



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mallozzi, 2018 ONCA 312

DATE: 20180327

DOCKET: C63461

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Itolo Mallozzi

Respondent

David Littlefield, for the appellant

Gregory Lafontaine, for the respondent

Heard: March 23, 2018

On appeal from the stay entered on April 26, 2017 by
    Justice Todd Ducharme of the Superior Court of Justice.

REASONS FOR DECISION

[1]

This is a Crown appeal against a stay of proceedings for unreasonable
    delay on a two-count indictment. After taking into account 56 days of defence
    delay, the trial judge found that the net delay was approximately 32 months.
    The trial judge concluded that there had been unreasonable delay under both
R.
    v. Jordan
, 2016 SCC 27,
[2016] 1 S.C.R. 631,

and
R. v. Morin,
[1992]
    1 S.C.R. 771
.

[2]

We find it unnecessary to address all of the errors advanced. There are
    three fundamental ones that require that the stay of proceedings be set aside
    and a new trial ordered. The errors arise from a failure to properly calculate
    defence delay.

[3]

Defence delay is defined in
Jordan
as including periods of time
    when the Crown and the court are ready to proceed, but the defence is not:
Jordan
,
    at para. 64. See also:
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659,
    at para. 55. Although actions that are legitimately taken to respond to the
    charges will fall outside of defence delay, when what prevents the matter from
    proceeding is simply that the defence is not available when the Crown and the
    court are, this constitutes defence delay and will be subtracted from the total
    delay.

[4]

The trial judge failed to consider two periods of time that constitute
    defence delay. He also misapprehended the evidence respecting another period of
    time, leading to an erroneous conclusion that the time did not constitute
    defence delay.

[5]

First, there is an 87-day period of time during which the defence
    delayed the scheduling of the preliminary inquiry. Although the trial judges
    reasons correctly note that earlier dates for the preliminary inquiry were
    provided, there is no analysis as to why the matter was not scheduled on those
    earlier dates. The evidence is clear that Crown counsel was available during
    the earlier dates.

[6]

The respondent maintains that his trial counsel had dates earlier than
    those offered by the court and, therefore, though his counsel was not available
    on the later dates that were offered, he should not be required to absorb this
    time as defence delay. We disagree.
Jordan
is clear that defence delay
    will arise where the Crown and the court are ready to proceed, but the defence
    is not. Read contextually, and having regard to the trial verification form,
    the Crown and the court were ready to proceed. Defence counsel was not. The
    trial judge erred in failing to consider these 87 days as defence delay.

[7]

Second, the Crown maintains that there is an 84-day period of time that
    the trial judge failed to consider. This time is also said to constitute
    defence delay.

[8]

The respondent was originally facing trial with a co-accused who
    ultimately pled guilty. Prior to entering his guilty plea, the co-accused asked
    that the pending preliminary inquiry be adjourned. The Crown opposed the
    adjournment request. The respondent took no position, noting that this was a
    very complex matter with complex disclosure.

[9]

The Crown expressed its concern about moving the matter forward. To this
    end, the Crown opened up its priority in-custody dates to accommodate the
    earliest possible dates to reschedule the preliminary inquiry. The record
    reveals that the earliest dates provided did not coincide with the respondents
    trial counsels schedule. The trial verification form demonstrates that there was
    almost three months between the earliest dates offered and when the
    respondents counsel became available to conduct the rescheduled preliminary
    inquiry.

[10]

The
    respondent maintains that he was ready to proceed on the first preliminary
    inquiry date and, therefore, his co-accuseds request for an adjournment should
    not result in any defence delay to him. Multi-accused cases bring a level of
    complexity with them. All justice participants are required to work together in
    obtaining the earliest dates possible when matters cannot proceed. Although a
    co-accused caused the adjournment of the original preliminary inquiry date,
    something that could trigger an inquiry into exceptional circumstances under
R.
    v. Gopie
, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 136, we need not
    resort to an analysis of this
Jordan
principle here. In the wake of
    the adjournment request, new dates were offered and the Crown and the court
    were ready to proceed. The defence was not. This was defence delay.

[11]

Third,
    we agree that the trial judge misapprehended a piece of evidence that caused
    him to reject the Crowns submission that an additional 3.5 months should be
    considered defence delay.

[12]

The
    record establishes that both the court and Crown were ready to proceed to trial
    on February 6, 2017. During a court appearance on January 25, 2017, trial counsel
    for the respondent acknowledged that it was the 
Jordan
anniversary
    date of 30-months. Even so, she was not prepared to accept the February 6
    start date for trial because she still had a witness to discover by way of a
    cross-examination in the Ontario Court of Justice. She was clear that this
    cross-examination was to occur on February 2, 2017. The respondents trial counsel
    also acknowledged that, while she had been provided trial dates in February,
    March and April, she was not available until May 23 for the start of trial.

[13]

The
    trial judge misconstrued the evidence in his s. 11(b) ruling, stating that when
    the trial date was selected, the cross-examination was scheduled to proceed on March
    27, 2017. Although, in the end, the cross-examination occurred on March 27, this
    date resulted from the defence rescheduling the discovery after the trial date
    had been set. When the trial date was selected, the outstanding discovery was still
    scheduled to proceed on February 2, 2017.

[14]

Based
    upon his misunderstanding of when the cross-examination was scheduled to occur,
    the trial judge concluded that the Crowns offer of trial dates before March
    27, 2017 did not constitute meaningful offers because, in his view, they
    pre-dated the discovery yet to be completed. In fact, every trial date offered
    post-dated the completion of the scheduled cross-examination. The Crown and the
    court were ready to proceed on all of those dates. The defence was not.

[15]

Even
    if one accounts for the fact that the defence may not have wanted to proceed
    days after the cross-examination was done, other dates were offered that would
    have allowed the defence ample preparation time following the conclusion of the
    cross-examination originally scheduled for February 2. The only reason the
    trial did not go ahead earlier is because the defence was unavailable. On a generous
    view, this constituted at least a couple of months of defence delay.

[16]

Any
    one of these three errors brings the delay under the
Jordan
ceiling
    and, cumulatively, they bring the delay well below the ceiling. In these
    circumstances, it is unnecessary to address the balance of the arguments
    raised.

[17]

The
    appeal is allowed, the stay of proceedings is lifted and the matter is remitted
    to the Superior Court of Justice for trial.

Robert J. Sharpe
    J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


