COURT FILE NO.: CR-22-543-00 & CR-22-406-00

DATE: 2023 12 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

V. Puls, I. Singh, V. Aujla, I. Bell, R. McGuirl & J. Geiger, for the Crown/Respondent

• and -

MAHMOUD AL-RAMAHI and ATOUR PAUL

R. C. Bottomley, A. VanderHeyden for Applicant Mahmoud Al-Ramahi

G. Lafontaine, for Applicant Atour Paul

HEARD: October 26, 2023

RESTRICTION ON PUBLICATION

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

RULING RE: SECTION 11(b) APPLICATION

F. DAWSON J.

[1] Mahmoud Al-Ramahi and Atour Paul apply pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms for an order staying charges against them arising out of Project Siphon, a Peel Regional Police (PRP) investigation that took place between September 2019 and November 2020. The investigation focused on a suspected criminal organization known as the New Money Gang or the Suh Sick Gang (NMG/SSG). It relied heavily on the authorized interception of private communications by various means.

[2] Mr. Al-Ramahi faces a charge of first-degree murder arising from the investigation. That charge is proceeding separately from those on a second indictment charging the applicants jointly with trafficking and conspiracy to traffic in various illegal drugs, including fentanyl and cocaine; with firearms offences, including for the benefit of a criminal organization; and alleging that on behalf of that criminal organization Mr. Al-Ramahi instructed others to commit offences of violence.

[3] The applicants were arrested and charged on November 12, 2020. Mr. Al-Ramahi’s murder trial is to start on January 8, 2024. It is anticipated to end five weeks later, on February 10, 2024. The joint trial of the applicants on the criminal organization charges, a judge alone trial, is to start on March 25, 2024. It is anticipated to end four weeks later, on April 19, 2024. By the end dates of the trials the total delay will be 39 months for the murder case and 41 months and 8 days for the criminal organization case.

Unreasonable Delay – Applicable Legal Principles

[4] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada developed a new framework for determining whether s. 11(b) of the Charter has been violated. The focus is on determining whether the total delay less any defence delay, which is referred to as the net delay, exceeds the presumptive ceilings for delay established in Jordan. The presumptive ceilings are 18 months for trials proceeding in a provincial court and 30 months for trials proceeding in a superior court.

[5] If the net delay exceeds the applicable presumptive ceiling the charges will be stayed unless the Crown establishes that the excess delay is due to an exceptional circumstance. Exceptional circumstances consist of either an unanticipated discrete event resulting in a quantifiable period to be deducted from the net delay, or complexity of the case sufficient to explain and justify the delay. Complexity does not involve calculating a numerical deduction. Rather, the reviewing court is to determine whether the extent to which the presumptive ceiling is exceeded is reasonable, based on the complexity of the case.

[6] Throughout its judgment in Jordan the court emphasized that all participants in the justice system must be proactive in advancing cases through the system to the conclusion of the trial. The new framework was designed to counteract the “culture of complacency” that had developed within the justice system.

[7] Application of the Jordan framework in the circumstances of this case involves the following steps:

1. Calculation of the total delay from the laying of the charges to the anticipated conclusion of the evidence and submissions at the trials. The parties agree that the total delay in this case is 39 months for the murder charge and 41 months and 8 days for the criminal organization charges.

2. Subtraction of any defence caused delay from the total delay to arrive at the net delay. There is a disagreement between the parties about the extent of the delay caused solely by the defence.

3. Comparison of the net delay to the applicable ceiling. In this case the presumptive ceiling is 30 months. If the net delay exceeds the presumptive ceiling, the delay will be unreasonable unless the Crown establishes that there are exceptional circumstances which justify exceeding the ceiling.

4. Determine whether exceptional circumstances exist. The respondent relies on the COVID-19 pandemic as a discrete exceptional circumstance justifying a further deduction.

5. Subtract delay caused by discrete event exceptional circumstances from the net delay to arrive at the remaining delay. If the remaining delay exceeds the presumptive ceiling of 30 months, the delay is unreasonable and the proceeding must be stayed unless the particular complexity of the case justifies the remaining delay as reasonable. The respondent submits that both cases are particularly complex, justifying any remaining delay beyond the presumptive ceiling. The applicants dispute that assertion.

6. If the remaining delay is below the presumptive ceiling of 30 months, the onus is on the defence to show that the delay is nonetheless unreasonable. The applicants do not suggest there is unreasonable delay on this basis, and I need not consider it.

[8] This approach flows from Jordan and is further explained in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Manasseri, 2016 ONCA 703, at paras. 301-317 and R. v. Zahor, 2022 ONCA 449, at paras. 60-72, with specific paragraph references to Jordan and other authorities. I will elaborate on the applicable law with reference to specific paragraphs of Jordan when I analyze the periods of delay which are in dispute.

Overview of the Investigation

[9] The police believed that the NMG/SSG was a criminal organization operating in the Mississauga and Brampton areas, as well as in other parts of Ontario. Wiretap authorizations were granted on March 31, 2020 and August 26, 2020 on the basis that there were reasonable grounds to believe that NMG/SSG was involved in drug trafficking, human trafficking, money laundering, firearms offences and offences of violence. By the second wiretap authorization there were 97 targets. General search warrants and various other forms of judicial pre-authorization were also granted. The investigation included the collection of intercepted communications at numerous locations and in vehicles. Judicially authorized surreptitious entries of some locations occurred over the course of the investigation to take photographs and gather evidence. Hidden cameras were installed. Video evidence was collected along with intercepted private communications. Extensive physical and video surveillance techniques were employed. Tracking devices and techniques were employed.

[10] Some arrests took place during the investigation. The major targets were arrested on the “take down day”, November 12, 2020. More arrests followed thereafter. Over 80 people were charged with numerous offences. The second wiretap authorization permitted interceptions to continue after the arrests of the main targets, until November 24, 2020.

[11] The murder charge arises from Mr. Al-Rahami’s alleged leadership regarding a large “dial a dope” operation in the Mississauga and Brampton areas. During the investigation an NMG/SSG drug delivery person was robbed. On August 3, 2020 a man named Abdifatah Salah, who was believed to have robbed the drug courier, was shot in the head at his Mississauga residence. He died in hospital three days later. It is alleged that Mr. Al-Ramahi was heard on the wiretaps directing and commenting on the killing.

Overview of the Procedural History of the Case

[12] The prosecution is being conducted by a joint team of federal and provincial Crown counsel. Following the arrests prosecutors divided the over 80 accused into 12 groups to make the case more manageable. The applicants are the only remaining members of Group 1, which originally included 11 accused alleged to be gang leadership, high-level associates, and family members. Most of the others in Group 1 have pleaded guilty. Some have had their charges stayed.

[13] The homicide and the criminal organization cases have been moving through the system at the same time. While there have been separate court appearances for each case some appearances and pre-trials have been scheduled together. The prosecutions are closely related as the context for the homicide is the alleged criminal activity underpinning the criminal organization charges.

[14] There have been problems with the disclosure process that have impacted the progress of both cases. Disclosure already made was pulled back on several occasions due to various privilege concerns. I refer to that in more detail below. Disclosure has been mostly provided electronically.

[15] First appearances took place on November 12, 2020. Waves 1, 2, and 3 of disclosure were released to defence counsel on December 9, 2020. Notably, that disclosure did not include the affidavits used to obtain the wiretap authorizations. Counsel referred to those affidavits as the “informations to obtain” (ITOs). I will use that terminology.

[16] On February 7, 2021 the first three waves of disclosure were recalled by Crown counsel on the basis that a disclosed intercept “potentially” raised solicitor-client privilege issues and that a review was being undertaken to identify any potentially privileged calls or texts that may have been inadvertently disclosed.

[17] On March 1, 2021 waves 1, 2 and 3 of disclosure were sent back to defence counsel, together with waves 4, 5 and 6 of disclosure. On April 14, 2021 an “intercepts package” was provided to defence counsel. However, that package did not contain the ITOs. The ITOs were sent to defence counsel on April 27, 2021.

[18] To that point the applicants had been making routine court appearances once or twice per month. Crown pre-trials were being conducted. By May 17, 2021 Crown pre-trials had been conducted with all defence counsel involved in Project Siphon who wanted one.

[19] On May 17, 2021 the first judicial pre-trial (JPT) was held in the Ontario Court of Justice (OCJ) for Group 1 accused. A designated case management judge appointed pursuant to a Crown request made on December 23, 2020, conducted all JPTs and handled resolutions. Discussions at the first JPT included disclosure, time estimates for a preliminary inquiry and potential conflicts of interest by defence counsel for some accused. Mr. Al-Ramahi’s former counsel, who was also representing another Project Siphon accused, was flagged as having a potential conflict of interest.

[20] Due to the potential conflict of interest and some concerns about possible police violations of solicitor-client privilege in relation to Mr. Al-Ramahi’s former counsel, a change of counsel was arranged. Mr. Bottomley began to act for Mr. Al-Ramahi by late May of 2021, although he did not come on record until June 4, 2021. Mr Bottomley was provided with waves 1 through 6 of the disclosure by June 24, 2021.

[21] On May 28, 2021 Crown counsel recalled the wiretap intercepts disclosed to the defence in April on the basis that they “may contain privileged information.” On June 24, 2021 waves 7 and 8 of disclosure were provided. However, on July 6, 2021 waves 7 and 8 were recalled due to a potential breach of privilege.

[22] On July 28, 2021 the intercepts previously recalled were re-disclosed with the exception of intercepts on the lines linked to Selena Pushie. On September 22, 2021 waves 9 and 10 of disclosure were provided. This disclosure included wiretap transcripts, the “privilege review” conducted by an independent counsel, sessions histories from the disclosure pulled back in February, some ITOs for other search warrants and additional officers’ notes. On November 24, 2021 four terabytes of surveillance video was disclosed.

[23] In terms of court proceedings, the respondent’s material indicates that between August and November 2021 there were multiple appearances before Durno J. in the Superior Court of Justice (SCJ) regarding the solicitor-client privilege issues that had arisen during the disclosure process. I observe that the applicants’ cases otherwise remained in the OCJ at that time. I have not been provided with transcripts of those appearances before Durno J. The record does, however, contain a report from counsel, Ian D. Scott, dated December 20, 2021. Mr. Scott was appointed as an independent reviewer of the intercepted communications by Durno J. in an order dated December 20, 2021. Mr. Scott was tasked with identifying any solicitor-client protected communications which may have been disclosed and to identify and protect intercepted communications which were subject to the privilege. This procedure was ongoing as the applicants’ matters proceeded through the OCJ.

[24] Returning to the court timeline, a JPT was held in the OCJ on the criminal organization charges on September 23, 2021. A scheduling conference was then arranged with the OCJ trial coordinator for October 15, 2021 for the criminal organization charges and for October 18, 2021 for the homicide, for the purpose of scheduling preliminary inquiries. The dates agreed upon at those conferences were put on the record during a court appearance on November 26, 2021 and January 4, 2022. The homicide preliminary inquiry was set for August 15 to 26, 2022. The criminal organization preliminary inquiry was set for January 9 to February 3, 2023.

[25] On May 19, 2022 wave 11 of the disclosure was provided to defence counsel.

[26] On August 15, 2022 Mr. Al-Ramahi’s preliminary inquiry on the homicide commenced before Colvin J. The Crown proceeded by filing a significant amount of material pursuant to s. 540 of the Criminal Code. A few witnesses were produced for cross-examination at the request of the defence. On August 26, 2022 Mr. Al-Ramahi was ordered to stand trial for first-degree murder. This was 652 days, or 21 months and 14 days, after his arrest.

[27] Mr. Al-Ramahi first appeared in the SCJ on the murder charge on September 16, 2022. On October 6, 2022 he had a JPT before Durno J. which was adjourned to the afternoon of October 11, 2022. He appeared before Durno J. for a continuing JPT in relation to the homicide on October 11, 18, and 19, 2022.

[28] A JPT for the criminal organization charges from Project Siphon was scheduled for the morning of October 11, 2022. This was hampered by the fact that both applicants were still awaiting their preliminary inquiry in the OCJ on the criminal organization charges. However, by October 11 some other accused with Project Siphon charges (Groups 4 and 5) were already in the SCJ. Durno J. was exploring having a common issues judge hear the pre-trial applications in both the homicide and the criminal organization cases at the same time. Counsel for the applicants participated in that continuing JPT in an effort to obtain trial dates in an efficient manner, although their criminal organization charges were still in the OCJ. However, the morning JPT for Project Siphon had to be a adjourned to October 18, 2022 as not everyone had been notified.

[29] On the afternoon of October 11, 2022 the JPT on the homicide led to a trial date of March 25, 2024 for five weeks being set for that case. However, it was understood that the common issues pretrial applications would have to be dealt with before the trial could go ahead. Those had not yet been set. The homicide JPT was to continue October 18, 2022 when the criminal organization JPT was also to be held.

[30] On October 18 both the homicide and the criminal organization cases were back before Durno J. A two-week Garofoli application challenging the wiretaps in both cases (R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421) could not be set until May 2023. It was set for nine days. The solicitor-client privilege application relating to both cases was set for August 28, 2023 for five days. The trial date for the homicide was then re-visited and moved up to January 8, 2024 for five weeks. However, on October 19, 2022 the homicide trial was moved back to March 25, 2024 as it turned out counsel was not available in January 2024. At a subsequent court appearance the homicide trial date was again changed back to January 8, 2024 due to circumstances I will get to.

[31] Turning to the criminal organization charges, on November 2, 2022 the applicants were advised that the Crown was preferring a direct indictment for Group 1 accused. On November 4, 2022 the applicants were remanded to appear in the SCJ on November 24, 2022 on those charges under the preferred indictment.

[32] On November 24, 2022 a JPT was held before Durno J. on the applicants’ criminal organization charges. A further JPT was held before Durno J. on January 10, 2023. Those efforts resulted in the applicants agreeing to re-elect judge alone for their criminal organization trial. On January 30, 2023 the applicants’ criminal organization trial was set for November 24, 2024 for four weeks on the understanding there would be a re-election from jury to judge alone.

[33] On February 27, 2023 wave 12 of disclosure was provided to defence counsel. Wave 13, the final wave of disclosure, was provided on May 12, 2023.

[34] The applicants’ Garofoli application proceeded from May 23 to May 30, 2023 before Tzimas J. in respect of both the homicide and the criminal organization charges. Judgment has been rendered in that application.

[35] On July 4, 2023 counsel advised the Crown for the first time of an intention to bring this s. 11(b) application. As a result, a further JPT was held before Durno J. on July 13, 2023. That JPT resulted in the homicide trial being moved forward to the January 8, 2024 date. The criminal organization trial was moved forward to March 24, 2024, into the spot that had been occupied by the homicide trial.

[36] The applicants’ solicitor-client privilege application proceeded before Rahman J. from August 28 to September 1, 2023. Judgment in that application remained under reserve when this application was heard. On December 15, 2023 Rahman J. has released a “bottom line” ruling, with detailed reasons to follow.

The Jordan Framework Applied

[37] In what follows, I will work through each step of the Jordan framework in respect of the homicide and in respect of the criminal organization charges. I will generally separate the analysis with respect to each Jordan component as it applies to the homicide and criminal organization charges. However, at times I will deal with the two cases together, as counsel did in their submissions. I will also analyse the s. 11(b) issue for each applicant individually, as required by R. v. Gopie, 2017 ONCA 728, 140 O.R.(3d) 171, at paras. 128-136.

Defence Delay

[38] Defence delay must be determined and deducted from the total delay in respect of each case. As mentioned, it is agreed that to the anticipated end of the scheduled trials the total delay will be 39 months for the homicide and 41 months and 8 days for the criminal organization charges.

[39] As explained in Jordan, at paras. 61-63, defence delay includes any waived delay and any other delay caused solely by the conduct of the defence. The latter includes acts which directly cause the delay, such as where the Court and the Crown are ready to proceed but the defence is not, and deliberate defence tactics calculated to delay the trial. No one suggests that any deliberate delaying tactics have been employed by the defence in either the homicide or criminal organization cases.

The Homicide

[40] There are no periods of waiver to be considered. The question of defence delay in respect of the homicide is centered on defence counsel’s availability for dates offered by the court for various steps in the proceeding. I will deal with the non-contentious periods first.

[41] On October 18, 2021, August 15 to 26, 2022 were selected as the dates for the preliminary inquiry during a virtual scheduling conference with the OCJ trial co-ordinator. The first dates offered were May 9 to May 20, 2022. The Crown was available, but defence counsel was not. The next dates offered commenced on June 13, 2022. Defence counsel was available, but the Crown was not. The period commencing August 15, 2022 was the first period when both Crown and defence counsel were available. The 35 days of delay between May 9 and June 13, 2022 was caused solely by the defence and must be deducted as defence delay: Jordan, at para. 64.

[42] There was a brief delay caused by the defence when scheduling the first JPT in the SCJ. On September 16, 2022 the court offered October 3, 2022. No transcript has been provided, but Mr. Bottomley concedes the defence is responsible for the three days of delay until the JPT was held on October 6, 2022.

[43] The more significant periods of delay, about which there is controversy, arise in relation to setting trial dates on the homicide. Sorting out the defence delay related to scheduling the homicide trial requires a more detailed examination of what took place on October 11, 18 and 19, 2022. I have already mentioned that there were continuing JPTs on those dates.

[44] This application originally proceeded on the understanding that the court reporting system had failed to capture what occurred on October 11, 2022 when the trial date was initially set. Therefore, no transcript was available when the application was heard. In their facta and their submissions counsel relied on their recollections and on any notes they had.

[45] Subsequently, I learned that the relevant portion of the proceedings on October 11, 2022 had been recorded on Durno J.’s court issued computer. The proceedings in question were all conducted virtually. During the COVID-19 pandemic protocols and in the recovery period thereafter it was not uncommon for judges conducting virtual proceedings to record the proceedings on their computers.

[46] I was able to obtain a transcript of October 11, 2022. I provided it to counsel together with an invitation to make further submissions. I have since received further written submissions which, together with the additional transcript, have assisted in calculating defence delay. However, this is a complicated matter for several reasons. First, it was sensible to have the Garofoli and other common issues applications heard together for both cases. However, that meant that the homicide trial could not take place until after those joint applications were heard and that the schedules of several counsel had to be coordinated. Second, when the dates for the common issues applications were set on October 18, 2022 the preliminary inquiry on the applicants’ criminal organization charges had not yet been held and it was unknown that the Crown would prefer a direct indictment. In addition, while Durno J. and counsel made efforts to put their availability on the record following their off-record pretrial discussions about scheduling, it is apparent in hindsight that not all the information needed to make precise calculations made its way onto the record.

[47] Mr. Bottomley submits that the defence delay associated with scheduling the homicide trial should be limited to a total of four months plus the 35 days delay related to scheduling the preliminary inquiry and three days delay in scheduling a JPT. This consists of two months from March to May 2023 when the court and the Crown were available for a Garofoli application, but he was not. A further two months relates to the period from September 11 to November 14, 2023. Counsel points to the last several pages of the transcript of the proceedings before Durno J. on October 18, 2022 to support his submission. Mr. Bottomley points out that on October 18, 2022 Durno J. offered trial dates in September 2023. Mr. Bottomley was not available because he had another trial starting on September 11, 2023. The record is silent on whether the Crown was available in September, but Mr. Bottomley’s submission that the defence is responsible for the delay commencing at that point assumes the Crown’s availability in September. Durno J. then offered November 2023 dates. As both Mr. Bottomley and the court were available to start the trial on November 14, 2023, but the Crown was not, Mr. Bottomley submits delay attributable solely to the defence stops there, although the trial was ultimately scheduled to commence on January 8, 2024. That was the first date offered on which both Crown and defence counsel were available.

[48] The respondent submits that having regard to what happened on October 11, 2022 the defence is responsible for a delay from March 20, 2023 until the anticipated end of the trial on February 9, 2024 as now scheduled. This is a delay of 327 days. The respondent further submits that when the defence delay in relation to scheduling the preliminary inquiry and JPT are added in, the total defence delay is 364 days, which brings the total delay of 1184 days (the number calculated by the respondent) down to a net delay of 820 days or 27 months, which is below the Jordan ceiling.

[49] On October 11, 2022 Durno J. set the homicide for trial for the first time. Mr. Bottomley’s colleague, Ms. VanderHeyden, appeared for Mr. Al-Ramahi on that date. Justice Durno offered numerous dates prior to the September 2022 date fixed upon by Mr. Bottomley as the starting point for delay as revealed by the October 18, 2022 transcript. On October 11, Durno J. offered March 20, April 3, 11, 17, May 15, 23, 29 and June 5, 2023 as available start dates for a five-week trial. The Crown indicated it was available on all those dates. However, defence counsel was not available on any of them. After the June 5, 2023 date was offered by Durno J., Ms. VanderHeyden said that Mr. Bottomley’s schedule was “jam packed” until October 2023. Durno J. then began to offer dates in October 2023, although he indicated other dates were available in the interim.

[50] Based on what Ms. VanderHeyden said, Durno J. did not offer September 2023 dates on October 11, 2022. However, I also observe that the November 14, 2023 start date offered on October 18, 2022 was not offered on October 11, 2022. On October 11, 2022 Ms. VanderHeyden also indicated that January 2024 was not available and the trial was ultimately set to commence on March 25, 2024.

[51] Given what occurred on October 11, 2023, it is clear that the court and the Crown were available for many dates starting on March 20, 2023 but that the defence was not available on any of them. In these circumstances the respondent submits that the period of defence delay commences on March 20, 2023 and continues to the end of the trial, the start date for which was, in the end, set for January 8, 2024 for five weeks.

[52] The difficulty with the Crown’s responding submission is that it fails to consider that the homicide trial could not be scheduled until after the common issues applications were completed. Those applications were not addressed on October 11 but on October 18, 2022. On October 18 it was determined that the Garofoli application could not be held until May 23, 2023 and that the solicitor-client privilege motion would commence on August 28, 2023. On October 18 Durno J. said that he had hoped to do those applications in January, February or March of 2023. He said that would not work, however, because he had learned that a required witness was not available until February 2023 and that Mr. Bottomley was not available for the Garofoli application until May 2023. When Durno J. started to offer dates, he was reminded that the solicitor-client application would not be heard until August 2023. Therefore, Durno J. began offering dates in September 2023 as the first dates the court had available after the completion of the pre-trial applications. In these circumstances I do not agree that the calculation of defence delay starts back on March 20, 2023, which was some five months before the pretrial applications were scheduled when the parties returned before Dunro J. on October 18, 2022.

[53] Before moving on I would note that although on October 18, 2022 Durno J. referred to the solicitor-client privilege motion as relating just to Mr. Al-Ramahi, I understand that both applicants participated in the application that was eventually argued.

[54] I accept Mr. Bottomley’s submission that the calculation of defence delay starts on September 11, 2023 when the court offered September dates and the defence was unavailable. That was the first available date for a five-week trial after completion of the pre-trial applications. It is not entirely clear from the transcripts that the Crown was available in September 2023 but a concession to that effect is inherent in Mr. Bottomley’s submission. The October 18, 2022 transcript reveals that both the Court and the defence were available for trial commencing November 14, 2023 but the Crown was not. From that point on the defence was not solely responsible for the delay in trial scheduling and so I would end this period of delay there.

[55] Mr. Bottomley also concedes that his unavailability caused a two-month delay in scheduling the Garofoli application. There is support for that, although less than completely clear, in the October 18, 2022 transcript. I also observe that the transcripts do not assist me in understanding why the solicitor-client privilege application could not be heard until August 2023, and no one has addressed any submissions regarding defence delay to the scheduling of that application. It seems reasonable to infer that the two-month delay in the scheduling of the Garofoli application impacted subsequent scheduling in a manner which increased the overall delay because it took available time out of counsel’s schedule, which would impact counsel’s availability for the solicitor-client privilege application, which led to trial dates being offered in September, although it was clear the court had several earlier dates available. In addition, counsel concedes his two months of unavailability in relation to the Garofoli application should be included in defence delay.

[56] When the four months of defence delay is added to the 35 days delay related to setting the preliminary inquiry and the three days delay related to the JPT, the defence delay totals 160 days. Subtracting this from the total delay, which I calculate as 1,186 days using a factor of 30.417 days per month, leaves a net delay of 1,026 days or 33 months and 21 days. As this exceeds the 30-month Jordan ceiling, the onus is on the Crown to demonstrate exceptional circumstances.

[57] Before leaving the defence delay for the homicide, I wish to make the following observation. Counsel for Mr. Al-Ramahi devoted considerable space in his factum to the various problems associated with disclosure being repeatedly recalled and to pointing out that the ITOs, which were central to the case proceeding, were not disclosed until June 24, 2021. Counsel submitted that these disclosure problems would render any submission that there was defence delay in respect of either the homicide or the criminal organization cases during the early stages of the prosecution nugatory. As it is not suggested that any defence delay occurred in the earlier stages of the prosecution there is no need to address these submissions in respect of the homicide.

The Criminal Organization Charges

[58] On November 1, 2022 the Crown advised counsel for the applicants that a direct indictment was being preferred. This was two months before the scheduled preliminary inquiry and just under the two-year mark in the prosecution.

[59] On November 4, 2022 the applicants appeared in the OCJ and were remanded to appear in the SCJ on November 24, 2022 on the preferred indictment. On that day they appeared before Durno J. After a further appearance on December 21, they were remanded to January 10, 2023 for a JPT. That led to a plan to re-elect trial by judge alone which would shorten the trial to four weeks. The JPT was adjourned to January 25, 2023 to explore that plan further. The defence waived s. 11(b) for that 15-day period. On January 25, the case was adjourned to January 30, 2023 to set a date for a trial.

[60] On January 30, 2023 Durno J. offered October 2023 as available for a four-week trial. Crown counsel was available but neither of the applicants were available. Mr. Bottomley was available in December 2023, but Mr. Lafontaine, representing Mr. Paul, was not available until March of 2024. However, Mr. Al-Ramahi’s homicide trial was set for March 25, 2024, so neither he nor the Crown were available.

[61] The court next offered May 13, 2024. The Crown was available but Mr. Bottomley was not. Mr. Lafontaine’s availability for that date was not canvassed, but I observe counsel appearing on his behalf that day did not signal availability.

[62] The next dates canvassed were in November and December of 2024. All parties were available and the trial was set for November 25, 2024 for four weeks. The trial was later moved up to March 25, 2024 at the July 13, 2023 JPT held after the applicants announced on July 4, 2023 that they were bringing a s. 11(b) application.

[63] In determining whether any defence caused delay is attributable to the applicants, the starting point must be an individualized approach: Gopie, at paras. 128-136. In Gopie at para. 136, Gillese J.A. for the majority, summed up her analysis on this point as follows:

In my view, attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded jointly against multiple accused is irrelevant to the s. 11(b) assessment under Jordan. As I discuss below, delays arising in the case of jointly-charged accused can give rise to exceptional circumstances under the Jordan framework.

At para. 142 Gillese J.A. added, “…provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly-charged accused are considered under the exceptional circumstances analysis in Jordan.”

[64] In a separate concurring opinion, Brown J.A. agreed with the majority’s conclusions but contended, at para. 193, that considerations of delay caused by the actions of a co-accused are best handled under the defence-caused delay part of the Jordan framework.

[65] Subsequent cases from the Court of Appeal show that both approaches have been followed, depending upon the nature of the initial cause of the delay in a joint trial. For example, in R. v. Tran, 2023 ONCA 532, 429 C.C.C. (3d) 55, Paciocco J.A. was considering a case where the reason for the delay of an already scheduled trial was that the appellant’s two co-accused each changed counsel after the trial date had been set. That necessitated a rescheduling of the trial. Although new counsel for the co-accused had dates available within the Jordan allowable period, Mr. Tran’s counsel did not, and the new trial was scheduled just beyond the presumptive Jordan date. Paciocco J.A. cited the majority judgment in Gopie and analysed the situation as an exceptional circumstance. At para. 40 he pointed out:

[T]o rely upon exceptional circumstances to excuse delay that has been caused as the result of the prosecution of a joint trial, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay. [Emphasis in original.]

[66] Paciocco J.A. found that the prerequisites for exceptional circumstances had been met in that case because the Crown established that a joint trial was in the interests of justice, the change of counsel by Mr. Tran’s co-accused was outside the Crown’s control, and that the rescheduling delay was not reasonably avoidable in the circumstances.

[67] A case where scheduling delays were considered under the rubric of defence delay is R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190. That appeal involved a controversy about specific periods of delay which the Crown sought to characterize as defence-caused delay because they arose from the inability to co-ordinate the schedules of three defence counsel (see para. 7). That is the situation in the present case, where the delay in selecting a trial date in the criminal organization case flowed from difficulties coordinating counsels’ schedules and not from some discrete event, such as a change in counsel or a specific action or inaction by a co-accused.

[68] In Albinowski, at paras. 8-18, the court reviewed the scheduling difficulties in that case. They read very much like the scheduling difficulties related to the criminal organization charges in this case. At paras. 36-37 Roberts J.A. wrote:

[36] How then is delay to be assessed in this joint trial? The trial judge did not have the benefit of this court’s decision in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, which sets out an analytical framework for the assessment of delay in joint trials with multiple accused. Gopie instructs that “an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused”: Gopie, at para. 128. This approach avoids “attributing to an accused the delay caused by the actions or inactions of a co-accused [which] is inconsistent with the approach and language of Jordan”: Gopie, at para. 136.

[37] In my view, however, the individualized approach in Gopie does not apply in this case because the delay was common to all respondents who proceeded as a collective in this joint trial. Here, the actions or inactions of a co-accused did not cause the delay. Rather, the delay at issue was entirely due to scheduling challenges, which arose directly and inevitably from the respondents’ joint situation.

[69] Roberts J.A. went on, at para. 39, to point out that it was accepted in that case that joint proceedings were justified. The parties in that case accepted that severance was never an option. Counsel in the present case do not go quite so far but acknowledge that obtaining severance in this case would pose an onerous burden for the applicants to meet. In my view, on its face this is clearly a proper case for a joint prosecution. A joint prosecution is far more economical in terms of time and the expenditure of scarce judicial resources and minimizes the risk of inconsistent verdicts: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, 247 C.C.C. (3d) 449.

[70] As Paciocco J.A. did in Tran, at para. 44, Roberts J.A. in Albinowski pointed out that a time may come when the interests of justice are no longer served by joint proceedings because the accused’s s. 11(b) rights are in jeopardy. In both cases it was held that that time had not arrived. I will deal with such considerations in the case before me momentarily. Before doing so I note that, in Albinowski, the delay due to difficulties co-ordinating the schedules of defence counsel was ultimately attributed to all three accused as defence delay. I also observe that the same approach was taken in R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, at paras. 194-195 and in R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491.

[71] The applicants have approached their submissions regarding defence delay on an individualized basis, although each acknowledges that they are responsible for 15 days of delay based on waiver.

[72] Beyond that, Mr. Bottomley on behalf of Mr. Al-Ramahi, submits that he is responsible for only four months of delay: two months due to his unavailability when scheduling the Garofoli application and two months in relation to setting the trial date. The period identified in relation to setting the trial date is between the October 2023 trial date offered on January 30, 2023 and his first availability for trial in December 2023. Counsel submits it would be unfair to attribute the entire delay from October 2023 to the trial date to Mr. Al-Ramahi.

[73] On behalf of Mr. Paul, Mr. Lafontaine submits that, given Mr. Bottomley’s availability for a four-week trial in December 2023, which he anticipates would have taken until December 29, the defence delay attributable to Mr. Paul should be limited to the 112-day period from December 29, 2023 to the end of the March 25, 2024 trial, anticipated to be on April 19, 2024. I would point out that Mr. Paul should not be responsible for delay to the end of the trial but rather to its beginning, as the time the trial takes to complete is part of the delay included in the Jordan ceiling.

[74] Crown counsel submits that the period from October 1, 2023 to the start of the moved up trial on March 25, 2024 should be attributed to each of the accused as defence caused delay. Crown counsel submits that it is apparent from an overview of the proceedings that the applicants have been acting as a “collective”, that the reason for the delay relates to their schedules and, therefore, it should be attributed to both applicants. Alternatively, the Crown submits that the scheduling difficulties that emerged due to the busy schedules of counsel are attributable to the complexity of the case, which is a proper case for joint prosecution. The Crown notes that no severance application has been made and that no mention was made of s. 11(b) at the time the trial dates were set.

[75] When I look at the delays in setting the trial dates for the criminal organization case, it appears that it was all related to trying to match up openings in the schedules of busy counsel. There are no circumstances relevant to scheduling the trial dates which are otherwise attributable to actions or inaction by one counsel or applicant as opposed to the other, which triggered this period of delay. Delay was not caused by one applicant bringing an application or doing or failing to do something that delayed the setting of the trial date.

[76] I have reached the conclusion that the approach reflected in Albinowski is the appropriate one here for several reasons. First, when the proceedings are looked at in overview it seems to me that the applicants were acting together. There were common issues in this case, particularly related to the validity of the authorizations to intercept private communications, that needed to be litigated. Both applicants also participated together in the solicitor-client privilege application and in this s. 11(b) application. It is apparent that the applicants approached these applications collectively. Mr. Bottomley took the lead on this application. Mr. Lafontaine adopted Mr. Bottomley’s submissions, adding only a few specific additional submissions. I understand the same approach was taken on the solicitor-client privilege application. Both applicants had a substantial common interest in the Garofoli application. This is like what occurred in Albinowski where Roberts J.A. treated such circumstances as an indication that the accused in that case were acting as a collective.

[77] There is another consideration in the present case, which impacts the analysis in more than one way. On January 30, 2023 when trial dates were being canvassed, counsel were having difficulty co-ordinating their schedules. Even though this resulted in the trial being set to commence on November 25, 2024, well beyond the presumptive Jordan ceiling, neither of the applicants raised s. 11(b) concerns at that time. Jordan and subsequent cases emphasize that all participants in the criminal justice system must take proactive measures at all stages of the proceedings to ensure that trials occur within a reasonable time. The Jordan framework aims to make all parties more accountable and proactive. See Jordan, at paras. 137-139; R. v. J.F., 2022 SCC 17, [2022] S.C.J. No. 17, at paras. 30-31. In a case like this one, which on its face clearly warranted a joint trial, this lack of objection post-Jordan is a strong indicator that each of the applicants had decided or accepted to proceed as a collective.

[78] The lack of a severance application is a further indication that the applicants were content to proceed together. The applicants point out that severance would be difficult for them to obtain, and they rely on R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 5, where Moldaver J. wrote:

In this case, the Crown chose to prosecute all seven accused jointly, as it was entitled to do. But having done so, it was required to remain vigilant that its decision not compromise the s. 11(b) rights of the accused persons [Citations omitted.]

Mr. Bottomley submits that this was a situation in which the Crown should have severed the applicants to ensure that the applicants had a trial within a reasonable time.

[79] This submission would have more force if the applicants had raised s. 11(b) concerns at the time the trial date was set. However, in the face of acceptance of a trial date significantly beyond the presumptive ceiling in a relatively complex case where a joint trial was desirable, Crown counsel were entitled to factor the lack of any defence objection into their assessment of the situation regarding s. 11(b). While, as counsel for the applicants submit, s. 11(b) is always in issue, it is equally true, as the Crown submits, that s. 11(b) applications are not made in every case where a trial date is set beyond the presumptive ceiling. By the time the applicants announced on July 4, 2023 that they were bringing a s. 11(b) application it was more difficult for the Crown and the court to take preventive or remedial steps. Certainly, by that time severance by the Crown would have been of little to no assistance.

[80] I conclude that the applicants were acting collectively on January 30, 2023 when the trial date was set for November 25, 2024. That trial date was later moved up to March 25, 2024. I conclude that the delay from October 2, 2023 (the first court day in October that year) to March 25, 2024 is attributable to the applicants as defence delay. This is a period of 175 days. To that, 15 days of waived delay must be added for each applicant, for a total of 190 days or 6 months and 8 days. Deducting that from the total delay of 41 months and eight days leaves a net delay of 35 months for each of the applicants.

[81] As the net delay remains over the presumptive Jordan ceiling of 30 months, the proceedings must be stayed unless the Crown discharges its onus of establishing exceptional circumstances justifying the delay: Jordan, at paras. 68.

[82] I have not dealt with the Crown’s alternative submission that, if this period should have been analysed under the rubric of exceptional circumstances because the delay arises from the joint nature of the charges, it is nonetheless justifiable due to the complexity of the case. I will consider that submission below when I deal with complexity generally.

Exceptional Circumstances

[83] Exceptional circumstances are those (1) which are reasonably unforeseen or reasonably unavoidable, and (2) the delays from which cannot reasonably be remedied: Jordan, at para. 69.

[84] It is not enough for the Crown to respond after the 30-month ceiling is breached. The Crown “must show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling” (emphasis in original): Jordan, at para. 70. While the list of what may constitute an exceptional circumstance is not closed, “in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases”: Jordan, at para. 71.

[85] The respondent submits that it has established exceptional circumstances in relation to both the homicide and the criminal organization charges on two bases. First, the respondent submits that the COVID-19 pandemic constitutes a discrete event which caused delay in this case and that some deduction must be made to take that into account. Second, the respondent submits that the prosecutions arising from Project Siphon are complex to a degree that renders the delay reasonable for both the homicide and the criminal organization prosecutions.

[86] With respect to the COVID-19 pandemic, the applicants acknowledge that where it is shown to have contributed to delay, its impact should be quantified and deducted from the net delay as a discrete exceptional circumstance. However, the applicants submit that there is no evidentiary basis to support a conclusion that the pandemic caused any delay in these cases.

[87] Regarding complexity, Mr. Bottomley submits on behalf of Mr. Al-Ramahi, that the homicide case is not complex at all. The applicants acknowledge that there is some complexity to the criminal organization case but submit that it does not rise to the level suggested by the respondent and cannot justify the delay. The applicants further submit that the respondent has failed to show that it developed and followed a concrete plan to diminish the delay resulting from the complexity of the prosecution and, therefore, cannot rely on complexity to justify the delay.

The Pandemic as a Discrete Event Exceptional Circumstance

[88] The starting point for a consideration of this issue in Ontario is R. v. Agpoon, 2023 ONCA 449, 427 C.C.C. (3d) 417. The court noted, at para. 1, that one of the purposes of its judgment was to provide trial courts with general guidance concerning how to approach questions of delay caused by the pandemic. At para. 19, the court held that the pandemic is to be treated as a discrete exceptional circumstance under the Jordan framework. At para. 22, the court discouraged “complicated micro-counting” and emphasized that courts should not parse days and months but should step back and take a “bird’s-eye view” of the proceedings, citing Jordan, at para. 91. The court emphasized that there is virtue in having a simple test. At para. 26 the court, citing Jordan, stressed the importance of the “local perspective” and held that judges should rely upon the knowledge they have of their own jurisdiction concerning how long it normally takes to get a case to trial.

[89] In Agpoon, the court was dealing with a Crown appeal where the three respondents had been granted a s. 11(b) stay at trial. In that case, unlike this one, the charges were laid prior to the commencement of the pandemic. All three of the respondents in Agpoon were fully impacted by the court system’s response to the pandemic. They were already in the system when the courts closed in March 2020 and their cases were impacted by the jury “blackout periods” in the Superior Court, as discussed in Agpoon.

[90] In those circumstances the court had no difficulty concluding that the entire 14-month period, from the closure of the courts on March 17, 2020 to the preferral of a direct indictment in that case on May 19, 2021, should be deducted from the total delay. It is not clear to me why the preferral of the direct indictment on May 19, 2021 was chosen as the end date of the delay, as the court’s reasons recount that the province-wide jury blackout continued until it was lifted in phases between July to September 2021 (para. 29). At para. 33 the court said: “Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes.”

[91] In the cases I am dealing with the charges were not laid until November 12, 2020. By then the courts were open but had adopted new procedures, such as the greatly increased use of remote video and/or audio appearances. By the time the applicants’ cases arrived in the SCJ in September and in November 2022 jury trials had been resumed six and eight months before, respectively. The applicants point to these circumstances and submit that the pandemic has not been shown to have caused any delay in these cases.

[92] The respondent points out that in Agpoon the court described the pandemic as creating systemic problems. The respondent submits that this systemic problem must be reflected in the s. 11(b) analysis, given that these cases were proceeding through the court system during the pandemic and the system’s recovery from it. The respondent submits that even where the effects of the pandemic cannot be demonstrated for a specific case, courts have taken judicial notice of the effects of the pandemic on the scheduling of all matters.

[93] The respondent acknowledges that it is difficult to put a number to the pandemic delay in this case but submits that I should do so. When I pressed the respondent for a quantification of the delay, I did not receive one. However, the respondent referred me to cases where other courts have recognized the difficulty but nonetheless assigned a number to the delay. I will refer to two of the several cases cited by the respondent.

[94] In R. v. Pessoa-Whittaker, [2023] Brampton, OCJ 19-38210 (unreported), Jaffe J. made the following comments:

[41] I have no difficulty in concluding that the cancellation of all trials and preliminary hearings for almost four months at the outset of the pandemic and for a further month in the Spring of 2021 has created a backlog. Hundreds of trials and preliminary hearings had to be rescheduled on a priority basis over all the matters that had yet to be scheduled. With no increase in the complement of judges and courtrooms, a significant and unprecedented backlog was the inevitable outcome.

[47] When this matter entered the system, no one could have predicted the looming pandemic and the world-wide impact it would have on all aspects of society. By the time the trial date was scheduled on May 3, 2022, trials and preliminary hearings were in full swing and by all outward appearances, things had returned to normal. However, behind that curtain of apparent normality, the system was still labouring under the weight of a significant backlog which was caused by the COVID-19 pandemic. Calculating the delay caused by the backlog does not lend itself to precise measure, however, in recognition of the ripple effect of the court closures and the need to accommodate, on a priority basis, many of the proceedings that had been cancelled, I am deducting four months from the total delay. This time roughly corresponds to the time period during which trial and preliminary hearings were cancelled. [Footnotes omitted.]

It seems to me that Jaffe J.’s approach is consistent with the pronouncements in Agpoon that courts should take a birds-eye view and apply local knowledge.

[95] In R. v. White, 2023 ONSC 7, [2023] O.J. No. 877, Nakatsura J. dealt with a case like this one in the sense that it came into the system over a year after the pandemic was declared. In White, as in these cases, the applicants submitted that the pandemic had nothing to do with the delay, pointing to a lack of Crown evidence connecting the delay to the pandemic.

[96] At paras. 21-28 of his reasons, Nakatsura J. agreed that a connection between delay and the pandemic must be shown but disagreed that evidence was required, citing several authorities in support. He started by taking notice of the fact that court shutdowns and the other measures courts took to respond to the pandemic created a backlog of cases to be dealt with. He relied upon his knowledge of the court system in the region where he customarily presides and considered five factors which he found helpful to resolve the issue. Those were (1) the backlog and state of affairs at the courthouse in question, (2) whether the trial was by jury or judge alone, (3) the length of the trial, (4) when the trial date was set in relation to the onset of the pandemic, and (5) the length of time before the court could accommodate the trial. These factors reflect that in a jurisdiction with a significant backlog, longer cases, particularly jury trials, are more likely to be impacted by the ripple effects of the pandemic than shorter judge alone trials being scheduled in a jurisdiction with a smaller backlog. They also reflect that the ripple effect will likely diminish the further out from the beginning of the pandemic the trial date is being set.

[97] It seems to me that this approach is again consistent with the subsequent pronouncement in Agpoon that judges evaluating the impact of the pandemic as a discrete exceptional circumstance should take a birds-eye view and apply their knowledge of local conditions to determine the impact of the pandemic on delay.

[98] Adopting this approach, it appears to me that the pandemic had little to no impact on these cases once the applicants arrived in the SCJ, but that it did have some impact at the early stages of the proceedings when the cases were in the OCJ. I will elaborate.

[99] The trial date in the homicide was initially selected on October 11, 2022 by Durno J. As reviewed above in connection with defence delay, the court could have accommodated a five-week jury trial just five months later, in March 2023, but defence counsel was not available. In my experience, this is similar to or better than pre-pandemic conditions. The SCJ in Brampton, serving the Region of Peel, was diligent and resourceful in managing and processing cases during the pandemic and in managing the potential backlog. A large convention centre was used to conduct jury selections as soon as that was permissible and multiple jury trials resumed at the earliest opportunity. In addition, many more cases than normal, resolved. We also experienced an unwillingness or reluctance on the part of some litigants to resume trials due to lingering concerns they had were related to the pandemic, which led to more trial dates being available than would usually be the case. However, there were also countervailing factors. For a significant period, two courtrooms were required for each jury trial, with one courtroom used as a jury room large enough for jurors to socially distance. In any event, the fact that the court was able to offer several trial dates for which the defence was not available shows that no delay was caused in the homicide in the SCJ due to the backlog or the ripple effect from the pandemic.

[100] The same analysis applies concerning the progress of the criminal organization charges. When the applicants appeared on January 30, 2023 to set their trial date, a four week judge alone trial could be accommodated by October 23, 2023. In my experience, while this is getting to the longer end of the period in which a judge alone trial for four-weeks could be set before the pandemic, it is within the pre-pandemic range. I cannot infer that there was any delay associated with the pandemic in the SCJ in connection with the criminal organization charges. In addition, as already canvassed, it was the inability to coordinate the schedules of counsel which resulted in the trial date being set long after the first dates when the court could have accommodated the trial.

[101] I reach a different conclusion regarding delay when the applicants were in the OCJ. The early stages of this case in the OCJ were much closer to the shutdown of the courts. The OCJ in Peel Region is a very busy court with a large catchment area, bearing initial responsibility for all criminal matters in Mississauga and Brampton. Therefore, the single Brampton location of the court is responsible for a population of approximately 1.5 million people. It is an exceptionally busy court location. Complete closure for two periods during the pandemic, followed by gradual reopening at reduced capacity and while observing various COVID-19 public health restrictions undoubtedly led to the accumulation of a large backlog of cases which has been taking a significant time to clear.

[102] I take notice of the fact that several judges of the OCJ who sit regularly in Brampton have written about the pandemic response in the OCJ in Brampton, the effect it had, and the resulting backlog of cases: R. v. Pessoa-Whittaker, supra, per Jaffe J.; R. v. Toor, 2022 ONCJ 8, per Caponecchia J.; R. v. Dhillon, 2023 ONCJ 101, per P. F. Monahan J. As judges of the OCJ sitting in Brampton, the insight of these jurists is instructive regarding the ongoing impact the pandemic had in this region after the courts reopened.

[103] I also have some case specific evidence which bears on this point. The respondent provided an affidavit from Det. Brian Lorette of the Peel Regional Police. Det. Lorette is the affiant of the ITOs for the wiretap authorizations in this case. He describes how an unsealing order was obtained for the wiretap applications on December 9, 2020 so that they could be vetted for disclosure to the Project Siphon accused. He recounts that there were 36 confidential human sources (CHS) in total for the two applications. Thirty-five of the CHS had police handlers. He explains how the public health restrictions surrounding COVID-19 complicated and prolonged the vetting process. To protect confidentiality, in-person meetings had to be arranged with each police handler for a line-by-line review of an extensive quantity of materials so that sensitive identifying material could be redacted prior to disclosure.

[104] Det. Lorette explained that the vetting process took from December 9, 2020 to April 22, 2021. The process was made more difficult as it was subject to applicable pandemic restrictions and limitations. A large boardroom was required to accommodate three or more persons while observing social distancing requirements. This led to such meetings being conducted on weekends, presumably when the boardroom was available.

[105] Quite apart from Det. Lorette’s affidavit evidence, it seems to me to be obvious that the changes those of us working in the criminal justice system went through over the course of the pandemic are well known and inevitably caused a measure of delay in processing cases. For example, technological means of conducting all manner of court proceedings, and related matters, such as bail hearings, meetings between Crown and defence counsel, conferences with trial coordinators and judicial pre-trials, were adopted. There was a learning curve for all, which was sometimes steep. The technology often did not work well in the beginning or participants did not know how to use it. The technology employed also changed repeatedly over relatively short periods of time, requiring constant retraining. These things allowed the system to keep functioning, but they initially slowed the system down. That changed over time as judges, lawyers, court staff and jailers added technology and learned how to use it. But for a significant period many steps in the processing of criminal cases, both in and out of court hearings, became more time consuming and laborious.

[106] In her reasons in Dhillon, at para. 35, Caponecchia J. helpfully describes how some of the important out of court functions of the OCJ which have an impact on the speed at which cases proceed in that court, were negatively impacted by public health and other responses to the pandemic. For example, Her Honour describes how prior to the pandemic shutdown defence counsel could have a resolution meeting in person on the same day the case was in court. That changed because social distancing rules made it necessary to book a virtual meeting. Prior to the pandemic a request for a JPT could be made and a JPT scheduled the same day as the resolution meeting with the Crown by attending in person at the trial coordinator’s office. Social distancing rules led to a requirement to send a request to the trial coordinator’s office by email and then waiting for a response. Prior to the pandemic, following a JPT, a trial date could be set by attending in person at the trial coordinator’s office. That changed to sending an emailed request to schedule a virtual appointment with the trial coordinator. As Caponecchia J. is a judge of the OCJ sitting primarily in Brampton and before that was an Assistant Crown Attorney in this jurisdiction, I regard her comments as authoritative when she describes such changes in procedure in the OCJ due to the pandemic.

[107] I observe that the preliminary inquiry dates were determined at conferences with the OCJ trial coordinator on October 15 and October 18, 2021 for the criminal organization and homicide trials respectively. The criminal organization case was set for a four-week preliminary inquiry 15 months later, commencing on January 9, 2023. However, the court had a four-week time slot available starting a month earlier, on December 6, 2022. While 14 months is a long time to wait for a preliminary inquiry, because four weeks was required, this does not seem to me to be markedly longer than it would have taken in this jurisdiction pre-pandemic. That said, I do not feel my local knowledge on this point is strong, as my daily experience is in the SCJ. I also observe that the respondent bears the burden on this issue and has put nothing else forward to assist me. I conclude I am in no position to find that the pandemic backlog is specifically responsible for any delay in setting a preliminary inquiry date for the criminal organization charges.

[108] The homicide preliminary inquiry, which was set for only two weeks, could have been set as early as May 9, 2022 had defence counsel been available. That does not seem to be out of the ordinary and I am not able to conclude that the pandemic backlog or ripple effect caused any delay in setting a preliminary inquiry date for the homicide.

[109] However, I am of the view that the pandemic undoubtedly caused some delay in the early stages of the proceedings in the OCJ. Based on Det. Lorette’s uncontradicted evidence I find that the pandemic protocols slowed disclosure of the wiretap ITOs, which are centrally important to this case. It stands to reason, and I find on a balance of probabilities, that the institution of pandemic protocols and the general disruption of the criminal justice system and of the OCJ, caused some delays. It was simply more difficult and time consuming to get things done. Circumstances evolved and everyone did their best to adjust to new ways of doing things.

[110] The more difficult problem arises in assigning a quantitative value to this delay. Agpoon directs that judges avoid micro-counting or parsing days or months. The implicit message is to recognize that the pandemic created systemic problems that caused delay. I agree with Nakatsura J. in White, at para. 35, that a “fair and reasonable amount should be deducted to account for the effects of the pandemic”. This is also the approach Jaffe J. took in Pessoa-Whittaker. As Nakatsura J. noted in White, at para. 35, this was the approach taken by Moldaver J. in determining an amount for defence delay in R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 96.

[111] As in cases where apportionment of defence delay is in issue, it seems to me that all relevant circumstances should be considered: R. v. Hanan, 2023 SCC 12, [2023] S.C.J. No. 101, at para. 9. I observe that in Hanan the court concluded that, in all the circumstances it would be “unfair and unreasonable” not to apportion a particular period of the delay in that case (para. 9). This is just another way of saying that a standard of fairness and reasonableness must be applied when assigning what would otherwise appear to be an arbitrary assessment of time periods when a court is required to determine a time period for the purpose of a s. 11(b) analysis.

[112] Taking this approach, I conclude that two months should be deducted as a discrete exceptional circumstance. Had I been persuaded that the dates for the preliminary inquiry had been delayed due to the pandemic, I would have assessed a longer period, likely four months, as determined by Jaffe J. in Pessoa-Whittaker. However, in all the circumstances here I only see the early stages of this case being impacted. At the early stages disclosure was being made and digested and the parties were communicating and working towards JPTs and setting preliminary inquiry dates. I see the delays attributable to the pandemic as accruing incrementally due to the added restrictions and new procedures that undoubtedly caused some delay in the progress of the case.

[113] This brings the resulting delay down to 31 months and 21 days in the homicide case and 33 months in the criminal organization case, both still over the presumptive ceiling.

Complexity

[114] The respondent submits that both the homicide and criminal organization charges arising out of Project Siphon are the kind of particularly complex cases which the Jordan court contemplated would require time above the presumptive ceiling: Jordan at para. 80. The applicants disagree, for various reasons which I will address. The parties’ submissions are focused on both the issue of complexity and on the related issue of whether the Crown developed and instituted a concrete plan to minimize delay due to complexity, a prerequisite to relying on the complex case exception: Jordan, at para. 79.

[115] As held in Jordan, at para. 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[116] The applicants submit that only one of the several indicators of a complex case listed in the above quotation is truly present in this case: voluminous disclosure. They submit the time frame is not particularly long. The longest time span, which applies in many of the criminal organization charges, is between April 6, 2020 and November 12, 2020. For several of the charges it is between August 15, 2020 and November 12, 2020. For three of the charges it is the specific date of November 12, 2020. For the homicide the relevant period is about one week surrounding a shooting on August 3, 2020. The applicants submit these are not lengthy periods of time.

[117] Mr. Bottomley submits that there are likely to be no more than five Crown witnesses in the homicide case. Although the preliminary inquiry for the homicide was set for two weeks, counsel points out that it was completed in significantly less time.

[118] The applicants submit that neither the homicide nor the criminal organization case involves many pre-trial applications. Counsel do concede there is some complexity to the solicitor-client privilege application.

[119] In terms of expert witnesses, only a pathologist and perhaps a coded language expert will be required on the homicide. While some expert evidence will be called on the criminal organization charges, including a coded language expert, the case is not anticipated to involve duelling experts.

[120] In summary, Mr. Bottomley submits the homicide trial will be routine, although a week-long discreditable conduct motion will be required at the beginning of the trial. He points to Jordan, at para. 78, where the majority indicated that a typical murder trial will not be complex. While some complexity is acknowledged regarding the criminal organization case, the applicants submit it is not sufficient to justify remaining delay.

[121] I will begin my analysis with the criminal organization charges. When I look at the entire course of the prosecution from the initial arrests to the anticipated conclusion of the trial, I am satisfied the case is particularly complex for several reasons. As the respondent submits, the case must be considered as a whole. The court must avoid focusing only on the trial at the end of the process after steps have been taken to resolve issues and focus the prosecution: R. v. Picard, 2017 ONCA 692, at paras. 62-64; R. v. Lopez-Restrepo, 2018 ONCA 887, at paras. 33-40.

[122] While the resulting charges cover a time frame of just over seven months from April 6 to November 12, 2020 the investigation spanned 15 months. This is a significant period, particularly when the number of targets, 97 by the time of the second wiretap authorization, and the nature of the multiple charges being investigated is considered.

[123] The investigation also generated a large amount of evidence. Based on the evidence presented on this application, I am satisfied that this was, in several respects, the largest wiretap investigation undertaken by the Peel Regional Police up to that point in time. Over four million sessions of intercepted communications and data were collected. Over 80 people were eventually charged. Over 30 search warrants were executed on the takedown day. Disclosure consists of 486 gigabytes of material plus 2.4 terabytes of surveillance video.

[124] Disclosure, including in relationship to the wiretaps, was complicated by the fact that there were 36 confidential informants whose identities had to be protected. This made the vetting procedure for disclosure difficult, particularly while following public health protocols during the pandemic. Those involved in that vetting process had to guard against disclosure of informant identity by way of the “mosaic effect”. That was made more difficult by the extensive nature of the investigation, the interrelated nature of the charges and the various accused and by the large number of confidential informants.

[125] The ITOs used to obtain the wiretap authorizations are also voluminous, totalling over 1,000 pages. There are also over 100 ITOs for other judicially authorized searches.

[126] In my view, there is also complexity in relation to the pre-trial applications, although they were fewer in number than in some other large prosecutions. The Garofoli application and the solicitor-client privilege application each took multiple days to complete, leading to reserved judgments. The solicitor-client privilege issue required involvement by the SCJ even before the applicants were otherwise before this court. The solicitor-client privilege concerns led to the appointment of an independent counsel who reviewed the intercepted private communications for solicitor-client issues and prepared a report for the court. This is an indication of complexity not usually found in a case. I will deal below with the applicants’ submission that the solicitor-client privilege issues are emblematic of the failure of the Crown to have a concrete plan to deal with complexity.

[127] The number and variety of the charges on the criminal organization indictment and the joint nature of the prosecution also indicate complexity. Even after eight others who were originally charged jointly with the applicants in Group 1 resolved their charges, the indictment contains 35 counts for a variety of offences. Twenty-eight of the charges relate to Mr. Al-Ramahi alone, three to Mr. Paul alone, and four are joint charges. Four of the charges allege conspiracy. One of those alleges a conspiracy between the applicants and other named individuals to traffic in cocaine. Three counts allege that Mr. Al-Ramahi conspired with persons other than his co-applicant Mr. Paul to commit various offences. Considerations related to the co-conspirator’s exception to the hearsay rule applied in the context of an extensive wiretap investigation are likely to make the prosecution and defence of the case more complicated. The allegation that offences were committed for the benefit of a criminal organization also adds to complexity.

[128] In short, I am of the view that many of the characteristic features of a particularly complex case as described in Jordan, at para. 77, are present here. The complexity extends beyond the voluminous nature of the disclosure. While several important aspects of complexity are related to the disclosure, it is the nature of the issues that arise from the disclosure, protection of confidential informants in a case with 36 of them being one example, that takes complexity beyond simply the voluminous nature of the disclosure. The need to protect solicitor-client privilege is another matter of complexity related to the nature rather than to the volume of disclosure.

[129] Turning to the homicide, I agree that it is less complex than the criminal organization case, in the sense that its focus is more narrowly defined. However, I am nonetheless of the view that the homicide is complex because virtually all the evidence arises out of the Project Siphon investigation. Disclosure in the homicide case could not be made until the difficulties associated with vetting the disclosure in the criminal organization case were worked through.

[130] There are also common issues between the two prosecutions. The importance of the wiretaps and the Garofoli application are examples. In addition, the context of the homicide is the alleged gang criminal activity charged in the criminal organization indictment. The discreditable conduct application which it is estimated will take a week to complete at the beginning of the homicide trial is an indication of complexity and of the interrelated nature of the two prosecutions.

[131] I turn now to the important issue of whether the Crown has shown that it developed and followed a concrete plan to minimize the delay associated with the complex prosecution which it initiated, as required by Jordan, at para. 79.

[132] The applicants submit that the persistent problems with disclosure are the root cause of the delay in this case. They rely heavily on these problems as a basis for their submissions that the Crown has failed to show that it had a plan which could meet the requirements spelled out at para. 79 of Jordan. The applicants submit that in initiating a large wiretap investigation like this one, it was entirely reasonable to anticipate that solicitor-client communications could be intercepted. They submit that because such problems were neither “reasonably unforeseen” nor “reasonably unavoidable”, to use the language found in Jordan at para. 69, the Crown is disentitled to rely on complexity to excuse the delay.

[133] In support of their submissions, the applicants point out that problems related to the inadequate vetting of disclosure resulted in three separate recalls of disclosure between February 7, 2021 and July 28, 2021. These recalls affected waves 1, 2, 3, 7 and 8 of disclosure, plus the wiretap disclosure.

[134] The applicants also point to the “will say” statement of Acting Det. Chris Bertrand, which is Exhibit U to the affidavit of Lisa Paglioroli, found in Mr. Al-Ramahi’s application record. Acting Det. Bertrand was responsible for oversight of the Judicial Authorization Unit and “wireroom” for the Peel Regional Police during Project Siphon. Acting Det. Bertrand’s statement describes, amongst other things, how civilian monitors in the wireroom identified lawyers’ telephone numbers to avoid intercepting privileged communications. They did so by observing a “white board” in the wireroom on which the phone numbers of lawyers were displayed whom, it was anticipated, targets may call.

[135] The officer states that in October 2020 he spoke with a Toronto wireroom monitor and learned that the JSI software used to intercept calls had the ability to have an alert set for known lawyers’ numbers. He then spoke to a “JSI systems engineer” employed by the Peel Regional Police about this capability. He learned that the system could be programmed to give an audible alert regarding an interception on a lawyer’s line and to display a visible alert icon on a monitor’s screen for such calls. As a result, that functionality was implemented in this investigation on November 9, 2020. Implementation was undertaken at that time as the takedown was approaching and it was anticipated that those arrested would be contacting legal counsel.

[136] The applicants submit that Acting Det. Bertrand’s statement shows that the police were uninformed about the software they were using to intercept private communications and that they were negligent in their protection of solicitor-client privilege. They submit that knowledge and use of these JSI features might have avoided many of the problems regarding potential violations of solicitor-client privilege in this case. The applicants submit that this is a factor which undermines the Crown’s submission that it had a plan to deal with reasonably anticipated problems related to complexity which significantly contributed to delay.

[137] I do not accept the applicants’ submissions on this point. In my view, the respondent has demonstrated that it took reasonable steps and developed and implemented a concrete plan to minimize delay due to the complexity of the case. The plan included dividing the approximately 80 accused persons into several groups for prosecution. This was done from the outset. It was not done randomly. Common features in relation to the prosecution of various accused were used to determine the groups. For example, the applicants were placed in Group 1, which consisted of alleged gang leaders, high-level associates, and family members. There were initially 11 members in Group 1. By way of further example, Group 2 consisted of 13 accused (other than those in Group 1) charged with trafficking cocaine as part of a specific “dial-a-dope” network. Group 12 consisted of five accused (other than those in Group 1) charged with conspiracies to commit murder or cause bodily harm to gang rivals.

[138] Prior to the takedown Crown counsel and the police prepared “Substantive Event Summaries” (SES) dividing the evidence collected to that point into over 40 events. These documents were concise but detailed and designed to assist the accused and their counsel to identify, locate and understand the evidence against them in a case that involved massive disclosure. These documents were provided to counsel as soon as they were retained. By way of example, for Group 1 accused the Crown identified SES 15 for the homicide, and SES 1, 2, 7, 8, 12-14, 16, 48 and 67 in relation to the criminal organization charges. After the takedown, 30 more SES documents were prepared for evidence collected post-takedown.

[139] The Crown’s plan included having arranged in advance for a dedicated bail court for Project Siphon accused. On December 23, 2020 the Crown asked the OCJ to appoint a dedicated case management judge and that was accommodated. In addition, multiple Crown counsel and support staff were assigned to the case. I am aware that at one point eight Crown counsel were assigned. Currently there are six Crown counsel.

[140] The Crown also eventually preferred a direct indictment for the criminal organization charges. The applicants criticize the delay in doing so, submitting that it is not much of a plan to prefer an indictment shortly before a preliminary inquiry that the applicants had been awaiting for a prolonged period. I will comment on this submission below.

[141] The Crown’s plan also included releasing the disclosure in waves. That would permit counsel for the accused to review significant disclosure while the work required to vet and release additional disclosure continued.

[142] The Crown also agreed to make police witnesses available for discovery to streamline the preliminary inquiry and disclosure process and to assist with pre-trial applications.

[143] Turning to the applicants’ submission that the problems related to solicitor-client privilege and other privilege issues shows the lack of a plan, I make the following observations and findings. First, there can be no doubt that the repeated recall of disclosure caused significant disruptions. That likely contributed to some delay at the early stages, although I am not satisfied that when the entire disclosure process is considered in overview, any significant identifiable delay arising from disclosure problems has been established. Moreover, in the circumstances as revealed by the record put before me, I conclude that the pullbacks of disclosure due to various concerns about potential privilege violations are indications of the complexity of the case and do not reflect a lack of the type of plan described in Jordan at para. 79. I reach this conclusion for several reasons.

[144] First, I accept the applicants’ submission that the potential for the interception of solicitor-client communications is reasonably foreseeable in a major wiretap investigation. However, in the circumstances here I do not agree with the submission that it follows that the Crown’s plan was inadequate. I point out that the two authorizations to intercept private communications issued in this case each contained detailed provisions designed to protect solicitor-client communications. The Crown, who was responsible for obtaining those authorizations, was cognizant of the potential issue and took reasonable steps to prevent violation of the privilege. It has not been suggested that Crown counsel was aware of any potential violation of solicitor-client privilege as the project was ongoing and it is not the Crown’s function to micro-manage the police investigation. I also understand that some of the potential violations of solicitor-client privilege arose out of “three-way” calls, making it unusually difficult to identify communications between a target and a lawyer. Some of the potential privilege violations were in relation to text messages.

[145] In addition, I point out that s. 11(b) of the Charter is concerned with delay between the laying of the charge and the anticipated conclusion of the adversarial portion of the trial. In my view, that focus must inform the manner and the extent to which pre-charge problems uncovered after the fact are implicated in the s. 11(b) analysis. To conclude in circumstances where the Crown has ensured that the authorizations to intercept private communications contain protections for solicitor-client privilege that the Crown’s delay prevention plan is inadequate because there may have been violations of the privilege during the investigation, which Crown counsel was unaware of and which arose from the manner in which the police conducted the interceptions, would take the court beyond the proper scope of a s. 11(b) review.

[146] I also point out that other remedies are available to determine whether there has been a violation of solicitor-client privilege and to provide an appropriate remedy. The applicants have sought a remedy of a stay of proceedings and/or the exclusion of evidence in a separate pre-trial application before Rahman J. dealing with the alleged violation of solicitor-client privilege as a violation of s. 8 of the Charter. I have been provided with very little information about the nature of that application. I understand that in his “bottom line” ruling, released on December 15, 2023, Rahman J. found that s. 8 of the Charter had been violated because the police did not respect one of the restrictions to protect solicitor-client privilege included in the authorizations to intercept private communications. Rahman J. declined to issue a stay but he did exclude some of the intercepted communications. Rahman J.’s reasons have not yet been released.

[147] As the Crown submits, once it became aware of potential breaches of privilege the Crown was duty bound to act to protect the privilege. There was no alternative but to pullback the disclosure and undertake steps to protect any privileged information. As I understand it, the pullbacks of disclosure were due to potential breaches of both solicitor-client and confidential informant privilege. The Crown was required to act. That there were potential privilege violations in a wiretap case with 97 targets and 36 confidential informants is in my view emblematic of a complex case not, in the circumstances as I find them to be here, evidence of the failure of the Crown to develop and implement a plan to minimize post-charge delay.

[148] I also accept the respondent’s submission that while the Crown is required to take reasonable steps to mitigate delay the Crown “is to be held to a standard of reasonableness, not perfection”: Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999, at para. 31, leave to appeal refused, [2020] S.C.C. No. 53. Regarding judicial review and evaluation of a Crown plan to avoid delay, in R. v. Bulhosen, 2019 ONCA 600, Strathy C.J.O held, at para. 83:

As this court observed in Manasseri [2016 ONCA 704], at para. 308, where the Crown takes reasonable steps to avoid and address delay: “What counts is effort and initiative, not success.”

The fact that the Crown’s plan was not successful in preventing disruption due to potential privilege violations does not lead to a conclusion that an adequate plan was not developed and implemented.

[149] I conclude that the multifaceted plan the Crown developed and implemented, as described above, satisfies the requirements of a plan to minimize delay as required by Jordan at para. 79.

[150] Comparing the remaining delay of 33 months in the criminal organization case to the complexity of the case, I reach the conclusion that the balance of the delay is reasonable and justifiable due to that complexity. Indeed, in my view a delay considerably longer than the resulting delay I have calculated would be justifiable due to the complexity of this case. I observe that in Lopez-Restrepo, at para. 40, Trotter J.A., on behalf of the Court of Appeal, had no difficulty concluding that a net delay of 39-40 months (see para. 30) was justifiable due to complexity in a case that I view as having less complexity than this one. Had I been required to do so I would have taken that approach in this case.

[151] At this point I will deal with the Crown’s alternative responding submission that if the delay in setting the trial date for the criminal organization charges should have been analysed as an exceptional circumstance pursuant to Tran rather than pursuant to the approach taken in Albinowski, the remaining delay is justifiable based on complexity. I am persuaded that alternative submission is correct.

[152] Adopting the approach in Tran and accepting as correct the applicants’ submissions, outlined at paras. 71-73 above, that an individualized approach leads to delay in setting the trial date apportioned as four months plus 15 days of waiver in relation to Mr. Al-Ramahi and three months plus 15 days of waiver in relation to Mr. Paul, and then deducting two months for both as a discrete event due to the pandemic, would leave a resulting delay of 34.5 months for Mr. Al-Ramahi and 35.5 months for Mr. Paul. Based on the particular complexity as I have described it above, I conclude that delays of this length, in what appropriately remains a joint prosecution, are reasonable and justified.

[153] Before moving on I will also address the applicants’ submission that the delay in preferring a direct indictment shows that the Crown did not have a suitable plan. Plans are not static. They may change and evolve over time. I observe that by the time the indictment was preferred in early November 2022, Mr. Al-Ramahi’s homicide charge was in the SCJ, but he and Mr. Paul were still awaiting their preliminary inquiry on the criminal organization charges. As reflected in the transcripts of the proceedings before Durno J. on October 18, 2022 this made it more difficult to arrange to have common issues decided by one judge. Preferring the direct indictment facilitated that process and I find it eliminated some delay. That it was not done earlier does not reflect that the Crown did not have an adequate plan, but that they modified the plan, consistent with the plan’s objectives. As Strathy C.J.O. held in Bulhosen, at paras. 88-89, (1) it is settled that the Crown’s decision to prefer a direct indictment is a matter of prosecutorial discretion reviewable only for abuse of process, (2) the Crown is not required to give reasons to justify its decision, absent evidence supporting an abuse of process, and (3) the avoidance of unreasonable delay is an appropriate basis on which to prefer a direct indictment.

[154] As previously mentioned, the s. 11(b) analysis must be undertaken individually for each applicant. I have kept this in mind when reaching my conclusion. It was not suggested that there was any significant basis for distinguishing between the applicants when considering the complexity of the case.

[155] Turning to the homicide case, while the trial may not be particularly complex, all the earlier stages of the process were almost as complex as the criminal organization charges. Although there are not multiple counts or conspiracy charges, all the complexity related to the wiretaps and privilege issues, which are common issues, are the same. I have no difficulty in concluding that the remaining delay of 31 months and 21 days in the homicide case is also justified by the complexity of the case. Indeed, several more months of remaining delay could be justified based on complexity.

Conclusion

[156] For all the foregoing reasons the s. 11(b) applications are dismissed in respect of both the homicide and the criminal organization charges.

F. Dawson J.

Released: December 29, 2023

COURT FILE NO.: CR-22-543-00 & CR-22-406-00

DATE: 2023 12 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

MAHMOUD AL-RAMAHI and ATOUR PAUL

RULING RE: SECTION 11(b) APPLICATION

F. Dawson J.

Released: December 29, 2023