Ontario Superior Court of Justice

COURT FILE NO.: 21-51002241

DATE: 2024/12/12

BETWEEN:

HIS MAJESTY THE KING

– and –

Abel Solano Santana, Applicant

COUNSEL:

Giuseppe Cipriano for the Federal Crown

Michael Moon for the Applicant

HEARD: September 11, 2024

REASONS FOR DECISION ON SECTION 11 (B) APPLICATION

CARTER J.

[1] The Applicant seeks a stay of proceedings based on an alleged breach of his constitutional right to be tried in a reasonable time – a right protected under s. 11(b) of the Charter of Rights and Freedoms.

[2] Both counsel agree that the amount of delay in this matter is 1,427 days, just shy of 47 months. The Applicant was arrested on February 28, 2021, along with two co-accused who were eventually severed, for one count of possession of fentanyl for the purposes of trafficking and one count of possession of cocaine for the purposes of trafficking. At the time of the hearing on this application, his trial was scheduled to conclude in January 2025.

[3] The primary issue on this application is whether certain time periods should be subtracted from the total delay on the basis that they were the direct cause of the defence.

LEGAL PRINCIPLES

[4] The legal principles are largely not in dispute.

[5] The presumptive ceilings by which an accused must be brought to trial are 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice. In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defence must demonstrate that the period of time leading to the end of trial was nevertheless unreasonable. Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 5, 46-48 and 49.

[6] Defence delay has two components. The first is delay waived by the defence. Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights: Jordan, at para. 61.

[7] The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises 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. As an example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable: Jordan, at paras. 63-64.

[8] Defence conduct encompasses both substance and procedure — the decision to take a step as well as the manner in which it is conducted may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements, and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32.

[9] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay: Jordan, at para. 65.

PURPORTED DEFENCE DELAY

[10] Crown counsel has helpfully prepared a chart that sets out which periods of time they characterize as delay attributable to the defence.

Date	Reason	Calculation and attribution of delay
March 1, 2021 to March 4, 2021	Investigative remand	Crown delay 3 days
March 4, 2021 to April 27, 2021	Adjournments for accused to come up with bail plan and set bail hearing	Defence delay – 1 month, 23 days, or 54 days
April 27, 2021 to November 19, 2021	Conduct CPT’s with all accused and JPT’s	Neutral or Crown delay – time to conduct CPT’s and JPT’s with all 3 accused – 6 months, 23 days, or 206 days
November 19, 2021 to December 21, 2021	Crown to sever accused from two other accused	Crown delay – 1 month, 2 days, or 32 days
December 21, 2021 to April 12, 2022	Defence to file statement of issues for full preliminary inquiry	Defence delay to file statement of issues - 3 months, 22 days, or 112 days
April 12, 2022 to December 6, 2022	Defence change in election twice from OCJ trial and back to SCJ trial	Defence delay – two changes in election – 7 months, 24 days, or 238 days
December 6, 2022 to February 10, 2023	Defence re-elect to SCJ and consents to a discovery. They then elect to a full preliminary inquiry with no admissions. Crown prefers a direct indictment.	Defence delay – 2 months, 4 days, or 66 days
February 10, 2023 to May 26, 2023	Defence delay due to re-election to the Superior Court of Justice	Defence delay – 3 months, 16 days, or 105 days
May 26, 2023 to September 8, 2023	Crown seeks to change the venue to obtain earlier trial time. Defence resists the offer.	Defence delay – 3 months, 13 days, or 105 days
September 8, 2023 to April 19, 2024	Dates between SCJ set date and first date offered for trial in which the crown and Court had availability	Institutional Delay – 7 months, 11 days, or 224 days
April 19, 2024 to June 21, 2024	Defence unavailable for trial	Defence delay 2 months, 2 days, or 63 days
June 21, 2024 to January 24, 2025	Defence adjournment for trial	Defence delay 7 months, 3 days, or 217 days

[11] The defence concedes it is directly responsible for some delay. As a result, there are only four main areas that are in dispute:

a. Adjournments for the Applicant to come up with a bail plan;

b. Delay in the Applicant filing a statement of issues;

c. The Applicant’s change of election to the Ontario Court of Justice; and

d. The Applicant’s subsequent re-election back to the Superior Court of Justice.

[12] I will deal with each issue in turn.

THE BAIL ISSUE

[12] The Crown submits that 54 days should be subtracted from the total delay because the Applicant’s continued adjournments in order to have a bail hearing prevented the matter from formally moving forward. There is no merit to this submission. The Applicant was arrested on February 28, 2021. His bail hearing was held on April 27, 2021. The initial disclosure package was not provided to the Applicant until April 7. The Crown has offered no explanation as to what the Applicant should have been doing to move the matter forward without having yet received the disclosure. This was part of the intake period. The Applicant had a constitutional right to bail. Quite frankly, it is perplexing that the Crown would make this submission in light of these circumstances. The defence was not responsible for this period of “delay.”

SWITCHING ELECTION TO OCJ

[13] The Crown argues that a period of delay between December 21, 2021, and April 12, 2022, is the result of the Applicant failing to file a statement of issues. The Applicant was informed at the November 19, 2021, JPT that he would be severed from the co-accused. At that same JPT, the Applicant also put the Crown and Court on notice of his intention to set a contested preliminary inquiry, although this election was never formally made. It is submitted that several adjournments occurred in order for the Applicant to file a statement of issues and possibly consider a discovery. The Applicant also missed a court appearance, necessitating an extra adjournment.

[14] The defence concedes that it is responsible for some of this period of delay. It received outstanding disclosure of a cell phone report and the ITO for various judicial authorizations in late January 2022. It is admitted that counsel should have been in a position to make an election for a trial in the OCJ at the February 15, 2022, appearance after having reviewed this disclosure.

[15] In my view, there is no defence delay prior to February 15. The landscape changed dramatically in November 2021 when the Crown decided to sever the two co-accused. At the JPT in December 2021, the Crown had still not decided whether they would call the co-accused at a preliminary hearing. Significant disclosure was not received until late January 2022. Given these outstanding issues, the defence could not have filed a statement of issues earlier. As a result, the missed court appearance, which occurred prior to the receipt of the disclosure, did not necessitate any further delay.

[16] I will address the issue of how to calculate the conceded delay attributable to the defence for this period under the next heading as it is inextricably woven with the issue of election.

CHANGE OF ELECTION TO OCJ

[17] In my view, the decision to change the election to trial in OCJ was a legitimate one. Although there is no direct evidence that the change was made as a result of the receipt of disclosure and severance of the two co-accused, it can be easily inferred given the timeline of events. The severance occurred in November 2021, the disclosure was delivered in late January 2022, and the formal election came a few months later. This is not a situation, as in R. v. Lai, 2021 SCC 52, [2021] 3 S.C.R. 733, where a re-election was made just prior to trial and without a sound explanation. This was, in essence, an initial election made in light of the severance and receipt of the full disclosure.

[18] That said, the defence has conceded that the election should have been made earlier than it was. The question is how to best calculate the period of delay that resulted. Between April 12 and June 7, 2022, the parties worked with trial coordination to obtain trial dates. The Crown was seeking five consecutive dates for the trial. The Trial Availability List indicated this would not be possible in 2022. The 2023 trial list did not become available until June 2022.

[19] The Crown agreed to set dates for February and March 2023, the earliest consecutive dates offered. It did not seek earlier dates by asking for non-consecutive dates. It is argued on this application that it was more efficient to have consecutive dates because the officers were travelling from Ottawa. The precise efficiency this would create is difficult to discern and was not articulated by the Crown. In any event, whatever limited efficiency might be achieved was far outweighed by the fact that trial dates were set for six months past the Jordan ceiling. This should have been a red flag for the Crown, yet it did nothing to deal with the situation.

[20] If the defence had made their election sooner, would the situation have been different? Unfortunately, it is impossible to say on the record before me. I agree with the reasoning of Riley J. (as he then was) in the decision of R. v. Sharma, 2022 BCSC 2080, where he wrote at para. 32:

The difficulty with the Crown’s position is the absence of any evidence on the record as to the amount of time lost due to the change in election by the two accused. There is no way to discern, some two years after the event, whether there would in fact have been earlier dates if the accused had initially sought a two-day preliminary inquiry rather than a ten-day Provincial Court trial. Nor is it possible to determine precisely how much earlier the dates would have been, considering that this would be a function of not only available court time, but also the availability of the parties. The best one could do on this record would be to make an educated guess about how much time was forsaken in booking a ten-day trial rather than a two-day preliminary inquiry. As the Crown stated in its written argument, “[w]e will never know when the preliminary inquiry would have taken place had the Sharmas elected to have a preliminary inquiry and a trial in Supreme Court in the first place, or had they re-elected earlier.”

[21] As in Sharma, there are simply too many variables at play for the Court to determine with any confidence whether an earlier date could have been secured, and precisely when that earlier date would have been. As a result, the most appropriate way to account for the conceded defence delay is to simply deduct the 57 days between the date on which the defence should have made their election, February 15, 2022, and the date on which they actually did, April 12, 2022.

RE-ELECTION TO SCJ

[22] As the trial dates set were well past the Jordan ceiling of 18 months, the defence indicated it intended to bring a s. 11(b) application. That application was scheduled for December 6, 2022. The transcripts were not ordered by the Applicant until October 19, 2022, approximately two weeks prior to the filing deadline for the application. Only transcripts from December 7, 2021, to July 5, 2022 were ordered. The transcripts from the first nine months of proceedings were not (as it turned out, these transcripts were not relevant to the issues on the s. 11(b) hearing).

[23] The Crown wrote to the defence raising the issue of the Applicant’s filing timing as well as the lack of a proper record. It stated that it would seek to dismiss the application or adjourn the proceedings in order for the Applicant to properly provide a record. The Applicant initially stated he would seek an adjournment and immediately order the missing transcripts. However, he ultimately chose to abandon his stay application and re-elect to the Superior Court of Justice. Not surprisingly, this resulted in further delay.

[24] The issue that arises is how to characterize the defence decision and the delay that resulted. The Crown argues that the late re-election was not legitimate and that all resulting delays should be attributable to the defence. The defence submits that the Applicant had a right to re-elect and, in any event, the re-election benefitted the Crown as it increased the Jordan ceiling to 30 months.

[25] I would begin by noting the right of the Applicant to re-elect is not in dispute. The issue is whether the timing and nature of the re-election were illegitimate within the meaning of the jurisprudence. Irrespective of its merit, a defence action may be deemed illegitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

[26] The defence decision was certainly an unusual one. The trial dates in the OCJ were well past the Jordan ceiling. The application for a stay had considerable merit. An adjournment of the hearing could have been granted. By re-electing, the defence was, in essence, giving the Crown an opportunity to salvage the case from virtually certain demise. In these very unique circumstances, I cannot say that the re-election was designed to delay or that it exhibited marked inefficiency or marked indifference toward delay. As a result, the entirety of the delay from the re-election should not be laid at the feet of the defence.

[27] That does not, however, end the story. The actions of the defence after the re-election must still be scrutinized. In some regards, those actions were wanting.

[28] The initial period after the re-election was largely unremarkable. The trial dates were kept for the purposes of a preliminary hearing. The defence moved with dispatch to file a statement of issues. However, the Crown chose to prefer a direct indictment on February 10, 2023, and, as a result, those dates would prove unnecessary. A resulting intake period in the Superior Court followed with dates for a jury trial in November 2024 being set on May 26, 2023. Nothing that occurred during this period could be characterized as defence delay.

[29] The new trial dates were past the Jordan ceiling, and this time the Crown decided to take action. The defence was put on notice on June 1, 2023, that the Crown would seek to bring a change of venue application. The Crown had been told that earlier trial dates may be available in Ottawa. The defence refused to consent to the change of venue application initially, and so the matter was set down for a hearing. Ultimately, the defence agreed to the change of venue on August 11, 2023. The basis for the initial defence opposition to the application was not compelling. Given the circumstances of the case and the delays up to that point, the position was, in fact, unreasonable. The defence is responsible for the delay that was occasioned by their unreasonable position.

[30] Again, as in Sharma, I am not able to say with any degree of certainty what trial dates would have been obtained if the defence had consented to the change of venue earlier. There was a suggestion of some earlier trial dates in correspondence with the Ottawa Courthouse but there is no evidence they could have definitively been used, were available to counsel, that the witnesses would have been available on those dates, and that they would have still been available by the time the file was transferred to Ottawa. Therefore, I will deduct as a period of defence delay the time between June 15, 2023 (two weeks after the defence received notice of the change of venue application) and August 11, 2023 (the date the defence consented to the change of venue), which is a period of 57 days.

TOTAL PERIOD OF DELAY

[31] As noted at the outset, the total period of delay in this matter is 1,427 days. The defence concedes that it is responsible for 286 days of delay. I have found a further 114 days of defence delay. For the purposes of the Jordan analysis, the total amount of the delay minus defence delay is 1,027 days, which is approximately 34 months. That number is above the 30-month ceiling. The Crown has not sought to rely on any exceptional circumstances. As result, I find that the Applicant’s rights under s. 11(b) of the Charter have been violated. A stay of proceedings will be entered.

Carter J.

Released: December 12, 2024

COURT FILE NO.: 21-51002241

DATE: 2024/12/12