Ontario Superior Court of Justice

Court File No.: CR-24-20000171-0000
Date: 2025-01-07

BETWEEN:
His Majesty the King
– and –
Jordan Masters-George

Colin Sheppard, for the Crown
Daniel Rechtshaffen, for Jordan Masters-George

Heard at Toronto: December 13, 2024

J.K. Penman

A. Overview

[1] Mr. Masters-George was charged on June 1, 2022, with conspiracy to traffic cocaine, possession for the purpose of trafficking cocaine, and possession of property obtained by crime under $5,000.00. Mr. Masters-George’s arrest came as the result of a Toronto Police Service Guns and Gangs Major Projects Section investigation called Project Venom which investigated an alleged criminal organization in Toronto.

[2] Mr. Masters-George’s trial is currently scheduled to commence on March 24, 2025, and conclude on March 28, 2025, which is 33 months and 28 days post arrest. As this period exceeds the 30-month ceiling for trials in the Superior Court established in R. v. Jordan, 2016 SCC 27, Mr. Masters-George now applies to have the proceedings stayed on the basis that his s. 11(b) Charter right to a trial within a reasonable time has been infringed.

[3] Mr. Masters-George’s position is that the conduct of the prosecution is the cause of the delay. Counsel takes the position that there is no defence delay, and the case against Mr. Masters-George is not so complex as to justify the delay.

[4] The Crown takes the position that the defence is responsible for three months of the delay, and that six months should be deducted due to the COVID-19 backlog that still exists in this jurisdiction, leaving a delay of 25 months. The Crown also argues that this matter falls squarely within the complex case exception to Jordan, the Crown had a prosecution plan and made every effort to get the case to trial as soon as possible.

[5] The issues for me to decide in this case are as follows:

i) Is there any delay attributable to the defence?
ii) Is any of the delay properly attributable to the COVID-19 backlog?
iii) Does this case fall within the complex case exception to Jordan, and did the Crown have a sufficient prosecution plan to mitigate the delay?

[6] For the following reasons I am satisfied that there has been some defence delay, although not what would bring the case below the Jordan ceiling. While I did not find any additional COVID-19 related delay, I find that the remaining delay is reasonable given the “complexity” of the Project Venom prosecution, and that the Crown had a plan and took reasonable steps to have the matter move forward as quickly as possible.

B. Background Facts

i) Case Against Mr. Masters-George

[7] The case against Mr. Masters-George consists of intercepted communications that took place between Mr. Burnell Smith and Mr. Masters-George, between March 12 and May 28, 2022. Based on these intercepts police believed that Mr. Masters-George was trafficking controlled substances in association with Burnell Smith. The police learned of Mr. Masters-George through their intercepts of Mr. Smith, and he was added as a target.

[8] The Crown alleges that over the period of April 7 to 14, 2022, while Mr. Masters-George was on holiday he let Burnell Smith access his house, one of his phones, and his supply of controlled substances for the purpose of having Mr. Smith traffic controlled substances to Mr. Masters-George’s customers while he was away. It is alleged that on April 14 Mr. Smith reported back to Mr. Masters-George that he had sold about 0.75 ounce (21 gm) of controlled substances. On March 26, 2024, Burnell Smith pleaded guilty to the conspiracy with Mr. Masters-George, among other charges.

[9] Further intercepts on March 14 and May 30, 2022, caused investigators to believe that Mr. Masters-George was in possession of a firearm. Police conducted surveillance at 92 Cherry Hills Road and observed Mr. Masters-George at the address with various vehicles associated to him parked there. Police obtained a search warrant for Mr. Masters-George’s residence and vehicles.

[10] On June 1, 2022, at 8:13 pm, police arrested Mr. Masters-George in the underground garage of Yorkdale Mall for possession of a firearm. At 8:53 pm police executed a search warrant on the vehicles and his residence at 92 Cherry Hills Road, entering with keys seized during his arrest.

[11] Police seized 26.78 gm of cocaine, drug paraphernalia, jewelry, and cash. Mr. Masters-George was charged with conspiracy to traffic in a controlled substance, possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. He was released on an undertaking to an officer in charge on June 2, 2022.

[12] It is alleged by the defence that during Mr. Masters-George’s arrest he was punched in the face and dragged on the ground. A security video from Yorkdale Mall was sought but police determined that the video was not required because it did not capture the arrest. The defence challenged the officer’s evidence about the assault at the preliminary hearing. Because of this the defence planned to bring a stay application in relation to this alleged assault and lost evidence.

ii) Proceedings in Provincial Court

[13] In the Ontario Court of Justice, the Project Venom prosecution was divided into 12 groups for their preliminary hearings. Mr. Masters-George was in Group 2 originally with 10 other co-accused. All the evidence against Mr. Masters-George’s conspiracy charges and the evidence supporting the search of his residence, came from the intercepts.

[14] The Crown plan was to keep Mr. Masters-George in Group 2 given his involvement with Mr. Smith who was an important member of the organization with a large number of charges. Once the Garofoli application was concluded, the general plan was to then sever Mr. Masters-George from the main group.

[15] Disclosure was provided in ‘waves’. On December 2, 2022, the Crown emailed counsel asking that a Judicial Pre-Trial (JPT) form be filled out, and indicated they intended to rely on s. 540(7) for the preliminary hearing. By December 5, 2022, Mr. Rechtshaffen had been provided with the search warrant ITOs, including for 92 Cherry Hills Rd, the Part VI authorizations, intercepts and surveillance reports. The Crown also indicated they would call a “representative number” of police officers related to each search warrant and surveillance episode.

[16] On December 12, 2022, the Crown sent all counsel a 190-page “Crown’s Compendium of Evidence” that summarized the evidence already disclosed and formed the basis of the s. 540(7) application.

[17] Mr. Masters-George had received six waves of disclosure by February 3, 2023.

[18] Judicial pre-trials were held on January 16 and February 13, 2023, where it was decided the preliminary hearing would take three weeks. Counsel for Mr. Masters-George indicated he wished to hear from 10 witnesses at the preliminary hearing.

[19] On February 28, 2023, the trial office offered preliminary hearing dates ranging from June 5, 2023, to February 29, 2024. The Crown were available for all the suggested dates. On March 10, 2023, counsel for Mr. Masters-George indicated he had three weeks available in May, two weeks in June, July, August and September and a week in October and November.

[20] Mr. Rechtshaffen also asked the Crown to consider severing Mr. Masters-George so that the matter could easily be heard in 2023. The Crown indicated they were not prepared to do so at that time, but would revisit the issue in Superior Court.

[21] On March 14, 2023, Mr. Rechtshaffen stated on the record that the Crown had “been really diligent in trying to make it happen, so I do appreciate it”, referring to efforts made to have the preliminary hearing heard in the summer or earlier.

[22] The preliminary hearing was scheduled for three weeks beginning September 11, 2023.

[23] On May 25, 2023, and following, the Crown began preferring indictments for several of the other groups to ensure their availability for the Garofoli application anticipated to be heard in the fall.

[24] The preliminary hearing was completed on September 21, 2023, a week ahead of schedule. Mr. Rechtshaffen conceded committal. On November 20, 2023, Justice North released his ruling on committal.

iii) Proceedings in Superior Court and the Garofoli Application

[25] The Crown made an application for a case management and common issues order for one global Garofoli hearing for all Project Venom accused challenging the Part VI authorizations.

[26] On October 18, 2023, a global defence Notice of Application was filed for a Garofoli hearing to be held before Justice Code on December 11, 2023. On November 1, 2023, Justice Forestell ordered that all Project Venom accused were bound by one common Garofoli application and remanded everyone to December 11, 2023. On November 27 the Crown filed its Notice of Application for a Case Management Order for Group 2.

[27] On November 29, 2023, Mr. Rechtshaffen asked for a JPT form for his client alone. The Crown responded and indicated they would not be severing Mr. Masters-George until after the outcome of the Garofoli but were willing to set a trial date immediately if Mr. Masters-George was not interested in the outcome of the Garofoli.

[28] The first JPT for Group 2 was set for November 30, 2023, before Justice Bawden. Prior to the JPT, Crown and defence counsel exchanged emails in which counsel for Mr. Masters-George indicated that his client would “certainly be headed to trial”. Mr. Rechtshaffen then suggested to the Crown that his client be allowed to re-elect to have his trial in Provincial Court. The Crown did not agree to this, and this application was never pursued.

[29] Between November 28 and 30, 2023, the Crown provided all counsel with a combined form for the upcoming JPT and again confirmed that Mr. Masters-George would be severed from the other accused after the Garofoli. The Crown indicated who they would call at a trial for Mr. Masters-George alone and provided a time estimate of one week. The Crown wrote “one of our key requirements is in getting this case heard in a timely fashion” and were willing to set target dates for trial.

[30] At the November 30, 2023, JPT Crown counsel and counsel for Mr. Masters-George agreed on a time estimate for Mr. Masters-George alone; one week for trial plus an application for leave to cross-examine the affidavit on the residential search warrant, and two days for the s. 8 search warrant application.

[31] After the JPT, Crown counsel sent Mr. Rechtshaffen a detailed Compendium of Evidence and a sentence appendix in the event of a guilty plea. This Compendium outlined in great detail the case against Mr. Masters-George and had previously been disclosed to counsel in December of 2022.

[32] On December 6, 2023, the Crown asked counsel for Mr. Masters-George to confirm that there was no chance of resolution and for their JPT form so that trial dates could be set. Mr. Rechtshaffen replied that he never received the form. When he was referred to the November 30 email, he responded that he had “missed it”.

[33] On December 14, and 15, 2023 and January 5, 15, and 17, 2024, Crown counsel emailed counsel asking for their JPT form and whether they were interested in a resolution JPT with Justice Bawden, stressing the need to set trial dates if a resolution was not possible.

[34] Justice Code dismissed the Garofoli application on January 12, 2024, and specifically noted “So let Mr. Rechtshaffen know that if it’s not going to be resolved, he’s, he’s gotta get trial dates into the Crown so that we can get a trial date set on that.”

[35] Mr. Rechtshaffen responded to the Crown on January 18, 2024, indicating he did want a JPT but was going on vacation from January 27-February 18 and that the JPT would have to be after February 18. He filed the Form on January 23 and at counsel’s request a JPT was set for a week after his return on February 26.

[36] Once the JPT form was filed it was clear that counsel for Mr. Masters-George intended to bring a stay application with respect to the alleged assault and section 7 lost evidence application. These motions had not been raised at the November 30 JPT. There was no indication that the defence was planning on bringing a s.11(b) application.

[37] On January 25, the Crown wrote Mr. Rechtshaffen telling him the JPT was set for February 26, 2024. Mr. Rechtshaffen responded by accepting the date but also wrote:

Mr./Madam trial coordinator, if you can please let us know which dates between now and February 26th were actually available to Justice Bawden, I would greatly appreciate it.

[38] The Trial Office wrote back:

Justice Bawden has advised that if anyone is concerned about delay in this matter, His Honour would be glad to accommodate a JPT on any day at 1:30 or 5:00 pm; first availability is tomorrow.

[39] The Crown replied: “that’s fine with the Crown”.

[40] On January 26, 2024 the Crown wrote to the trial office and counsel:

“Colin and I are wondering whether we still need to keep 1 pm and 5 pm free today. Also, if Daniel wants to book a JPT before Feb 26 right after his return from vacation (Feb 20-23) please let us know today.”

[41] Counsel replied: “Yes if we can please confirm the 26th, that would be great.” The Crown replied that it was still available, and the trial office confirmed the JPT date.

[42] At the JPT on February 26, 2024, to secure earlier dates the Crown made the decision to only proceed with the conspiracy to traffic charge and not rely on any intercepts after the June 1 arrest, if counsel did not proceed on the Charter motions.

[43] By March 3, 2024, the time estimate was agreed to be three days for a judge alone trial, and five days for a jury trial. The Crown’s first availability was April 15, 2024, Mr. Rechtshaffen’s was May 27, 2024, and the Court’s first available date was October 1, 2024. On March 25, 2024, the trial dates of March 24-28, 2025, were set.

[44] Between March 26 and June 21, 2024, Mr. Rechtshaffen sought instructions as to whether he would be bringing a s. 11(b) application. On May 2 an 11(b) JPT took place before Justice Bawden who set a timeline of June 24 for the filing of materials.

[45] Mr. Rechtshaffen was reluctant to agree with that timeline because he was not retained for trial or the 11(b) application. Justice Bawden reminded counsel of the Practice Direction, and that any failure to bring the application in a timely manner could be prejudicial to the merits of the application.

[46] The defence materials were filed on October 16, 2024.

C. Overall Delay Analysis

i) Is there any Delay Attributable to the Defence?

[47] I am satisfied that a delay of 2 months and 28 days is attributable to the defence during the period of November 30, 2023, to February 26, 2024, when the case reached the Superior Court, and a trial date could have been set. Counsel did not advise of their intention to bring two additional motions until January 23, 2024, and were then unavailable to conduct a JPT until February 26.

[48] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework – calculating the total delay, subtracting any defence delay in determining net delay: see paras. 47, and 61-64. The court must then consider any exceptional circumstances including any discrete exceptional circumstances: see paras. 69 and 75.

[49] Defence delay for the purposes of this analysis consists of two types of delay. First, delay that is waived by the defence. That is not an issue in this case. Second, delay “that is caused solely or directly by the defence’s conduct”. This does not include legitimate actions taken by the defence to respond to the charges: see Jordan at paras. 64-66. I would include in this second category the election by the accused to have their matter tried by a judge and jury.

[50] The predictability of the Jordan framework makes the parties more accountable and encourages them to be proactive about delay. This includes the defence being an active part of the solution to the problem of delay: R. v. J.F., 2022 SCC 17 at para. 31.

[51] Recent caselaw has modified the notion of a ‘bright line’ rule in assessing defence delay. R. v. Boulanger, 2022 SCC 2 at para. 8 makes clear that all relevant circumstances should be considered to determine how delay should be apportioned among the participants. This approach has been followed in several cases: R. v. Hanan, 2023 SCC 12 at paras. 9, and 54-56; R. v. Albinowski, 2018 ONCA 1084 at para. 46; R. v. Zahor, 2022 ONCA 449 at paras. 101-102; R. v. Bowen-Wright, 2024 ONSC 293 at paras. 38-39.

[52] It is within this framework that “trial judges should not parse each day or month … [but] should step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan at para. 91; Agpoon at para. 22.

[53] Although the Crown suggests the defence was content with the pace throughout the proceedings, the Crown is not asserting that there was any defence delay in the provincial court. I agree with that assessment. From all accounts the defence did their best to move the matter along and was part of the process that allowed the preliminary hearing to be completed in a reasonable time.

[54] The Crown does allege, however, that a period of three months in Superior Court from November 30, 2023, to March 25, 2024, should be considered defence delay.

[55] On November 29, 2023, counsel for Mr. Masters-George stated that his client “will certainly be headed to trial”. From that point all efforts should have been made to have the matter set down for trial as quickly as possible.

[56] On November 30, 2023, Justice Bawden and counsel agreed on a time estimate of one week in addition to two days for a s. 8 Charter challenge. No other motions were raised by the defence. The trial date, in my view, could have been set at that time. Counsel for Mr. Masters-George had been provided the Crown’s JPT form on November 28 and was well aware of the case against his client.

[57] Mr. Rechtshaffen argues that even though it had been discussed multiple times, it was only on November 28 that the Crown confirmed that Mr. Masters-George would be severed. He submits that when he agreed with the time estimate at the November 30 JPT, it was not a thoroughly considered position as the understanding that Mr. Masters-George was being severed had “major strategic implications”. I am not persuaded by this submission.

[58] Severance had been on the table since March of 2023. The fact that it was confirmed on November 28, should not have been a total shock to counsel. This was the outcome that the defence had been hoping for and would certainly have meant an earlier trial date for Mr. Masters-George.

[59] In my view, counsel was aware of the case against Mr. Masters-George having been part of the preliminary hearing and having been provided a detailed compendium of evidence and witness list in December of 2022 and November 30, 2023. As Mr. Rechtshaffen indicated in his materials and in oral argument, the case against Mr. Masters-George alone is straightforward and not complex. Target trial dates could have been set as of November 30, 2023.

[60] Additionally, the defence did not file their JPT form indicating that they were bringing two additional Charter motions in relation to the alleged lost evidence and alleged assault on Mr. Masters-George until January 23, 2024, almost two months later. This lengthened the time estimate considerably and meant that any trial dates would be that much farther down the road.

[61] These Charter issues had been at play since Mr. Masters-George’s arrest and were explored at the preliminary hearing. There is no explanation for why they were not raised at the November 30 JPT, when time estimates were being discussed. I do not accept that Mr. Masters-George being severed from the main group, nor the outcome of the Garofoli would have any bearing on the viability or not of these motions.

[62] In addition, in my view Mr. Rechtshaffen could have arranged for a JPT before going on holiday at the end of January. Counsel’s correspondence with the trial office indicates he was live to the issue of delay and was aware that Justice Bawden would make himself available any day before or after court.

[63] There is no dispute that counsel is entitled to take vacation. In this case, however, given that delay was becoming an issue it was incumbent on defence counsel to take steps to move the matter forward. The Crown was ready and willing to set target trial dates as of November 30. In keeping with the requirement that all parties have an obligation to move the matter forward, Mr. Masters-George should have taken steps to set a trial date as of the November 30 JPT.

[64] The Crown also argues that the period from October 1, 2024, to March 25, 2025, is defence delay as the court had availability the week of October 1, 2024. I am not persuaded by this submission. Mr. Rechtshaffen offered dates prior to the October 1 date and after the October 1 date that were not available to either the court or the Crown. This is not defence delay.

[65] I am satisfied that the delay from November 30, 2023, to February 26, 2024, is defence delay. Target trial dates could have been set shortly after the JPT on November 30. Counsel did not advise of their intention to bring two additional motions until January 23 and were then unavailable to conduct a JPT until February 26. Given the duty on all parties to move the matter forward, counsel should have engaged earlier in the setting of a target trial date with a proper time estimate.

[66] The defence delay amounts to 89 days, or 2 months and 28 days bringing the net delay to 31 months.

ii) Is Any Delay Attributable to the Covid-19 Pandemic?

[67] The Crown argues that there should be some delay attributable to the Covid-19 pandemic and backlog in this jurisdiction in particular. I am not satisfied in the circumstances of this case that Covid-19 caused or contributed to the delay.

[68] The pandemic falls within a category of “discrete exceptional circumstance” as defined in Jordan. It satisfies the criteria of being reasonably unforeseen and the Crown cannot reasonably be expected to remedy the delay emanating from these circumstances. Given the systemic perspective within which the pandemic must be seen, “the reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances”: Jordan at para. 103; R. v. Agpoon, 2023 ONCA 449 at paras. 19 and 21.

[69] Notwithstanding this, there is no automatic or formulaic deduction for Covid-19, but rather the Court should consider whether Covid-19 contributed to the delay and could the delay have reasonably been mitigated.

[70] Mr. Masters-George was arrested in June of 2022. His preliminary hearing was heard and completed within a reasonable time notwithstanding the size of the prosecution. Dates were set for trial in March of 2024, four years after the outset of the pandemic. The first dates offered available by the court would have seen the trial completed in October of 2024, under the Jordan 30-month limit.

[71] While there is no doubt that there are still backlogs in the system particularly in Toronto, in my view Covid-19 did not have an impact on the delay in this case. I am not satisfied that there is anything specific about the timeline of proceedings in this case that leads me to conclude that the pandemic caused or contributed to the delay: R. v. White and Malhi, 2023 ONSC 7 at paras. 21 and 22.

iii) Is the Case Complex as Contemplated by Jordan?

[72] Counsel for Mr. Masters-George argues that this case is not particularly complex as to justify an otherwise unreasonable delay, and points to the nature of the evidence against Mr. Masters-George and the issues involved. While counsel acknowledges the evidence in Project Venom being quite voluminous, they take the position that it did not require an inordinate amount of trial or preparation time.

[73] I am satisfied that this case does fall under the complex case exception and the time taken is justified and reasonable due to that complexity. While I appreciate that the case against Mr. Masters-George now is relatively straightforward and not overly complex, the prosecution must be looked at “as a whole”, referring to the entirety of the prosecution, not just the state of the prosecution on the day of trial: see R. v. Lopez-Restrepo, 2018 ONCA 887 at paras. 36-38.

[74] A finding that the overall time to trial is justified due to complexity ends the inquiry. If the delay is found to be reasonable due to case complexity, there will be no stay of proceedings: Jordan at para. 80.

[75] Complex cases require an “inordinate amount of trial or preparation time” due to the nature of the evidence or the issues. 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. There may be a large number of charges, pre-trial applications, novel or complicated legal issues and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused may also impact the complexity of the case: see Jordan, at para. 77; Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999 at paras. 24-28.

[76] The question is whether the net delay is reasonable in view of the case's overall complexity, and this question falls well within the “trial judge’s expertise”: Jordan at para. 79; R. v. Wookey, 2021 ONCA 68, at para. 88; R. v. Cody, 2017 SCC 31 at para. 64.

[77] This was a Guns and Gangs Major Projects Investigation with a three-month Part VI wiretap with 70 targets, two Part VI authorizations and over 30 confidential informants. The Part VI produced hundreds of thousands of intercepted communications and location-based services reports. There were general warrants and surveillance, both human and video.

[78] The investigation led to the arrest of over 40 parties with the allegations spanning from March to June of 2022.

[79] There were 0.72 terabytes of disclosure in 156,509 files organized into 14,416 folders. The disclosure index was 515 pages long. While I am mindful that voluminous disclosure is not automatically demonstrative of complexity, in this case there is no dispute the disclosure was voluminous, and it is a factor I have considered in concluding this case is complex: Cody at para. 65.

[80] The overall prosecution was divided into 12 groups for the purpose of the preliminary hearings. The Garofoli application involved 31 accused and took multiple days to complete.

[81] The case is distinguishable from R. v. Brar, 2023 ONCJ 123 relied on by the defence. In that case the court found that the accused were charged with discrete transactions that were not complex, and the process was made complicated by joining them with a larger prosecution: see para. 100. That case, however, involved only three accused, did not involve a Part VI authorization, and the evidence was based almost entirely on undercover police work with surveillance.

[82] The court in R. v. Al-Ramahi, 2023 ONSC 7281 found complexity based on several features that are also present in this case. Mr. Al-Ramahi was charged with murder arising out of a criminal organization investigation. Disclosure was voluminous, including wiretaps and the use of 36 confidential informants. There was a Garofoli application that took multiple days to complete and included a solicitor-client privilege issue.

[83] I am satisfied that this case has many of the characteristics of a “complex case” as contemplated by Jordan at para. 77. It is a combination of the volume and nature of disclosure, the Part VI authorizations involving over 30 confidential informants, along with the number of accused and interconnected issues between many of the accused including Mr. Masters-George and Mr. Smith.

iv) Did the Prosecution Have a Reasonable Plan to Mitigate the Delay?

[84] I must also consider, however, if the Crown had a plan for dealing with this particularly complex case, and whether considered as a whole, it was a reasonable attempt to minimize the delay occasioned by such complexity: Nugent at para. 46.

[85] While the Crown must act reasonably and diligently in developing and maintaining a concrete plan, the Crown is not required to cut corners or not pursue meritorious cases or issues in the interests of expediency. Whether the Crown succeeds in every effort is not the test. The test is whether there was a reasonable plan in place.

[86] I am satisfied that the Crown had a plan and made all reasonable efforts to mitigate the delay throughout the entire process. Disclosure was produced in a timely fashion. Counsel for Mr. Masters-George acknowledged the Crown’s efforts in getting the preliminary hearing set as quickly as possible. The Crown proceeding by way of s. 540(7) simplified and if anything streamlined the proceedings, and through everyone’s efforts the preliminary hearing finished ahead of schedule.

[87] Throughout the prosecution the Crown coordinated schedules in both the provincial and superior court, repeatedly indicated that they wanted the matter to proceed as quickly as possible, and consistently made themselves available for all dates that were offered in both the provincial court and superior court.

[88] The plan was to keep Mr. Masters-George in a group with Mr. Smith given the common issues between them and until the Garofoli application was complete. Once in Superior Court, the Crown severed Mr. Masters-George.

[89] It would not have made sense to sever Mr. Masters-George prior to the hearing of the Garofoli given his case was inextricably linked to Mr. Burnell Smith via intercepts, and Mr. Smith was co-accused with several other individuals. Mr. Masters-George stood to benefit from the Garofoli, and the interests of justice dictated that there be a joint challenge to the Part VI authorizations.

[90] While I appreciate that keeping Mr. Masters-George in a group while in provincial court and eventually as a party to a common Garofoli application meant a longer process for Mr. Masters-George, this approach has been approved of by our Court of Appeal: Lopez-Restrepo at para. 39.

[91] To the extent that any delay was occasioned by the Garofoli process itself, the courts have been clear that this should be attributable to exceptional circumstances: R. v. Khan, 2011 ONCA 173 at paras. 51-52. However, in this case the Crown made attempts to minimize the delay associated with the Garofoli by applying for a common issues order before Mr. Masters-George’s group had even reached the Superior Court.

[92] By the time Mr. Masters-George appeared in the Superior Court, nine days after committal he was immediately subject to a case management order joining him to the common Garofoli and remanded to the hearing date 12 days later. In addition, Mr. Masters-George had his first JPT before Justice Bawden on November 30, 10 days after committal, and the Crown was ready to set target trial dates.

[93] After the Garofoli was dismissed on January 13, 2024, the Crown again indicated they wanted to have a JPT on Mr. Masters-George’s matter and set trial dates. Counsel for Mr. Masters-George had not been responding, and when he did was not available until the end of February to have the JPT.

[94] Finally, to obtain the earliest date possible the Crown agreed to only proceed on the conspiracy charge if the defence abandoned the Charter motions that were raised in the January 23 JPT. In my view, this is another important step taken by the Crown to move the matter forward and minimize the delay.

[95] In R. v. Khan, 2011 ONCA 173 the accused was a relatively minor player in the context of a large, complex prosecution. The defence brought an application to have the charges stayed pursuant to s. 11(b) based on a delay of 41 months which was granted by the trial judge. On appeal, the court stated that “large group prosecutions” play an important role in the administration of justice in that they are a better use of judicial resources. The Court found that the delay in provincial court where Mr. Khan was “tied to” the larger complex prosecution was reasonable. The appeal was granted, and the matter was sent back to the Superior Court for trial.

[96] In my view, that reasoning applies on the facts of this case. Mr. Masters-George is a relatively minor player in a large, complex prosecution involving numerous accused, wiretaps and voluminous disclosure. It was a proper use of Crown discretion and judicial resources to have Mr. Masters-George’s matter proceed along with the rest of the Project until the Garofoli was completed.

[97] I agree with the characterization that this is a “textbook” complex case. The Crown, however, had a plan and took steps from the outset to move the matter along as expeditiously as possible recognizing the complexity of the case and the potential for delay.

D. Conclusion

[98] Mr. Masters-George’s trial is currently scheduled to commence on March 24, 2025, and conclude on March 28, 2025, which is 33 months and 28 days post arrest. With the defence delay of 2 months and 28 days, the delay is 31 months which is beyond the Jordan ceiling.

[99] I am satisfied that this remaining delay is reasonable given the overall complexity of the case as discussed by the Supreme Court in Jordan. The Crown had a plan and took steps that were a reasonable attempt to minimize the delay. In the circumstances of this case where Mr. Masters-George’s case was initially “tied to” a large, complex prosecution, the delay is reasonable.

[100] The application is dismissed.

J.K. Penman
Released: January 7, 2025