COURT FILE NO.: CR-17-595 DATE: 2019-11-22
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. C. Walsh & Mr. M. Park, for the Crown
- and -
DONOVAN BROWN
Ms. A. Ruffo, for Mr. Brown
HEARD: September 3, 2019
RULING ON SECTION 11(b) CHARTER APPLICATION
STRIBOPOULOS J.:
Introduction
[1] In total, 41 months and 19 days elapsed between Mr. Brown's arrest and the jury's verdicts in this case. On this application, Mr. Brown seeks a stay of these proceedings. He claims there has been a violation of his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter.
[2] This application came at the very end of this prosecution, which in itself resulted in a fair amount of post-conviction delay. Before addressing the merits of the application, it is helpful to have a more general understanding of the procedural history of this case, including the circumstances immediately preceding the bringing of this application.
[3] On September 2, 2015, Mr. Brown was arrested and charged along with five co-accused, with importing cocaine and possessing the proceeds of crime. About a month later, on October 6, 2015, a new information was sworn, it added further charges and co-accused. It charged Mr. Brown with the same offences for which he was initially arrested, along with additional drug-related offences and conspiracy to import firearms. Ultimately, while the case was in the Ontario Court of Justice, eight co-accused faced charges in a 13-count information.
[4] Eventually, Mr. Brown was tried alone before a jury on an indictment charging him with two counts of importing cocaine and one count of conspiracy to import firearms into Canada. On February 21, 2019, following a three-week trial, the jury found Mr. Brown guilty of all three charges.
[5] To allow for the preparation of a Pre-Sentence Report, the court scheduled the sentencing hearing for April 29, 2019. On that day, the court heard sentencing submissions and then reserved its decision on sentence until June 28, 2019.
[6] On June 28, 2019, Ms. Ruffo appeared for Mr. Brown, who, by that point, had discharged the lawyer who represented him both at the trial and the sentencing hearing. Although the court was prepared to proceed with sentencing, Ms. Ruffo requested an adjournment so that she could bring an application under ss. 11(b) and 24(1) of the Charter. The court granted the requested adjournment.
[7] On September 3, 2019, the court heard argument on Mr. Brown’s ss. 11(b) and 24(1) Charter application. The court reserved its decision on that application until today.
[8] During submissions on the s. 11(b) application the parties did not address the delay between Mr. Brown’s conviction on February 21, 2019, and the date initially scheduled for sentencing, June 28, 2019. Nevertheless, that period fell nearly two months below the five-month presumptive ceiling for post-verdict delay recently identified by the Court of Appeal: see R. v. Charley, 2019 ONCA 726, at para. 87.
[9] The further delay of almost five months, since June 28, 2019, brings the total post-conviction delay to nearly nine-months, well above the presumptive ceiling for post-conviction delay. However, in seeking to adjourn the imposition of sentence so that she could bring the s. 11(b) Charter application, Ms. Ruffo expressly acknowledged that the defence would be solely responsible for the resulting delay. Consequently, the delay between June 28, 2019, and today, approximately five-months, is appropriately characterized as defence delay: see Charley, at para. 95. Given this, Mr. Brown’s complaint on this application does not include any period of delay since his conviction.
[10] Instead, the question to be decided on this application is whether or not the delay of 41 months and 19 days between Mr. Brown’s initial arrest and the jury’s verdicts resulted in a violation of his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter? Counsel focussed their submissions on that question during the hearing of this application, and these reasons will address that issue.
[11] These reasons proceed in two main parts. The first part will very briefly summarize the analytical framework that governs claims under s. 11(b) of the Charter after R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The second part will examine those periods in the procedural history of this case about which the parties disagree. Specifically, the parties differ regarding the amount of time attributable to defence delay and if any delay resulted from exceptional circumstances. These reasons will end with the court explaining its conclusion regarding whether or not there has been a violation of Mr. Brown's right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter.
I. Analytical Framework for Section 11(b) Applications After Jordan
[12] In Jordan, the Supreme Court of Canada revised the analytical approach for assessing s. 11(b) Charter claims previously established in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The Supreme Court endorsed the use of presumptive ceilings, recognizing 18 months as the ceiling for cases proceeding to trial in the provincial court, and 30 months for those in the superior court: see Jordan, at paras. 46, 49, 105.
[13] The analysis of claims under s. 11(b) of the Charter begins by calculating the total amount of time that has elapsed from the initiation of the prosecution until the end of the trial or the anticipated end of the trial. Once the total delay has been calculated, any delay attributable to the defence must then be subtracted: see Jordan, at paras. 47, 60.
[14] Periods of delay attributable to the defence can take one of two forms. First, defence delay will include any periods that were explicitly or implicitly waived by the defence, but in either case, the waiver must be clear and unequivocal: see Jordan, at para. 61. The second type of delay attributable to the defence is that which is caused solely by its conduct: see Jordan, at paras. 63-65.
[15] After the total delay, less any defence delay, is calculated, the next step in the analysis requires a determination of whether the remaining delay – not caused by the defence – is above or below the presumptive ceiling: Jordan, at paras. 47, 66-67.
[16] If the net delay (that which remains after deducting any delay attributable to the defence) exceeds the applicable ceiling, the delay is presumptively unreasonable. The Crown may then attempt to rebut the presumption of unreasonableness by showing that the delay is reasonable because of the presence of exceptional circumstances: see Jordan, at paras. 47, 68-80.
[17] The Supreme Court explained that “exceptional circumstances” lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: see Jordan, at para. 69. Importantly, the Supreme Court noted that such circumstances need not be “rare or entirely uncommon.”: Jordan, at para. 69.
[18] If the delay that remains, after deducting any delay either attributable to the defence or that has resulted from exceptional circumstances that could not be mitigated, exceeds the presumptive ceiling, then the delay is unreasonable and a stay of proceedings must be entered: Jordan, at paras. 47, 76, 105.
[19] A violation of s. 11(b) can also be established in cases that do not exceed the presumptive ceiling. If the total delay from the initiation of the prosecution to the actual or anticipated end of trial, less any delay attributable to the defence or resulting from exceptional circumstances, falls below the presumptive ceiling, then the onus shifts to the defence to show that the delay is nevertheless unreasonable. To make this showing, 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: Jordan, at paras. 48, 82-89.
[20] In Jordan, the Supreme Court recognized that stays of proceedings involving cases where the total delay does not exceed the presumptive ceilings will be rare and limited to clear cases: Jordan, at paras. 48, 105.
[21] Finally, in cases like this one, which were already in the system when Jordan was decided on July 8, 2016, the Supreme Court instructed that the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law: Jordan, at paras. 94-105.
II. The Proper Attribution of Delay in this Case
[22] The delay between Mr. Brown first being charged (September 2, 2015) and the jury’s verdicts (February 21, 2019) totals 41 months and 19 days. On its face, this period exceeds Jordan’s presumptive ceiling for cases in the superior courts by 11 months and 19 days.
A. How much of the delay is attributable to the defence?
[23] The initial step in the analysis requires the court to determine the amount of defence delay. The parties differ on how much of the delay, in this case, should be attributed to the defence. There are two periods about which the parties disagree. First, the period in the Ontario Court of Justice before the scheduling of the preliminary inquiry. Second, the period in the Superior Court of Justice before the first scheduled trial date. These reasons will next address each of these two contested periods in the procedural history of this case.
1) How much delay is attributable to the defence before the scheduling of the preliminary inquiry?
i. Relevant procedural history
[24] The disclosure in this case was extensive. The Crown provided it to the defence incrementally on four separate dates, November 13, 2015, December 18, 2015, January 14, 2016, and finally, March 22, 2016. While disclosure was still ongoing, and after it was finally complete, the parties participated in numerous judicial pre-trials before Justice K. McLeod in the Ontario Court of Justice before eventually scheduling preliminary inquiry dates.
[25] On March 22, 2016, in a letter accompanying the final wave of disclosure materials, the prosecutor with carriage of the case advised defence counsel that disclosure was complete and that the scheduling of preliminary inquiry dates should occur on the next court date; April 22, 2016. A further judicial pre-trial was already scheduled to take place on that date.
[26] On April 21, 2016, the prosecutor wrote defence counsel by e-mail. She reminded them of the judicial pre-trial scheduled for the next day, and she also attached a chart to her e-mail providing an overview of the evidence the Crown was planning to rely on at the preliminary inquiry. In her letter, the prosecutor also noted that at the last judicial pre-trial, some defence counsel had expressed an interest in seeking leave to cross-examine the wiretap affiant at the preliminary inquiry. The prosecutor encouraged defence counsel to attend the judicial pre-trial with an estimate of the amount of court time that would be necessary to address that application. The prosecutor reiterated that the Crown was ready to set a date for a preliminary inquiry.
[27] On April 22, 2016, following the judicial pre-trial, the case was addressed in court. Neither Mr. Brown nor the lawyer then representing him were present in court that day. Instead, a lawyer for one of the co-accused spoke to the matter on their behalf. The prosecutor made clear that, from the Crown’s perspective, disclosure was complete, and that the Crown was ready to set a date for a preliminary inquiry. Nevertheless, the case was adjourned to May 24, 2016, to conduct a further judicial pre-trial.
[28] On April 26, 2016, the assigned prosecutor wrote all defence counsel summarizing what the parties agreed on at the April 22, 2016 judicial pre-trial. In her letter, she noted that the defence lawyers had agreed to provide her with a list of witnesses they wanted to hear from at the preliminary inquiry. She asked that they provide their lists well in advance of the next court date, “to enable the Crown sufficient time to consider its position”. The assigned prosecutor also noted that the defence lawyers were content with disclosure, except for Mr. Brown’s lawyer, who was to follow up with correspondence detailing the additional disclosure he was requesting. Further, the assigned prosecutor wrote:
Finally, I wish to confirm that all counsel are content to have the Crown’s evidence at the preliminary hearing tendered through one witness, and by use of the hyperlinked chart pursuant to s. 540(7) of the Criminal Code. The only exception is Mr. Paradkar [Mr. Brown’s lawyer at the time] and Mr. Willschick who will be contesting the admission [of] hearsay evidence concerning the gun seizures in Florida. This issue will require legal argument and a judicial ruling at some point well prior to the preliminary hearing.
[29] On May 24, 2016, a further judicial pre-trial took place before Justice K. McLeod. After the judicial pre-trial, the case was addressed in court. On the record, Justice McLeod noted that Mr. Brown’s lawyer did not attend the judicial pre-trial, apparently because he was in the midst of a continuing trial. Nor was Mr. Brown present in court. Once again, a lawyer for one of the co-accused addressed the matter on behalf of Mr. Brown and his lawyer.
[30] During this court appearance, the assigned prosecutor noted that the defence lawyers were supposed to provide her with a list of witnesses they wished to hear from at the preliminary inquiry. Only two of the defence lawyers had done so (Mr. Brown's lawyer was not one of them). The assigned prosecutor reiterated that the Crown was anxious to set dates for the preliminary inquiry and had been in a position to do so since April 22, 2016. The case was adjourned to June 10, 2016, so that defence counsel could provide their witness lists to facilitate the scheduling of the preliminary inquiry.
[31] On June 7, 2016, counsel for Mr. Brown wrote the assigned prosecutor to request further disclosure. That letter does not form part of the record on this application, but the Crown's response, dated June 10, 2016, does. In her responding letter, the assigned prosecutor noted, in part, that:
With the exception of the references to the project names at the end of [the] letter, it would appear this is a form letter not tailored to this specific prosecution. It is the Crown’s position that subject to some miscellaneous items of disclos[ure] which will be provided shortly, disclosure has been complete since March 22, 2016. Please review the disclosure provide[d] to you, and let us know if you feel anything in particular is missing.
Apparently, in his letter, defence counsel requested "full disclosure" relating to "five other projects". The assigned prosecutor responded that, in her view, the requested materials were not relevant.
[32] On the morning of June 10, 2016, defence counsel responded to the assigned prosecutor by e-mail. In his e-mail, he asserted that the requested materials were relevant but advised that the issue would be left for a court to determine in due course. (There is no suggestion that the materials requested were ever the subject of a disclosure application.) In his e-mail, defence counsel also asserted that: “We are ready to set dates and have been for sometime (sic).” Defence counsel closed by noting that, “As far as the s. 540 materials, you have my position on hearing from the US officers and we should set the preliminary.”
[33] On the afternoon of June 10, 2016, yet another judicial pre-trial was conducted before Justice K. Mcleod. Following which, the matter was addressed in court. Once again, neither his lawyer nor Mr. Brown were personally present. Counsel for one of the co-accused appeared on their behalf. The prosecutor noted, “Another pre-trial has been scheduled for July 18th at 12:30 p.m., at which time, it’s hoped that we can once and for all figure out what witnesses will be called either for prelim or discovery.” The case was adjourned to July 18, 2016 for a further judicial pre-trial and to schedule dates for the preliminary inquiry.
[34] In a letter to all defence counsel, dated June 29, 2016, the assigned prosecutor wrote: “Just prior to our June 10th pre-trial, I received correspondence from five defence counsel requesting the attendance of 37 witnesses at the preliminary inquiry. During the pre-trial meeting, counsel were able to streamline their requests.” She then went on to set out a list of witnesses that defence counsel were requesting to be made available for the preliminary inquiry.
[35] Although Mr. Brown attended court on July 18, 2016, his lawyer was not present that day. Instead, counsel for one of the co-accused again spoke to the matter as his lawyer’s agent. The charges against Mr. Brown, along with five co-accused, were scheduled for a preliminary inquiry for 12 consecutive court days beginning on June 13, 2017, and two dates were also scheduled for discovery (June 29 and 30, 2017). The Crown noted that the court had offered dates beginning in March 2017, but that “some counsel, weren’t available”. It is unclear from the record whether or not Mr. Brown’s lawyer was unavailable for the March 2017 dates. Mr. Brown was then remanded one-week, to July 25, 2016, so that his lawyer could be present to confirm the preliminary inquiry dates.
[36] On July 25, 2016, Mr. Brown was present, along with his lawyer. As it turned out, Mr. Brown’s lawyer was unavailable on June 13 and 14, 2017. Consequently, these dates were vacated. In their place, the two dates initially scheduled for discovery (June 29 and 30, 2017) were tacked on as additional preliminary inquiry dates.
[37] During this appearance, the lawyer who had been representing Mr. Brown advised the court that he was not retained. As a result, he asked that the dates for Mr. Brown’s preliminary inquiry be scheduled “with or without counsel”. Further, the lawyer noted that because of another case commitment he would not be available for any of the dates scheduled before June 26, 2017. To work around this late-breaking scheduling difficulty, the Crown agreed that it would only begin calling evidence at the preliminary inquiry relevant to Mr. Brown on June 26, 2017. In explaining her willingness to take this approach, the assigned prosecutor noted that: “it sure beats having to set another 12-day[s] sometime in the Fall”. Mr. Brown was then remanded to June 15, 2017, the first day of the scheduled preliminary inquiry.
ii. Positions of the parties
[38] The Applicant concedes responsibility for one-month of delay before the scheduling of the preliminary inquiry. The period between April 22, 2016 and May 24, 2016, when the Crown was ready to set preliminary inquiry dates and Mr. Brown was not. In taking this position, defence counsel emphasizes the assigned prosecutor’s letter of April 26, 2016, and the excerpt from that letter reproduced above. She says that letter establishes that, by May 24, 2016, Mr. Brown’s lawyer had taken the steps necessary to facilitate the scheduling of the preliminary inquiry. Any delay after that, she argues, cannot be attributed to Mr. Brown.
[39] In contrast, the Crown submits that the defence bears responsibility for the delay between April 22, 2016, when the Crown was ready to schedule dates for a preliminary inquiry, and July 25, 2016, when Mr. Brown’s lawyer finally attended court to set the dates “with or without counsel”. The Crown encourages the court to look beyond the correspondence and consider the entire record of what took place on each of the dates when the case was addressed in court before the preliminary inquiry dates were finally scheduled on July 25, 2016.
iii. Findings and analysis
[40] The scheduling of dates for a preliminary inquiry or trial requires cooperation between the parties. Scheduling does not take place automatically. In the Ontario Court of Justice, at least for matters anticipated to take longer than a single court day, a judicial pre-trial conference is required before scheduling dates for a preliminary inquiry or trial: see Ontario Court of Justice, Judicial Criminal Pre-trial Best Practices, September 2015, available online at: http://www.ontariocourts.ca/ocj/legal-professionals/practice-directions/criminal-pre-trial/.
[41] A judicial pre-trial conference is not a mere administrative formality in the scheduling process. Effective case management depends on meaningful judicial pre-trials. Real engagement by everyone involved is necessary, given the shared obligation on all participants to ensure the efficient allocation of scarce resources to minimize delays in the criminal justice system: see Jordan, at para. 114; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 35.
[42] An effective judicial pre-trial requires more than a lawyer’s physical attendance. Counsel must attend a judicial pre-trial in a position to meaningfully address scheduling issues. For example, counsel must provide their informed views on matters such as: (1) disclosure; (2) any applications to be brought; (3) the number of witnesses each party intends to call; (4) any admissions the parties are prepared to make; (5) any legal issues the parties anticipate may arise in the proceeding; (6) an estimate of the time needed to complete the proceeding; and (7) resolution of the matter, if appropriate: see Criminal Rules of the Ontario Court of Justice, SI/2012-30, Rule 4.2.
[43] It is apparent from an examination of the entire record that by April 22, 2016, the Crown and the court were prepared to schedule dates for the preliminary inquiry, but Mr. Brown, as well his co-accused, were not. By that date, more than a month had passed since the disclosure was completed. The Crown had also provided an overview of the evidence it intended to elicit at the preliminary inquiry. After that, delays in scheduling dates for the preliminary inquiry rested squarely on the shoulders of defence counsel, including Mr. Brown’s lawyer.
[44] Despite Mr. Brown’s lawyer suggesting, in his June 10, 2016 e-mail, that he was ready to schedule dates for a preliminary inquiry, and had been for some time, the entirety of the record during this period suggests the opposite. I draw this conclusion for a few reasons.
[45] First, it was only on the eve of the judicial pre-trial on June 10, 2016, that defence counsel finally furnished the assigned prosecutor with their respective lists of the witnesses they wanted to hear from at the preliminary inquiry. The record does not support a finding that Mr. Brown’s lawyer was somehow differently positioned than the other defence lawyers in that regard. It will be recalled that defence counsel agreed to furnish these lists during the April 22, 2016 judicial pre-trial. Until these lists were provided, there could not be an informed estimate of the amount of time necessary for the preliminary inquiry. These lists would also be instrumental in the selection of dates, to ensure that the required witnesses would be available on the dates chosen.
[46] Second, on April 22, 2016, May 24, 2016, June 10, 2016, and July 18, 2016, there were further judicial pre-trials and corresponding court appearances. Mr. Brown’s lawyer was not in attendance for any of these court appearances. Instead, a lawyer for a co-accused addressed the case on behalf of Mr. Brown and his lawyer. Importantly, on none of these occasions did any of the lawyers who were acting as agents for Mr. Brown’s counsel suggest that Mr. Brown was ready to schedule dates for a preliminary inquiry. Instead, it is obvious from the record from each of these appearances that the delay in scheduling preliminary inquiry dates rested squarely on the shoulders of all defence counsel.
[47] Third, it is noteworthy that although dates were initially scheduled on July 18, 2016, a week later, when Mr. Brown’s lawyer finally attended court, he was unable to confirm the dates scheduled just the week before. This development suggests that the agent who appeared for Mr. Brown’s lawyer on July 18, 2016, was not, in fact, in a position to set dates for a preliminary inquiry on his behalf. After all, that lawyer was not even privy to the actual dates available to Mr. Brown’s lawyer. In light of this, it seems rather improbable that the agents who appeared for Mr. Brown’s lawyer on any of the earlier court appearances were in a different position.
[48] Finally, it seems telling that it was only on July 25, 2016, when the scheduling of the preliminary inquiry dates finally took place, that there was any mention that Mr. Brown’s lawyer was not retained to represent him at the preliminary inquiry. Until that time, neither the correspondence exchanged, nor anything said during any of the court appearances between April 22, 2016, and July 25, 2016, gave any hint that Mr. Brown had yet to retain counsel to act for him at the preliminary inquiry.
[49] The overall impression created from this record is that Mr. Brown was not anxious to schedule dates for a preliminary inquiry before he was finally required to do so on July 25, 2016. After all, the longer he waited, the more time he would have to finalize the retainer. After the scheduling of dates, Mr. Brown risked that his preferred lawyer might become unavailable before he would have an opportunity to perfect his retainer.
[50] Given this record, I find that the period between April 22, 2016 and July 25, 2016 (three months and 3-days) should count as defence delay. In short, during this entire period, the court and the Crown were ready to proceed with the scheduling dates for a preliminary inquiry, but Mr. Brown was not: see Jordan, at para. 64.
2) How much delay is attributable to the defence before the first scheduled trial date?
i. Relevant procedural history
[51] Mr. Brown first appeared before the Superior Court of Justice, along with two-accused, on August 25, 2017. During that initial appearance, a judicial pre-trial was scheduled for October 2, 2017. The court specifically inquired whether or not the accused wanted to schedule target trial dates. The lawyer, appearing as agent for Mr. Brown's counsel at the time, replied, "No, not for Mr. Brown, for sure."
[52] Between his first appearance in the Superior Court of Justice, and the date scheduled for the judicial pre-trial, Mr. Brown discharged the lawyer who had been acting for him and hired the lawyer who ultimately represented him at trial and on sentencing.
[53] On October 2, 2017, an agent appeared for Mr. Brown's new counsel, advising that the lawyer was retained just the preceding week and had only received initial disclosure from former counsel and will have some "catching up" to do.
[54] Except for one of the two co-accused's lawyers, none of the other lawyers, including the Crown prosecutor, had served and filed the required Pre-Trial Conference Report: see Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Rule 28.04(2). As a result, the judicial pre-trial could not proceed.
[55] The presiding judge raised concerns about delay, encouraging counsel to set tentative trial dates. The Crown was prepared to do so. There was some discussion of the case, including that the Crown's case primarily involved wiretap evidence. The court inquired whether or not defence counsel would be bringing a Garofoli application: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The agent appearing for Mr. Brown's new lawyer advised, "based on the initial disclosure he's received, a Garofoli date should be set".
[56] For the Garofoli application, the court suggested scheduling a week for that purpose and offered the weeks of February 20, 2018, or the following week. The Crown was available both weeks. However, Mr. Brown's new lawyer did not have successive dates available until the week of June 11, 2018. His agent suggested scheduling another judicial pre-trial in November, but the court insisted on an earlier date. The case was adjourned to October 19, 2017, for a judicial pre-trial, with tentative dates also scheduled for the Garofoli application the week of February 20, 2018 (despite the unavailability of Mr. Brown’s lawyer).
[57] On October 19, 2017, a judicial pre-trial took place. Mr. Brown's lawyer was in attendance. In court that day, he advised that he could not proceed with the Garofoli application the week of February 20, 2018, as he required more time to prepare application materials. Therefore, to accommodate Mr. Brown’s lawyer, the court scheduled new target dates for that application, the week of March 12, 2018. There was also a discussion regarding the fact that Mr. Brown's lawyer was unavailable for trial as early as counsel for the co-accused. Given this, after the Garofoli application, it was agreed that Mr. Brown and his co-accused would proceed to trial separately.
[58] During this appearance, the court specifically inquired as to the arrest dates of the three accused, so that it could determine the presumptive ceiling under Jordan. Told that the arrest date for Mr. Brown and a co-accused was September 3, 2015, with the defence unwilling to assume responsibility for any of the delay in the interim, the court was reluctant to schedule trial dates.
[59] As a result, the case was adjourned to October 24, 2017, to schedule trial dates once the question of the Jordan ceiling was settled. The court made clear that it expected defence counsel to attend on that date in a position to advise the court of the presumptive ceiling date under Jordan in this case.
[60] The record on this application does not include a transcript from the proceedings on October 24, 2017. However, from the court’s endorsement, April 6, 2018, appears to have been recognized as the presumptive Jordan ceiling for this prosecution. During this appearance, the Garofoli application to be brought by Mr. Brown and his co-accused was scheduled for the week of March 12, 2018. The court also scheduled filing deadlines for the parties' materials on that application. Trial dates for Mr. Brown's co-accused were scheduled for the court’s sittings beginning the week of April 3, 2018. And, given Mr. Brown's lawyer's unavailability, separate trial dates were scheduled for him commencing the week of June 18, 2018, with the trial anticipated to last two weeks. The court adjourned the case to March 2, 2018, a confirmation date, for the purpose of the parties attending and confirming that the Garofoli application would proceed the week of March 12, 2018. The court remanded Mr. Brown to that date.
[61] On March 2, 2018, Mr. Brown's lawyer was in attendance. He informed the court that there were two separate police investigations related to the charges against Mr. Brown. By that point, having reviewed the disclosure concerning one of the investigations that included wiretap authorizations, he was of the view that there was no basis for a Garofoli application for the authorizations involving that project. With the other, he indicated that he was unsure and needed some additional disclosure that he had requested from the Crown. (This additional disclosure was only requested the preceding week.) Defence counsel asked for an adjournment to March 12, 2018, at which point he believed he would be in a position to advise whether or not there would be any Garofoli application. As a result, the court adjourned the case to March 12, 2018.
[62] The record on this application does not include the transcript from March 12, 2018. However, from the court's endorsement that day, it would seem that counsel for Mr. Brown was in attendance and confirmed that he would not be bringing a Garofoli application after all. Ultimately, Mr. Brown was remanded directly to June 18, 2018, for the commencement of his trial. At that time, the trial was anticipated to last two-weeks.
ii. Positions of the parties
[63] The Applicant concedes responsibility for three-months and one-week of delay in the Superior Court of Justice before the first scheduled trial date. Specifically, the three-week period between February 20, 2018 and March 12, 2018, the first date available to the court and the Crown for the Garofoli application and the date scheduled because defence counsel was unavailable. As well as the two-months and two-weeks between April 5, 2018 and June 18, 2018, the first date being the date when the court and the Crown were available for trial, and the second being when defence counsel was first available for trial.
[64] In contrast, the Crown argues that the entire period from February 20, 2018 until June 18, 2018, nearly four months, should be attributed as defence delay. In support, the Crown emphasizes that defence counsel was not available before June 18, 2018. Further, that by scheduling dates for a Garofoli application in March 2018, an application that it ultimately abandoned, the defence was responsible not only for the time set aside for that hearing but also the time allotted for the court to decide the application.
iii. Findings and analysis
[65] It is apparent that Mr. Brown's decision to change lawyers, just as this case entered the Superior Court of Justice, resulted in additional delay. The decision meant that the new lawyer would need time to come up to speed. As defence counsel noted, the amount of disclosure material, in this case, was "enormous": Transcript of March 2, 2018, p. 4, l. 20.
[66] No doubt, it was out of an abundance of caution, given the nature of the case (involving intercepted private communications), that defence counsel scheduled a Garofoli application. Unfortunately, new on the file and having to review a voluminous amount of material to familiarize himself with the case, it was not until the very date scheduled for the commencement of that application that defence counsel was finally in a position to make an informed decision to abandon it.
[67] A close examination of the entire procedural history during this period causes me to conclude that the defence is responsible for the period of delay from February 20, 2018, until June 18, 2018.
[68] In so concluding, I note that the court scheduled one-week of court time for the Garofoli application at the request of the defence, commencing March 12, 2018. The court and the Crown were available February 20, 2018, but a later date was chosen to accommodate defence counsel’s schedule, March 12, 2018. At the very same time, the court also scheduled the co-accused's trial to begin the week of April 3, 2018. The plan was that both Mr. Brown and his co-accused would participate in the Garofoli application, with their trials proceeding separately after that because Mr. Brown's lawyer was not available on successive dates before June 2018.
[69] In scheduling a proceeding as involved as a Garofoli application, the court is not only concerned with setting aside the required court time for the hearing. Beyond that, scheduling must also afford the judge who hears the application time to absorb the (often substantial) materials and the submissions and to render a decision before the trial. In this case, the delay between the date when the hearing of the Garofoli application was scheduled to finish (March 16, 2018), and the expected commencement of the co-accused's trial (April 5, 2018), was the time allotted for the judge who would hear the application to make a decision and render a decision. That period of delay would not have been necessary but for the scheduling of the Garofoli application.
[70] Jordan establishes that delays caused by "frivolous" defence applications count towards defence delay. On this record, I am not prepared to find that defence counsel deliberately scheduled the Garofoli application as part of a calculated effort to cause delay: see Jordan, para. 63. Defence counsel, who was new to the file, scheduled it out of an abundance of caution.
[71] Nevertheless, a defence lawyer's failure to engage in a timely assessment of the merits of a potential pre-trial application is not without consequences. The scheduling of precautionary placeholder motions on the off chance that they may later prove to have merit is not a practice this court can countenance in the post-Jordan era. A defence lawyer is obligated to get his or her "head in the file" before squandering scarce judicial resources by scheduling motions that in time are abandoned. Such conduct "exhibits marked inefficiency" and is “illegitimate”: see Cody, at paras. 31-33.
[72] It follows that all of the delay that resulted from the scheduling of the Garofoli application and its later abandonment must be attributed to the defence: see Jordan, at para. 65; Cody, at para. 34. In my view, but for the aborted Garofoli application and defence counsel being unavailable until the week of June 18, 2018, Mr. Brown's trial could have been scheduled to commence much earlier. Given that the court had available dates beginning February 20, 2018, combined with the Crown also being available from that time, the delay between then and the scheduled commencement of the first trial date is attributable to the defence. This represents a total period of four months of additional defence delay in this case. Therefore, in assessing whether the delay exceeded the presumptive ceiling, these four months must also be deducted.
3) Summary of total defence delay to be deducted
[73] In conclusion, the total period of defence delay preceding the first scheduled trial date is seven months and three days. Deducted from the total delay in this case, 41 months and 19 days, that still leaves 34 months and 16 days of net delay. This is above Jordan’s 30 months presumptive ceiling for matters proceeding to trial in the Superior Court. This period of delay is presumptively unreasonable.
[74] Despite this, the Crown submits that there are exceptional circumstances in this case. As a result, it contends that the delay above the presumptive ceiling is reasonable. It is to that issue that these reasons turn next.
B. Has the Crown established exceptional circumstances for the delay?
[75] The Crown makes two distinct claims that there were exceptional circumstances in this case. First, that exceptional circumstances led to the adjournment of the first scheduled trial date. Second, that the complexity of the case, in itself, also gave rise to exceptional circumstances. These reasons will assess each of these claims in turn.
1) Did the adjournment of the first scheduled trial date result from exceptional circumstances?
[76] Initially, the trial, in this case, was scheduled to commence during the court's sittings beginning the week of June 18, 2018. However, the court was unable to accommodate Mr. Brown's trial that week.
i. Relevant procedural history
[77] Before any criminal case commences in the Superior Court in Brampton, a judge conducts a final judicial pre-trial with the parties. It would appear that a judicial pre-trial took place on the morning of June 18, 2018, with Mr. Brown then remanded to June 19, 2018. A further judicial pre-trial then took place on the 19th before the case was addressed in court. The following are the relevant excerpts from the transcript from that day:
COURT: Just to follow up from the pre-trial we’ve just had, I spoke with both the regional manager and the local trial coordinator and nothing’s changed since I spoke to them about 8:30 this morning, nor is it anticipated that anything is going to change in terms of how – to conduct this matter. It will go into the first week of July, which I think in all likelihood was going to happen anyway, but two weeks wasn’t going to do it. ….
… I don’t see that there’s anything to be gained by bringing the matter back again tomorrow. I just don’t see that anything is going to change. I’ll indicate what I had indicated with respect to two cases yesterday, I believe. The federal government has increased the complement of the Superior Court judges in Ontario. I think the announcement was in the fall of last year, perhaps it’s a little more recent than that. We have been waiting for the replacement of three judges who elected to supernumerary status, one from November/December, one from January, and one from March. Those judges have not been replaced. Regional Senior Judge Daley, I’m aware, has canvassed other regions for assistance. We actually had assistance from one region for a few days, not that [that] would’ve covered this trial. In terms of trying to adjust schedules this week, one of my colleagues had a death in his family over the weekend, so while that judge would not have been sitting for a period of time to do this trial, some adjustments could’ve been made and then there’s illness with another one of my colleagues. So regrettably, the matter is not going to get reached …
As I believe I indicated yesterday, there are sittings commencing July 23rd. And in speaking with the trial coordinator, I think we could even make arrangements to start the week or so before that. There is a panel coming in on the 9th, but I do understand that counsel have commitments and scheduling issues, which we already addressed to get today’s date – or sorry, yesterday’s date for trial.
DEFENCE: Yes.
COURT: I understand the Crowns would be – one Crown would be available, but Mr. Taraniuk, your schedule is daunting.
DEFENCE: Yeah. My schedule, yeah, in that time period is daunting, Your Honour. And I don’t reasonably have three weeks available until some of the dates that Your Honour was mentioning yesterday, which I believe, were beginning of – at the beginning of February 2019. I say this knowing that Mr. Brown was wishing to have his trial, at this point in time, it was set for yesterday, to begin yesterday and that would’ve been his, his preference.
COURT: No. He – there is no doubt on that issue. He’s made that clear.
DEFENCE: He is in custody on these charges.
CROWN: The Crown, Your Honour, has already stated, both Mr. Park and I are both on this matter. And between the two of us are prepared to start as early as July 9th, and we will make arrangements to accept any day offered by this court going forward.
COURT: All right. And in speaking to the regional senior judge, this case will be scheduled on any week counsel is available, [it] will be added to the list and Crowns will have to prioritize. So, Mr. Taraniuk, when’s your first three weeks?
DEFENCE: As I …
COURT: And that, and that goes through July, August, September, October, November, December.
DEFENCE: My, my first three weeks that I’m available with the ability to prepare for this matter is the beginning of February 2019, Your Honour.
COURT: The 4th?
DEFENCE: Yes. That works.
CROWN: That’s fine with the Crown, Your Honour. And just to be clear, Your Honour, in addition to the generous dates that the court’s offering of July 9th, going forward, I’m assuming there are numerous trial dates that could have been accommodated for an in-custody trial in the – by the court for this fall as well?
COURT: This coming fall?
CROWN: Yes.
COURT: Okay.
COURT: …I’ve spoken to Regional Senior Judge Daley … and regardless of the number of cases that are scheduled, this case will be put on any week when counsel’s available, any week, starting the 9th of July and given priority. And it may mean that other cases aren’t reached.
[emphasis added]
The new trial date was scheduled for February 4, 2019, for three weeks. The appearance ended with the judge telling defence counsel: "If anything clears up in your schedule, let us know." The court remanded Mr. Brown to August 14, 2018, at defence counsel's request.
[78] On August 14, 2018, defence counsel advised the court of his intention to bring a s. 11(b) Charter application. That application eventually was scheduled for October 30, 2018.
[79] Mr. Brown next appeared in court on October 5, 2018, after defence counsel arranged to have the case brought forward. On that day, he advised that after having an opportunity to review the transcripts, that in his view they "don't reveal a violation of Mr. Brown's section 11 right". Therefore, defence counsel asked to vacate the hearing scheduled for October 30, 2018.
[80] During this same appearance, however, defence counsel also inquired if there were earlier dates available for Mr. Brown's trial to proceed before February 4, 2019. At this point, although defence counsel was not available before then, Mr. Brown advised that he wanted an earlier trial date and was prepared to proceed to trial without a lawyer. The court inquired as to how long the trial was scheduled to last, and also asked what the "net" Jordan date was. The court made clear that if there was a chance of exceeding that date, "the court office will move heaven and earth to give you a trial date".
[81] The Crown raised two concerns with Mr. Brown's proposal. First, a concern regarding the availability of its witnesses on short notice. Second, it noted that the case had been scheduled for 3-weeks with counsel and suggested a further judicial pre-trial should occur before scheduling any dates for a trial with a self-represented accused.
[82] The case was then held down, so that counsel could speak with the Trial Coordinator. When the case was recalled, defence counsel explained that he could not advise the court of the "net" delay in this case because he had not been counsel when the case was in the Ontario Court of Justice. He said the transcript from when the case was in that court left the answer less than clear. Ultimately, Mr. Brown was remanded to October 15, 2018, for a further judicial pre-trial.
[83] Following the judicial pre-trial on October 15, 2018, the parties addressed the case on the record. Defence counsel noted that they had discussed Mr. Brown proceeding to trial earlier than February 4, 2019, without his assistance. He mentioned that Mr. Brown had other court appearances scheduled in both October and November 2018, involving charges that were before the Ontario Court of Justice. He did not reference the precise dates when Mr. Brown was expected to be in that court on those charges. Mr. Brown also spoke directly to the court that day, reiterating his desire to proceed to trial earlier and to represent himself. He referenced the court's offer, back on June 19, 2018, to give his case priority. Ultimately, the court responded, in part:
This case, with experienced counsel, is scheduled for three weeks. With a self-represented individual with a jury trial, I find it very difficult to believe that this case is a three-week trial. It would likely be well into the fourth, if not longer. Whether positions that were taken at the pre-trial conference, in terms of assessing the case at three-weeks, would continue, I have no idea. In terms of the time between now and February 4th, there's a couple of weeks where the courts simply are not sitting and doing trials, because it's over the Christmas holiday that - it takes a couple of weeks out. There's additional issues with respect to witnesses, in terms of whether they'd even be available. So - but with respect to February, and what happens if - I am well aware, the trial coordinator is well aware of the fact of the history of this case. It will be a case that should, and will, get priority to proceed at the time. ... So, I certainly understand your position for wanting to move the case along, but I think for those reasons it would be inappropriate, and it's just not feasible at this time to put the case on [right now], which would result in other cases not being reached.
As a result, the court denied Mr. Brown's request and remanded him to February 4, 2019, when the trial ultimately did proceed.
ii. Positions of the parties
[84] The Crown emphasizes the court's comments on June 19, 2018, referring to the number of available judges and the impact of one judge experiencing a family death and another judge being off due to illness. It submits these events were reasonably unforeseeable and unavoidable by the Crown. Further, it notes that both the court and the Crown were willing to take reasonable steps to mitigate the resulting delay, offering dates for trial from July 2018 right through to February 2019. Despite the exceptional circumstances precipitated by death and illness, the case could not proceed to trial until February 4, 2019, due only to defence counsel's busy schedule.
[85] The Crown submits that the court's refusal, in October 2018, to accommodate Mr. Brown's request to go to trial on his own, does not serve to neutralize the exceptional circumstances or reveal a failure by the court or the Crown to take reasonable steps to mitigate the delay. Instead, the Crown argues that the trial was scheduled to take three weeks with counsel and that it would take much longer with a self-represented accused person. Mr. Brown already had court appearances scheduled on other charges before the Ontario Court of Justice in October and November, which only left December and January available, with the holiday season raising additional logistical challenges in December.
[86] In contrast, defence counsel emphasizes the court's comments on June 19, 2018, referring to the diminished judicial complement. She argues that none of the delay stemming from inadequate judicial resources is reasonably unforeseen or reasonably unavoidable. Instead, it is reflective of a chronic institutional problem. Further, defence counsel argues that the failure in October 2018 to accommodate Mr. Brown's request to proceed to trial without counsel reflects the same root problem, a lack of adequate judicial resources. As such, defence counsel submits that the entire 7 ½ month period, from June 19, 2018, until February 4, 2019, should remain as part of the calculus. It is reflective of an institutional failure rather than any exceptional circumstances.
iii. Findings and analysis
[87] The Supreme Court has explained that "exceptional circumstances" lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel and the justice system cannot reasonably mitigate the resulting delay: see Jordan, at paras. 69, 71, 73, 75; Cody, at paras. 46, 48. The Supreme Court also noted that such circumstances need not be "rare or entirely uncommon": Jordan, at para. 69.
[88] In Jordan, the Supreme Court did not catalogue all of the discrete events that could potentially qualify as "exceptional": Jordan, at para. 71. Preferring to leave such determinations to the "good sense and experience" of trial judges: Jordan, at para. 71.
[89] Nevertheless, it did provide some examples of what would qualify, including medical or family emergencies on the part of the accused, an important witness, counsel or the trial judge: see Jordan, at para. 72.
[90] The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of particular periods. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable are to be deducted to the extent that they are incapable of being reasonably mitigated by the Crown and the justice system: see Jordan, at paras. 73, 75, Cody, at para. 48.
[91] The court's comments on June 19, 2018, when Mr. Brown's case could not proceed as scheduled, disclose that the cause of the delay was multi-faceted. If the court had a full complement at that time, the trial could have commenced. Similarly, if one judge did not experience a death in their family, and if another was not off sick, there would have been no need to adjourn Mr. Brown's trial. The combination of these things necessitated the adjournment.
[92] Brampton is one of the busiest court jurisdictions in Canada. To be sure, it has been plagued historically by inadequate resources. The system has continually struggled to adequately service Peel Region during the last thirty years, a period of incredible population growth in this region.
[93] Every single day, the court endeavours to meet the demands resulting from a constant stream of criminal cases. Most days, with the benefit of robust case management, in both levels of court, the system manages. To be sure, it requires constant vigilance.
[94] In any human system, however, unexpected events sometimes happen. A judge is ill, has a family emergency, or a death in their family. It is impossible to plan for such inherently unpredictable events. Nor would it be feasible or efficient to have extra judges waiting “in reserve” on the off chance that such an event takes place on any given day. To expect as much would be wholly unreasonable, given the reality of the demands on scarce judicial resources.
[95] In my view, exceptional circumstances necessitated the adjournment of Mr. Brown's trial on June 19, 2018. The record is clear that but for one judge experiencing a family death, and another being ill, Mr. Brown's trial would have proceeded. To say that even if with these exceptional events taking place, the trial would have proceeded if only the court had more judges could be said in every situation where a judge is unavailable due to exceptional circumstances.
[96] In a small jurisdiction with only one judge, if that judge is ill, it is always true that a scheduled trial could proceed if there were two judges seated in that jurisdiction. To conclude that the culprit for the delay in such circumstances is an institutional failure would eviscerate the meaning of "exceptional circumstances" as the Supreme Court envisioned them in Jordan.
[97] Further, it is apparent from the record that once Mr. Brown's trial could not proceed, both the court and the Crown took reasonable steps to mitigate the resulting delay. The offer to him was to pick any three weeks of his choosing, with the court and the Crown offering dates from July 2018 right through the summer and fall of 2018. It was only because of defence counsel's full calendar that the trial could not proceed before February 2019.
[98] Mr. Brown's request in October 2018, to proceed to trial without counsel, was not feasible. He already had dates scheduled in October and November for other charges in the Ontario Court of Justice. Working around those dates in a case involving a jury would not have been practical. Further, a trial in which Mr. Brown was representing himself would have taken much longer than the three-weeks earmarked for his trial with a lawyer. In all likelihood, the trial would have taken four or five weeks. A jury trial of that length could not take place in December, given the holidays.
[99] Ultimately, the earliest that Mr. Brown's self-represented trial could get underway would have been January 2019. In the end, this would have likely meant that his trial would finish only a couple of weeks before it ultimately did.
[100] Given all of this, I am of the view that the entire 7 ½ month period of delay from June 18, 2018, until February 4, 2019, is appropriately characterized as resulting from exceptional circumstances. This period must be deducted from the total period of delay in deciding whether or not the presumptive ceiling has been exceeded: Jordan, at para. 75. When the 7 ½ months of delay resulting from exceptional circumstances are deducted, along with the 7 months and 3 days of defence delay, the net delay is approximately 27 months, well below the presumptive ceiling. This conclusion is decisive on this application, given that there is no basis to suggest that the circumstances of this case justify a finding that there was unreasonable delay despite the net delay not exceeding the presumptive ceiling.
2) Was this case exceptional because it was particularly complex?
[101] Nevertheless, the Crown also argued that even if the presumptive ceiling was exceeded in this case, exceptional circumstances existed because the case was particularly complex. For the sake of completeness, I will also briefly address this claim
i. Positions of the parties
[102] The Crown submits that this case was particularly complex. In characterizing the case in this way, the Crown points to the voluminous disclosure, a large number of charges (at least at the outset), the joint prosecution of multiple co-accused, and the potential for pre-trial applications attacking multiple wiretaps and other judicial authorizations. Ultimately, the case did not require three weeks of evidence, but this was only because of various admissions made after the trial was underway.
[103] In terms of the evidentiary breadth of the case, the Crown notes that defence counsel who acted for Mr. Brown characterized the disclosure as "enormous". The Crown provided it to the defence electronically, on two thumb drives and three DVDs, in four separate waves. The disclosure involved an extraordinary amount of data, 112 Gigabytes in total. There were two police investigative projects culminating in this prosecution. Each lasted several months, included the use of numerous confidential informants, police surveillance, and the interception of private communications. Defence counsel who represented Mr. Brown at trial noted that for just one of the two police investigative projects, the disclosure when printed was 25,000 pages in length.
[104] Counsel on behalf of Mr. Brown on this application concedes that the disclosure, in this case, was voluminous. In that regard, she acknowledges the amount of material involved can explain at least some of the delay in this case. Nevertheless, defence counsel contests that, on the whole, the case was particularly complex. She points out, for example, that evidence at trial only took six days.
ii. Findings and analysis
[105] The Crown may avoid a finding that the delay was unreasonable if it is able to demonstrate that exceptional circumstances existed because the case was particularly complex. Particularly complex cases are those where the nature of the evidence or the nature of the issues, require an inordinate amount of trial time or trial preparation: Jordan, at para. 77.
[106] In Jordan, the Supreme Court identified the "hallmarks of particularly complex cases". Cases where the nature of the evidence results in complexity, are those that involve voluminous disclosure, a larger number of witnesses, significant requirements for expert evidence, and charges covering a long period of time: Jordan, at para. 77. Cases, where the nature of the issues results in complexity, are characterized by, among other things, a larger number of charges and pre-trial applications, novel or complicated legal issues, a large number of significant disputed issues, and multiple co-accused: Jordan, at para. 77.
[107] Finally, a particularly complex prosecution does not absolve the Crown of its responsibility of helping to ensure that the trial takes place within a reasonable time. The Crown is expected to develop a concrete plan in such cases, to minimize the delay resulting from its complexity: Jordan, at para 79. The Crown may need to consider whether multiple charges for the same conduct, or jointly trying co-accused together, will serve to unduly complicate the prosecution: Jordan, at para. 79. Should the Crown fail to develop and implement a concrete plan to minimize delay, it will be unable to make a showing of exceptional circumstances because it will fail to establish that the circumstances were beyond its control: see Jordan, at para. 79.
[108] If the Crown establishes that the delay above the presumptive ceiling was justified by the particularly complex nature of the case, the delay will be reasonable, and there will be no resulting violation of s. 11(b) of the Charter: see Jordan, at para. 80.
[109] Ultimately, I am satisfied that this was a particularly complex case. I come to that conclusion for two principal reasons. First, the amount of disclosure, as defence counsel who represented Mr. Brown at trial acknowledged, was enormous. Second, at least at its inception, there were eight co-accused charged in a 13-count information.
[110] In this case, from my review of the record, it would appear that the Crown throughout implemented an effective strategy to ensure the case proceeded expeditiously. Early in the case, the Crown condensed the essence of its case into a PDF document with hyperlinks so that relevant evidence could be efficiently accessed and presented at the preliminary inquiry. As the matter proceeded through the courts, the Crown seems to have given priority to the most serious charges and the accused that it considered most culpable. When necessary, it severed accused. For example, it was prepared to proceed separately against Mr. Brown's principal accomplice, even though the evidence against each of them was the same. It did so to ensure that each accused went to trial within a reasonable time.
[111] Ultimately, that the evidence in this trial lasted only six-days is a testament to the professionalism of both the Crown prosecutors and Mr. Brown's defence lawyer at trial. The lawyers were focussed on the real issues in the case, did not call unnecessary evidence, made reasonable concessions and admissions, and handled themselves with utmost civility. Prosecuted and defended by different lawyers, this case could easily have lasted a couple of months.
[112] Therefore, if any of my conclusions regarding the calculation and attribution of delay are in error, I would be disinclined to find that there was unreasonable delay as this case was exceptional because it was particularly complex.
Conclusion
[113] This was a complex case that was already in the judicial system for approximately ten months when Jordan was released. As a result, it was a transitional case. The Supreme Court instructed that with such cases, the new 11(b) framework must be applied contextually and flexibly: see Jordan, at para. 94. In the circumstances, it has been unnecessary to do so. Ultimately, given the amount of defence delay and the exceptional circumstances, in this case, the net delay did not exceed the presumptive ceiling for cases in the superior court established in Jordan.
[114] That said, it also deserves mention that had I come to different conclusions regarding the attribution of delay, especially concerning the period preceding the scheduling of the preliminary inquiry, the need for flexibility would still have warranted dismissal of this application.
[115] In Morin, the Supreme Court recognized that the inherent time requirements of a case do not count towards institutional delay. The inherent time requirements include the period during which an accused retains counsel, the Crown provides disclosure, defence counsel has an opportunity to review the disclosure, interview the person charged and any potential defence witnesses, conduct necessary legal research and participate in pre-trial discussions. This entire collection of steps is said to form part of the intake period for a case: Morin, at pp. 791-793.
[116] Given the complexity of this case, I would have been inclined to consider the entire ten-month period that preceded the Supreme Court’s decision in Jordan as forming part of the intake period under Morin. At the time, the parties would undoubtedly have viewed this period in the same way. In the circumstances, it would be unfair to judge the behaviour of the parties during this period under the Jordan framework: see Jordan, at para. 96. Especially to the Crown, who was ready to schedule dates for the preliminary inquiry three-months before defence counsel and only agreed to delay doing so to accommodate the defence lawyers who wanted to discover numerous witnesses who were not essential to the Crown’s case for committal.
[117] For all of these reasons, the court dismisses this application.
Signed: Justice James Stribopoulos
Released: November 22, 2019
COURT FILE NO.: CR-17-595 DATE: 2019-11-22
ONTARIO SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN – and – DONOVAN BROWN
BEFORE: STRIBOPOULOS J.
COUNSEL: Mr. C. Walsh & Mr. M. Park for the Crown / Respondent Ms. A. Ruffo, for Mr. Brown / Applicant
RULING ON SECTION 11(b) CHARTER APPLICATION
STRIBOPOULOS J.
DATE: November 22, 2019