



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mallozzi, 2017 ONCA 644

DATE: 20170809

DOCKET: C61364

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Italo Mallozzi

Appellant

Jill R. Presser and Jeff Marshman, for the appellant

Brian Puddington, for the respondent

Heard: May 31, 2017

On appeal from the order of Justice Fletcher Dawson of
    the Superior Court of Justice, dated April 9, 2015, dismissing the s. 11(b)
    application, and from the conviction entered on April 10, 2015 by Justice Bruce
    Durno of the Superior Court of Justice.

Benotto J.A.:

[1]

After a preliminary inquiry and two mistrials, and over five years from
    the date he was charged, the appellant was convicted of two counts of production
    of marijuana, contrary to s. 7(1) of the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19. He was sentenced eight months later.

[2]

The appellant appeals on the basis that the
    trial judge erred in dismissing his application for a stay of proceedings for
    unreasonable delay, pursuant to s. 11(b) of the
Charter
.

[3]

For the reasons that follow, I would dismiss the
    appeal.

A.

Facts

[4]

The appellant and several co-accused were
    charged on April 7, 2010 with production of marijuana and possession for the
    purpose of trafficking. The operation involved a potential yield of $1,200,000
    per year.

[5]

There were five accused and most counsel were
    from outside the jurisdiction. The matter took 14 months in the Ontario Court
    of Justice. On May 31, 2011, after the preliminary inquiry, the appellant was
    ordered to stand trial.

[6]

The appellant and three co-accused made their first
    appearance in Superior Court on June 7, 2011. No counsel for any of the accused
    appeared on that date. Thompson J. set a judicial pre-trial for June 24, 2011. All
    accused said they were prepared to go to trial. The Crown indicated that it was
    ready to begin the trial in the fall. The date of October 3, 2011 was offered.
    The appellant told the court that his lawyer was not available in the fall of
    2011
[1]
. Thompson J. expressed
    frustration that no counsel had attended with available trial dates, but
    nonetheless secured the October 3, 2011 trial date.

[7]

At some point the October 3, 2011 trial date
    was adjourned, and the matter was spoken to on October 4, 2011. Counsel for the
    appellant did not attend at court on October 4 but sent a letter stating that
    the earliest date she was available was May 7, 2012. Thompson J. advised that
    he had earlier dates available in January 2012. The appellant  who was in
    court  was told to contact his counsel. He did so and reported back that she
    was not available in January but renewed the request for dates in May 2012.

[8]

The matter was adjourned to November 30, 2011 to
    see if the court could accommodate the appellants counsel. On November 30, the
    matter was adjourned for two weeks to December 13, 2011. On December 13, the
    appellants counsel again sent a letter, this time with an agent, stating that
    she was available for a three-week trial May 15-24, 2012 and other dates later
    in the year. Even though this was not a three-week period, Thompson J. scheduled
    jury selection to begin on May 15, 2012.

[9]

On March 20, 2012, counsel for the appellant, through
    an agent, requested an adjournment of the May 15, 2012 trial date. The agent confirmed
    to the court that the appellants counsel is prepared to waive 11(b) on the
    record. The Crown consented to the adjournment and the matter was put over.

[10]

On June 5, 2012, the matter was back in court. The
    appellants counsel had sent a letter requesting that a trial date be set a
    year later in the summer of 2013. Crown counsel told the court:

[D]espite [appellants counsels] willingness
    to waive delay, I am, the Crown is concerned with the societal interest in
    having this case proceed and accordingly I am not in a position to consent to
    an adjournment until the summer of 2013.

[11]

The court was similarly concerned and  despite
    the waiver  adjourned the matter to June 25, 2012. The matter was adjourned
    again to September 4, 2012 as the appellant was deciding on how to proceed. Before
    that date arrived, the appellants counsel sent an email to the Crown stating:

I dont have any availability until next fall
    or late summer.  Obviously 11(b) is not an issue for me.

[12]

Ultimately the trial was set to commence on
    October 7, 2013.

[13]

On the first day of trial, October 21, 2013,
    only 11 jurors had been chosen when the jury panel was exhausted. The trial
    judge asked the sheriff to summon persons from the general public to act as the
    twelfth juror, pursuant to s. 642 of the
Criminal Code
. The appellants counsel objected and stated that she would bring a
    constitutional challenge to this procedure. This would have required notice to the

Attorney General of Canada and the
    Attorney General of Ontario.
[2]
The trial judge declared a mistrial.

[14]

The Superior Court was able to schedule a second
    trial within two months on December 2, 2013. Neither defence counsel was
    available. At the hearing of an adjournment application on November 30, 2013, the
    court offered March 3, 2014 but the appellants counsel was not available. The
    court finally set July 14, 2014 as the trial date.

[15]

A request by the appellants counsel for a
    further adjournment was rejected. The trial began with the selection of a jury
    on July 14, 2014. There were problems with the jurors: one knew the co-accused,
    one was dating a police officer and five of the jurors had been part of the
    panel originally called in October 2013. Another mistrial was declared.

[16]

Despite several available trial dates, including
    one three months later, counsel for the appellant was not available until April
    13, 2015.

[17]

On March 18, 2015, the appellant and his then
    co-accused brought a s. 11(b)
Charter
application. The application was argued and decided under the
Morin
framework by the application judge: See
R. v.
    Morin
, [1992] 1 S.C.R. 771. The application by the
    co-accused was allowed. The appellants application was dismissed and the
    matter proceeded to trial.

[18]

On April 10, 2015, the appellants matter was
    heard before the trial judge, who found him guilty of two counts of production
    of marijuana. On December 4, 2015, he was sentenced to 31½ months imprisonment,
    concurrent on both counts, in addition to the 4½ months of credit for pre-trial
    custody.

[19]

The appellant now argues that the delay was
    unreasonable. He appeals the decision of the application judge and the
    conviction entered by the trial judge.

B.

Positions of the parties

[20]

The appellant alleges that the delay violated his
    right under s. 11(b) of the
Charter
to be tried within a reasonable time and should result in a stay of
    proceedings. A total of 60 months and three days elapsed between charge and
    conviction. A further seven months and 24 days elapsed before the appellant was
    finally sentenced. The total delay well exceeds the 30-month ceiling set out in
R. v.
Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631. There are no exceptional circumstances to justify the otherwise
    unreasonable and excessive period of delay.

[21]

The Crown acknowledges that the gross amount of
    delay exceeds the
Jordan
ceiling. The Crown submits, however, that once delay caused by
    discrete events is subtracted, the remaining delay is under the presumptive
    ceiling and the delay is not unreasonable.

C.

Analysis

[22]

I have concluded that the net delay is below the presumptive ceiling and
    is not unreasonable. However, as I will explain, even if I were to accept the
    appellants submission that the delay is above the presumptive ceiling,
    exceptional circumstances would justify the delay.

[23]

I begin with a brief description of the
Jordan
framework and
    then apply the principles to the facts of this case.

(1)

The
Jordan
principles

[24]

On July 8, 2016, the Supreme Court rewrote the law on unreasonable delay
    under s. 11(b) of the
Charter
with the release of its decision in
Jordan
.
    The
Jordan
framework replaced the multi-factored
Morin
framework. In its place, the Supreme Court set a presumptive ceiling of 18
    months in provincial court and 30 months in superior court. Delay is calculated
    from the date of the charge to the end or anticipated end of the trial, minus
    any delay attributed to the defence:
Jordan
, at paras. 46-47.

[25]

A delay that exceeds the ceiling is presumptively unreasonable. It falls
    to the Crown to rebut the presumption by establishing that the delay was caused
    by exceptional circumstances beyond its control. A delay that is below the
    ceiling is presumptively reasonable and it is up to the defence to establish
    that the delay is nonetheless unreasonable. Stays beneath the ceiling should
    only be granted in clear cases:
Jordan
, at para. 48.

[26]

Jordan
applies to cases that were already in the
    system at the time of its release, but it is to be applied contextually and
    flexibly in such circumstances. For cases where the delay exceeds the
    presumptive ceiling but cannot be justified by exceptional circumstances, a
    transitional exceptional circumstance may arise if the Crown establishes that
    the time the case has taken is justified based on the parties reasonable
    reliance on the law as it previously existed:
Jordan
, at paras. 95-96.

[27]

There are three steps to follow where a matter that was started under
    the pre-
Jordan
regime is determined post-
Jordan
:

R. v. Coulter
, 2016 ONCA 704, 340
    C.C.C. (3d) 429, at paras. 34-41; See also
R. v. Gordon
, 2017 ONCA 436,
    348 C.C.C. (3d) 426.

[28]

First, any time attributable to defence delay must be subtracted from
    the total delay to determine the net delay. The calculation of net delay
    involves an analysis of delay attributable to the defence, which was recently
    discussed in
R. v. Cody
,
2017 SCC 31, 138 W.C.B. (2d) 118. Defence delay has two components: delay
    expressly waived and delay caused by defence conduct. The subtraction of delay
    caused by defence conduct is intended to prevent the defence from benefitting
    from its own delay-causing action or inaction:
Cody
, at

para.
    28.


[29]

Second, if the net delay is above the presumptive ceiling, the court
    must subtract delay arising from discrete events. If the remaining delay still exceeds
    the ceiling, the court must consider whether the delay is justified by case
    complexity:
Cody
, at para. 64.

[30]

Third, if the delay is not justified by discrete events or case
    complexity, the court must consider the whether the transitional exceptional
    circumstance applies, based on reasonable reliance on the
Morin
criteria.
    As Doherty J.A. stated in
Gordon
,
at

para. 23:

In most cases, especially when all of the delay occurred prior
    to the release of
Jordan
, if the court concludes that the delay was
    not unreasonable under
Morin
, the transitional exceptional
    circumstance described in
Jordan
will justify delays beyond the
    30-month cap.

[31]

A theme that grounds
Jordan
and
Cody
is that an
    accused is entitled to have a trial within a reasonable time but has the
    responsibility to avoid delay. Accused persons must bear in mind that a
    corollary of the s. 11(
b
)
    right to be tried within a reasonable time is the responsibility to avoid
    causing unreasonable delay:
Cody
, at para. 33. Defence counsel are
    therefore expected to actively advance their clients right to a trial within a
    reasonable time, collaborate with Crown counsel when appropriate and use court
    time efficiently:
Jordan
, at para. 138;
Cody
, at para. 33.

(2)

The principles applied

[32]

The appellants case took 60 months to come to trial. The record
    discloses, however, that the delay was primarily the responsibility of the
    appellant. Express waiver by the appellant, coupled with delay caused by defence
    conduct, accounts for 37 months of delay. The net delay of 23 months is below
    the presumptive ceiling.

[33]

This conclusion is supported by four key factors.

[34]

First, from October 4, 2011 to the first trial date on October 7, 2013,
    the court repeatedly offered dates and attempted to accommodate the appellants
    counsel. As confirmed in
Jordan
, and subsequently in
Cody
, at para. 30
: where the court and Crown
    are ready to proceed, but the defence is not, the resulting delay should also
    be deducted. Here, the court and Crown were ready to proceed on October 3,
    2011. The appellants counsel was unavailable until May 2012 and then sought a
    further adjournment to the summer of 2013 which then stretched into the fall. The
    24-month delay from October 2011 to October 2013 is attributable to the
    defence.

[35]

Second, within that 24-month period of delay, on March 20, 2012, the
    defence expressly waived s. 11(b) until the next trial date, October 7, 2013. This
    is an additional reason for deducting the waived period from the total delay.

[36]

Third, after the first mistrial on October 21, 2013, the court offered
    dates within two months, starting on December 2, 2013. The Crown was willing to
    proceed on that date, but the appellants counsel was not available until July
    14, 2014. Those seven months of delay are attributed to the defence.

[37]

And finally, after the second mistrial on July 14, 2014, the court again
    offered dates within three months, starting on October 6, 2014. Crown counsel
    was available. Again, defence counsel was not available until April 13, 2015.
    Those six months are attributable to the defence.

[38]

In total, 37 months should be subtracted as delay either waived or
    caused solely by defence conduct. This leaves a net delay of 23 months, which
    is under the presumptive ceiling. The appellant has not established that the
    net delay was unreasonable.

[39]

In light of this conclusion, it would not be necessary to consider
    exceptional circumstances or the transitional provisions. I do so, however, to
    demonstrate that  even if the net delay had been somewhat above the
    presumptive ceiling  the delay would have been justified.

[40]

First, the exceptional circumstances.

[41]

In my view, the two mistrials qualify as discrete, exceptional events
    that were reasonably unforeseeable. The first mistrial was October 21, 2013. The
    court and the Crown were prepared to empanel a twelfth juror through the use of
    s. 642 of the
Criminal Code
. The appellants counsel objected and
    indicated a desire to launch a constitutional challenge to the process. The
    appellant submits that this delay was caused by the system that failed to
    empanel enough jurors. I do not agree. The record discloses that over a hundred
    jurors were called. This was a routine criminal trial in a relatively small
    Ontario town. There is no evidence of an error. In any event, a frivolous
    position taken by defence counsel is defence delay which is deducted from the
    presumptive ceiling:
R. v. D.C.
,

2017 ONCA 483, at para 5.

[42]

As noted earlier, the Crown and the court were willing to proceed
    promptly with a new trial on December 2, 2013. I would therefore deduct the period
    from October 21, 2013 to December 2, 2013 as the result of the first mistrial.
    The delay of approximately 7 months  from December 2, 2013 until July 14, 2014
     flowed not from the mistrial but from defence counsels unavailability, and
    should therefore be characterized as defence delay.

[43]

The second mistrial was July 14, 2014. Although all parties
    agreed that a mistrial had to be declared when it was discovered that five
    members of the jury had been on the panel summoned in October 2013, I do not
    agree that a mistrial was necessary. Again, the appellant submits that this was
    a failure of the system. Again, I disagree. These events were unforeseeable and
    were not contributed to by the Crown. They were exceptional.

[44]

After the second
    mistrial, the court and the Crown were willing to proceed in early October
    2014, but the appellants counsel was unavailable until April 2015. I would
    therefore deduct roughly three months as delay flowing from the second
    mistrial.

[45]

It has not been
    suggested that the delay in this case is justified on the basis of case
    complexity.

[46]

Finally, I consider the transitional exceptional circumstance.

[47]

All of the delay in this case took place under the
Morin
framework,
    and the parties reliance on that framework must therefore be taken into
    account. The reasonableness of the delay under the
Morin
framework was
    determined by the application judge in a thorough and careful analysis. He noted
    that that the appellant had waived any delay from March 20, 2012 to the first
    trial and, in addition:

·

The court offered dates as early as October 2011;

·

The court attempted to accommodate defence counsel;

·

The court had dates available within three to four months of
    every set date appearance;

·

The Crown acted expeditiously from the outset, and there was no
    Crown delay;

·

There were only 15.3 months of institutional delay, a period
    within the
Morin
guidelines;

·

Though the appellant suffered some prejudice due to the lengthy
    delay, it was considerably less than that suffered by his co-accused;

·

The societal interest in a trial on the merits carried more
    weight in relation to the appellant, who was alleged to be central to the marijuana
    grow operation, than in relation to the co-accused; and

·

The actions of the appellant demonstrated that he was not
    pressing at any time for an early date: indeed, he was content with the pace of
    the proceedings.

[48]

For these reasons, the application judge found that the delay in the
    appellants case was reasonable. As stated in
Gordon,
when all of the
    alleged delay occurred before
Jordan
,

and the court has concluded that the delay was not unreasonable under
Morin
,

the transitional exceptional
    circumstances will justify delays beyond the presumptive ceiling.

(3)

Delay to sentence

[49]

During submissions, the appellant submitted that the 30-month
    presumptive ceiling applies from charge to sentence, not just from charge to
    verdict. The court requested further submissions with respect to this issue.

[50]

The time between conviction and sentence was approximately eight months.
    Even if the entire time is added to the net delay of 23 months, the delay barely
    exceeds the 30-month
Jordan
ceiling. If time is deducted in relation
    to the discrete events that were the two mistrials, the delay is again below
    the ceiling. Moreover, as I have explained, even if the delay were to exceed
    the presumptive ceiling, on the facts of this case, it would be justified on
    the basis of reasonable reliance on the pre-
Jordan
state of the law.
    It is therefore not necessary to determine this issue.

D.

Disposition

[51]

I would dismiss the appeal.

Released: August 9, 2017

M.L. Benotto J.A.

I agree K. Feldman
    J.A.

I agree G. Pardu J.A.





[1]
Trial counsel was not counsel on the appeal.



[2]

Courts of Justice Act
, R.S.O. 1990 c. 43, s. 109.


