Court File and Parties
COURT FILE NO.: 17-0152 DATE: 20190606 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Foriano Daponte and Vivian Lee Hamilton
BEFORE: McArthur M.D., J
COUNSEL: M. Smith and K. Johnson, for the Federal Crown L. Sela, Counsel for the Defendant/Applicant, Vivian Lee Hamilton E. Battigaglia, Counsel for the Defendant, Floriano Daponte
HEARD: June 3 and 5, 2019
Endorsement
Ruling on Section 11 (b) CHARTER APPLICATION
Introduction
[1] The defendants were arrested and charged on December 2, 2016 with various drug trafficking-related and other offences. The trial has been scheduled from June 3, 2019 for two weeks. The time period from the date of charge to the end of trial exceeds the presumptive ceiling of 30 months.
[2] The defendants have jointly made an application under s. 11(b) of the Charter alleging that their rights to a trial within a reasonable time have been breached and request a stay of the charges.
[3] The central issue in this case is whether the delay is presumptively unreasonable and, if so, whether the Crown has justified the delay from the date of the arrest of the defendants to the date of the anticipated end of the evidence in the trial of 30 1/2 months based on exceptional circumstances.
Position of the Parties
[4] The defendants submit the case exceeds the presumptive ceiling of 30 months, there are no discreet events, the case is not complex nor did they contribute to delay at any point to take the case below the presumptive ceiling.
[5] The Crown acknowledges that the delay in this case appears to exceed the presumptive ceiling but submit some delay was caused by the defence to take the case below the presumptive ceiling and that other delay in the case is justified with reference to the complexity of the case and discreet circumstances.
[6] For the following reasons, I conclude there was no delay occasioned by the defence to take the case below the presumptive ceiling of 30 months. There are no exceptional circumstances either reasonably attributed to discreet events nor is the case particularly complex. The delay is therefore unreasonable.
[7] The application must be granted and the charges against both of the applicant-defendants will be stayed for the following reasons.
FACTUAL BACKGROUND
December 2, 2016 to November 17, 2017
[8] On December 2, 2016, police executed a search warrant at a rural property owned by the defendant Ms. Hamilton and occupied by both Ms. Hamilton and Mr. Daponte. Significant quantities of various prohibited substances, substantial amount of cash, packaging, digital electronic scale and other items were seized. Both defendants were arrested at the residence at the time of the search.
[9] Police had conducted an investigation of the defendants for approximately a year before arrest. Investigation involved informant information and police surveillance of the rural property particularly into the fall of 2016.
[10] One search warrant was obtained based on an (ITO) Information to Obtain of the affiant, D/Cst. Reintjes. That ITO contained information from 10 confidential informants, 2 of whom provided first-hand information more recent to date of the arrest and search.
[11] In an earlier application, the Crown conceded the redacted ITO could not have supported the issuance of the search warrant. A Step 6 Garofoli application proceeded and a judicial summary was determined. I ruled the search warrant could have been issued and dismissed the application to quash the warrant.
[12] The case proceeded in an otherwise mostly ordinary fashion. A summary is as follows:
a. December 2, 2016 – arrests of both defendants; b. December 5, 2016 – counsel were retained and both defendants released on bail; c. January 13, 2016 – first appearance in Ontario Court of Justice and a judicial pretrial date was set prior to disclosure being received; d. March 20, 2017 – Crown provides the initial redacted ITO to defence counsel; e. August 12 and 16, 2017 – Mr. Daponte and Ms. Hamilton respectively are arrested on new charges and both released on bail on August 17, 2017. A trial management hearing was conducted with respect to the preliminary inquiry; f. October 17, 2017 – new counsel for Ms. Hamilton requests disclosure from Crown being all appendices in the ITO provided on March 20, 2017; g. October 19, 20 & 21, 2017 – preliminary inquiry was conducted and decision reserved; h. November 17, 2017 – decision rendered as to committal and case adjourned to the Superior Court of Justice for December 12, 2017;
December 1, 2017 to December 7, 2018
[13] The matter proceeded to the Superior Court of Justice as follows:
a. December 1, 2017 – Notice of Certiorari Application served by defendants upon Crown and filed with court and materials filed by defendants on December 22, 2017; b. December 12, 2017 – Assignment court held and case was adjourned; c. January 9, 2018 – Assignment court held, case was adjourned with Certiorari application scheduled to be heard; d. January 25, 2018 - Certiorari application heard and decision reserved; e. March 6, 2018 – Assignment court adjourned awaiting Certiorari decision; f. March 16, 2018 – Certiorari ruling rendered and weapon charge quashed; g. April 10, 2018 – Assignment court held and judicial pre-trial set for May 7, 2018; h. May 7, 2018 – Judicial pretrial takes place and defence agrees to file Section 8 Charter Application and materials 60 days in advance of the application; i. May 8, 2018 – Assignment court held and both defendant’s elect judge alone. Trial dates set for 10 days commencing March 4, 2019 and application date set for December 10 and 11, 2018; j. October 31, 2018 – Motion readiness court confirms Sections 8 and 24(2) Charter application; k. December 3, 2018 – Crown files Section 8 Charter reply and further discloses further ITO appendices to defence; l. December 7, 2018 - Counsel for Ms. Hamilton serves and files Sections 7 and 24(1) Charter application regarding additional disclosure from December 3, 2018;
[14] Up until this time, all parties agree that the case was otherwise on track for the trial that was scheduled to proceed on March 4, 2019 for 10 days. The critical and problematic circumstances in this case then arose.
December 10, 2018 to present
[15] December 10 and 11, 2018 had been scheduled since May 2018, to be dates for the Sections 8 and 24(2) Charter application by the defence. In view of the disclosure from the Crown on December 3, 2018 and the Sections 7 and 24(1) Charter application, all parties agreed that the Crown was not in a position to respond to the Section 7 application and that the Section 7 application logically had to precede the hearing of the Section 8 application since the relief included the exclusion of evidence required for the Section 8 application.
[16] On December 10, 2018, the case was adjourned to the assignment court on December 11, 2108 to canvass dates in advance with the trial coordinator since there were no available dates to hear motions until the originally scheduled trial date commencing March 4, 2019. The Crown sent a letter to the trial coordinator expressing concerns about delay in the case in view of the presumptive date of June 2, 2019 and in view that the trial coordinator had indicated that there were no other available dates prior to the trial set for March 4, 2019. The Crown expressed a willingness to set non-consecutive dates or move pretrial applications to another courthouse if those options were available and wondered about whether a case management judge would assist and include exercising powers of a trial judge to adjudicate issues.
[17] On December 11, 2018 at the assignment court before the local administrative justice, Justice Grace, the trial coordinator was present and acknowledged the letter from the Crown as well as earlier discussions with all counsel. All parties indicated the applications would now require four days instead of the initial two days. The trial coordinator indicated that three days in February had just become available and stated if four days were now required, there was no way the trial date could be preserved.
[18] Justice Grace suggested the application be heard at the commencement of the trial. This was also suggested by Mr. Daponte’s counsel. The trial coordinator pointed out that the 90 day period required for pretrial motions would take trial into June, beyond the presumptive ceiling. In view of this, the Crown asked about available dates in May and suggested that pretrial applications proceed on non-consecutive days, moving the case to another courthouse or seeking a case management judge. Justice Grace directed that the judge assigned would be the one who would actually decide the case. He also asked about available May dates. Justice Grace’s answer directly to the Crown’s enquiries and suggestions was “Well, we’re already two judges short in the region”.
[19] The trial coordinator initially indicated that May 27 to 31 and all of June was the only window of time available. The Crown was able to proceed earlier in May but defence counsel were not available. The Crown initially was unable to proceed on May 27 due to issues of police unavailability. Justice Grace’s observations in view of Crown’s comments were “I don’t know why you would say it in that way to the trial coordinator, we didn’t create the problem so let’s solve it.” Justice Grace also referenced earlier the May 7, 2018 pre-trial held before the trial date was set the following day on May 8, 2018.
[20] The trial coordinator also indicated that judicial availability in June initially was not clear and would involve juggling between different locations. The Crown then indicated that May 27 could possibly work. The trial coordinator then indicated this did not work for the court and this left the two weeks commencing June 3 as available. All parties agreed with this as the trial date and the pre-trial applications were set for four days to commence March 4, 2019 with an application readiness date of February 13, 2019 at 9:30 am.
[21] In December of 2018, the region’s full complement of Justices, excluding supernumerary Justices, was 25 with four being solely Unified Family Court appointed Justices. This meant that there were three vacancies and only 18 Justices across the region at that time. On further evidence presented by the Crown, one vacancy was filled recently in March 2019 and two vacancies yet remain. In addition, the region experienced the loss of a Supernumerary Justice in the fall of 2018 without replacement and another Justice to a medical leave in London from January to April 2019. All parties acknowledge and recognize that significant ongoing limited judicial resources impacted this case.
[22] I make these observations at this juncture: first, as of December 11, 2018 and in view of judicial vacancies and limited available judicial resources, there was available February (three days) and May dates (all prior to May 27) offered to all parties; second, the difficulties in the case and consequent scheduling implications were only made known to the court administration on less than a day’s notice and seven months after the judicial pre-trial; third, when the June 3, 2019 two-week trial dates were offered to all parties, all parties indicated they were okay with these dates and there were no other concerns or reservations mentioned to the court.
[23] On March 4, 2019, I heard the Section 7 Charter application and rendered the decision in that regard in writing on March 5, 2019. After the Step 6 Garofoli proceeding was completed on March 6, I heard the Section 8 Charter application on March 7, 2019 and rendered a written decision on April 11, 2019.
[24] On April 29, I heard a motion in relation to an expert witness proposed by the Crown and rendered a written decision in that regard dated May 7, 2019.
[25] On April 29, 2019, a judicial pre-trial was also conducted before another Justice in relation to this Section 11(b) Charter application. The Crown indicated to defence counsel at that time that additional disclosure from 2016 was to be forthcoming and outlined its nature.
[26] On May 7, 2019, defence counsel received the additional disclosure. This consisted of an audio/video recorded statement of Chad Wilcox, a person who was found in subject residence when the search and arrests occurred on December 2, 2016. The interviewing notes of the officer who dealt with Chad Wilcox were provided on May 28, 2019. All of the disclosure has been in the police possession since December 2016. The defence contends that the evidence of this person is exculpatory particularly in relation to Ms. Hamilton. Mr. Wilcox was brought to court on May 29, 2019 and interviewed. The defence also submits that the evidence of this and other related witnesses would add to the trial length and delay matters further. There were some other matters raised but these are of a minor nature and do not bear on this decision.
[27] On May 13, 2019 the defendants filed the Application Record regarding this application alleging a breach of their rights under Section 11(b) of the Charter and supplementary materials on the date of the hearing of this application.
[28] The Crown agreed that it had prior notice of the application despite there not being a Notice of Application filed. The Crown filed a Respondent’s Application Record on May 27, 2019 along with an affidavit of a legal assistant and Respondent’s Factum and Book of Authorities. The Crown also filed the affidavit of a paralegal of the Crown’s office on the date of the hearing of this application.
ANALYSIS
Overview
[29] On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 and R. v. Williamson, 2016 SCC 28 [2016] S.C.J. No. 28 where the court established a new framework to be applied in relation to s. 11(b) of the Charter. In cases before the Superior Court of Justice, the new framework is a 30 month ceiling beyond which the delay is presumptively unreasonable unless the Crown can establish that the circumstances are particularly complex. Although referenced as a presumptive ceiling, this is the recognized outer limit from the date of charge to the conclusion of the hearing of evidence at a trial unless there are exceptional circumstances.
[30] The Ontario Court of Appeal has since summarized the approach required by the new framework in R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 at paras. 34 to 40 as follows:
Step 1: Calculate Net Delay
(a) Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.
(b) Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from;
i. Defence Waiver: Clear and unequivocal defence waiver of his/her Section 11(b) rights;
ii. Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available.
Step 2: Determine the Presumptive Ceiling
For cases in superior courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.
Step 3: Calculate Remaining Delay, if Necessary
(a) If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose which results in the Remaining Delay.
(b) If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.
Step 4: Remaining Delay Greater than Presumptive Ceiling
(a) Where the Remaining Delay is still greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.
(b) The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.
(c) Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.
Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling
(a) Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.
(b) In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that:
(i) he made a sustained effort to expedite the proceedings; and
(ii) the case took markedly longer than it reasonably should have.
Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.
[31] In R. v. Cody, 2017 SCC 31, [2017] S.C.J. 31, the Supreme Court of Canada affirmed R. v. Jordan and went on to deal with particularly complex cases and indicated at paras. 63 and 64 as follows:
[63] The second category of exceptional circumstances is concerned with particularly complex cases. The presumptive ceilings set in Jordan already reflect the “increased complexity of criminal cases since Morin”, including the emergence of “new offences, procedures, obligations on the Crown and police, and legal tests” (Jordan, at paras. 42 and 53). However, particularly complex cases may still justifiably exceed the presumptive ceilings.
[64] Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity 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 and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).
Defence waiver
[32] In submissions, the Crown agreed that there was no defence waiver, expressed or implied. In view of this concession, I need not address nor comment on the acknowledgement by defence counsel in response to the June trial dates being set before the court on December 11, 2018.
Defence-caused delay
[33] The Crown submitted that the defence-caused delay exists since the defence did not make timely appropriate admissions leading up to the preliminary inquiry that took three days instead of four days, they filed initial certiorari documents that were generic and broad that did not permit proper estimates, that the application itself was not legitimate and that they did not diligently pursue the further disclosure of the ITO appendices. Essentially, the Crown submitted that combined delay took the case below the presumptive ceiling.
[34] Firstly, I find the defence did in fact make sensible admissions and agreed to substantial evidence to narrow and focus the preliminary inquiry. This was also done by defence on this application. One must be mindful that the preliminary inquiry judge reserved and delivered his decision approximately one month later. And when there was a change of counsel for Ms. Hamilton, no delay was occasioned. When looked at in context of the entire proceeding and record before the court, the defence conduct was entirely consistent and coherent with the desire to move the case forward, cognizant of court practices and requirements and proceeded to narrow issues as reasonably as would be expected.
[35] Secondly, the certiorari application in the Superior Court did proceed by the defence in a most timely manner and was heard approximately two months after committal. The certiorari ruling of Justice Templeton dated March 16, 2019 was in part successful and the committal on the prohibited weapon count was quashed. The Crown submitted that the Ontario Court of Appeal decision of R. v. Davis, 2018 ONCA 946 applied where a party accessing extraordinary remedies or every perceived legal error violates the principle of the general prohibition against interlocutory appeal in criminal cases. R. v. Davis involved a judge’s authority to make a decision. The judge had the obvious authority to do so and the court determined that extraordinary remedies are not available to review such authority. That is not the case here.
[36] Finally, counsel for the defendant did raise the issue of disclosure of the ITO appendices in October 2017. The Crown submitted that the defence should have been more persistent and take additional steps in relation to this disclosure. Obviously, defence counsel did make an initial request for disclosure. When the Crown provided a further unredacted ITO, defence counsel properly sought further particulars. During the Section 7 Charter application, the Crown’s reason for withholding disclosure became known and based on changing levels perceived harm to informants and based on the privacy interests of other individuals.
[37] Notwithstanding that the application was unsuccessful, this does not mean the application was illegitimate, frivolous nor improper. Rather, the Crown conceded at that hearing that non-disclosure on the basis of privacy interests was not properly made. The Crown also exclusively had the control, power and obligation to periodically revisit and reassess the withholding of disclosure involving confidential informants and to be sensitive to timeliness in relation to the defence and their rights to full answer and defence. That did not happen. I also observe that the Crown’s disclosure was as a result of a somewhat late response to the Section 8 application. Defence counsel then immediately addressed this disclosure feature, as it properly should have.
[38] I find there are no actions by the defence that caused delay in this case. Accordingly, the presumptive ceiling remains at least at 30 1/2 months in this case.
[39] The defence submitted that the case will take longer in view of the most recent witness disclosed and interviewed by the parties in May. The Crown indicated since it is no longer calling a forensic accounting expert, the case would not take as long. Either position essentially is speculative and ultimately is of no consequence in view of the findings to be made.
Discreet Events
[40] Where Discreet Events are found, these are calculated and deducted to determine the net delay. If the net delay is above the presumptive ceiling of 30 months, the Crown has the onus to demonstrate particular complexity.
[41] Discrete Events must be
a. reasonably unforeseen or unavoidable, and
b. not able to be reasonably remedied once they arose
[42] The Crown submits that the certiorari application ought to be regarded as a discreet event and cited R. v. Tsega, 2019 ONCA 111 where the court stated that R. v. Jordan did not consider the impact of extraordinary remedies and interlocutory appeal from such orders in relation to an accused’s Section 11(b) rights. In Tsega, the Ontario Court of Appeal recognized a number of decisions are split on both Crown and defence applications as to extraordinary remedies. The court reasoned at para. 83 as follows:
[83] With regard to defence applications, where they are frivolous or made in bad faith, they will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they would be outside the control of the Crown, unless in opposing such an application or on an appeal therefrom the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner.
[43] In this case, the Crown submitted that the certiorari application was not necessary since the Crown would have at least at some point re-assessed the case particularly as to the count involving the prohibited weapon. This position is inconsistent with the Jordan direction at para. 28 that requires creating plans in complex prosecutions and using enhanced discretion. The Crown could have conceded the weapon charge before or at least at the certiorari hearing. In any event, the outcome on at least the prohibited weapon count was obvious and foreseeable, litigation was avoidable and within the Crown’s control to address and remedy. This feature alone distinguishes this case from Tsega in relation to the discreet event definition.
[44] The Crown also submitted the fact there were 10 confidential informants in the case, took the case within the discreet event category. The Crown cited R. v. McManus, 2017 ONCA 188, a post-Jordan transitional case where a nine month delay occurred upon the Crown’s request to vet a confidential informant issue that was identified 15 minutes before the start of a preliminary inquiry. The issue later turned out to be unwarranted. Justice Watt determined the entire time resulted from a discreet event since the circumstances were both reasonably unforeseen, unavoidable and the Crown counsel could not reasonably remedy the delays once they arose.
[45] In this case, as alluded to earlier and observed in the earlier Sections 7 and 8 applications and rulings, the issue of confidential informants was well-known to the Crown and the affiant officer. The fact that there were 10 confidential informants, unlike R. v. McManus, did not amount to circumstances being reasonably unforeseen or unavoidable. Neither did this impair the Crown’s ability to be informed and remedy the enquiry consistent with its disclosure obligations and the overall administration of justice.
[46] The Crown conceded that it was three days late in filing its response to the Section 8 Charter application that had been contemplated at a pretrial seven months earlier. The Crown submitted the defence indicated at the pre-trial that they may cross-examine the affiant and that the Crown was willing to do a summary but would not provide the tear-aways of the ITO based on informant privilege. The Crown submitted it was improper for defence counsel to bring a Section 7 application instead of asking for an adjournment and then ultimately requiring four days for pre-trial applications instead of two.
[47] In the circumstances, I find the Section 7 application was reasonably foreseeable and avoidable given that the Section 8 issue had long been identified in the judicial pre-trial seven months earlier in May of 2018. The Section 8 proceedings necessarily and substantially involved the evidence of confidential informants in the ITO. The confidential informant information was primarily the underlying basis of the authorization. Disclosure issues in this respect were particularly fundamental to the case both for the Crown and the defence.
[48] I find that the Section 7 application was not a discreet event. Even if the defence had made a determination not to cross-examine the affiant, the Crown cannot rely on possible defence efforts to later or eventually discover features about the case when otherwise known by the Crown. Furthermore, the Crown’s submission that defence counsel could have requested an adjournment instead of proceeding with a Section 7 application raises how the Crown could have then responded at that point by providing a summary as previously indicated and address the basis of concerns as to informant privilege. These are actions that the Crown ultimately performed weeks later in any event.
[49] In conclusion, I find there are no discreet events in this case.
[50] On a broader perspective and taking into account the entire case that I am now very-well acquainted with, I find that the conduct of the defendants and their counsel throughout all periods and through to the current application was appropriate, timely, diligent and reasonable. The defence counsel were also proactive in efforts throughout and including the December 11, 2018 court attendance when making suggestions. This might be rare and surprising, particularly where joint accused are involved, but it provides a foil and a standard of practice that Jordan directs.
[51] The delay of 30 1/2 months remains above the presumptive ceiling of 30 months.
Delay and attribution
[52] I will address the Ontario Court of Appeal decision in R. v. Gopie, 2017 ONCA 728 later in these reasons as to complexity. Gopie also acknowledges that Jordan does not expressly address the attribution of defence-caused delay to a jointly-charged defendant. The court directs at para. 128 that “an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly charged accused.”
[53] In this case, I find none of the delay, even if found otherwise as defence-caused delay, could be attributed to Mr. Daponte. He did not bring the Section 7 application nor participate in that regard. The Crown submits that certain comments by counsel for Mr. Daponte effectively place him in a situation to be attributed with delay. To the contrary, Gopie makes it clear that the assessment must involve the accused’s acts that directly caused delay or can be shown to be a deliberate and calculated tactic to delay the trial. Here, Mr. Daponte’s conduct did not cause any delay nor was his lack of involvement a deliberate and calculated tactic to delay the trial.
Particular Complexity
[54] As mentioned, the Supreme Court of Canada clearly indicated in R. v. Cody, the presumptive ceilings established in R. v. Jordan already reflected the increased complexity of cases in R. v. Morin including new offences, procedures and obligations. Particular complexity in this context requires a qualitative, not quantitative, analysis and is an “exceptional circumstance”. In addition, as in R. v. Jordan at para. 77, a particularly complex case is one that “because of the nature of the evidence or the nature of the issues requires an inordinate amount of trial or preparation time.”
[55] The facts in R. v. Cody were found not to amount to particular complexity where the person was charged with two counts of possession for the purpose of trafficking, counts of possession of a prohibited weapon and possessing a weapon when prohibited. Cody was not the primary target of the investigation and was arrested with a half kilogram of cocaine and a stun gun in his car. The disclosure involved over 20,000 pages on two CD’s. The trial was set for five days. The court found that there was extensive disclosure but this did not qualify as a particularly complex case when the balance of the proceeding appeared to be relatively straight forward.
[56] I also have reviewed the decision of R. v. Live Nation Canada Inc., 2016 ONCJ 735, where Nakatsura, J. discusses complexity in the context of a Section 11(b) application which I find most persuasive and adopt, with emphasis, as follows:
[39] In my opinion, complexity as an exceptional circumstance is a different matter. Under the previous Morin framework, the complexity of a case was assessed under the reasons for the delay. It was a factor in determining how a period of delay should be characterized and who should be responsible for it. Complexity of a case impacted upon the length of the trial, the amount of time required to prepare, the institutional resources used, and the potential for adjournments and continuations. Complexity factored into the length of justifiable delay during each discrete period of the proceedings and whether the delay could be subtracted from the operative delay which was usually institutional or Crown delay.
[40] While complexity as an exceptional circumstance in the Jordan framework requires consideration of many of the same things as under the Morin analysis, it seems to me that it still remains a fundamentally distinct analytical concept. When complexity was considered in the Morin framework, it was generally viewed as a factor that extended justifiable time periods. As an aside, I have always found that there was a degree of arbitrariness in assigning specific periods of time as permissible due to the inherent nature of the case. For example, a judge could simply categorize a period of time, whether it be three months or six months, as what was required before the parties were ready to set the case down for trial without any detailed reason for the measure. Philosophically, Jordan moves away from such arbitrary assignments of time for differing categorizations of delay. A finding of particular complexity under Jordan is a complete justification for s. 11(b) purposes. As a concept, complexity is no longer used to carve out discrete periods of time from the calculus. Complexity as an exceptional circumstance should therefore consider the whole of the case and trial proceedings. It likely requires a higher threshold for its establishment than under the Morin test.
[57] I have also considered the Ontario Court of Appeal decision in R. v. Gopie, 2017 ONCA 728 as to particular complexity. In that case, the court observed in para. 169 that:
The nature of the issues and the evidence drive the complexity analysis under Jordan. Complexity may also arise from proceedings that involve more than one accused.
[58] In Gopie, the court agreed with the trial judge’s finding the case was inherently complex; there was voluminous disclosure, a number of out-of-province witnesses, multiple accused, various pre-trial motions, a seven-day preliminary inquiry and a scheduled month-long trial.
[59] In this case, the issues and evidentiary basis did not require an inordinate amount of time for applications or trial. Here, the case was set for two weeks of trial and most of the Crown’s witnesses were police officers. The issues are relatively narrow and the proceedings were straight-forward. Even though hotly contested on specific points, this feature along with the issues and circumstances does not lead to a complex case overall.
[60] This is not a case that, because of the nature of the evidence or the nature of the issues, requires an inordinate amount of trial or preparation time. This case shares many similarities to that of R. v. Cody where the single accused was charged with two counts of possession of substances for the purpose of trafficking and possession of a prohibited weapon, significant quantities of prohibited substances were seized along with a stun gun, 20,000 pages of disclosure are referenced and involved a five day trial.
[61] This case neither has the hallmarks of a particularly complex case as referred to in para. 77 of Jordan. Disclosure is not voluminous, there are many police witnesses with many largely involved in the surveillance, search, seizures and arrests at the rural property, there is one police expert witness whose qualifications the defence conceded, no charges extend over a long period of time and no complicated issues arise beyond the factual determination of possession to be made from the evidence.
[62] The fact that the defendants here were jointly charged does not, in any way, take this case into the realm of complexity.
[63] The Crown submitted the number of confidential informants and the safety concerns of the informants, in view of some conduct of a known associate of Mr. Daponte described in one of my earlier rulings, raised the case to the level of complexity. However, these features do not inordinately add to the amount of trial time or preparation time in this case particularly where these confidential informants were not willing to testify in any event. I find that the Crown has not met the onus to prove that this is a case of particular complexity.
SUMMARY AND DISPOSITION
[64] The management of criminal cases requires all participants to share in the responsibilities and obligations on a sustained, substantial pro-active and collaborative basis in order to provide efficient, effective and fair trials and give meaning to constitutionally guaranteed rights. As the court in R. v. Jordan observed, real change requires the efforts and coordination of all participants in the criminal justice system and, in paras. 138 to 140, also outlined directly and specifically what that means for Crown, defence and the courts as well as the legislatures and government.
[65] No participant nor the public at large can reasonably expect an under-resourced court to have the ability, let alone the luxury or flexibility to address late-breaking unforeseeable circumstances as arose here. As all parties before the court acknowledged and recognized, significant ongoing limited judicial resources impacted this case and played a role in the difficulties encountered. Perfect storms arise when resource capacity is ignored and reliance on good luck becomes an ongoing feature of the management of administration of justice. Unfortunately, good luck can run out. That is the case here.
[66] As has been recognized in many other cases, the result in this case does mean that the community is deprived of a trial on the merits of a serious set of charges where illegal drugs have and continue to ruin so many lives in our communities. This is a heavy price to be paid by everyone in a free and democratic society. However, the court must be attentive to, respect and uphold the guaranteed rights of all citizens. As Jordan directs, real change requires the efforts and the coordination of all participants in the criminal justice system. Jordan’s message is one of responsibility and that includes adequate resources. As our Supreme Court of Canada in Jordan observed (at para. 41) “Timely trials are possible. More than that, they are constitutionally required.”
[67] In view of the findings and reasons, the charges involving both defendants are accordingly stayed pursuant to s. 24(1) of the Charter.
“Justice M. D. McArthur”