dates. The court offered as continuation dates the end of the week of June 16, 2014. Defence declined due to it being “too short of a turnaround.” The court offered additional dates, and the date of September 22, 2014 was accepted by defence.

October 27, 2014 to November 24, 2014 – 28 days

[143] The Applicant first appeared in the Superior Court of Justice on his present charges on October 27, 2014 without counsel. Furthermore, the Applicant’s counsel did not provide any instructions. Because of defence counsel’s lack of instructions, no meaningful progress could be accomplished and the case was adjourned.

June 22, 2015 to July 27, 2015 – 37 days

[144] On June 22, 2015, the Crown requested the appointment of a trial management judge. Once again, the Applicant appeared in court unrepresented, and no instructions were left on his behalf. The Applicant was asked by the court if he was content for the matter to go over for one month; he replied “Yes, I am.” The matter was adjourned to July 27, 2015.

July 27, 2015 to September 15, 2015 – 50 days

[145] Although both counsel agreed that an order for a case management judge should be sought on consent, Shaw J. determined that a formal application for the appointment of a case management judge would have to be brought. Mr. Wilkinson indicated to the Crown that he would draft the materials for the order. On July 14, 2015, Mr. Wilkinson sent draft materials to the Crown.

[146] Mr. Wilkinson was not available for the application until mid-September. On July 27, 2015, the application was set for September 23, 2015. Taking “mid-September” to mean September 15, the 50 days between July 27 and September 15 are therefore characterized as defence delay. The remaining eight days would count against the Crown.

[147] Mr. Wilkinson’s comments in his email of July 14 with the draft materials demonstrate his contentment with the pace that the matters were unfolding: “In my view, the best course would be to pick a date where I can attend and either Mr. Richer or the local agent or Ms. Mohr… can appear on behalf of the Crown… My suggestion is that we remand the accused from the 27 of July to whatever date the motion to appoint a case management judge can be heard.”

December 8, 2015 to January 7, 2016 – 30 days

[148] Scheduling the first set of pre-trial motions and trial dates occurred during two case management meetings before Pierce J. conducted on December 8, 2015 and January 7, 2016.

[149] Until January 7, 2016, Mr. Wilkinson maintained the position that a change of venue application was going to be brought on behalf of the Applicant. This position limited the ability of the parties to appoint a trial judge and set a trial date.

[150] At the second case management meeting held on January 7, 2016, Mr. Wilkinson abandoned his change of venue application and stated: “last occasion, you may recall that the one sort of fly in the ointment of setting a date or dates was the change in venue application…and so in the meantime, I’ve given some consideration to that and I’ve got instructions from Mr. Tsekouras that we are going to abandon that, abandon it based on the media coverage and prejudice problem because we don’t want – first of all, I’m fully cognizant of the fact that the case law is very much against changes of venue on that basis. My chances of success were fairly slim to begin with.” The delay resulting from the parties’ inability to set dates at the first case management meeting of December 8, 2015 must therefore be attributed to the defence.

May 31, 2017 to April 30, 2019 – Alternative to Waiver

[151] On December 8, 2015, Pierce J. conducted a case management conference that included the purpose of scheduling dates. This case management conference carried onto a second appearance of January 7, 2016. During these two appearances, counsel and the trial coordinator arrived at a suitable schedule of hearing dates under the court’s guidance: pre-trial motions were to commence May 25, 2016 and continue intermittently until December 16, 2016, and the trial itself was to start on February 6, 2017.

[152] The crux of defence’s submissions on April 13, 2016 for adjourning the dates that had been established was to wait until the Applicant’s appeal from Wright J.’s decision (Indictment 12-100-00) could be heard.

[153] The accused had pre-trial dates fixed and it is reasonably possible he could have had his trial in a reasonable time period. He made a decision to cancel these dates against the objection of the Crown and to wait for the decision of the Ontario Court of Appeal not knowing when it would be released. Further, the Applicant knew that scheduling dates had been extremely difficult and that securing new dates would be very difficult and would cause delay bringing the case to trial.

[154] An Applicant is entitled to postpone original dates, but he must then accept that the responsibility of cancelling them will be characterized as defence delay under the Jordan s. 11(b) analysis (R. v. M. (N.N.), 2006 ONCA 772, at para. 65).

[155] It is also important to note that the Applicant cancelled the pre-trial dates without discussing or attempting to reschedule new dates or set target dates. His approach was simply –“we will wait and see when the Ontario Court of Appeal released its decision and then decide where to go from there”. Target dates could have and should have been set (R. v. W.H., 2017 ONSC 5014, at para. 96).

Net Delay – Total

[156] For the above reasons, I calculate the total net delay in this case as follows: defence waiver of 36.5 months + defence delay of 8.5 months = 45.0 months which, when subtracted from the total delay of 70.5 months results in a net delay of 25.5 months which is below the 30-month presumptive ceiling set out in Jordan.

[157] I find that the Applicant has not satisfied the onus upon him to demonstrate that the delay in this case is unreasonable and that his s. 11(b) rights have been infringed.

Additional Analysis

[158] Because the net delay falls below the presumptive ceiling of 30 months there is no need for further analysis.

[159] Having said this, because of the various arguments raised by the parties, I find it necessary and worthwhile to address my reasoning in the alternative.

[160] When the calculation of net delay exceeds the Jordan ceiling, a court then considers two categories of exceptional circumstances that may justify delay: discrete events and particularly complex cases. This list is not to be considered closed (R. v. Cody, 2017 SCC 31, at para. 46, affirming Jordan, at para. 71).

Exceptional Circumstances

(i) Discrete Events

[161] Examples of discrete delays are the illness of a key Crown witness or the judge, or family emergencies. Delays of this nature are to be subtracted from net delay to arrive at what is referred to as “remaining delay”, which is then compared to the presumptive ceiling.

[162] The case before the court moved forward in parallel to another indictment preferred against the Applicant (Indictment CR-12-0100). That case proceeded to trial in the Superior Court of Justice in Thunder Bay before Wright J. and consumed 53 sitting days.

[163] I agree with the argument of the Respondent that the sitting dates associated with the Applicant’s other charge constitute a discrete event which could not be mitigated by the Crown or by the judicial system. With the trial proceeding before Wright J. it was impossible for either the Applicant or the Respondent to move this case forward.

[164] More specifically, during the period of January 20 to February 24, 2014 (a period of 35 days) scheduling dates for a preliminary hearing were delayed because the trial before Wright J. was already scheduled for pre-trial motions and trial. The preliminary hearing could not begin on January 20 as scheduled due to the judge who had been assigned declaring a conflict of interest. An out-of-town conflict judge was required and was unavailable until February 24.

[165] Subtracting 35 days as a discrete event reduces net delay to 24.5 months which falls below the presumptive ceiling established in Jordan.

[166] With net delay and remaining delay below the presumptive ceiling the Applicant now has the onus of showing that the delay was nevertheless unreasonable because (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 (Jordan, at para. 82).

[167] My review of the record does not support the position of the Applicant that delay, although below the presumptive ceiling, was unreasonable.

(ii) Complexity

[168] In the event that I am wrong in accepting the Respondent’s position and calculation of delay and that the net or remaining delay exceeds 30 months, I am directed by the Supreme Court of Canada’s decision in Jordan to turn to the second category of exceptional circumstances – case complexity.

[169] Whether the complexity of a case justifies the time taken to proceed to trial is a matter to be determined by a trial judge applying his/her good sense and experience (Jordan, at para. 40).

[170] Both the Applicant and Respondent have acknowledged that this is a complex case.

[171] The complexities in this case arise in many ways: evidentiary complexity, complex legal issues, and procedural complexity.

[172] The evidentiary complexities are set out in the affidavit of Sgt. Ken Davis. They include voluminous disclosure, a large number of witness (164), significant need for expert evidence, and 9 counts covering a period of 3.5 years (November 2008 to April 2012).

[173] Disclosure in the wake of Project Dolphin consisted of over 60 gigabytes of information and comprised over 25,000 files contained in 1,300 folders.

[174] There were a number of judicial authorizations for searches and seizures involving over 80 locations covering a period of five years.

[175] Ninety-two electronic devices were seized and processed by specialized forensic police units, including Blackberry phones with PGP encryption software.

[176] Project Dolphin required investigators to collect and process massive numbers of physical items from several jurisdictions including Ontario, Quebec, Manitoba, Alberta, British Columbia, Florida, Jamaica and the Bahamas. Twenty-two other police agencies were contacted to provide assistance including six international law enforcement agencies.

[177] Currently, there are 14 pre-trial motions set for 16 weeks of court time followed by a six month trial before a jury. Many of the issues before the court will be novel.

[178] Furthermore, the Crown acted reasonably and took steps to reduce delay, including:

• making use of judicial pre-trial conferences and focus hearings,

• agreeing to continue the preliminary inquiry as discoveries to provide the greatest flexibility in scheduling,

• engaging in the case management process from the appointment of a judge (on consent), to suggesting that an additional judge be appointed for the trial to allow the matter to proceed within a faster time frame,

• opposing defence’s request to adjourn the pre-trial dates,

• staying the charges against Mr. Tsekouras’ co-accused, in light of Jordan, and

• taking actions to ensure Mr. Tsekouras’ attendance in court.

[179] It is my finding that this is clearly a complex case justifying the time that it will take to proceed to trial.

Conclusion

[180] To summarize my findings: remaining delay in this case falls below the 30-month presumptive ceiling in Jordan. In the event that I am not correct, the complexity of the case justifies the delay which I find to be reasonable.

The Transitional Exception

[181] I will address the transitional exception briefly in light of my rulings set out above.

[182] If a court finds that the delay exceeds the presumptive ceiling and is not justified by complexity as an exceptional circumstance under the Jordan framework, delay can be justified as a transitional case exception.

[183] The case before the court is a transitional case since it was already in the system when Jordan was released on July 8, 2016.

[184] It is evident that the parties relied upon the Morin framework prior to the release of Jordan.

[185] The record shows that the Crown made several attempts to expedite the case.

[186] The court also took proactive steps to move the case along.

[187] Counsel for the Applicant waived his s. 11(b) rights on April 13, 2016 when he applied to adjourn the pre-trial motion dates. My reasons above include portions of what was said on the record and confirm that the defence had no concerns about delay: “The court did an admirable job in coming up with a whole bunch of dates to accommodate the pretrial motion, and so given the complexity of the litigation and the dates that the court came up with, there was no more s. 11(b) concerns in my estimation in any event” (Transcript of proceedings, April 13, 2017).

[188] In the event that I am not correct in my assessment of the delay and that the delay does exceed the 30 month presumptive ceiling in Jordan, there is no question that this case is at the very least moderately complex which is a transitional exception and falls within the Morin guidelines.

[189] The Applicant has not adduced any evidence to show that he has been prejudiced by any delay.

[190] There can be no doubt that the charges are serious. The seriousness of a charge is a significant factor in applying the transitional exception analysis.

[191] Finally, I agree with the submissions of the Crown that this is not a case that falls within the narrow category of cases that warrant a stay of proceedings (R. v. Baron, 2017 ONCA 772). Cases where a stay may be justified include cases that 1) are simple, 2) where the delay greatly exceeds the ceiling, and 3) where the delay was caused by repeated mistakes by the Crown (R. v. Pyrek, 2017 ONCA 476).

[192] To conclude this part of my analysis, I find that this case is well within the Morin guidelines.

Conclusion

[193] For the reasons set out above, I dismiss the application for a stay of proceedings.

__“original signed by”

Mr. Justice Patrick Smith

Released: November 29, 2017

CITATION: R. v. Tsekouras, 2017 ONSC 7112

COURT FILE NO.: CR-13-0050-00

DATE: 2017-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

JOHN TSEKOURAS

Applicant

REASONS FOR DECISION

PATRICK SMITH J.

Released: November 29, 2017

APPENDIX ‘A’

Procedural History from June 16, 2011 to June 11, 2013

The Take Down of Dolphin

[1] Project Dolphin was a lengthy and complex investigation which began in 2010. In addition to the arrest of the Applicant, Project Dolphin has resulted in the arrest of seven members of the alleged “Tsekouras drug trafficking organization” and the investigation of 13 other unindicted co-conspirators. More than 80 locations, individuals or devices were the subject of a judicially authorized search or seizure. Police seized 92 electronic devices that required forensic processing. Disclosure in this case was voluminous: over 60 gigabytes of information form the total vetted disclosure.

[2] On June 16, 2011 the police seized a Blackberry PGP device from the Applicant. The device was protected by sophisticated privacy protection software. The police retained the Applicant’s Blackberry for about 10 months before it could be unlocked. The police analyzed the information on the device and would later rely on that information to charge the Applicant with offences arising from the Dolphin investigation.

[3] Prior to the Applicant being charged in April 2012, the police had, as part of the June 16, 2011 takedown, charged Frank Muzzi (“Mr. Muzzi”), Ryan Smith (“Mr. Smith”), Salvatore Larizza (“Mr. Larizza”), and others. Mr. Ritchie, another alleged co-conspirator, had not yet been charged. At that time the central allegation against the Applicant was related to the actions of Mr. Muzzi, Mr. Larizza, and Mr. Ritchie between the 12 and 16 of June 2011 concerning the movement of 18 pounds of marihuana and 1 kilogram of cocaine from an undisclosed location to Mr. Larizza’s residence on Belton Road in Thunder Bay. Mr. Muzzi and Mr. Smith had already been before the court for 12 months prior to the Applicant being charged and the Crown had provided disclosure relating to those charges.

[4] On May 11, 2012, the Applicant requested disclosure to assist in his bail hearing concerning the April 2012 charge. The bail brief provided by the Crown contained evidence that had been known to and in the possession of the Crown for approximately two years.

The Initial Information - April 12, 2012

[5] On April 12, 2012 the Applicant was charged alone with a number of offences which were related to the events of June 16, 2011 (Information #121355). In addition, on that information, the Applicant was charged with directing a criminal organization contrary to s. 467.13(1) of the Code. The Crown continued to prosecute that information and the Applicant alone until April 24, 2013, when it laid a new information (#131341). The Applicant consented to his committal on the charges on the information.

The Bail Hearing - April 12, 2012 to May 4, 2012

[6] On April 12, 2012 the Crown proceeded with a bail hearing involving the Applicant along with four others: Mr. Ritchie, Rory Pelletier (“Mr. Pelletier”), Mr. Chiodo, and Mr. Gordon. Because the Crown decided to proceed with all of the bail hearings simultaneously, the hearings had to be staggered and conducted over several days. Ultimately, the Applicant’s bail hearing was held on May 3 and 4, 2012, following which he was ordered detained.

The Bail Review - May 4, 2012 to October 2, 2012

[7] Following the bail hearing the Applicant requested additional disclosure and indicated that he would be proceeding with a bail review. Disclosure was provided on August 23, 2012 along with a date for the hearing. The bail review was conducted on October 2, 2012 and the Applicant was ordered released from custody.

After the Bail Review - October 2, 2012 to April 24, 2013

[8] The information to obtain for the February 1, 2012 warrant to search the Blackberry seized from the Applicant on June 16, 2011 was disclosed on December 10, 2012. On March 1, 2013 the Crown sent instructions to its local agent stating that the Crown wanted to lay a joint information to regroup “all of the accused”. The names of the accused persons were not specified. Mr. Ritchie had already commenced his preliminary hearing before the same case management judge that was presiding in the Ontario Court of Justice on March 1, 2013. They requested the matter be adjourned. On March 25, 2013, no new information was available and the matter was adjourned again at the request of the Crown.

[9] On March 27, 2013, the matter was adjourned to the following day as the Crown with carriage of the matter would be present. On March 28, due to the defence expressing concerns about delay, the Crown agreed not to join the Applicant up with the other co-accused. The Crown removed the “directing a criminal organization” charge from the existing information. The Crown indicated that there “may be other charges”. On April 24, 2013, on the new information (#131341), the Applicant elected trial by Superior Court Judge alone and waived the preliminary hearing. The Applicant was remanded to the Superior Court of Justice on that information alone. The other charges originally joined with the criminal organization charge went to trial. The Applicant was convicted, appealed to the Court of Appeal for Ontario and lost, and is now seeking leave to appeal to the Supreme Court of Canada.

APPENDIX ‘B’

Timeline of June 13, 2013 to April 30, 2019

Ontario Court of Justice – Information 13-1948

Date

Next court date

Description / comment

Elapsed time

Morin classification

Jordan classification

Jun 13, 2013

Jun 17, 2013

First appearance on information 13-1948

4 days

Inherent: intake

Crown

Jun 17, 2013

Jun 20, 2013

Adjournment request to sort out bail

3 days

Inherent: intake

Crown

Jun 20, 2013

Jun 25, 2013

Adjournment. Record indicates that Superior Court bail hearing likely on Monday.

5 days

Inherent: intake

Crown

Jun 25, 2013

Aug 1, 2013

First appearance after Mr. Tsekouras was released on June 24.

Consent adjournment to Justice Baig’s court August 1. Original request was 3-4 weeks “to get things rolling” but Her Honour was off for the month of July with only 1 sitting on July 5.

37 days

Inherent: intake

Crown

Aug 1, 2013

Aug 7, 2013

Defence originally requested 1-month adjournment for disclosure; in the end, Court grants short adjournment for Crown agent to canvass Mr. Richer’s availability. Note that Mr. Watkins indicates that co-accused Mr. Pelletier is ready to elect.

6 days

Inherent: intake

Crown

Aug 7, 2013

Aug 19, 2013

Mr. Matthews indicates that Crown will provide disclosure, all of the disclosure discs would be forthcoming this week, and the Crown is prepared to set a JPT.

Mr. Watkins indicates again that co-accused Mr. Pelletier is ready to make an election.

Mr. Dubinsky on behalf of Mr. Greenspan indicated that defence is not in a position to make an election for Mr. Tsekouras yet.

12 days

Inherent: intake

Crown

Aug 19, 2013

Sep 13, 2013

Defence counsel received disclosure last week. Defence request for 3-4 weeks to go through disclosure, which is characterized as “on a hard drive with significant information on it.”

25 days

Inherent: intake

Crown

Sep 13, 2013

Oct 31, 2013

Mr. Matthews stated: “all – both defence counsel and the Crown wish to eventually set a preliminary hearing eventually in this case, but we need the focus hearing first because of the complexity of the matter.” Per agent for Mr. Greenspan, “their request is to set a judicial pretrial date to narrow the contours of the preliminary inquiry.”

48 days

Inherent: intake

Crown

Oct 31, 2013

Nov 25, 2013

Focus hearing held in chambers. Consent adjournment.

25 days

Inherent: all parties

recognize difficulty in scheduling

Crown

Nov 25, 2013

Nov 29, 2013

Trial coordination required more time to schedule dates for prelim. The judge set to hear the matter expressed a conflict. Out of town judge required.

4 days

Crown

Nov 29, 2013

Dec 13, 2013

Two more weeks required to schedule. Need out of town judge b/c conflict with Thunder Bay judges.

14 days

Crown

Dec 13, 2013

Feb 25, 2014

Prelim dates were scheduled. Four judges were noted to be disqualified from presiding on the Trial Coordinator’s Office Record of Court Dates Offered.

Discrete event – 35 days (Jan 20 to Feb 24) – sitting dates associated with Mr. Tsekouras’ other matter created an impossibility to proceed on this matter

74 days

(2 months 12 days)

Institutional / inherent (prep time for prelim to be factored in)

Discrete event – 35 days (Jan 20 to Feb 24)

Remainder 44 days – Crown

Feb 25 to

Feb 28, 2014

May 26, 2014

Prelim conducted on Feb 25-28; matter is adjourned to May 26 (next set of prelim dates).

April 7 to May 16 – 39 days - Crown argued this time was a discrete event in written materials but withdrew this submission in oral argument.

90 days (including 4 sitting days)

Inherent (prelim sitting dates)

39 days (Apr 7 to May 16) - Crown

Remainder 49 days – Crown

INDICTMENT 12-100-00 (Justice Wright trial)

Apr 7-10; Apr 14; 16-17; 23-24; 29-30. May 12-16 – pre-trial motions

May 26, 2014

Sep 22, 2014

Defence not available on dates offered by the court for continuing the preliminary inquiry.

119 days (3 months 27 days)

14 days institutional

(May 26 2014 to first day offered by court, June 9 2014).

105 days defence (June 9 to Sep 22 2014)

Defence delay: court had offered weeks of June 9 and 16 but defence not available. Other dates offered; defence not available until Sept 22.

INDICTMENT 12-100-00 (Justice Wright trial)

Jun 23-26, 2014 – pre-trial motions

Sept 22, 2014

Oct 27, 2014

Mr. Tsekouras is committed on count 12.

The Applicant did not include transcripts for this date.

In the meantime, the prelim continued as discoveries on:

• October 20 to October 23

• October 28 to October 31

First appearance in SCJ is October 27.

35 days

(1 month 5 days)

Inherent: SCJ intake

Crown

Superior Court of Justice – Indictment 13-0050-00

INDICTMENT 12-100-00 (Justice Wright trial)

Oct 20 – reasons on Charter motion rendered

Oct 27, 2014

Nov 24, 2014

Assignment court – first appearance in SCJ.

Mr. Tsekouras’ counsel does not appear, and no instructions were given.

28 days

Inherent: SCJ intake

Defence delay: no counsel appeared; no instructions were given.

INDICTMENT 12-100-00 (Justice Wright trial)

Nov 12-14; 18-21 – pre-trial motions

Nov 24, 2014

Feb 6, 2015

Assignment court. Superior Court JPT set for Feb 6. Mr. Norton has not yet been retained by co-accused Mr. Pelletier.

The first date offered by Justice Pierce: week of Feb 2.

Mr. Richer indicates that “the anticipation for this matter, it will take approximately three months of pretrial motions and likely three months of trial.”

74 days

(2 months 13 days)

Inherent: need JPT

Crown

INDICTMENT 12-100-00 (Justice Wright trial)

Nov 24-28; Dec 1-5; Dec 10-12 – pre-trial motions

Dec 23 – reasons

Jan 6-9; 28-30 2015 – trial

Feb 6, 2015

Mar 10, 2015

JPT premature. Justice Pierce’s endorsement indicated:

1. Pretrial briefs have not been filed detailing the issues
2. The Crown has not considered its position on various issues that are foundational to the prosecution
3. Mr. Norton, who is returned to conduct the pretrial, does not appear

2-hour JPT rescheduled before Justice Pierce for March 10; Crown to serve its brief on defence counsel by Feb 20 2015.

32 days

(1 month 4 days)

Neutral: Crown and defence not ready to proceed.

Crown

INDICTMENT 12-100-00 (Justice Wright trial)

Feb 17-20 – trial continued

Mar 5 – verdict

Mar 10, 2015

Apr 30, 2015

JPT continuation before Justice Pierce.

51 days

(1 month 20 days)

Inherent: JPT continuation needed

Crown

Apr 30, 2015

Jun 22, 2015

JPT conducted before Justice Pierce. The endorsement indicated:

“On consent, case management judge to be appointed with a view to hearing prelim motions re: venue, re: election, and alternative remedies. Continuation of trial management to take place before case management judge on a date to be arranged by trial coordinator.”

53 days

(1 month 23 days)

Inherent

Crown

Jun 22, 2015

Jul 27, 2015

Assignment court.

No counsel appeared for the Applicant, no instructions were given, and the Applicant was content for the matter to “go over for one month”.

37 days

(1 month 7 D)

Neutral (adjournment on consent)

Defence delay (Tsekouras content for matter to go over one month)

Jul 27, 2015

Sep 23, 2015

Assignment court.

Defence not available until mid-September for appointment of case management judge application. Taking “mid-September” to mean September 15, the 50 days between July 27 and September 15 are therefore characterized as defence delay. The remaining 8 days would count against the Crown.

58 days

(1 month 27 days)

50 days Defence delay until mid September (Sept 15)

8 days inherent (first date offered is Sept 23)

Defence delay: 50 days

8 days: Crown

Sept 23, 2015

Dec 8, 2015

On consent of all parties, joint application for appointment of a case management judge.

Mr. Richer indicates: “it makes sense to appoint a trial management judge in this case. Mr. Wilkinson and I were just talking about that before we entered the courtroom. It allows us sufficient flexibility, if we appoint a trial judge now, there’s a lengthy list of motions that they may have to hear, their schedule may get filled up, and this gives us the flexibility of negotiating through potential conflicts, potential changes in scheduling and the like, and would probably allow us to get this matter proceeding on a better time frame.”

Justice Pierce appointed. Matter is remanded to the next assignment court to schedule a first appearance before Justice Pierce as case management judge.

Trial coordination and counsel convene via email to canvas dates for a case management appearance before Justice Pierce. The Court offers 9 dates, with the first date offered being Nov 18. All counsel indicate that they were available on this date. Mr. Richer had indicated that “if need be I can make myself available for any date but the December and January dates would work better… I would therefore suggest any of the Dec 8, 9, 10 dates.” Dec 6 was ultimately set.

Defence counsel silent on delay.

76 days

(2 months 15 days)

Inherent

Crown

Oct 26, 2015

Dec 8, 2015

Assignment court. First case management appearance before Justice Pierce set for Dec 8.

Inherent

Crown

Dec 8, 2015

Jan 7, 2016

Case management meeting.

Motion and trial dates could not be scheduled on December 8th. On January 7, defence abandoned its change of venue application.

30 days

Defence delay – see Mr. Wilkinson’s comments made at next appearance Jan 7, 2016 – change of venue application as frivolous

Defence delay – see Mr. Wilkinson’s comments made at next appearance Jan 7, 2016 – change of venue application as frivolous

Jan 7, 2016

Apr 13, 2016

Case management meeting, continued. Dates are secured for the remaining pretrial motions and trial itself.

Mr. Wilkinson abandoned change of venue application: “last occasion, you may recall that the one sort of fly in the ointment of setting a date or dates was the change in venue application…and so in the meantime, I’ve given some consideration to that and I’ve got instructions from Mr. Tsekouras that we are going to abandon that, abandon it based on the media coverage and prejudice problem because we don’t want – first of all, I’m fully cognizant of the fact that the case law is very much against changes of venue on that basis. My chances of success were fairly slim to being with. ”

The Crown again sought the appointment of a trial judge and case management to preside over the motions. Various judges were noted to be conflicted from this case.

Regarding 11b, Mr. Wilkinson stated: “Depending on the dates, Your Honour. I mean, like right now, I’m going to have to really – I’m going to have to – depending on what Your Honour sways about when the trial dates might happen, so far the timing of the pretrial motions, it’s a real question mark for me whether I have an 11(b) or not.”

Dates scheduled

The following 2016 dates were reserved by the court for approximately 13 weeks of pretrial motions:

• May 25 to 27

• June 27 to 30

• Week of:

• July 11

• July 18

• July 25

• August 8

• August 15

• August 29

• October 11

• October 17

• October 24

• November 28

• December 12

The Court offered January 9, 2017 to start the trial, regardless of how much time it would take to complete the matter. Mr. Wilkinson inquired whether it would “make sense to have more of a buffer… between that last date and the actual scheduled trial start” to give the court time to render its decisions. Mr. Wilkinson confirmed that this buffer—which ultimately turns out to be 52 days (between December 16, 2016 and February 6, 2017)—would be considered neutral for the purposes of 11(b).

The trial estimated to continue for 3 months, and was scheduled to commence:

• February 6 2017

Dates vacated

March 31 and April 1, 2016 were vacated. At this point, still unknown whether Crown would be occupied in Mr. Ritchie’s trial; and defence had abandoned its change of venue application. Given tentative nature of these dates, all parties agreed commencing on the May dates as scheduled is the way to proceed.

97 days

(3 months 6 days)

Inherent: preparation time required by counsel (see preparation time for current pre-trial motions).

The next court date would have been May 25, the first day set for pre-trial motions, but for the intervening adjournment request brought by defence on April 13.

Any institution delay arising from scheduling these dates are therefore subsumed in the period between April 13 and May 25.

Crown

Apr 13, 2016

Aug 15, 2016

Mr. Wilkinson indicates that “we also now are in the position to give you, to give the Crown and the court, waivers of 11(b) going forward.”

Defence counsel adjourns this matter in order to wait for Mr. Tsekouras’ other matter (tried before Justice Wright) to work through the appeal system.

124 days

(4 months 2 days)

Defence waiver

Defence waiver

Aug 15, 2016

Sep 8, 2016

In light of Jordan and at the Crown’s request, all charges against co-accused Mr. Pelletier are stayed.

Parties agreed to convene with Justice Pierce in September, after counsel have had a chance to discuss amongst themselves.

Parties subsequently canvas with trial coordination dates for the pretrial. First day offered by the Court was September 6, 2016.

24 days

Defence waiver

Defence waiver

Indictment 12-100-00 (Justice Wright trial) was appealed (ONCA docket C60103)

Sept 6 to 7, 2016 – matter heard at the Ontario Court of Appeal

Sep 8, 2016

Oct 14, 2016

Scheduling conference held. The endorsements indicate that counsel were to reconsider a motion schedule, and file a revised agenda. The motion scheduling was to be discussed at the next appearance. There is no evidence that a revised agenda was filed.

36 days

(1 month 6 days)

Defence waiver

Defence waiver

Oct 14, 2016

Dec 12, 2016

The endorsements indicate that the court reserves the following weeks for pretrial motions:

• February 6, 2017
• February 13, 2017
• February 20, 2017
• March 6, 2017
• March 20, 2017
• April 3, 2017
• April 10, 2017
• April 17, 2017

Mr. Wilkinson was to serve and file materials by December 2, 2016; the Crown by January 9, 2017.

Mr. Tsekouras’ ONCA decision still pending.

59 days

(1 month 28 days)

Defence waiver

Defence waiver

Dec 12, 2016

Jan 24, 2017

Defence did not meet filing deadline.

Dates set for February and March 2017 vacated.

Mr. Tsekouras’ ONCA decision still pending.

43 days

(1 month 12 days)

Defence waiver

Defence waiver

Jan 24, 2017

Feb 14, 2017

Case conference held. ONCA decision still pending.

21 days

Defence waiver

Defence waiver

Feb 14, 2017

Mar 27, 2017

Continuation of case conference held. ONCA decision is still pending.

The remaining three weeks scheduled for pretrial motions (that were set aside on October 14, 2016) vacated on consent. (i.e. weeks of April 3, 10, 17).

Matter remanded to assignment court to set date for pretrial motions.

41 days

(1 month 13 days)

Defence waiver

Defence waiver

Mar 27, 2017

Apr 24, 2017

Assignment court. Mr. Wilkinson advises the court that the ONCA decision is still pending. Counsel proposed that the matter go to the next assignment court. Intention is to set dates at the next appearance.

Mr. Richer confirmed Mr. Wilkinson’s waiver was until “the end of the proposed hearings that we had” so therefore consented to this adjournment. Mr. Wilkinson clarified that the waiver extended until the end of April.

The court invited counsel to reach trial coordination if “things get moving faster.”

28 days

Defence waiver

Defence waiver

INDICTMENT 12-100-00 (Justice Wright trial) was appealed (ONCA docket C60103)

Apr 11 2017 – appeal decision rendered; appeal dismissed

Apr 24, 2017

Apr 28, 2017

Assignment Court. Defence requested a 2-week adjournment.

Mr. Wilkinson indicated that his ability to communicate with Mr. Tsekouras since the decision has been released “was essentially nil for about a week. So we… need some more time to discuss the setting of dates and the like.”

Mr. Richer noted that Justice Pierce has become supernumerary. The Court advised that Justice Pierce was available this week but then not again until May 29, 2017. Mr. Richer suggested touching base this week with Justice Pierce would make sense and Mr. Wilkinson agreed.

4 days

Defence waiver / neutral

Defence waiver

Apr 28, 2017

May 8, 2017

Appearance before Justice Pierce.

The Court offered to have a case management meeting on this date in an attempt to make this appearance more meaningful. Mr. Wilkinson does not have complete instructions from Mr. Tsekouras at this point and stated he is not prepared to do a case conference today.

Trial coordination offered May 8, 2017 for case management conference before RSJ Warkentin; counsel are to provide a list of motions to be scheduled and court availabilities by May 5, 2017. Matter will return before Justice Pierce for SCJPT May 29, 2017.

Mr. Richer advised that the Crown’s motions remain the four motions previously discussed and that he is available any date this year.

Both defence and Crown file their lists of proposed motions.

10 days

Defence waiver / neutral (on this date, defence not ready to set dates, not ready to hold case conference management meeting)

Defence waiver

May 8, 2017

May 29, 2017

Trial management meeting before RSJ Warkentin.

Parties discuss generally the timing for pretrial motions, and confirm that approximately 10-12 weeks is still the estimated time needed for pretrials.

The Court’s intention is to set trial dates on May 29, 2017, with counsel providing time estimates and the proposed order in which the motions are to be heard prior to this date.

On May 26, 2017, Mr. Wilkinson emailed defence pretrial motion memo with details and time estimates to Mr. Richer and trial coordination (Ms. Tenuik and Ms. Cupp). Mr. Wilkinson also provided Mr. Richer and trial coordination with his availabilities, noting that he is “not fully retained at this stage.”

21 days

Defence waiver / neutral

Defence waiver

May 29, 2017

May 31, 2017

SCJPT held before Justices Pierce and Smith.

The first date offered by the court was June 12, 2017 with respect to the 11(b) application; the court however also indicated that “no one knows whether the transcripts will be available.”

2 days

Defence waiver / neutral (defence not ready to proceed because of transcripts)

Defence waiver

May 31, 2017

Oct 30, 2017

Dates are set for pretrial motions and trial at this appearance before Justice Smith.

Mr. Tsekouras confirmed that he understands that whatever counsel he retains (if he does not end up retaining Mr. Wilkinson), or if he is representing himself, he is agreeable to the dates scheduled.

152 days

(5 months)

Defence waiver / neutral

Defence waiver

Oct 30, 2017

Jun 8, 2018

Approximately 16 weeks of pretrial motions set to be heard on a rolling basis.

221 days

(7 months 9 days)

Inherent / neutral (pre-trial motions)

Defence waiver

Jun 8, 2018

Oct 22, 2018

End of pretrial motions as scheduled to start date of judge and jury trial.

136 days (4 month 14 days)

Defence waiver / inherent

Defence waiver

Oct 22, 2018

Apr 30, 2019

Anticipated trial dates.

183 days

(6 months)

Inherent / neutral (trial)

Defence waiver