COURT FILE NO.: CR-21-026
DATE: 20210706
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL VIANI
Applicant
H. Azimi, for the Crown Respondent
E. Battigaglia, for the Applicant
HEARD: June 4, 2021 via Zoom videoconference
RULING ON 11(B) APPLICATION
McCARTHY J.
The Application
[1] The Applicant, Michael Viani, is charged with unauthorized possession in motor vehicle, dangerous operation of a conveyance, flight from peace officer and accessory after the fact to the commission of an offence.
[2] A two-week jury trial is scheduled to commence on November 22, 2021.
[3] The Applicant seeks a judicial stay of proceedings under s. 24(1) of the Charter on the basis that the net delay of 28 months and 10 days between the charges and the projected end of his trial constitutes unreasonable delay in violation of his rights under s. 11(b) of the Charter.
Principles and Framework
[4] The governing principles for an application under s. 11(b) are outlined in the leading decision of R. v. Jordan, 2016 SCC 27 (“Jordan”). In that case the Supreme Court of Canada laid down presumptive time periods within which an accused must be brought to trial: 18 months for cases in the Provincial Court of Justice, and 30 months for cases tried in the Superior Court of Justice or in the Provincial Court following a preliminary inquiry: Jordan, at para. 49.
[5] In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive time period, the onus is on the Crown to demonstrate that the delay was reasonable: Jordan, at para. 56. Where the delay falls below the ceiling, the onus lies with the accused to demonstrate that it was unreasonable. The standard of proof is the balance of probabilities. A stay of a proceeding for delays less than the presumptive time periods will be rare and limited to the clearest of cases: Jordan, at paras. 48 and 83.
[6] The Jordan framework was expounded upon in R. v. Coulter, 2016 ONCA 704 at paras. 34-41. There the Court of Appeal summarized the step by step process of how net delay is to be calculated:
i. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial
ii. Subtract defence delay from the total delay, which results in the “Net Delay”
iii. Compare the Net Daily to the relevant presumptive ceiling
iv. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut that presumption, the Crown must establish the presence of exceptional circumstances. If it cannot do so, a stay should follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases
v. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached
Timelines
[7] In their respective materials, each of the Applicant and the Crown furnished the court with a “Jordan timeline” and accompanying commentary. When one excises that commentary and argument, the following neutral Jordan timeline emerges:
July 23, 2019 – The Applicant is charged
July 29, 2019 – Bail Hearing: the Applicant is released on a recognizance and strict house arrest
September 5, 2019 – First Appearance: disclosure not yet provided
October 10, 2019 – To be spoken to (TBST) Appearance: disclosure still outstanding
December 5, 2019 – Judicial Pre-Trial: set date of October 5, 2020 for preliminary hearing
March 19, 2020 – TBST: co-accused appearance
May 26, 2020 – “Covid-19” related Judicial Pre-Trial
October 7, 2020 – Preliminary Hearing Day #1
October 27, 2020– Preliminary Hearing Day #2
January 26, 2021 – Preliminary Hearing Day #3
January 27, March 1, March 19, 2021 – TBST dates
April 9, 2021 – TBST: anticipated dates of June 4 and week of July 12 provided for 11(b) and pretrial applications
May 4, 2021 – Judicial Pre-Trial
November 22, 2021 – Anticipated two-week jury trial to commence
December 3, 2021 – Anticipated to be the end of the trial
[8] There is no dispute that the “total delay” is therefore 864 days or 28 months and 10 days.
[9] In my view, it matters little whether there are defence delays subtracted from that total; even without such subtractions, the delay is less than the presumptive ceiling of 30 months.
[10] Accordingly, the onus is on the defence to show that the delay was unreasonable. In conducting this analysis, I am bound to consider both of the following criteria:
Whether the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and
Whether the case took “markedly longer” than it reasonably should have.
Jordan, at para. 82.
[11] The first prong of the conjunctive test requires the Applicant to satisfy the court that it took positive action in seeking a timely trial. This can be established where the defence sought the earliest trial date, cooperated with the Crown and the court, communicated about any delay and submitted its applications expeditiously. Merely making a statement on the record that the defence sought an earlier trial date will not suffice: Jordan paras. 84-86.
[12] The second prong of the analysis requires a review of the complexity of the case, local considerations and the steps taken by the Crown to expedite proceedings. The application judge should step back from the minutiae and take a global view of the case: Jordan at paras. 87-91.
Analysis
Defence Efforts to Move the Matter Forward
[13] The evidence does not demonstrate that the defence made sustained efforts to expedite the proceedings. While it is true that at the December 5, 2019 JPT defence counsel signaled his availability for January 2020 preliminary hearing dates, the co-accused’s counsel was not available on those dates. When there are multiple accused, it is not unreasonable to expect some delays and challenges in the scheduling of hearings given that the court must work around the calendars of not one but two defence counsel.
[14] While there was no obligation on the part of defence counsel to make admissions to narrow the issues or to consent to witnesses appearing via Zoom at the preliminary inquiry, the failure to do so certainly contributed to the length of the preliminary inquiry and the requirement for extra days into January 2021. I agree with the Crown that reasonable admissions and concessions often assist in expediting a matter along.
[15] The Applicant is critical of the Crown for not flagging the voluntariness issue at the December 2019 JPT. However, counsel for the Applicant did not raise the issue either when it should have been clear to him that his client had made a statement to police. I agree with the Crown that a simple question to clarify whether the Crown intended to introduce the statements at the preliminary hearing could have clarified that issue before dates were set.
Reasonable Time Requirements of the Case
Complexity
[16] I take into consideration that multiple accused were involved at the outset of this matter. This required some delay and challenges in scheduling the preliminary inquiry because of the need to accommodate the schedules of different defence counsel.
[17] As well, disclosure was vast, involved and cumbersome. The evidence suggests that there was over two-thousand pages of disclosure. Eleven civilian witnesses were interviewed by police. The matter drew in 3 different police agencies and some 35 police officers. Disclosure was certainly delayed but it was ongoing; the evidence confirms that the Crown was responsive and attentive to its obligation to disclose and did so in a reasonable manner.
[18] I agree with the Crown’s submission that it is often premature to conduct a JPT in the absence of a significant disclosure: admissions, issues for pre-trial motions, the number of days and witnesses required for the preliminary inquiry all hinge very much on what is contained in that disclosure.
[19] While the matter was resolved as against one co-accused by March 2020, the second co-accused remained involved until March 2021. Initially, the Applicant himself faced eleven different counts.
[20] Overall, I would qualify this matter as one of moderate complexity.
Local Circumstances
[21] Although the COVID-19 pandemic did not directly impact or delay this matter, I must take judicial notice of the fact that scheduling court matters generally for the past 16 months has been challenging; understandably, the Crown has given priority to scheduling “in-custody” matters. This is not unreasonable.
[22] Finally, as a matter that had a preliminary inquiry date already set when the pandemic hit, this case was mandated to have a second judicial pre-trial on May 26, 2020. It cannot be said that this event was unnecessary or wasted; this was a joint JPT where certain issues were discussed and where the court accepted the Crown’s request to add a further two days for the preliminary inquiry.
Prejudice
[23] I am not persuaded that prejudice caused by delay should be an independent consideration in this 11(b) application. Even if am wrong in that conclusion, I can find no prejudice caused by the overall delay or Crown conduct in any event. The Applicant was subject to strict conditions of house arrest but took no formal steps to seek a variation until January 2021. This delay cannot be laid at the feet of the Crown. It is the Applicant’s right to bring an application to vary his bail if he is dissatisfied with the conditions.
Conclusion
[24] I am unable to conclude that the defence took meaningful and sustained steps to expedite the proceedings, nor am I able to conclude that the case took markedly longer than it reasonably should have.
[25] While every case is unique, I do not consider this matter as remarkable for any unreasonable or excessive delay. In my view, a case which falls below the presumptive Jordan ceiling of 30 months, should only be seen as running afoul of an accused’s s. 11(b) rights, if it bears some distinctive marker setting it apart from others like it. The case at bar does not. Rather, through 18 or more court appearances, albeit with some glitches, the matter has been moved along at a reasonable pace and according to the prevailing circumstances (number of co-accused, extensive disclosure, availability of counsel, assigned court dates, no admissions).
[26] The case is now scheduled to proceed to trial this fall and to conclude well within the presumptive ceiling of 30 months.
[27] The Applicant has failed to establish that the delay between his charges and the anticipated end of trial is unreasonable. This certainly does not qualify as one of the rare cases where a stay of proceedings would be warranted when total delay is less than the presumptive ceiling.
Disposition
[28] The application is therefore dismissed. The accused is remanded to July 12, 2021 at 9:30am for the continuation of pre-trial motions.
McCarthy J.
Released: July 6, 2021