COURT FILE NO.: CR24-05 DATE: 2024/10/08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Philip Dass and Oren Lazore Defendants

Counsel: Matt Collins for the Public Prosecution Service of Canada Brandon Crawford, for Philip Dass and Ryan Langevin for Oren Lazore

HEARD: September 5, 2024

Bramwell, j.

Background

[1] An Information was sworn on August 12, 2022, charging Mr. Dass and Mr. Lazore with possession of fentanyl for the purpose of trafficking and possession of proceeds of crime exceeding $5000.

[2] In the first five months that the case was in the Ontario Court of Justice, one counsel pre-trial and two judicial pre-trials were cancelled because significant disclosure was missing. All parties agreed that they could not have meaningful discussions until they received and reviewed the missing disclosure.

[3] On March 15, 2023, trial dates were set in the Ontario Court of Justice for July 2-5 and July 16, 2024. At the time those dates were set, they were beyond the 18-month presumptive delay ceiling set by the Supreme Court of Canada in R. v. Jordan [1]. The Crown noted this on the record at the time the dates were set, in the presence of defence counsel. The presiding judge in the scheduling court stated that the matter would be added to a list of matters with trial dates set over the Jordan ceiling. The judge noted that these matters would be revisited in the future to determine whether any earlier trial dates had become available.

[4] Nothing happened with respect to the trial dates until Mr. Dass filed a s. 11(b) application in October 2023 for a date he secured to argue the motion in November 2023. The filing of the s. 11(b) application prompted the Crown to bring the matter forward before the Local Administrative Judge in the Ontario Court of Justice to see whether earlier trial dates could be secured.

[5] The process of trying to secure earlier trial dates took place over a number of appearances before the Local Administrative Judge in late October and November 2023 and resulted in Mr. Dass’ s. 11(b) application being adjourned and new trial dates being set which were, in fact, later than the original dates. The new trial dates were set for August 2024. It seems that the original dates set in July 2024 were no longer available to the court.

[6] The Crown did not file a response to Mr. Dass’ s. 11(b) application in the Ontario Court of Justice. The s. 11(b) application was adjourned to January 2024 to accommodate the exercise of setting new trial dates. On the eve of the s. 11(b) application being argued, the Crown filed a preferred indictment which brought the matter into the Ontario Superior Court of Justice and extended the Jordan ceiling to 30 months.

[7] Trial dates were ultimately set in this court for a five-day trial in January 2025, with six pre-trial motions to be heard and decided between July and December 2024, including this s. 11(b) application.

[8] Mr. Lazore filed a s. 11(b) application on the eve of this application being heard.

[9] In these reasons, I will deal with the application of Mr. Dass first because counsel for Mr. Lazore adopted the submissions made by counsel for Mr. Dass before making additional submissions on behalf of Mr. Lazore. My reasons with respect to the application of Mr. Dass apply equally, at a minimum, to that of Mr. Lazore and I will make additional comments regarding Mr. Lazore’s application at the conclusion of my reasons with respect to Mr. Dass’ application.

What is the total delay?

[10] The parties agree that the total delay from the date the Information was sworn in the Ontario Court of Justice to the anticipated completion of the trial in this court is 896 days or 29.46 months.

What should be subtracted as defence delay?

[11] Counsel for Mr. Dass concedes that there are 57 days of defence delay as follows [2]:

1. December 14-20, 2023 – six days when counsel for Mr. Dass was the only lawyer not available for an offered date for the disclosure motion originally set in the Ontario Court of Justice;
2. February 14-March 20, 2024 – 35 days when counsel for Mr. Dass was the only lawyer not available for an offered date for the application for leave to cross-examine an affiant originally set in the Ontario Court of Justice;
3. March 19-20, 2024 – one day when counsel for Mr. Dass was the only lawyer not available for an offered date for the application for leave to cross-examine an affiant that was newly set in the Ontario Court of Justice after the original dates became unavailable;
4. May 23-28, 2024 – five days when counsel for Mr. Dass was the only lawyer not available for an offered date for the s. 8 application to challenge a search warrant that was newly set in the Ontario Court of Justice after the original dates became unavailable;
5. July 19-22, 2024 – three days when counsel for Mr. Dass was the only lawyer not available for an offered date for the newly set trial dates in the Ontario Court of Justice after the original dates became unavailable; and
6. September 16-23, 2024 – seven days when counsel for Mr. Dass was the only lawyer not available for an offered date for the trial dates in the Superior Court of Justice.

[12] This is the only delay that I am prepared to deduct as defence delay at this juncture, on the record before me.

[13] I do not accept the Crown’s submission that 50% of the seven months that elapsed between the setting of the original trial dates in the Ontario Court of Justice and Mr. Dass serving his s. 11(b) application should be considered defence delay. My reasons for refusing to accept the Crown’s argument on this point are as follows:

1. The Crown asserts that the accused should be assigned delay after giving the Crown notice, more than eight months ahead of the original Ontario Court of Justice trial dates, of his intention to pursue a stay for a breach of his right to a fair trial when the presumptive ceiling was breached by roughly five months on the day his trial dates were set. This is, in my view, entirely misguided as it completely ignores the central focus of the Jordan decision which was to impose clear and unambiguous ceilings that all parties would be aware of up front. The whole point of the Jordan decision, as is stated within it repeatedly, is to require the parties to focus proactively on avoiding delay, instead of fixing problems reactively. [3] The delay had clearly crystallized by the time the trial dates were put on record. The Crown correctly acknowledged as much. The Crown was on notice, that very day, that the accused’s s. 11(b) rights were presumptively being breached. [4] To me, the Crown’s argument is tantamount to saying that the accused was required to give the Crown notice that he expected relevant jurisprudence from the Supreme Court of Canada to apply in his case;
2. Defence is responsible for periods of delay that are waived or that are caused solely by defence. It is an error to treat delay as defence delay if that delay does not fall into one of those two categories [5]. Clearly Mr. Dass did not waive his s. 11(b) rights for any periods of time. The late filing of a motion cannot amount to a clear and unequivocal waiver. [6] Mr. Dass did not cause the delay in the trial dates being offered in the Ontario Court of Justice. They were not Jordan compliant, right out of the gate. Nor did the timing of Mr. Dass’ s. 11(b) application make the delay any worse. In fact, the new date setting exercise that took place after that application was filed resulted in later dates being set. There is no evidence before me that had Mr. Dass filed his s. 11(b) application even earlier than he did (almost 8 months in advance of the trial date), it would have made any difference to the outcome. Further, defence applications that are not frivolous will also not generate defence delay because such applications are already accounted for in the setting of the ceilings and to count such applications against defence is contrary to the right to make full answer and defence [7];
3. In my view, Mr. Dass was entitled to consider the comments made on the record by the presiding judge and the Crown on the date the original trial dates in the Ontario Court of Justice were set and to conclude that the Crown and/or the court would be making efforts in the coming weeks to obtain earlier trial dates. It is unrealistic and unfair to expect an accused person, who, it must be remembered is presumed innocent, to launch a s. 11(b) application, including by incurring the costs associated with ordering transcripts and the preparation of materials, when he has just been told that efforts will be made to get an earlier date. After seven months went by and no new dates were secured, Mr. Dass brought his application. I find this was reasonable in the circumstances;
4. The cases provided by the Crown in support of its argument on this point are distinguishable on their facts. Many of them involve a pattern of conduct by defence counsel that can be characterized as defence “[failing] to meet its obligations to the Court and the Crown over an extended period of time” with delay resulting [8]. There is no evidence of a similar pattern of conduct on the part of Mr. Dass’ counsel;
5. Mr. Dass served and filed his s. 11(b) application in the Ontario Court of Justice on October 5, 2023. The Crown did not bring the matter forward to be spoken to before the Local Administrative Judge until October 25, 2023, over two weeks later. I find this is illustrative of the Crown’s reactive, late and overall suboptimal approach to the problem of the trial dates being set in breach of the Jordan presumptive ceiling on the very day they were set; and
6. In the case of R. v. Jordan itself, the trial dates were set sometime between May and July of 2011 [9] while the s. 11(b) application was not brought until the start of the trial, at least 14 months later, in September 2012. No defence delay was assigned in R. v. Jordan because of the timing of the s. 11(b) application.

[14] In summary, I do not find that any delay should be assigned to Mr. Dass for the timing of his s. 11(b) application in the Ontario Court of Justice. The Crown was aware, on the day the trial dates were set, that Mr. Dass’ s. 11(b) rights were presumptively breached by those dates. The Crown was content, without having secured a clear waiver of s. 11(b) rights from all three accused [10], to take no further steps and to wait to see whether the Trial Coordinator and/or the court would remedy the situation by making new dates available or whether and when any or all of the accused would file s. 11(b) applications. The consequences that flowed from that choice are not properly characterized as defence delay.

[15] I do not accept the Crown’s submission that the delay associated with the unavailability of counsel for Mr. Lazore should be assigned to Mr. Dass for the following reasons:

1. In R. v. Gopie, the Ontario Court of Appeal made it clear that: the Jordan framework is based on the concept of accountability, focusing on the conduct of individual players in the justice system. ….[W]hen discussing defence-caused delay, the court in Jordan directs an assessment of the “accused’s acts” and whether his or her acts directly caused delay, or can be shown to be a deliberate and calculated tactic to delay the trial. This language suggests that the conduct of the accused much be looked at on an individual basis and attributed accordingly [11]; and
2. I acknowledge that the Crown provided authority to support the proposition that there are some cases in which the facts of the case or the way in which the case has been defended point to a joint enterprise on the part of co-accuseds such that, for example, a severance application would not likely be successful. In the present case, at this juncture, I have been provided with almost no information by any of the parties about the facts of the case or the nature of the defence. All I know about the facts is that there was an investigation by the police; a warrant was executed; Mr. Dass, Mr. Lazore and a third person, who has since had charges stayed, were all charged. All I know about how the case has been or will be defended is that counsel for Mr. Dass was willing to make submissions on behalf of all accuseds for some of the pre-trial motions. Therefore, at this time, based on what I know about this case, I am not in a position to find that anything other than what I understand to be the fundamental principle articulated in R. v. Gopie, applies about whether the delay caused by the lack of availability of a co-accused for trial can be assessed against another accused.

[16] Therefore, as stated, I find that the appropriate deduction for defence delay for Mr. Dass is 58 days.

[17] The Crown agrees that there have been no exceptional circumstances in this case that would necessitate a further deduction from the overall delay.

[18] The net delay in this case is therefore 838 days or 27.5 months, which is below the 30-month presumptive ceiling for matters proceeding to trial in the Superior Court of Justice.

What is the test when the net delay is below the presumptive ceiling?

[19] When the net delay is below the presumptive ceiling, to be successful on a s. 11(b) application, the accused must establish, on a balance of probabilities, that he took meaningful steps that demonstrate a sustained effort on his part to expedite the proceedings and that the case took markedly longer that it reasonably should have [12].

[20] It is important to note that the Supreme Court of Canada has held that stays in cases that fall below the presumptive ceiling should be rarely granted and only granted in the clearest of cases [13].

Has Mr. Dass established a sustained effort to expedite the proceedings?

[21] Mr. Dass has not established that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings.

[22] I accept that counsel for Mr. Dass took the following steps:

1. He was diligent and proactive in requesting disclosure early in the case;
2. He reviewed disclosure within a reasonable time and continued to be proactive and efficient in requesting further disclosure;
3. He brought the s. 11(b) application in the Ontario Court of Justice eight months before the originally scheduled trial dates; and
4. He agreed to argue a number of the pre-trial motions on behalf of not only Mr. Dass but on behalf of Mr. Lazore as well, in order to allow motion dates to be set when Mr. Lazore’s counsel was not available. [14]

[23] These are all important steps and counsel for Mr. Dass engaged with the Crown and the Court on each of them efficiently and effectively. However, this is what is expected of a competent and diligent defence lawyer who is properly serving his client. It is well-established that these routine steps are not the sort of actions that lead to a conclusion that defence counsel has gone “above and beyond” to demonstrate a sustained effort to expedite the proceedings. [15] There is nothing about these steps that points to an effort to expedite the process. These steps had the effect of going along with the process. This is not meant to be a criticism, in any way, of defence counsel. It is simply to say that the type of extra steps, taken in a sustained manner, that would need to be demonstrated in order to meet this criteria in seeking a stay are absent in this case.

[24] Some examples of steps counsel for Mr. Dass could have taken to demonstrate a sustained effort to expedite the process are as follows:

1. Being prepared to set trial dates in the absence of full and complete disclosure [16];
2. Writing to the Crown after the original trial dates were set to advise that a s. 11(b) application would be brought if earlier trial dates were not secured by a certain date [17];
3. Writing to the Trial Coordinator to follow up to see whether earlier trial dates were available and to advise of any new availability in counsel’s schedule as other matters in his schedule collapsed [18];
4. Seeking to have the matter brought forward before the Local Administrative Judge to canvas earlier trial dates instead of waiting for the Crown to do it;
5. Bringing the s. 11(b) application earlier [19]. While, as stated above, I do not agree that any delay should be assigned to Mr. Dass for his failure to bring the s. 11(b) application earlier, the fact is that he could have brought the application earlier. Doing so would have been, in my view, an example of a meaningful step, perhaps the most meaningful step, that he could have taken to expedite the process;
6. Writing to the Crown to ask the Crown to sever Mr. Dass from Mr. Lazore once it became clear that the schedule of counsel for Mr. Lazore was prohibitive when it came time to set trial dates in the Superior Court of Justice; and
7. Pursuing a severance application if the Crown did not agree to sever in the Superior Court of Justice. However, I acknowledge that whether this would have been a realistic or practical step to take is highly dependent on the facts of the case and the way the defence is being conducted. As stated, I do not have much information about either at this time. So, I do not give much weight to this potential step as I am aware that it would be an error to find that defence was required to bring a severance application, in order to demonstrate having taken meaningful steps, even though such an application is destined to fail [20].

Did this case take markedly longer to get to trial than it should have?

[25] Mr. Dass must establish both that he took meaningful steps that demonstrate a sustained effort to expedite the matter and that the case took markedly longer than it should have to get to trial. Given that I find he has not established the former, I do not, strictly speaking, need to address the latter requirement. However, in the interest of completeness, I will do so.

[26] It is important to note that the requirement is not just that the case took longer than it should have to get to trial. It must have taken markedly longer. This has been held to mean “a situation that is clearly noticeable.” [21]

[27] It is also important to note that it is difficult for me to assess what is a reasonable length of time for this case to get to trial because, as stated earlier in these reasons, none of the parties has given me any information about the case other than the very brief and general description provided by the Crown in the first paragraph of its factum. All I know is that Mr. Dass, Mr. Lazore and their former co-accused Ms. Thompson were charged with possession for the purpose of trafficking of 55 g of fentanyl after an investigation that involved “months of investigation, surveillance, and the execution of a general warrant.” I do not have any information about the volume or types of disclosure involved in this case. I do not know what the evidence is with respect to each of the accused persons or the relative degree to which each of them are allegedly implicated.

[28] That being said, there are some factors that I find point away from the conclusion that this case has taken markedly longer than it should have. They are as follows:

1. Five days have been set for trial. Longer trials are generally more difficult to schedule and tend to occur further into the future than shorter ones. At five days, this trial would not have been as easy to schedule under the Jordan ceiling as, for example, a two-day trial but it would not have been as difficult to schedule under the Jordan ceiling as, for example, a three-week trial;
2. Six sets of pre-trial motions had to be scheduled, with decisions rendered, before the trial can commence. I find this to be a significant factor in determining what can reasonably be expected in terms of the length of time it takes for a matter to proceed to trial;
3. As evidenced by the difficulty in setting Jordan compliant dates in the Ontario Court of Justice, in this jurisdiction, the Ontario Court of Justice is a very busy court that is constantly under pressure to deal with a backlog of cases; and
4. While there was significant delay in the Ontario Court of Justice, looking at the matter holistically, the problematic delay in the Ontario Court of Justice was addressed by the preferring of the indictment. The trial was ultimately scheduled to take place within approximately 12 months of the matter coming into the Superior Court. [22]

[29] The onus is on Mr. Dass to satisfy me that it is more likely than not that this case took markedly longer to get to trial than it should have. He has not met that onus.

Conclusion regarding Mr. Dass’ application

[30] Mr. Dass has not met the onus on him to establish either that he took meaningful steps that represented a sustained effort to expedite the process or that this case took markedly longer than it should have to proceed through the criminal justice system. To succeed on this application, he would have had to demonstrate both. He has not done so.

[31] This is not one of the rare and clearest of cases in which a stay of proceedings should be granted in favour of Mr. Dass for a breach of his s. 11(b) Charter right to a trial within a reasonable time even though his matter will proceed to trial under the presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan.

Conclusion regarding Mr. Lazore’s application

[32] Mr. Lazore’s application cannot succeed where Mr. Dass’ did not. Counsel for Mr. Lazore was not available for any of the earlier available trial dates offered in the Superior Court of Justice. This led to the trial being set for January 2025, based solely on the lack of availability of counsel for Mr. Lazore. Had he been more available, this trial could have been scheduled for September, November, or December of 2024.

Footnotes

[1] R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27. [2] I note that Mr. Dass was the only party who provided a chart, attached to his factum, setting out the history of the proceeding from the date of charge until the anticipated disposition of the proceeding. Such a chart is required from each party to s. 11(b) applications pursuant to Part VI, section C of the Consolidated Provincial Practice Direction for Criminal Proceedings, amended February 1, 2024, which has been in effect province-wide since June 15, 2023. [3] R. v. J.F., 2022 SCC 17, at para. 31 and R. v. Jordan, supra, at paras. 50, 54 and 108. [4] R. v. J.F., supra, at para 50. [5] R. v. Shaikh, 2019 ONCA 895, at para. 62. [6] R. v. J.F., supra, at paras. 17 and 44. [7] R. v. Jordan, supra, at para. 65. [8] R. v. Kullab, 2023 ONCJ 458, at para. 34. [9] R. v. Jordan, supra, at paras. 9 and 10. [10] There were three accused at the time the trial dates were originally set. The Crown stayed the prosecution against Ms. Thompson during the exercise of trying to set new, Jordan compliant, trial dates in the Ontario Court of Justice. The staying of the prosecution against Ms. Thompson ultimately had little to no effect on the availability of earlier trial dates. [11] R. v. Gopie, 2017 ONCA 728 at para. 129. [12] R. v. Jordan, supra, at para. 48 and 82. [13] R. v. Jordan, supra, at paras. 48 and 83. [14] I note this as a proactive step taken by counsel for Mr. Dass without wanting to be seen to endorse this as an available or appropriate step to be taken. The issue of counsel potentially being in a conflict of interest by at least seeming to represent the interests of more than one accused person on a motion was not raised or discussed during the argument of this motion. [15] R. v. Patel, 2017 ONSC 5827, at paras. 42-43. [16] R. v. Charlton, 2024 ONCJ 95, at para. 14 and R. v. Taylor, 2017 ONSC 2263, at para. 20. [17] R. v. Taylor, supra, at para. 20. [18] R. v. Taylor, supra, at para. 20. [19] R. v. Franklin, 2019 ONCJ 246, at paras. 28-29. [20] R. v. Campbell, 2022 ONCA 223, at para. 21. [21] R. v. Patel, supra, at paras. 44-45. [22] R. v. Patel, supra, at paras. 45-46.

The Honourable Justice Lia Bramwell Released: October 8, 2024