COURT FILE NO.: 14-G1024

DATE: 2018/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Jessica Corbeil, James Meloche, for the Respondent

Respondent

– and –

PAUL KIRTHI MASILAMANY

Applicant

Paolo Giancaterino, for the Applicant

HEARD: February 23, 2018

reasons for decision on s. 11(b) application

maranger j.

[1] This was an application for a stay of proceedings on the basis that the applicant’s right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, has been infringed. On February 24, 2018 the application was denied with written reasons to follow. These are those reasons.

[2] The accused is charged with the following offences: possessing cannabis marijuana for the purposes of trafficking contrary to s. 5 (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”); possessing heroin for the purpose of trafficking contrary to s. 5 (2) of the CDSA; possessing proceeds of crime contrary to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46; and three counts of breach of recognizance of bail contrary to s. 145(3) of the Criminal Code.

[3] The accused/applicant was initially charged on January 17, 2014. His trial is scheduled to commence June 11, 2018 and is set for seven days. The total time frame involved is 53 months.

[4] This is the second trial of the applicant on these charges. The evidence and submissions in the first trial were completed on February 10, 2017. On May 12, 2017 the first trial judge (a judge other than myself) acquitted a co-accused; and was ready to deliver his judgment on the applicant. However, on that date the applicant moved for a mistrial, it was heard on May 18, 2017 and granted on July 10, 2017.

[5] The mistrial was as a result of an unusual turn of events. A significant portion of the delay relied upon in this application is inextricably intertwined with those events. I denied the stay based on my analysis of what occurred from February 10, 2017 to June 18, 2018 the anticipated date of completion of the second trial.

Legal principles:

[6] On July 8, 2016 the Supreme Court of Canada released the decision of R. v. Jordan, 2016 SCC 27. The decision dramatically changed the law in deciding whether an accused’s right to be tried within a reasonable time had been violated.

[7] The previous framework for analysing whether the right to be tried within a reasonable time had been violated came out of the case of R. v. Morin, [1992] 1 S.C.R. 771. Morin required the court to balance four factors:

The length of the delay;
Defence waiver;
The reasons for the delay including the inherent needs of the case, defense delay, Crown delay, institutional delay, and other reasons for delay; and
Prejudice to the accused’s interests in liberty, security of the person and a fair trial. Prejudice can be actual or inferred from the length of the delay.

[8] The majority in Jordan described the Morin approach as “too unpredictable, too confusing, and too complex. It has itself become a burden on already over-burdened trial courts” (para. 38). The Court went on to indicate that these doctrinal problems had contributed to problems in practice, which had led to a culture of complacency towards delay in our criminal justice system.

[9] I would summarize the essential governing principles or framework to be taken from the Jordan case in the following manner:

i. There is a 30 month presumptive ceiling for matters tried in the Superior Court of Justice. The clock runs from the date that the accused is charged and ends with the actual anticipated end of the trial. If that time frame exceeds 30 months there is a presumption that the delay has become unreasonable.

ii. There is a three-step analysis to be used: first, calculate the delay; second, deduct from the total any delay waived by defence or caused by the conduct of the defence; and third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow.

iii. In cases that were in the system prior to July 8, 2016, there is a fourth step: where the delay exceeds the presumptive ceiling, the Crown can nonetheless invoke transitional, exceptional circumstances. The Crown has to demonstrate that the time was justified on the basis of relying on the previous state of the law.

iv. Defence waiver can be explicit or implicit. It has to be clear and unequivocal; a complete understanding of the right and the effect of waiving the right must be demonstrated.

v. Delay attributable to the Defence would include: conduct that causes or directly contributes to delay; calculated tactics designed to delay the matter, such as frivolous applications or requests; and defence unavailability, so long as both the court and the Crown are ready to proceed. If they are not, the delay will not be found to be caused by the Defence.

vi. Any conduct by the Defence undertaken to legitimately respond to the charge will fall outside of the definition of Defence delay.

vii. Exceptional circumstances are those that are outside of the control of the Crown. They have to be reasonably unforeseen or unavoidable and the Crown must not have been able to reasonably remedy the delay caused in the circumstances. They come into two categories: discrete events and particularly complex cases. Importantly, when such a delay occurs, it is incumbent upon the Crown and the court to do what it can to mitigate the effect of the delay. The seriousness of the offence standing alone will not be considered an exceptional circumstance.

viii. The court also established guidelines for dealing with transitional cases (cases currently in the system). While the new Jordan framework applies, it has to be applied contextually and flexibly. For cases that exceed the presumptive ceiling, “a transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, para. 96). Thus, the factors that were relevant under the Morin framework can inform the analysis of cases in the system before Jordan.

ix. In cases that fall below the presumptive 30 month ceiling, stays will be rare and limited to the clearest of cases, the reason being that the ceiling “factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases” (para. 83). Jordan further indicated that stays of proceedings will be difficult to obtain for cases currently in the system that are beneath the presumptive ceiling, given the level of institutional delay tolerated under the previous approach.

x. If the period of delay is under 30 months in the Superior Court of Justice, the burden shifts to the Defence to show that the delay is unreasonable. The Defence must show that it took meaningful, sustained steps to expedite the proceeding, and that the case took markedly longer to conclude than it should have.

[10] In R. v. Williamson, 2016 SCC 28, the Supreme Court of Canada provided the considerations applicable to transitional cases. Madam Justice Parfett, in R. v. Picard, 2016 ONSC 7061, nicely summarized the principles at paragraph 25 where she said:

[25] In R. v. Williamson, the Supreme Court fleshed out the considerations to apply in transitional cases. It suggested that relevant circumstances to consider in a contextual analysis include:

The complexity of the case;

The period of delay in excess of the Morin guidelines;

The Crown’s response, if any, to any institutional delay;

Defence efforts, if any, to move the case along; and

Prejudice to the accused.

[11] In 2017, the Supreme Court of Canada released the decision of R. v. Cody, 2017 SCC 31, and the Ontario Court of Appeal released the decision of R. v. Picard, 2017 ONCA 692. The two decisions provided added guidance to trial courts when considering the issue of delay and whether exceptional circumstances could be said to exist, including: what might constitute a discrete event, and the parameters of a particularly complex case.

The facts of this case and legal principles applied:

[12] This case is not one where a piece by piece analysis of the entire history of the proceedings is required or, for that matter, particularly useful. I attach, however, as Schedule “A” to this decision a chart showing the time frames and steps taken in each Court.

[13] In the first trial of this matter, the evidence and the submissions of counsel were completed on February 10, 2017 in the Superior Court of Justice.

[14] By February 10, 2017, considering delay attributable to the defence, the case in my estimation was undeniably below the presumptive ceiling. It is what took place thereafter, and the analysis thereof, that is at the heart of the determination of this application; namely from February 10, 2017 to the current trial date, June 18, 2018.

[15] What transpired can be summarised as follows:

• From the date the charges were laid to February 10, 2017 involved a total time frame of 36 months and 3 weeks.

• Of that approximately 37 months, defence delay included a significant period of time resulting from a change in counsel 2 months prior to the original trial date (resulting in it being re-scheduled). This added up, conservatively speaking, to 10 months of defence delay. In this regard I accept the Crown’s position/analysis respecting what transpired between January 6, 2016 to February 10, 2017 as set out in Schedule “B”.

• On February 10, 2017, the presiding judge adjourned the matter to May 12, 2017 for a decision on the trial. On that date, May 12, 2017, counsel representing the applicant brought an application for a mistrial. The mistrial application was heard May 18, 2017. It was contested. On July 10, 2017, the mistrial was granted.

• The trial judge committed a misstep on May 10, 2017. He wanted to review certain drug exhibits in his chambers as part of his deliberations. The unfortunate chain of events and issues he faced thereafter are set out in his decision to grant the mistrial (at paras: 9 to 18):

[9] The court had all trial exhibits except the drug exhibits which remained in the possession of the OPS during and at the end of the trial. The court’s intention was to review the drug exhibits in order to gain the above information as to the above issues. The Court therefore asked the Registrar to obtain the drug exhibits for my review. I did not know or consider how the drug exhibits would be brought to me.

[10] The Registrar on May 5, 2017 apparently communicated my request to view the drug exhibits to Crown counsel. Crown counsel on that date apparently advised defence counsel of my request including my wish to measure the drug exhibit bags that she had requested the OPS to deliver the drug exhibits to me. Crown counsel apparently advised and requested the OPS to produce the drug exhibits to my office.

[11] Crown counsel advised defence counsel on May 9, 2017 that Detective Hill who was the team leader in this OPS drug investigation and had testified in this trial would bring the drug exhibits to me at 10:30 a.m. on May 10, 2017.

[12] Detective Hill was one of eight Officers who testified during this trial. He was a member of the surveillance team observing Mr. Masilamany prior to the January 16, 2014 execution of the search warrant. He participated in the warrant search of the Residence.

[13] Detective Hill had testified that during the warrant search, he found and seized a health card and 16 credit cards issued to Mr. Masilamany. Detective Hill did not testify that he had seized any of the drugs or substances seized in the Residence introduced during the trial.

[14] While the responsibility remains mine, no counsel objected to Detective Hill bringing the drug exhibits to me or requested an alternative manner for my review thereof.

[15] On May 10, 2017, I was advised that a member of the OPS was at reception with the drug exhibits. That OPS officer was Detective Hill.

[16] Detective Hill then accompanied the drug exhibits into my office on May 10, 2017. I did not request and had no knowledge that he or any Officer who had testified in this trial would transport the drug exhibits. For obvious reasons, I was not prepared to examine the drug exhibits without another person being present. I however mistakenly permitted him to bring the drug exhibits into my office where he remained with those exhibits for approximately 20 minutes during my examination thereof.

[17] In hindsight, upon seeing Detective Hill, I should have cancelled the appointment to examine the drug exhibits, adjourn to May 12, 2017 to deliver my decision and request production of such exhibits in open court with the attendance of counsel and the accused given the appearance of a testifying officer being alone with me prior to rendering my decision on the charges.

[18] Detective Hill on May 10, 2017 at my request placed the drug exhibits in sequential numerical order on my office table. I stated that I wanted:

(a) to view the 9 packages of marihuana seized inside the Residence; and

(b) to confirm whether there was more than one heroin drug exhibit seized as there were the two Certificates of Analysis, exhibits 3B and 17B, which each report the substance tested as heroin.

• The mistrial was contested by the federal Crown. The arguments raised in response to the mistrial application were summarized by the trial judge at paragraph 39 of his decision:

[39] The Crown submits that:

(a) It was appropriate for the judge to review the trial exhibits in the possession of the OPS and the production thereof by an Officer exempt from the offences under the CDSA was appropriate;

(b) Defence counsel voiced no objection to the procedure to be followed as to the production of the drug exhibits to the trial judge as requested, despite receiving two prior notices thereof;

(c) The May 10 in chambers comments between the judge and Detective Hill during the court’s review of the drug exhibits did not constitute a breach of s. 650(1) of the Code;

(d) Detective Hill provided no evidence in chambers and simply provided markings on the exhibits and Certificates of Analysis. He provided no new evidence nor his opinion on the evidence. Any comments of this Officer to the judge was already part of the evidence presented during the trial;

(e) There is no evidence of any discussion between Detective Hill and the judge that involved the decisions regarding procedure, evidence or substantive matters. The vital interests of the accused were not therefore affected;

(f) There was no effect on the apparent fairness of the trial or any decision about the conduct of the defence, as the trial was then completed with only the decision to be rendered;

(g) The declaration of a mistrial is an extreme remedy of last resort which should only be granted in the clearest of cases where no other remedy will adequately redress the actual harm occasioned;

(h) The remedies available to this accused other than a mistrial included the right to recall and cross-examine prior witnesses including Detective Hill, respond accordingly and thereby cure any prejudice. The accused waived his opportunity to exercise such alternative remedy; and

(i) The accused’s application for a mistrial should be dismissed.

• In the end, the judge granted the mistrial. His reasons for so doing are in part set out at paragraphs 59 and 60 of his decision:

[59] Regardless of the purpose or intention at the time, it is not appropriate for a judge in a criminal trial to meet with or have a verbal conversation with one of the investigating and testifying Officers about any evidence in that trial in the absence of the accused and his counsel prior to rendering a decision. To condone that would undermine the public’s confidence in the administration of justice.

[60] The Court in R. v. C.D.H., 2015 ONCA 102, set aside a verdict of acquittal, and a conviction of a lesser included offence and ordered a new trial on the basis of a reasonable apprehension of bias and lack of impartiality by the trial judge. Although the circumstances in that case and the argument there of a reasonable apprehension of bias are different than this case, the conduct complained of in C.D.H. included a verbal exchange between the judge and an investigating Officer prior to sentencing for the conviction of the included offence.

• The time the first trial judge took to decide both the trial and the mistrial application and the mistrial itself added a further 16 months to the overall delay.

• Thus, when factoring in the 10 months of defence delay there is nonetheless an overall delay of some 43 months between the date the accused was charged and the anticipated end of his second trial.

Exceptional Circumstances Argument:

[16] The Crown has submitted that the 16 months resulting from the trial judge’s deliberating on both the trial and mistrial application, as well as the declaration of a mistrial, were discrete events as contemplated at paragraphs 73-75 of Jordan:

[73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

Time to render a decision: February 10, 2017 to July 14, 2017 (5 months, 3 days):

[17] With respect to amount of time a judge takes to decide a matter; In part, I adopt the language and the logic of the Quebec Court of Appeal in the case of R. c. Rice, 2018 QCCA 198, at paragraph 41:

[41] Le délai total se calcule du dépôt des accusations à la conclusion réelle ou anticipée du procès. D’une part, il faut donc comprendre que les plafonds et la grille d’analyse ne visent que le temps requis pour terminer la preuve au procès et les plaidoiries. En prenant comme point de repère la conclusion réelle du procès ou sa fin anticipée, laquelle correspond à la durée prévue par les parties pour compléter l’administration de la preuve et les plaidoiries, la Cour suprême ne pouvait croire que le verdict serait rendu au même moment…

[41] Total delay is calculated from the time charges are laid to the actual or anticipated end of the trial. On one hand, it must thus be understood that the ceilings and framework include only the time required to complete the presentation of evidence at trial and submissions. By taking the actual or anticipated end of the trial as a bookend (the latter corresponding to the duration foreseen by the parties to complete their evidence and submissions), the Supreme Court could not have believed that the verdict would be rendered at the same time…

[18] While I generally agree that the time taken to decide a matter should not be included in the 30 month presumptive ceiling, I would add a caveat to this proposition. Every player in the administration of criminal justice, including judges, has a role in seeing that delays are kept at a minimum. The amount of time to consider a case and render a judgment will vary depending upon the complexity of the matter. However, it is reasonable for an accused person to expect to know his/her fate within six months after the completion of even the most complex criminal trials. In most cases a decision should be rendered within 90 days.

[19] In this matter, there were in fact two separate decisions: the trial decision, which took from February 10, 2017 to May 12, 2017 (approximately 90 days), and the mistrial application, which took from May 12, 2017 to July 14, 2017 (approximately 60 days). These time frames to deliberate were not unreasonable and should be deducted from the overall delay.

The mistrial: July 14, 2017 to the completion of the second trial, June 18, 2018 (11 months)

[20] Counsel representing the accused forcefully argued that this time frame should not be considered a discrete event or an exceptional circumstance, and that it was more in the nature of institutional delay that should not be held against the accused.

[21] Counsel for the accused relied upon the Ontario Court of Appeal decision of R. v. C.(A.), 2015 ONCA 130. In that case the Court upheld a decision to stay a trial on the basis of delay, where 6.25 months of delay was attributed to the declaration of a mistrial. The mistrial in C.(A.) resulted from a misstep committed by the trial judge. The delay was classified as institutional. At paragraphs 5 and 6 of the decision, the Court of Appeal indicated the following:

[5] He found that the 6.25 month period of delay following the mistrial was properly characterized as institutional delay based on two factors: 1) the unusual circumstances of the mistrial which could not be attributed to the accused; and 2) that defence counsel was not expected to be “in a perpetual state of readiness”.

[6] We see no error in the application judge’s conclusions. First, the mistrial in this case was caused by a misstep by the trial judge and therefore must be attributed as institutional delay and not neutral delay. Second, neither the Crown nor the court attempted to offer or canvas with defence counsel earlier dates than the ones he had suggested.

[22] The above decision predates the Jordan era. The calculation of time is now very different, and a 30 month presumptive ceiling necessitates different considerations as to what is unavoidable and unforeseeable. In Cody, the Supreme Court of Canada set out the approach to an event that might be considered an exceptional circumstance, at paragraphs 58 and 59:

[58] In principle, an inadvertent oversight may well qualify as a discrete event. The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown. As this Court observed in Jordan, “[t]rials are not well-oiled machines” (para. 73). Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b).

[59] The question under the second prong of the test is whether the Crown took reasonable steps to remediate the error and minimize delay. The Crown “is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay” (Jordan, at para. 70). Upon discovering the error, the Crown promptly notified defence counsel and the court and maintained that the error was immaterial. Nevertheless, 7.5 months of delay ensued. [Emphasis in original.]

[23] The Crown here dealt with the mistrial issue as efficiently as possible, and it permitted the application for the mistrial to occur seamlessly. It disclosed the potential problem as soon as it was discovered. The mistrial application hearing took place 6 days later.

[24] Since Jordan, three decisions from the British Columbia Supreme Court have held that mistrials are exceptional circumstances, at least when they arise from a hung jury. See R. v. Wu, 2017 BCSC 2373, R. v. Christhurajah, 2017 BCSC 820, and R. v. Beckett, 2017 BCSC 1116.

[25] The Ontario Court of Appeal in R. v. Mallozzi, 2017 ONCA 644, found that two mistrials qualified as discrete, exceptional events that were unforeseeable and not contributed to by the Crown (paras. 41-44).

[26] The mistrial in this case was by any examination an event that was unforeseeable and not contributed to by the Crown. It was an exceptional circumstance and the resulting 11 months of delay in bringing it to a retrial should be taken from the total time, thus bringing it below the 30 month ceiling.

[27] Hypothetically, as an aside, had the mistrial application failed before the trial judge and then been successfully appealed, the clock would have stopped ticking and a retrial would have been ordered. I think it is fair to assume that the retrial in that scenario would have taken place later than June 18, 2018.

[28] Therefore, for all of the above reasons the stay application is dismissed.

The Honourable Mr. Justice Robert L. Maranger

Released: June 15, 2018

COURT FILE NO.: 14-G1024

DATE: 2018/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

PAUL KIRTHI MASILAMANY

Applicant

reasons for decision s. 11(B) application

Maranger J.

Released: June 15, 2018

SCHEDULE A

January 16, 2014

The accused (Paul MASILAMANY) is arrested by the Ottawa Police investigating team in Ottawa, Ontario.

January 17, 2014

The accused makes his first appearance at the Ontario Court of Justice in bail court. Duty counsel, on behalf of his chosen counsel, Mr. Foord, adjourns the matter one week to video remand.

January 24, 2014

The accused appears in video remand and adjourns his matter to another appearance in video remand as he awaits disclosure.

January 28, 2014

The Crown indicates on record that the initial disclosure package was provided to Mr. Foord on January 27, 2014. The accused has no instructions regarding the federal charges and is adjourned back to video remand on the following day.

January 29, 2014

The transcript from this appearance date appears to be missing. It seems the applicant’s matter was adjourned to a later video remand appearance at his request for his counsel to review disclosure.

February 5, 2014

The accused adjourned this matter to February 18, 2014, for his counsel to have further opportunity to review the disclosure.

February 18, 2014

The accused requested another one-week adjournment back to video remand to receive additional disclosure. The Crown indicated that additional disclosure was provided to Mr. Foord earlier that day.

February 25, 2014

The accused again requested a one-week adjournment for his counsel to review disclosure.

March 4, 2014

The accused indicated that he was awaiting disclosure of the Information to Obtain the Search Warrant (hereafter the “ITO”) and requested a three-day adjournment back to video remand.

March 7, 2014

The accused sought a further 3-day adjournment to receive the ITO. The Crown asked for more time since it had applied to unseal the ITO and required time to review it and mark redactions. The matter was ultimately adjourned for three days for the accused to arrange a bail hearing. This is the first instance where the accused requested a bail hearing. The accused also remarked that his counsel, Mr. Foord, had been out of town for the previous week.

March 10, 2014

The accused adjourned the matter two days to accommodate efforts made by the Crown towards the disclosure of the redacted ITO. No bail hearing was requested by the applicant.

March 12, 2014

The accused adjourned the matter another two days while awaiting disclosure of the ITO.

March 14, 2014

The accused adjourned the matter another four days while awaiting disclosure of the ITO.

March 18, 2014

The accused adjourned the matter another three days while awaiting disclosure of the ITO. The Crown explained the reason for the delay was due to the unavailability of the affiant to assist with vetting the ITO for informer privilege. The accused insisted on a shorter adjournment so he could schedule a bail hearing.

March 21, 2014

The accused scheduled a bail hearing for the following day at the Ontario Court of Justice. The accused did not make a request for additional disclosure at his appearance.

March 25 2014

March 25, 2014

The accused was released on bail and his matter was adjourned at his request to a federal remand date in early April.

April 9, 2014

The accused requested a two-week adjournment so that he could meet with Mr. Foord.

April 23, 2014

The accused requested a three-week adjournment for three reasons: (1) to meet with Mr. Foord; (2) for Mr. Foord to conduct a counsel pre-trial with the Crown; and (3) to review the ITO. The Court suggested scheduling a judicial pre-trial (hereafter a “JPT”) with agreement of the Crown. The accused declined to do so since Mr. Foord’s schedule was not available. Counsel speaking on behalf of the accused indicated that Mr. Foord was not seeking a JPT on this matter at this time. The accused requested additional disclosure and it was communicated to the Court that Mr. Foord had not had an opportunity to meet with the accused despite lengthy adjournments to do so. It was further indicated that Mr. Foord was not available for a JPT until the end of May. A JPT was scheduled for May 26, 2014 and counsel for the accused requested the matter to return back to remand court approximately two weeks later.

June 11, 2014

The accused requested a three-week adjournment because his counsel, Mr. Foord, was preoccupied on another trial matter and was not able to receive instructions.

July 2, 2014

The accused requested a further two-week adjournment to speak to Mr. Foord. The Crown indicated that a JPT was held on this matter on May 26, 2014, and that a “yellow” sheet had been obtained to secure four days, presumably for a preliminary inquiry. The accused opted not to secure dates at an earlier opportunity. The presiding Justice of the Peace warned that if there was no advancement on the file it would be put before the Administrative Justice.

July 16, 2014

No transcription was provided for this appearance. It appears that the accused and his co-accused requested a further two-week adjournment because the co-accused intended to retain new counsel.

July 30, 2014

The accused agreed to a second JPT that was requested by his counsel for his co-accused. The first date offered, August 11, 2014, was accepted by all parties. The accused selected to have the matter return to remand court on August 27 despite being offered an earlier return on August 20.

August 27, 2014

The accused requested to follow his co-accused, who was not prepared to schedule a preliminary inquiry and requested an adjournment to September 10. The accused chose not to schedule a preliminary inquiry on this day.

September 10, 2014

The accused filed his statement of issues. A 2-day preliminary inquiry was scheduled for February 12 and 13, 2014. The accused has not included the “yellow” sheet from the Ontario Court of Justice and the respondent is therefore unable to ascertain if earlier dates were refused by either parties. The two full days at the Ontario Court of Justice were scheduled by the accused despite his own consent to committal.

February 12, 2015

Both accused consented to committal on all charges. This had the effect of reducing the time required for the preliminary inquiry from two days that were originally reserved by the Court to one day.

March 6, 2015 (to Assignment Court at the Superior Court of Justice)

February 23, 2015

An 8-count Indictment is filed at the Superior Court of Justice.

March 6, 2015

The accused makes his first appearance at Superior Court of Justice. Both parties agreed to a date offered for JPT.

March 24, 2015

No transcription is available. A JPT was held before Ratushny J., presiding. The JPT was adjourned pending the completion of discovery of one witness at the accused’s request.

May 21, 2015

On this day, the Court scheduled dates for a 3-day pre-trial Charter motion and a 7-day trial. The motions were scheduled for January 6, 7, and 8, 2016. The trial was to run between March 7 and 15, 2016.

January 6, 2016

The accused abandoned his Charter motion. It was indicated by Mr. Foord that he would be applying for removal as counsel of record. The Crown expressed its strong desire to have the matter move forward as intended, with trial in March 2016.

January 18, 2016

Mr. Foord is removed as counsel of record. He indicated that Mr. Giancaterino would be coming on as new counsel within the next few days. The Crown once again insisted that the days reserved in March were for trial and that time reserved for pre-trial Charter motions was previously abandoned by the applicant. The accused was also warned by the presiding judge against bringing any motions at the last minute. His Honour endorsed the Indictment to reflect that the accused was to advise the Crown before January 31, 2016 on how he intended to proceed with his case.

March 7, 2016

January 31, 2016

The accused failed to inform the Crown of any intention to bring pre-trial motions or advise on the conduct of the trial which was supposed to start on March 7, 2016.

February 12, 2016

The Crown was served with two Notices of Application to exclude evidence. The first was titled “NOTICE OF APPLICATION: Leave to Cross-Examine Affiant and Sub-Affiants”. The second was titled “NOTICE OF APPLICATION: Section 8 – Garofoli Application”). The contents of both Applications were identical. The accused was intending to argue both Applications beginning March 7, 2016.

February 23, 2016

On this day, the Crown contacted the Trial Coordinator of the Superior Court of Justice at 161 Elgin Street to schedule time before a Judge to argue a motion for summary dismissal of the applications because of non-compliance with the Criminal Proceedings Rules for the Superior Court of Justice. Dates were provided to the Respondent and the Crown on February 29, March 2 and March 3, 2016. The Crown indicated that it was available to attend on all three dates. On February 24, 2016, defence counsel responded that he was not available for any of the three dates. The Trial Coordinator indicated that this Application could not be heard before the start of trial.

February 29, 2016

On this day, the accused served the Crown with an Amended Notice of Application. This document raised additional grounds beyond those identified in the applicant’s initial Notices of Application.

March 1, 2016

On this day, the Trial Coordinator of the Superior Court of Justice scheduled a court appearance at 11:45 am on March 2, 2016, to address this Application.

March 2, 2016

The Court dismissed the Crown’s application for summary dismissal of the applicant’s Charter motions. The Court also cancelled the trial dates that were schedule to begin on March 7, 2016, allocating that time for the hearing of the applicant’s Charter motions. The Court scheduled the hearing of the motions to begin on March 9, 2016.

March 7, 2016

The Crown advised the Court that it was only served with the accused’s substantive arguments on March 3, 2016 and that it would not be prepared to make full response before March 9. The Court adjourned the pre-trial motions to March 10, 2016. The Court also rescheduled the trial to run between January 9 and 20, 2017.

March 10, 2016

The Crown again brought an application for summary dismissal of the applicant’s pre-trial Charter motions. The application for summary dismissal was granted by the Honourable Mr. Justice P. Smith. The Court ruled that the accused would be permitted to renew his pre-trial Charter applications on August 30, 31 and September 19, 20, 22, 23 in 2016.

May 26, 2016 (at the Ontario Court of Justice)

The accused appears in bail court at the Ontario Court of Justice as a result of a new matter and s. 524 Criminal Code application by the Crown. His matter is adjourned to the following day in video remand.

May 27, 2016

The accused adjourns his matters to return in five days to courtroom #7.

June 2, 2016

The accused is released from custody on these charges. He is to return for the start of his pre-trial Charter motions.

August 30, 2016

This is the first day of pre-trial Charter motions regarding applications for leave to cross-examine affiants and sub-affiants of an ITO.

September 22, 2016

This is the final day of pre-trial Charter motions. The Court is to provide its decision before the start of trial. The matter is adjourned to assignment court; all parties await the result.

October 28, 2016

The matter was adjourned to receive a decision on pre-trial Charter motions.

November 9, 2016

The matter was adjourned for the accused to be produced from Montreal to receive the decision on pre-trial Charter motions.

December 2, 2016

The matter was adjourned for the accused to be produced from Montreal to receive the decision on pre-trial Charter motions.

December 19, 2016

The pre-trial Charter motions for exclusion of evidence were denied. The matter was adjourned to the Trial Readiness Court.

January 4, 2017

This was a Trial Readiness Court appearance where all parties confirmed their readiness to start the trial on January 9, 2017. No new issues were raised by any counsel.

January 9, 2017

First day of trial.

January 20, 2017

The Crown’s case was completed by this date and counsel for the applicant’s co-accused brought a motion for directed verdict. The Court reserved on this motion and all parties were required to return to receive the decision and for defence evidence and submissions.

February 6, 2017

The co-accused’s directed verdict motion was dismissed. The accused elected to call no evidence and requested to make submissions at the end of the week.

February 10, 2017

All parties made closing submissions and the Court reserved its decision. The matter was adjourned to Assignment Court to schedule a date to receive the trial decision.

March 3, 2017

The matter was adjourned to a later Assignment Court to schedule a date to receive the trial decision.

April 7, 2017

The matter was adjourned to June 15, 2017, for decision.

May 12, 2017

On this date, the Court was to deliver its decision. Before doing so, the accused brought an application for mistrial. The hearing for the application was scheduled for the following week.

May 18, 2017

The application for mistrial was heard on this date. The Court reserved its decision and the matter was adjourned to the next Assignment Court.

June 9, 2017

The matter was adjourned to September 5, 2017, to receive decision on the mistrial application.

September 5, 2017

July 14, 2017

The Court convened all parties for the release of the decision on the mistrial application. The application was granted and the matter was ultimately adjourned to August 9, 2017, for a JPT before Pelletier J., presiding.

August 9, 2017

The matter was pre-tried and adjourned to Assignment Court to schedule new trial dates and dates for pre-trial applications.

September 1, 2017

New trial dates were scheduled to run between June 11 and 19, 2018. Dates for pre-trial Charter motions including Jordan and Garofoli applications were scheduled for February 12, 23 and March 1, 2 in 2018, respectively.

February 12, 2018

The accused indicated his intention to abandon the Garofoli application and the Jordan application was adjourned to February 23, 2018

June 11, 2018

This is the date projected for the start of the trial.

June 19, 2018

This is the date projected for the end of the trial.

Schedule B

January 6, 2016

It was indicated by Mr. Foord that he would be applying for removal as counsel of record. The Crown expressed its strong desire to have the matter move forward as intended, with trial in March 2016.

January 18, 2016

March 7, 2016

January 31, 2016

The accused failed to inform the Crown of any intention to bring pre-trial motions or advise on the conduct of the trial which was supposed to start on March 7, 2016.

February 12, 2016

February 23, 2016

February 29, 2016

On this day, the accused served the Crown with an Amended Notice of Application. This document raised additional grounds beyond those identified in the applicant’s initial Notices of Application.

March 1, 2016

On this day, the Trial Coordinator of the Superior Court of Justice scheduled a court appearance at 11:45 am on March 2, 2016, to address this Application.

March 2, 2016

The Court dismissed the Crown’s application for summary dismissal of the applicant’s Charter motions. The Court also cancelled the trial dates that were scheduled to begin on March 7, 2016, allocating that time for the hearing of the applicant’s Charter motions. The Court scheduled the hearing of the motions to begin on March 9, 2016.

March 7, 2016

March 10, 2016

May 26, 2016 (at the Ontario Court of Justice)

May 27, 2016

The accused adjourns his matters to return in five days to courtroom #7.

June 2, 2016

The accused is released from custody on these charges. He is to return for the start of his pre-trial Charter motions.

August 30, 2016

This is the first day of pre-trial Charter motions regarding applications for leave to cross-examine affiants and sub-affiants of an ITO.

September 22, 2016

This is the final day of pre-trial Charter motions. The Court is to provide its decision before the start of trial. The matter is adjourned to assignment court; all parties await the result.

October 28, 2016

The matter was adjourned to receive a decision on pre-trial Charter motions.

November 9, 2016

The matter was adjourned for the accused to be produced from Montreal to receive the decision on pre-trial Charter motions.

December 2, 2016

The matter was adjourned for the accused to be produced from Montreal to receive the decision on pre-trial Charter motions.

December 19, 2016

The pre-trial Charter motions for exclusion of evidence were denied. The matter was adjourned to the Trial Readiness Court.

January 4, 2017

This was a Trial Readiness Court appearance where all parties confirmed their readiness to start the trial on January 9, 2017. No new issues were raised by any counsel.

January 9, 2017

First day of trial.

January 20, 2017

February 6, 2017

February 10, 2017

All parties made closing submissions and the Court reserved its decision. The matter was adjourned to Assignment Court to schedule a date to receive the trial decision.

Her Majesty the Queen v. Masilamany, 2018 ONSC 3171

Case Summary

SUPERIOR COURT OF JUSTICE

reasons for decision on s. 11(b) application

Legal principles:

The facts of this case and legal principles applied:

Exceptional Circumstances Argument:

Time to render a decision: February 10, 2017 to July 14, 2017 (5 months, 3 days):

The mistrial: July 14, 2017 to the completion of the second trial, June 18, 2018 (11 months)

SCHEDULE A

Schedule B

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 3