



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Villanti, 2020 ONCA 755

DATE: 20201130

DOCKET:
    C65741

Gillese,
    Lauwers and Benotto JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Vincent
    Villanti, Shane Smith, Ravendra Chaudhary,

David
    Prentice and Andrew Lloyd

Respondents

Michael Bernstein, for the appellant

Ravendra Chaudhary, acting in person

Paul Riley, for the respondents Vincent
    Villanti and Shane Smith

Thomas Mathews, for the respondent
    David Prentice

Geoff Haskell, for the respondent
    Andrew Lloyd

Heard: September 11, 2020 by video
    conference

On appeal from the
    stay of proceedings ordered on July 12, 2018 by Justice Bonnie L. Croll of the
    Superior Court of Justice, with reasons reported at 2018 ONSC 4259.

Lauwers J.A.:

[1]

The respondents, Vincent Villanti, Ravendra Chaudhary, Shane
    Smith, David Prentice, and Andrew Lloyd, were arrested on or around March 26,
    2014 and charged with fraud over a value of $5,000 and conspiracy to commit an
    indictable offence. The charges allege a $13 million fraud stemming from a tax
    avoidance scheme the respondents operated from 2009 to 2013.

[2]

The application judge stayed the charges against the respondents
because of unreasonable delay in their trial
under ss. 11(b)
    and 24(1) of the
Canadian Charter of Rights and Freedoms
.
    The total time between the arrests of the appellants on or about March 26, 2014
    and the projected completion date of the re-scheduled 12-week jury trial of
    April 5, 2019 would have been about 60.5 months.

[3]

The application judge calculated the net delay under
    the methodology prescribed by
R. v. Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631. For the appellants Villanti, Lloyd and Chaudhary, she found that the
    net delay would have exceeded the presumptive ceiling of 30 months by 16 months,
    and for the appellants Smith and Prentice, by 21 months.
[1]


[4]

The Crown appeals. For the reasons set out below, I would dismiss
    the appeal.

A.

OVERVIEW

[5]

The 12-week jury trial was originally scheduled
    to begin on September 25, 2017. One month before the scheduled trial date, the
    respondents brought an application to stay the charges for unreasonable delay under
s. 11(b) of the
Charter
. OMarra J. dismissed the application for the reasons reported at 2017
    ONSC 7130. He found the time between the respondents arrest and the
    anticipated completion of the trial to be about 44 months, which exceeded by 14 months
    the
Jordan
presumptive ceiling of 30 months. However, O'Marra J. found
    that both the complexity of the case and the exception for transitional
    circumstances, as explained in
Jordan
, justified the time the case had
    taken to that point. He then granted adjournments to

Villanti,
    Lloyd, and Chaudhary, who wanted to retain counsel. The trial was rescheduled
    for February 26, 2018, five months later.

[6]

On the day the trial was set to begin, McMahon J., who leads the Superior
    Courts criminal long trial team in Toronto, advised the parties that two
    judges had just taken ill. The judge assigned to their trial had been
    reassigned to the trial of an accused who was in custody and no other judge was
    available to try the case, which McMahon J. then rescheduled to January 11,
    2019, roughly 11 months later.

[7]

The respondents applied again for a stay of proceedings under s.
    11(b) of the
Charter

due
    to unreasonable delay, which the application judge granted.

[8]

The application judge accepted that
the simultaneous
    illness of two judges was a discrete event that could amount to an exceptional
    circumstance as outlined in
Jordan
. She also agreed with OMarra J.
    that the case was complex: at para. 34.
Despite
    these findings, she did not accept that the 11-month period should be deducted to
    account for exceptional circumstances: para. 36.

B.

The Issues

[9]

The Crown submits that the 11-month delay 
stems from exceptional circumstances, as considered in
Jordan

    and
that the application judge made three errors in failing
    to treat the

period of the adjournment as an
    exceptional circumstance for
Jordan
purposes:
first,

regarding the delay
    attributable to the complexity of the case; second,
regarding
    the unexpected illness of two judges as a discrete event
; and third, regarding
    the exception arising from transitional circumstances. These claimed errors comprise
    the issues that I address after setting out the general principles.

C.

Analysis

(1)

The Governing Principles

[10]

In
Jordan
, the
    Supreme Court replaced the formula in
R. v. Morin
, [1992] 1 S.C.R. 771
    for determining whether the delay in the trial of an accused breached s. 11(b)
    of the
Charter
. The court set ceilings at 18 months from the date of
    the charge to the likely date of the verdict for cases tried in provincial
    courts and 30 months for cases tried in superior court, or cases tried in
    the provincial court after a preliminary inquiry:
Jordan
, at para. 46.
[2]


[11]

Net delay that exceeds the ceilings, being total
    delay less defence delay, is presumptively unreasonable, but the Crown can
    rebut the presumption by showing the excessive delay was caused by exceptional
    circumstances:
Jordan
, at para. 68. These are circumstances that
    lie outside the Crowns control in that they are reasonably unforeseen
or
reasonably unavoidable and the Crown cannot
    reasonably remedy the delays emanating from those circumstances (emphasis in
    original):
Jordan
, at para. 69.

[12]

The categories of exceptional circumstances are
    not closed but, in general, exceptional circumstances fall under two categories:
    discrete events and particularly complex cases:
Jordan
, at para. 71.
    Discrete events include medical or family emergencies (whether on the part of
    the accused, important witnesses, counsel or the trial judge):
Jordan
,
    at para. 72. The period of delay caused by such a discrete event is subtracted
    from the net period of delay to determine whether a ceiling has been exceeded:
Jordan
, at para. 75.

[13]

This is also true for particularly complex cases
    including those in which the Crown, in the exercise of prosecutorial discretion,
    proceeds jointly against multiple co-accused, so long as it is in the interest
    of justice to do so:
Jordan
, at paras. 77, 79, and 80.

[14]

Finally,
Jordan
also established the
    transitional exceptional circumstance for charges brought before the decision
    was released. This exception is to be applied contextually when the Crown
    satisfies the court that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed:
Jordan
, at
    para. 96, referring to
Morin.
The Supreme Court noted in
R. v Cody
,
    2017 SCC 31, [2017] 1 S.C.R. 659, at para. 74: Where a balancing of the
    factors under the
Morin
analysis, such as seriousness of the offence
    and prejudice, would have weighed in favour of a stay, we expect that the Crown
    will rarely, if ever, be successful in justifying the delay as a transitional
    exceptional circumstance under the
Jordan
framework.

[15]

When the possibility of a breach of the
Jordan
ceiling looms, then the Crown is required to take action to
    mitigate the problem. In order to justify a delay in excess of a
Jordan
ceiling, the Crown must show that it took reasonable available steps to avoid
    and address the problem
before
the delay exceeded
    the ceiling (emphasis in original):
Jordan
, at para. 70. The court added
    that: The Crown, we emphasize, is not required to show that the steps it took
    were ultimately successful  rather, just that it took reasonable steps in an
    attempt to avoid the delay:
Jordan
, at para. 70.

[16]

The Supreme Court affirmed its resolve that the
Jordan
ceilings be applied rigorously in
Cody
and most recently in
R. v.
    Thanabalasingham
, 2020 SCC 18.

(2)

Application of the Governing Principles

[17]

As noted, the Crown argues that the application
    judge made three errors in refusing to deduct the
11-month adjournment from
    her calculation of net delay
: first,
regarding the
    delay attributable to the complexity of the case; second,
regarding
    the unexpected illness of two judges as a discrete event
; and third, regarding
    the exception arising from transitional circumstances. I will address these in
    order.

(a)

Did the application judge err in failing to
    account for the delay attributable to the complexity of this case?

[18]

The
    application judge agreed with OMarra J. that the case was complex within the
    meaning of
Jordan
. She rejected the Crowns
    argument that there was additional complexity related to the 11-month delay
    flowing from two new initiatives by the defence, which she described as t
he potential increase in documents flowing from Mr. Prentice's third
    party records application, which would be heard and determined in advance of
    the trial, or the large number of defence witnesses proposed by Mr. Smith:

at para. 34. The Crown argues inferentially that the 12- week
    trial estimate was too short and that this should have changed the application
    judges
Jordan
calculus.

[19]

In the

application judges
view, these were not additional complexities justifying the delay. She
    noted that all of the parties were ready to proceed as of the February 2018
    trial date. She said: In my view, the 12 weeks scheduled for trial is
    sufficiently long for the trial judge to manage issues that may arise from the
    third party records or the number of potential defence witnesses
: at para. 34. In her view: 
None of the new
    issues raised by the Crown in this application amount to a novel or fresh
    complexity that justify the [11-month] delay.

[20]

I
    would defer to this experienced judges assessment of the requirements of the
    case and the ability of a trial judge to take things in stride in the trial
    time provided.

[21]

The application judge
concluded, at para. 35:

the
    relevant complexity arises from the challenges in scheduling a trial of this
    length, and is inextricably linked to the discrete event of two judicial
    illnesses, to which I now turn.


(b)

Did the application judge err in failing to account
    for the delay attributable to the unexpected illness of two judges as a
    discrete event?

[22]

I first set out the application judges
    reasoning and then address the Crowns arguments.

(i)

The application judges reasoning

[23]

The application judge said, at para. 36, that
    the discrete event of two judicial illnesses could justify an adjournment for
    some 4-6 weeks or for some other modest period until a judge was available,
    noting that doing so 
would be a reasonable approach,
    in accordance with the
Jordan
framework.
The
    application judge then indicated, at para. 39, that she would be prepared to deduct
    2 to 3 months for
Jordan
purposes. Therefore the range of
    reasonable time she set for the institutional response to this discrete event
    of two judicial illnesses was up to 3 months.

[24]

The application judge stated that a trial
    judges illness, as a discrete event, is distinct from the delay caused by
    scarce judicial resources: at para. 37. She added that even if the 11-month
    delay were abridged
by up to 3 months, the net delay
    for all Applicants still significantly exceeds the
Jordan
presumptive
    timeline of 30 months or 2 1/2 years:
at para. 39.

[25]

The application judge did not agree that the
    full 11-month delay could be counted as the result of exceptional circumstances
    and asserted: t
he amount of time  11 months  that
    the Crown seeks to deduct from net delay due to exceptional circumstances is
    not acceptable in this post-
Jordan
world:
at
    para. 36.


[26]

The application judge identified two causes for
    the 11-month delay that she did not fully differentiate. First, she said that
    the delay was attributable to the lack of judicial resources in Toronto.
    Second, she noted, at paras. 30 and 32, that the resource issues compelled the
    court to triage cases and give priority to those considered to be more worthy
    of trial.

[27]

In making these findings the application judge
    relied on
McMahon J.s explanation of the situation he faced as the long
    trial team leader, quoting him verbatim, at para. 37:

On January 25, 2018
: [On this occasion McMahon J. warned the parties that there might
    not be a trial judge available.] Okay, so the one thing
I
    will give people the heads up on in relation to it is with the number of judges
    they've given me for the criminal matters scheduled.
Right now, that was
    why I was hoping that other case might turn into a resolution. Quite
    practically speaking with the number of homicides, attempt murders and gun
    cases I have going, right now I do not have a trial judge to do this case. This
    will be the first case right now. That may very well change between now and
    then, but I thought in fairness to counsel, this is the first time I've had to
    say this post Jordan, but in relation to this indictment right now, unless they
    somehow give another judge or a new appointment or one of the long trials
    resolves in the next few weeks, that's where we're at...

...So,
I'll do the best
    we can...And if we could just free up four or five murder cases to help out we
    would, but I can't...

On February 26, 2018
: [The trial date] ...So
I've lost two
    criminal judges in a couple of days
and right now because of those
    medical challenges they're facing
I had to pull a judge
    off this case to deal with a person who is in custody on a six-week trial and I
    don't have anybody to replace that judge.
So it is frustrating because
    everybody should get to trial in a timely fashion...

On March 1, 2018
:
It's just the frustration of this Court with
    not having sufficient resources to do the job
, despite everybody's best
    effort.

So despite my efforts of getting an additional
    resource from another region, quite frankly, unless, as we talked about
    yesterday  I just added up, we have 44 homicides scheduled this year in
    Toronto to be tried. And we've been resolving some of them and what we've been
    doing it, but I can only do what I can do and Mr. Lockner, I'm out of, I'm out
    of options. The first time I have trial time for this is January of 2019 and
the reason for the delay would be the unavailability of this
    court to be able to provide a judge to do the case. So it's not something we've
    had to do before in a long trial, but that's where we are. We're hoping to get
    additional judges to complement. We've asked the Federal government for that.
    We don't have those. It is frustrating, but we can only do with what we got.
So...

...And I understand all the accused are ready,
    able and go to trial as is the Crown, and
the fault lies
    with myself and the Court for not providing a judge
. [Emphasis added.]

[28]

The
    application judge explained her assessment of the time needed to adjust to the
    discrete event of two simultaneous judges becoming ill, at para. 38:

There is a heavy and challenging caseload of
    criminal and other cases at the Superior Court in Toronto. Given the existing
    complement of judges, there is very little, if any, flexibility to respond to
    sudden absences. Pursuant to the
Jordan
framework, an exceptional
    circumstance is one that must be reasonably unforeseen or unavoidable. It is,
    of course, the case that the illness of any particular judge is not reasonably
    foreseeable. However, it is reasonably foreseeable that, from time to time,
    judges will be unavailable. In a system that is already experiencing enormous
    pressure, it is no surprise that such unavailability will trigger serious and
    challenging scheduling issues, especially when 12 weeks of trial time is
    required. These scheduling issues include making difficult decisions about the
    priority in which cases proceed. The delay was also avoidable had there been
    the proper judicial complement.

[29]

Drawing on McMahon J.s explanation for the long
    adjournment, the application judge stated, at para. 41: To meet the
Jordan
timetable, it is axiomatic that courts must be properly resourced with the
    appropriate complement of judges. She added that despite serious and creative
    efforts made to find a solution, resource issues prevented the court from being
    able to meet its
Jordan
obligation.

[30]

The application judge described these
    regrettably unsuccessful efforts at paras. 30-31:

The Crown looked into whether
this case could take priority over other scheduled cases
,
    and whether this case could be heard in the time slotted for cases that had
    resolved. The Crown also points to efforts made by the Court. In this regard,
    McMahon J. carefully reviewed the list of long trials scheduled for the 361
    University Avenue courthouse
to determine priority, and
    contacted two other judicial regions in the GTA to inquire whether there was
    any excess judicial capacity that could be loaned to Toronto for a 12-week trial
.
    [Emphasis added.]

(ii)

The Crowns arguments

[31]

The
    Crown makes five arguments in support of its position that the 11-month delay
    falls within the
Jordan

deductions.
    I deal with each in turn.

[32]

First,
    the Crown points to the absence of evidence to explain the application judges
    factual findings on the lack of judicial resources in Toronto.

[33]

I
    would not give effect to this argument for two reasons. First, it is the
    Crowns responsibility to adduce evidence on the reasons for delay that impinge
    on
Jordan
ceilings:
Jordan
,
    at paras. 81 and 105; and see the application judges reasons at paras. 15 and
    42.

[34]

My
    second reason for rejecting the Crowns argument on the absence of evidence is
    that Superior Court judges know how many vacancies exist in the local
    complement at any one time. This is a fact of which a judge can take judicial
    notice, as
Jordan
noted at para. 89. See also
R. v Rice,
2018 QCCA 198; 44 C.R. (7th) 83. In this case
    the application judge did not set out the number of vacancies in Toronto at the
    relevant time but she knew that there was a shortfall.

[35]

The
    Crowns second argument is that it need only demonstrate that substantial
    efforts were made to take reasonable steps to avoid and address the problem
    that arose. Compliance with s. 11(b) of the
Charter
does not require success. This argument invokes the courts statement in
Jordan
: The Crown, we emphasize, is not required to
    show that the steps it took were ultimately successful  rather, just that it
    took reasonable steps in an attempt to avoid the delay: at para. 70.

[36]

The
    application judge noted that the Crown and the court took serious and creative
    efforts  to find a solution, [but] resource issues prevented the Court from being
    able to meet its Jordan obligation. She concluded that: The delay was simply
    too long to be considered reasonable: at para. 41.

[37]

The
    Crown asserts that para. 70 of
Jordan
requires
    the case to proceed despite the lack of success in mitigating the delay.

[38]

I
    disagree. I do not read
Jordan
as making acceptable
    any delay once reasonable but unsuccessful efforts have been made by the Crown
    and by the court to get a trial heard. The Supreme Courts decision must be
    read as a whole, in light especially of the first paragraph:

Timely justice is one of the hallmarks of a
    free and democratic society. In the criminal law context, it takes on special
    significance. Section 11(b) of the
Canadian Charter of Rights and Freedoms
attests to this, in that it guarantees the right of accused persons "to be
    tried within a reasonable time".

[39]

To
    endorse the approach asserted by the Crown would foster the culture of
    complacency which
Jordan
condemned, at para.
    4, along with
Cody
, at para. 1, and
Thanabalasingham
, at para. 1.

[40]

To
    put the point plainly, I agree with the application judge that the additional
    delay was just too long
.

[41]

The
    Crowns third argument is that the application judge did not deduct a single
    day on account of exceptional circumstances in her
Jordan
calculation.
    The Crown says that some deduction is mandatory and that the application
    judges failure to do so is fatal.

[42]

I
    would not give effect to this argument. The application judge said, at paras. 36
    and 39, that she would be prepared to deduct up to three months to the discrete
    circumstance of two judges falling ill. This was nowhere near the 11 months
    that any exceptional circumstances deduction would need to overtake.

[43]

However, there is no evidence on this issue on
    which the application judge could base an estimate that the delay caused by two
    judicial illnesses should be no more than 3 months. Her estimate cannot serve
    as a norm. But I would agree with the application judge, on the basis of common
    sense and the Superior Courts decision to set the priority for this trial
    behind numerous others, that the delay caused by scarce judicial resources could
    not tolerably be permitted to consume all of, or even most of, the actual
    11-month delay.

[44]

The
    Crowns fourth argument is that prosecutions are a provincial responsibility,
    as is the operation of the superior courts in the province. The fault, if any,
    in this case, counsel asserts, lies with the federal government not the
    provincial government, and the provincial Crown is not answerable for the
    federal governments delay in increasing the judicial complement and filling
    vacancies.

[45]

I
    would not give effect to this argument because it ignores the appellants, who
    are the right-holders under the
Charter.
It
    matters not at all to the respondents or to the
Charter
which
    level of government is at fault. The only question from the
Charters
perspective is whether the delay is
    unacceptable in accordance with the
Jordan
principles. The courts focus in the analysis must be on the right-holder, not
    on the Crown:
Jordan
, para. 19.

[46]

Fifth,
    and somewhat inconsistently, the Crown argues that the federal governments
    response to
Jordan
takes time to implement and
    that includes the appointment of additional judges to the complement in Toronto
    by the federal government.

[47]

I
    would not accept this argument. The Supreme Court released its reasons in
Jordan
in July 2016. The system of justice must now live
    firmly in the post-
Jordan
world.

(c)

Did the application judge err in failing to
    account for the delay attributable to the transitional exceptional
    circumstance established in
Jordan
?

[48]

This prosecution started before the release of
Jordan
so this case is theoretically eligible for the application of the transitional
    exception. However, the application judge noted
: 
The
    Crown quite properly submitted that the transitional exceptional circumstances
    have no application here, given that the delay that is the focus of this
    application occurred well after the release of
Jordan
in July 2016:

at para. 43.

[49]

The Crown now argues that the application judge
    should have found that the transitional exception justified some or all of the
    11-month delay after February 26, 2018.

[50]

I would not give effect to this argument, for two
    reasons. First, the application judge cannot be faulted for not dealing with an
    issue the Crown conceded. This court will only rarely and in circumstance where
    justice demands it consider a new issue on appeal:
Guindon v. Canada
,
    2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22. No new facts are needed to dispose
    of the issue, so I will address it briefly.

[51]

Second,
the application judges logic is correct. In this context, the
    11-month delay was the result of the sudden illness of two judges. This was a
    discrete event and cannot reasonably be rooted in any slow rhythm the parties
    might have developed in reliance on
Morin
. The Crown led no evidence
    that such reliance influenced the progress of this case past the first s. 11(b)
    application and provided no analysis or calculation of how the case would have
    progressed under
Morin
.

[52]

I note in passing that
OMarra J. made use of
    the time provided by the transitional exception in dismissing the first s.
    11(b) application. There is an argument that the transitional exception was
    entirely consumed then and should have no further application. However, it is
conceivable that some cases will remain transitional even after a
    first s. 11(b) application is decided under the transitional exception. I expect
    the number of such cases to be limited and dwindling.

[53]


Moreover, the
Morin
analysis weighs in
    favour of a stay in this case.
Under
Morin
, courts were
    required to balance
four factors:
1) the length of the delay, 2) the waiver of any time periods
    by the accused, 3) the reasons for delay, and 4) the prejudice to the
    accused. Courts considered a variety of reasons for delay, including: 1)
    inherent delay, 2) defence delay, 3) Crown delay, 4) institutional delay,
    and any other reason that did not fall into one of the established categories.

[54]

Under
Morin
, the acceptable
    ranges for institutional delay were eight to ten months in provincial
    court, and six to eight months in superior court:
Morin
,
    at pp. 798-799. Total institutional delay could generally be justified in the
    range of 14-18 months:
Thanabalasingham
, at
    para. 8.

[55]

In
    this case, the total delay at the time of the first s. 11(b) application was 44 months.
    Only short periods were waived. According to OMarra J. the reasons for delay
    could be broken down roughly as follows:



Reason for Delay

OMarra J.s Totals



Intake/Inherent Delay

14.75 months



Defence Delay

9.75 months



Institutional Delay

15 months (8.25 in OCJ and 6.75 in SCJ)



Crown Delay

4 months



[56]

OMarra
    J. calculated the institutional delay at roughly 15 months, comprised of 7.5
    months in the Ontario Court of Justice and 6.75 months in the Superior Court of
    Justice. To this he added four months of Crown delay. Faced with that result,
    OMarra J. was right to apply the transitional exception, particularly in light
    of the complexity of the case. At that point, the case was generally within
Morin
guidelines.

[57]

However,
    by the time of the second s. 11(b) application, the total delay had reached 60.5
    months and institutional delay had reached 26 months. Once the four months
    of Crown delay were taken into account, this case would have exceeded the
Morin
guidelines for combined Crown and institutional
    delay by 12 months.

[58]

The
    final consideration in
Morin
is the balance
    between prejudice to the accused and the societal interest in the adjudication
    of the case on its merits. Here, the respondents have not suffered actual
    prejudice to their liberty, security of the person, or fair trial rights, but
    the long delay in these proceedings gives rise to a strong inference of
    prejudice:
R. v. Godin
, 2009 SCC 26, [2009] 2
    S.C.R. 3, at para. 31;
R. v. J.C.P.
, 2018 ONCA
    986. The affidavits filed with the application judge describe stress, anxiety,
    lost employment opportunities, legal fees, and uncertainty about the future.
    While there is a strong societal interest in the adjudication of this case on
    its merits given the scope of the alleged fraud, the delay is not acceptable.

[59]

I conclude that the
Morin
analysis weighs in favour of a stay, not a further justification of the delay under
    the
Jordan
exception for transitional
    circumstances. To repeat the Supreme Courts words
: Where a
    balancing of the factors under the
Morin
analysis, such as seriousness
    of the offence and prejudice, would have weighed in favour of a stay, we expect
    that the Crown will rarely, if ever, be successful in justifying the delay as a
    transitional exceptional circumstance under the
Jordan
framework:

Cody
, at
    para. 74. This is not one of those rare cases.

D.

Disposition

[60]

I
    would dismiss the appeal for these reasons.

Released: E.E.G. November 30, 2020

P.
    Lauwers J.A.

I
    agree.
E.E. Gillese J.A.

I
    agree. M.L. Benotto J.A.





[1]

The difference arose because Villanti,
    Lloyd and Chaudhary were granted a five-month adjournment to retain counsel,
    which the application judge counted as defence delay for the purposes of their
    individual
Jordan
calculations.



[2]
In this court, see
R. v. Jurkus
,
    2018 ONCA 489, 363 C.C.C. (3d) 246;
R. v.
    Gopie
, 2017 ONCA 728, 140 O.R. (3d) 171;
R. v. Coulter
, 2016 ONCA 704, 133 O.R.
    (3d) 433; and
R. v. Manasseri
, 2016
    ONCA 703, 132 O.R. (3d) 401, leave to appeal to SCC refused, 37322 (April 13,
    2017).


