COURT FILE NO.: CR-22-40000520 DATE: 20241114
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Delroy Desmond
BEFORE: Justice S. Nakatsuru
COUNSEL: Eric Buzzin, for the Applicant Erin Pancer, for the Respondent
HEARD: October 28, 2024
s. 11(b) ruling
[1] Delroy Desmond faces several charges including firearm trafficking and possession offences. His trial date is set to begin March 17 ending March 26, 2025. Mr. Desmond seeks to stay his charges on the basis that his right to a trial within a reasonable time as guaranteed under s. 11(b) of the Charter has been violated.
[2] Without dispute, the progress of this trial has not been straightforward. It has been rough. More than a few defence counsel were involved. There has been quite a turnover. Though for valid reasons, such as defence counsel becoming Assistant Crown Attorneys. Also, dates could not be easily scheduled due to defence unavailability. However, importantly, no one suggests that that the defence actions were ever calculated to delay the proceedings. On the other side, the prosecuting Crown has been diligent and professional, attempting to respond as nimbly as she could to the changing circumstances. I am most sympathetic to the challenges faced by the Crown in this case.
[3] All that recognized, when the total picture of this case is viewed from above, the key reason why this case could not be timely tried, was that the Crown divulged an unredacted Information to Obtain (ITO) involving a confidential source to the defence that led to defence counsel having to remove himself from the case and the initial trial date having to be adjourned. The new trial date is now ten months over the presumptive ceiling. As I will explain, there are other features to the delay contributing to the picture; but as I see it, this was the proverbial straw that broke the back of this case.
[4] For the following reasons, Mr. Desmond’s s. 11(b) right has been violated and the charges against him are stayed.
A. ANALYSIS
[5] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 46, sets the presumptive ceiling for a trial in the Superior Court of Justice (SCJ) to be 30 months.
[6] The s. 11(b) legal analysis is nicely summarized in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41:
- Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument;
- Subtract defence delay from the total delay, which results in the “Net Delay”;
- Compare the Net Delay to the presumptive ceiling;
- If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
- Subtract delay caused by discrete events from the Net Delay, leaving the “Remaining Delay”;
- If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
[7] Before moving to this analysis, I tend to agree with the Crown that the delay in this case does not always neatly fit into the boxes created by the Jordan analysis. But that is the framework that we must work in. That Jordan framework was designed so that on a s. 11(b) application, we no longer need get mired in the weeds of emails and court appearances of a trial proceeding, which far too often was punctuated with posturing for the sake of the record. To try and get away from that, Jordan provided presumptive ceilings. Some may criticize them as being overly generous. But that ceiling was to accommodate the normal variables and delays that exist in getting any trial to the finish line. They are not aspirational in any sense. We are meant to do better than the ceilings. Rather, they provide a bright-line notice to the administration of criminal justice. A clear marker to assist justice participants in moving a case along as efficiently as possible.
[8] Despite this, some cases, like this one, require a closer look at what happened. This is mainly because much depends on the characterization of certain time periods as defence delay or not. I believe that a s. 11(b) analysis must be determined on the realities of what took place in a trial; not on hypothetical “what ifs” or by looking back on events with the benefit of hindsight. Once the ceiling is passed, it is too easy to go back and look through the lens of regret, to try to salvage a case.
1. The Total Delay
[9] From the date the information was sworn to the anticipated end of the trial is a total delay of 40 months. The presumptive Jordan date is May 20, 2024.
2. The Defense Delay
[10] Every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution for offences while the evidence in the cases against them grows stale over time, or there is ultimately a stay for delay. Where accused persons benefit from their own delay-causing conduct, such a result operates to the detriment of the public and the system of justice. Accordingly, the conduct of the defence must be examined, and any delay attributable to that conduct or inaction is subtracted from the total delay. It must be remembered that the Charter governs state conduct, and therefore conduct of the accused person or defence counsel that delays the trial does not count against the presumptive ceilings. Defence delay comprises of those situations where the accused’s acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.
[11] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 28 and 30, the Supreme Court of Canada further expanded upon the concept of defence delay. It applies in situations where defence conduct “solely or directly” caused the delay and where that defence action is illegitimate insofar as it can be characterized as not being responsive to the charges. In other words, unmeritorious action, seemingly designed solely to slow the proceedings. Examples of a defence delay include periods where the court and Crown are ready to proceed but the defence is not, or other defence actions or conduct that the trial judge finds have caused delay and warrant a deduction from the Jordan ceiling.
[12] Both the decision to take a step and the way it is conducted can amount to defence delay necessitating a deduction. Irrespective of merit, defence action may be deemed illegitimate for s. 11(b) purposes if it is designed to delay, exhibits marked inefficiency, or marked indifference towards delay. Inaction or omissions also may amount to illegitimate defence conduct in the context of a s. 11(b) application. Defence counsel are expected to actively advance their clients’ s.11(b) right throughout the proceedings, collaborate with Crown counsel where appropriate, and use court time efficiently: Cody, at paras. 32-33.
[13] In the case at bar, it is agreed no period of delay was waived either explicitly or implicitly by the defence.
[14] However, there is strong disagreement about whether any delay should be attributed to the defence. Mr. Desmond says there is no defence delay. The Crown points to numerous instances of defence delay. They are said to be:
- Delay in making an election;
- Delay in setting the trial dates;
- Failure to comply with filing deadlines;
- Double booking court time;
- Counsel getting off the record and new counsel coming on the record.
Delay in making an election
[15] I find no period of time should be attributed as defence delay for this reason. The initial proceedings through the Ontario Court of Justice (OCJ), while ultimately not expeditious, was not a result of any illegitimate defence action: Jordan, at para. 65. After his arrest, counsel for Mr. Desmond set up a special bail hearing on December 21, 2021, relatively quickly, within a month. The matter was then adjourned to March 7, 2022, to accomplish the normal intake. In the meantime, Bryton Allin was arrested in January of 2022, and the Crown married him up with Mr. Desmond as a co-accused. By the March 7 date, Mr. Desmond had retained Mr. Assieu as his lawyer, received initial Crown disclosure, and was going through that substantial disclosure. On March 7, the Crown indicated more disclosure was on its way. On May 31, 2022, and then again on June 2, 2022, the Crown sent an email asking counsel about their elections as neither accused were entitled to a preliminary inquiry. Counsel for Mr. Allin advised he was thinking about it and would let the Crown know. Counsel for Mr. Desmond never responded. On May 31, 2022, a joint judicial pretrial (JPT) was set for June 15, 2022. Mr. Desmond had offered earlier JPT dates in May, but counsel for Mr. Allin only had June dates. After the initial JPT of June 15, 2022, a continuing JPT of September 8, 2022, was conducted. The actual formal election for a trial by judge and jury was made on September 20, 2022. This was about 10 months from the time of Mr. Desmond’s arrest.
[16] A major part of the delay in the court below came from the completion of the JPT in the OCJ. I find it was a reasonable step in the process. One agreed to by the Crown. In a Crown email of May 10, 2022, it is stated that a joint JPT is required as the Crown intended to prosecute Mr. Desmond and Mr. Allin together. I have not been given any information about what was discussed at the JPTs. However, I can infer that all parties and the court viewed it as a worthwhile thing to do; otherwise, it would not have been conducted. I can safely infer that the usual issues at a JPT were discussed. Plainly, it was not a pro forma step as a continuing JPT date was held.
[17] One obvious matter to be discussed at the JPT would have been the election. While the Crown inquired about an election as early as May, the Crown and the court were content to proceed with the JPTs even without a decision on election. An election as to venue is an important decision to be made by the defence; one that requires full disclosure and sound consideration. I can infer that there were discussions about it at the JPT, including consideration given to an election for a trial in the OCJ. I conclude this because on the court appearance of August 2, 2022, in the OCJ, the Crown states that they were estimating the trial length and picking trial dates. This supports my view that it was a serious possibility that an OCJ trial was being contemplated. Another significant factor about elections was the fact that Mr. Desmond was not alone in making the election. Given that at this time, the Crown was going to prosecute Mr. Desmond and Mr. Allin jointly, Mr. Desmond’s choice in election would be affected by Mr. Allin’s choice.
[18] While there is no question this case did not proceed through the OCJ expeditiously, I find this was not defence delay caused by Mr. Desmond. All steps taken by the defence, in the context of this case, were reasonable ones, though with hindsight, they did not help the efficient conduct of the trial.
Setting of the initial motion and trial dates
[19] The Crown submitted that some period of delay should be attributed to the defence when the original pretrial motion and trial dates were set in the SCJ.
[20] In assessing this submission, the record is somewhat difficult to interpret. On October 11, 2022, a JPT was conducted in the SCJ. Thereafter, a trial date was set. In an email of October 14, 2022, from the Crown to both defence counsel, the defence were advised that a trial date of November 27, 2023, had been scheduled for both 10 days of pretrial motions and trial. Counsel for Mr. Allin replied that he thought the pretrial motions were to be heard in advance and then separate trials for each accused set. On the October 18, 2022, appearance in the SCJ, defence counsel advised the court that there was some confusion with dates as there was supposed to be a joint pretrial motion with separate trials. The matter was put over. On October 20, 2022, by email, the Crown apologized for the confusion and sought to set up 4 days for a joint pretrial motion, and a 4-day separate trial for each accused. When Mr. Assieu, counsel for Mr. Desmond at that time, replied to the Crown request on October 26, 2022, for available days to set a 4-day joint pretrial motion, Mr. Assieu provided dates commencing only October 9, 2023, and thereafter. The Crown was surprised that Mr. Assieu had no earlier dates for the motion. Mr. Assieu apologized and said he had just booked a number of cases into his calendar. This led to the Crown reaching out to Mr. Allin’s counsel who had wanted earlier dates. Mr. Allin suggested that the November dates just be selected for the motion. Then, on the November 1, 2022, SCJ appearance, the parties agreed to November 20 as being the date for the pretrial motion, and then Mr. Desmond set February 12, 2024, for a 4-day trial. Mr. Allin set a separate earlier trial date.
[21] This record is made even trickier to interpret as the trial confirmation form after the JPT of October 11, 2022, used to secure trial dates, set out that the Crown and counsel for Mr. Allin had court dates as early as January of 2023. Counsel for Mr. Desmond had dates in April 2023. There is no indication on the trial confirmation form, when the first available date for the court was.
[22] In light of this record, I find the following. First, I do not specifically know when the court’s first available date was before the Crown emailed counsel suggesting a 10-day block commencing November 27, 2023. I can safely assume there was more availability from the court earlier on, given that subsequent events reveal the court offering such earlier dates. Second, I can assume that the court did not have dates as early as April of 2023 as all parties were available then, and no date was set. Third, the Crown submitted in their factum that the court, the Crown and counsel for Mr. Allin all “were available on June 6th, 2023, the first date the trial coordinator offered.” However, this information does not come from the trial confirmation form I was provided. Nonetheless, I am prepared to assume that this was the first date offered by the court, given Mr. Desmond does not challenge it on this application. Fourth, it is an unusual length of time for defence counsel not to have a 4-day period to hear the motion. It is about a year. While the Crown does not dispute that defence counsel was in fact unavailable nor is it suggested that the defence was illegitimately delaying the proceeding, realistically viewed, this was not timely availability. Given that lengthy delay, counsel, with instructions of the accused, could have sought alternative representation for the motion as a way to get an earlier date. Fifth, this state of affairs was not brought to the attention of the court in order to expedite the hearing of the motion or the trial. The court could have assisted in trying to get an earlier motion date. In my opinion, this was likely because the scheduled end date for the trial was still within the Jordan presumptive ceiling.
[23] The Crown submits that five months should be attributed to the defence given its lack of availability from June 6, 2023. I agree that some delay should be apportioned to the defence given its extended unavailability. However, I do not agree with the Crown about the amount of delay. In following the authorities, I intend to apportion the delay caused by counsel’s unavailability in a manner that is fair and reasonable given all the circumstances and the contextual factors particular to this case: R. v. Hanan, 2023 SCC 12, 170 O.R. (3d) 240, at para. 9; R. v. Bowen-Wright, 2024 ONSC 293, 545 C.R.R. (2d) 237, at paras. 38-54.
[24] This apportionment must take into account that counsel was initially available in April of 2023. Thus, he in fact made himself available earlier than the dates that the Crown ultimately sought. In addition, counsel did make himself available for the November 27, 2023, dates initially mistakenly set by the Crown for both the motion and the trial. Moreover, the dates Mr. Assieu offered for the motion and trial, when asked for them by the Crown, began in October of 2023. This was before the original November 27, 2023, dates. Thus, theoretically, the motion could have been completed before the trial commenced. While I can see the logic and convenience behind converting the November dates to the motion dates, and then setting later trial dates, as it happened in this case, it seems no one pushed for trying to complete the motion before the November date. This appears to be the joint decision of all counsel which was later affirmed by the court.
[25] In my opinion, given that defence counsel did make himself available as early as April of 2023, but then was unavailable for quite some time after June 6, 2023 for a 4-day motion, and that attempts were not made to secure a motion date in October when defence counsel was available, a fair and reasonable apportionment of the delay to the defence is two months. I note that had I attributed all the delay from June 6 to October 9, 2023, when counsel was originally available and there being no indication the court was not, that would have been a period of 4 months. Half that time is a reasonable and fair apportionment as defence delay.
Failure to comply with filing deadlines
[26] It is true the defence missed some filing deadlines. Sometimes for legitimate reasons like illness. Others less compelling, such as tardiness in securing transcripts. It is also true that the pretrial motions had to be adjourned from November, 2023, to January 8, 2024. However, at the end of the day, none of this has caused any delay in the completion of the trial. Thus, I disagree with the Crown that some period of time should be attributed to the defence for this reason.
Double booking court time
[27] On December 5, 2023, Mr. Rishea, Mr. Desmond’s counsel at that time, advised the Crown that he had mistakenly mis-diarized the January 8, 2024, motion dates and now he was double booked for that time slot with another case. Thus, the motion would have to be adjourned. No new motion dates were yet scheduled. Normally, if this caused a delay in the trial date starting February 12, 2024, this would unquestionably be defence delay.
[28] However, a second issue arose in the December 5, 2023, communication between defence counsel and Crown.
Counsel getting off the record and new counsel coming on the record
[29] On December 5, 2023, Mr. Rishea advised the Crown that he discovered he was disclosed an unredacted ITO that disclosed the identity of a confidential source. The Crown properly and immediately brought a “clawback” motion on December 7, 2023. The ITO was returned. Then Mr. Rishea, properly and promptly, brought a motion to remove himself from the record on December 12, 2023. The Crown and the court on that day agreed that this was the right thing for Mr. Rishea to do. He was removed from the record.
[30] Mr. Desmond then promptly retained Mr. Dorsz who came on the record December 19, 2023. However, he was not available on February 12, 2024, for the hearing of the motion or trial. On January 9, 2024, the February 12 date was vacated and Crown disclosure was uploaded for Mr. Dorsz to receive. On January 22, 2024, Mr. Dorsz confirmed his retainer, advised that he had not yet been able to complete the review of the significant disclosure, and that a JPT was to be set up. On February 27, 2024, a JPT was conducted.
[31] In scheduling a new motion (5 days) and trial dates (7 days) [1], Mr. Dorsz offered October 21-November 5, 2024, and December 16, 2024, and onwards. The Crown was available those dates, as well as dates in May of 2024. On March 11, 2024, Mr. Dorsz advised that he was now booked up for four weeks starting January 13, 2024. On March 28, 2024, Mr. Dorsz advised that he was now starting a 5-6 week homicide trial on September 9, 2024.
[32] The following dates were then confirmed by counsel on April 4, 2024, and later confirmed in the court appearance of April 16, 2024: pretrial motions October 28, 2024 (5 days) and March 17, 2025 (7 days).
[33] On April 12, 2024, the Crown and Mr. Dorsz were advised that earlier dates were available as another trial had been vacated and that they were now being offered the following earlier dates: May 13, 2024, for pretrial motions and June 3, 2024, for trial. Mr. Dorsz advised that the May dates would not give him enough time to file the applications and further, he was double booked for June 3, 2024.
[34] On this s. 11(b) application, the defence submits that none of this delay should be attributed to the defence. He argues that it was the Crown’s disclosure of the unredacted ITO that caused the delay. On the other hand, the Crown submits that 8 months of the 13-month delay from the first trial date of February 12, 2023, up until March 17, 2025, should fall at the feet of the defence.
[35] Normally, in principle, I would find that the entirety of the delay caused by the adjournment of the February 12, 2024, trial date could not be considered defence delay. While new counsel needed to be retained which led to the delay, that circumstance was caused by the Crown disclosing an unredacted ITO. It was professionally responsible and inevitable for Mr. Rishea to withdraw. Given how close to the hearing date of February 12, 2024, this came about, it would have been very difficult to retain new counsel of choice who would be available and prepared to conduct the pretrial motions on February 12, 2024. The defence tried its best. Mr. Desmond secured new counsel quickly. Mr. Dorsz himself was prepared to go on the record even before receiving legal aid approval. In addition, both pretrial motions and trial had to be secured: a period of time in total of some 10 to 12 days. This realistically could not be done instantaneously.
[36] However, as I pointed out, given that Mr. Rishea had mis-diarized and double booked himself, the trial would not have been completed in February of 2024 in any event. It only made sense to convert that into a motion date. But a trial date still needed to be scheduled. This was then complicated by the discovery of the inadvertent disclosure and the removal of counsel of record.
[37] In my opinion, there are differing ways to view this complicated set of facts. One is to characterize Mr. Rishea’s mistake as irrelevant to the delay since the events of his withdrawal as counsel of record overtook this reason for the delay. Put another way, the actual reason for the delay was the disclosure of the ITO and the attendant withdrawal of counsel. To hold otherwise is to rely on a hypothetical of what could have taken place, rather than what did in fact take place. It is in keeping with the principle that to be considered defence delay, defence conduct must have “solely or directly” caused the delay. In this case, while the defence conduct could be seen as a contributing factor, it did not solely or directly cause the delay because the case would have been adjourned because of the Crown conduct.
[38] An alternative view is to consider the defence mis-diarizing as a relevant consideration since it had a continuing operating effect on the proceedings and the resultant delay. In other words, the defence shares part of the blame for the resulting delay. In this way, the defence should bear some responsibility for the attendant delay because, regardless of the Crown conduct, it directly caused the delay.
[39] Taking a bird’s-eye view of the case, the true cause of the delay that pushed the case over the s. 11(b) constitutional line was the disclosure by the Crown of an unredacted ITO that involved a confidential source. Had this not occurred, there was yet an opportunity to complete the case within the Jordan framework. In the factual matrix of this case, had the Crown disclosure of the unredacted ITO not occurred, any attendant delay to the completion of the trial caused by Mr. Rishea’s mistake of mis-diarizing, would have been defence delay and removed from the s. 11(b) calculus.
[40] Given this, I am loathed to characterize any of the attendant delay from the adjournment of the February 12, 2024, hearing dates as defence delay.
[41] In the alternative, I would apportion some of the delay as defence delay. I would assess the fair and reasonable apportionment to be 3 months for the following reasons.
[42] First, when setting new dates for the pretrial motions and the trial, the court did not have dates available until October of 2024. According to the trial confirmation form, the court offered the parties the following new dates: October 21-31, 2024 [2], November 5-29, 2024, December 2-31, 2024, January 2-10, 2025, and February 10, 2025, and onward. At para. 64 of Jordan it was stated that periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. Thus, about 8 months is taken out of the picture.
[43] Second, the offer of dates unexpectedly made available for the summer of 2024, were unrealistic for a new defence counsel coming on board in terms of availability and preparation.
[44] Third, while recognizing these factors, I find that defence counsel’s unavailability for about one year due to other commitments, despite the earlier available dates for the court and the Crown, is unreasonable in the context of this case. As noted, the defence bears some responsibility for the adjournment of the January trial date. This justifies a certain apportionment of the delay to the defence. A reasonable allotment to be characterized as defence delay would be 3 months. This is more than half of the 5-month delay from October 2024, the first court date offered by the court, to the end of the March 2025 trial date.
Conclusion on defence delay
[45] After deducting 2 months for the defence delay in the setting of the initial motion and trial dates, the net delay in this case is 38 months.
[46] In the alternative, also subtracting the 3 months for defence delay after new trial dates were set when Mr. Rishea removed himself from the record, the total defence delay is 5 months. The net delay in this alternative way of looking at the case is 35 months.
[47] Either way, this case is beyond the presumptive ceiling of 30 months.
3. Exceptional Circumstance
[48] The Crown does not contend this is a complex case. However, the Crown submits that the delay caused by the inadvertent disclosure of the unredacted ITO is an exceptional circumstance.
[49] Delay caused by discrete events is not counted against the Jordan ceiling. Discrete events lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown Counsel cannot reasonably remedy the delay emanating from those circumstances once they arise: Jordan, at paras. 69, 75-76.
[50] To put it simply, I find it was not an exceptional circumstance since the disclosure of the unredacted ITO does not lie outside the Crown’s control. It was not reasonably unforeseen or reasonably unavoidable. Disclosure of an unredacted ITO where a confidential source is involved is not a minor matter. Rightfully, great care is taken in protecting the identity of a confidential source. Vetting ITOs for disclosure is standard practice and diligence should be and is exercised. I know very little of the circumstances involved in the serious mistake that occurred here. Therefore, I am unable to determine the degree of negligence involved. However, what I can conclude without hesitation is that the disclosure of the unredacted ITO which caused the delay was an unreasonable action entirely within the control of the Crown. It was totally avoidable. The onus is on the Crown to prove an exceptional circumstance. That onus has not been discharged.
B. DISPOSITION
[51] The remaining delay is over 30 months. A s. 11(b) violation has been proven. Therefore, a stay of proceedings is ordered as the appropriate remedy under s. 24(1) of the Charter.
Justice S. Nakatsuru Released: November 14, 2024
Footnotes
[1] In addition, a date for this s. 11(b) application was decided. Any changes in the hearing of this s. 11(b) application did not affect the completion of the trial dates.
[2] It is noteworthy that even if I were to attribute all the time after the first date offered by the court as defence delay, the net delay would still be over the presumptive ceiling of 30 months.