



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bulhosen, 2019 ONCA 600

DATE: 20190715

DOCKET: C63745, C64484, C64485, C64685, C65045, C65309 &
    C65378

Strathy C.J.O., Watt and Zarnett JJ.A.

DOCKET:
    C63745

BETWEEN

Her Majesty the Queen

Respondent

and

Raul Bulhosen

Appellant

DOCKET: C64484

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Kompon

Appellant

DOCKET: C64485

AND BETWEEN

Her Majesty the
    Queen

Respondent

and

Vito Buffone

Appellant

DOCKET: C64685

AND BETWEEN

Her Majesty the Queen

Respondent

and

Borja Vilalta-Castellanos

Appellant

DOCKET: C65045

AND BETWEEN

Her Majesty the Queen

Respondent

and

Dean Brennan

Appellant

DOCKET: C65309

AND BETWEEN

Her Majesty the Queen

Respondent

and

Marco Cipollone

Appellant

DOCKET: C65378

AND BETWEEN

Her Majesty the Queen

Respondent

and

John Oliver

Appellant

Reid Rusonik, for the appellant Raul Bulhosen

Frank Addario and James Foy, for the appellant Jeffrey
    Kompon

Mark C. Halfyard, for the appellant Vito Buffone

Philip Campbell, for the appellant Borja
    Vilalta-Castellanos

Michael Dineen, for the appellant Dean Brennan

Howard Krongold, for the appellant Marco Cipollone

Jeffery Couse, for the appellant John Oliver

Lisa Mathews and Bradley Reitz, for the respondent

Heard: May 27, 2019

Appeals by Raul Bulhosen (C63745), Borja Vilalta-Castellanos
    (C64685), Marco Cipollone (C65309) and John Oliver (C65378) from the convictions
    entered by Justice Joseph R. Henderson of the Superior Court of Justice on
    December 20, 2016; by Dean Brennan (C65045) from the conviction entered by Justice
    Joseph R. Henderson of the Superior Court of Justice on January 6, 2017; and by
    Jeffrey Kompon (C64484) and Vito Buffone (C64485) from the convictions entered
    by Justice James A. Ramsay of the Superior Court of Justice, sitting with a
    jury, on June 12, 2017.

Strathy C.J.O.:

A.

Overview

[1]

These appeals concern the application of the principles in
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, to proceedings against the
    appellants, who were convicted of various offences relating to a conspiracy to
    import and traffic in cocaine.

[2]

After unsuccessful applications by all seven appellants before Henderson
    J. of the Superior Court of Justice to stay the proceedings for breach of their
    rights under s. 11(b) of the
Canadian Charter of Rights and Freedoms
to trial within a reasonable time, five of the appellants, Bulhosen, Vilalta-Castellanos,
    Cipollone, Oliver and Brennan, were convicted by Henderson J. based on agreed
    statements of facts. They were sentenced to penitentiary terms ranging from 8.25
    years to 18 years. They appeal their convictions, asserting that in dismissing
    their s. 11(b) applications, the application judge failed to properly apply the
    principles in
Jordan
.

[3]

The other two appellants, Kompon and Buffone, were convicted after a
    trial before Ramsay J. of the Superior Court of Justice, sitting with a jury. Kompon
    was sentenced to 20 years imprisonment and Buffone was sentenced to 22 years. They,
    too, appeal their convictions based on the dismissal of their s. 11(b) applications.
    Their conviction appeals raising other grounds and their sentence appeals have
    been bifurcated from these appeals and will be heard separately, if necessary.

[4]

The appeal focuses on three issues raised by the appellants. They submit
    that:

(a)

because the Crown preferred an indictment while the case was in the
    Ontario Court of Justice, and no preliminary inquiry was held, this became a one-stage
    proceeding and the applicable
Jordan
ceiling should be 18 months;

(b)

the application judge failed to consider the Crowns delay in preferring
    the indictment, which resulted in what they characterize as wasted 7.5 months
    in the Ontario Court of Justice; and

(c)

the application judge failed to recognize, and to account for, systemic or
    institutional delay in the courts below.

[5]

For the reasons that follow, I would dismiss the appeal. The application
    judge correctly found that a 30-month presumptive ceiling applied, because the
    case was tried in the Superior Court. He found that the projected delay to the
    end of trial was 35 months, and that the Crown had discharged its burden of
    proving that the delay was justified by the particular complexity of the case.
    The Crown had a plan to manage that complexity and the plan was implemented in
    a reasonable manner.

[6]

In fact, as events transpired, five of the appellants trials were completed
    under the
Jordan
ceiling and two were tried within 32.5 months. Even
    if the applicable period of delay is the 35 months projected by the application
    judge, and not the shorter periods within which the appellants were actually
    tried, I see no error in the application judges careful and thorough analysis.
    The application judge correctly applied the principles in
Jordan
and
    his assessment of the complexity of the case is entitled to deference.

B.

Background

(1)

The offences

[7]

The charges against the appellants were the culmination of a three-year
    investigation, involving eight law enforcement agencies: Royal Canadian Mounted
    Police; Ontario Provincial Police; Canada Border Services Agency; United States
    Homeland Security Investigations; United States Drug Enforcement Administration;
    Niagara Regional Police Service; Peel Regional Police; and Toronto Police
    Service.

[8]

The investigation targeted a scheme of the appellants and others to
    import large quantities of cocaine from Mexico into Canada, to distribute it in
    southwestern Ontario and to launder the proceeds. Under the guise of a legitimate
    business, granite boulders were imported into Canada from Brazil and Mexico by
    land and sea. Prior to shipment, the cocaine was secreted in holes drilled into
    the boulders, which were sealed with cement.

[9]

When the boulders arrived in Canada, they were transported to
    warehouses, where the cocaine was extracted and distributed to members of the
    group. There were at least 47 shipments of granite between December 22, 2011
    and December 9, 2013. In 2013 alone, the participants imported some 2,431
    kilograms of cocaine. Money was sent back to Mexico in payment for the cocaine.
    Between December 2013 and June 2014 alone, more than $13 million in cash was funneled
    back to Mexico.

[10]

The
    investigation was massive in scale. For much of the duration of the conspiracy,
    the appellants and the other accused were under covert visual surveillance by
    the authorities. Their communications were monitored pursuant to authorized
    wiretaps and their movements were recorded by tracking devices. Police engaged
    in approximately 1,000 days of covert surveillance and obtained more than 100
    judicial authorizations, including wiretap authorizations, tracking orders and
    production orders.

[11]

On
    takedown day, September 22, 2014, police executed search warrants at
    approximately 30 locations. In addition to the seizure of cocaine, officers
    seized a vast number of documents and approximately 100 electronic devices,
    including laptop computers and cell phones, some of which were encrypted. Fourteen
    co-accused, including the seven appellants, were arrested and charged with 30
    counts on a single information, including: possession of cocaine for the
    purpose of trafficking; trafficking in cocaine; conspiracy to import and to
    possess cocaine for the purpose of trafficking; unlawfully importing cocaine; money
    laundering; possession of proceeds of crime; and participating in the activities
    of a criminal organization.

(2)

Proceedings below

(a)

Ontario Court of Justice

[12]

At
    the time of the arrests on September 22, 2014, each of the then 14 co-accused was
    provided with a Substantive Event Summary. Those documents set out the
    allegations against the accused in considerable detail. They included summaries
    of intercepted communications, surveillance photographs, and particulars of the
    evidence of witnesses. Within one month of arrest, the Crown disclosed
    approximately 600 documents referenced in those summaries.

[13]

Bail
    hearings took place in the Ontario Court of Justice in September through
    November 2014, and on into 2015 for some appellants.

[14]

In
    early December 2014, within three months of takedown, the Crown produced a
    first wave of disclosure, including more than 240,000 documents in electronic
    form and approximately 100,000 intercepted text and audio communications. The defence
    conceded that this initial disclosure made up approximately 93 percent of the
    documents relevant to the Crowns case.

[15]

The
    Crown requested the appointment of a case management judge and a case
    management conference was held on February 24, 2015. The Crown sent a
    resolution offer to counsel for each of the accused prior to that conference.

[16]

At
    the case management conference, the Crown indicated that it proposed to conduct
    the preliminary inquiry pursuant to s. 540(7) of the
Criminal Code
, R.S.C.
    1985, c. C-46, using written witness statements in lieu of oral testimony. It
    estimated that it would take a maximum of two to three days for the
    presentation of its case. The Crown advised that it was prepared to accommodate
    reasonable requests to make witnesses available for cross-examination, in the
    hope that the s. 540(7) application could proceed on consent. Counsel for one
    of the 14 co-accused stated that his client required a preliminary inquiry.
    Another counsel stated that he would contest the s. 540(7) application. It was
    estimated that the preliminary inquiry would take approximately six weeks.

[17]

On
    February 25, 2015, the Crown began to canvass defence counsel for their
    availability to conduct the preliminary inquiry between February and June 2016.
    These discussions continued into March and April.

[18]

In
    the meantime, a bail review was being conducted for the appellant Cipollone. A
    second wave of disclosure was made on March 30, 2015. It included redacted Informations
    to Obtain (ITOs) filed in support of judicial authorizations. It also
    included disclosure of four 400-page wiretap affidavits and a 1000-page takedown
    warrant package. A third wave of disclosure, containing additional ITOs, was made
    on April 13, 2015.

[19]

On
    April 2, 2015, the Ontario Court of Justice advised that a judge would be
    available for the preliminary inquiry for a total of 16 days in January through
    March 2016. At that point, Brennans counsel indicated that he was no longer
    available for the January dates.

[20]

In
    the meantime, approximately 6.5 months after their arrest, two appellants were
    still without counsel  Cipollone was seeking legal aid and Oliver was
    attempting to retain counsel.

[21]

A
    second case management conference was held on April 21, 2015. At that time, the
    Ontario Court of Justice was only able to reserve ten days in February and
    March 2016 for the preliminary inquiry. Before the case management conference,
    the Crown had asked defence counsel to provide statements of issues and
    witnesses for the preliminary inquiry to assist in estimating the time
    required. Only four counsel did so.

[22]

Resolution
    discussions continued with some of the accused. On May 19, 2015, two pleaded
    guilty and were sentenced.

[23]

A
    fourth wave of disclosure was sent to defence counsel on June 8, 2015.

[24]

Efforts
    continued to finalize dates for the preliminary inquiry and anticipated
Dawson
applications (
R. v. Dawson
(1998), 39 O.R. (3d) 436 (C.A.)) to
    cross-examine affiants of affidavits filed in support of applications for
    judicial authorizations. There were ongoing difficulties in obtaining responses
    from counsel concerning their statements of issues and witnesses and as to
    whether they would be bringing
Dawson
applications.

[25]

A
    third case management conference was held on June 18, 2015, some nine months
    after the charges were laid. Cipollone and Oliver had still not retained
    counsel. The case management judge indicated that, at most, six weeks would be
    available for the preliminary inquiry. He observed that the Crown might need to
    seek a direct indictment in order to keep the proceedings moving forward. The
    case management judge directed counsel to file statements of issues and
    witnesses well in advance of the next court appearance, scheduled for July 7,
    2015.

[26]

At
    a court appearance on July 7, 2015, preliminary inquiry dates were set for
    December 15, 2015, and other non-contiguous dates in February through June
    2016.

[27]

Another
    one of the original 14 co-accused pleaded guilty on September 14, 2015 and the
    charges were withdrawn against another on the same date. A fourth accused
    pleaded guilty on October 7, 2015.

[28]

On
    October 9, 2015, the Director of Public Prosecutions consented to two direct
    indictments, one for Laurence Aiello (one of the original 14 co-accused), and
    the other for the remaining eight co-accused.

(b)

Superior Court of Justice

[29]

On
    October 16, and again on October 27, 2015, the Crown wrote to the Superior
    Court requesting the appointment of a case management judge and a date for a
    judicial pre-trial. On November 13, 2015, counsel were advised that Henderson
    J. had been appointed to case manage the proceeding and that a case management conference/judicial
    pre-trial would be held on February 9, 2016. On November 23, 2015, all counsel
    appeared on the direct indictment in Welland, Ontario, before Regional Senior
    Justice Turnbull.

[30]

In
    the meantime, there had been ongoing changes of counsel, with counsel for some
    accused going off the record. Cipollone and Oliver were seeking to retain new
    counsel and some counsel were pursuing
Rowbotham
applications (
R.
    v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.)).

[31]

At
    the first case management conference before Henderson J. on February 9, 2016,
    the Crown reported that its disclosure was almost complete and now included the
    results of searches of 99 electronic devices seized at takedown, with 18
    devices still outstanding, including several encrypted devices. The Crown was
    preparing trial briefs to explain the anticipated evidence at trial. The Crown
    estimated a four to six-month trial, depending on defence concessions that
    might reduce the time for trial. The Crown had heard from some defence counsel
    in this regard, but not from all.

[32]

By
    February 10, 2016, the Crown confirmed a six-month jury trial commencing April
    2017, which was subsequently re-scheduled to begin two months earlier, in
    February 2017. Pre-trial applications were scheduled for two weeks in December
    2016 and for two weeks in January 2017.

[33]

Aiello
    pleaded guilty on March 1, 2016.

[34]

A
    second case management conference before Henderson J. was held on April 8, 2016,
    with the Crown providing draft trial briefs containing a detailed outline of
    the evidence to be called at trial, including references to the witnesses and
    documentary evidence. Dates were confirmed for pre-trial applications (three
    weeks commencing November 7, 2016) and for trial (six months commencing
    February 27, 2017).

[35]

Another
    of the original 14 co-accused pleaded guilty on April 14, 2015, leaving only
    the seven appellants to be tried.

[36]

A
    third case management conference before Henderson J. was held on May 27, 2016,
    together with a judicial pre-trial. Two additional judicial pre-trials were
    held before Henderson J. on August 19 and October 11, 2016.

[37]

The
    appellants s. 11(b) applications were heard on November 7-10, 2016. They were
    dismissed by reasons released November 25, 2016, reported at 2016 ONSC 7284.

[38]

Within
    about six weeks of the dismissal of their applications, the appellants
    Bulhosen, Vilalta-Castellanos, Cipollone, Oliver and Brennan, were convicted
    based on agreed statements of facts. Bulhosen, Vilalta-Castellanos, Cipollone
    and Oliver were convicted and sentenced pursuant to joint submissions on
    December 20, 2016. Brennan was subsequently convicted on agreed facts on
    January 6 and was sentenced on January 30, 2016.

[39]

The
    Superior Court of Justice trial of the appellants Kompon and Buffone before
    Ramsay J., sitting with a jury, began on February 27, 2017 and lasted 48 days
    over 3.5 months. They were convicted on June 12 and sentenced on September 28,
    2017.

[40]

In
    the result, as noted earlier: the trials of Bulhosen, Vilalta-Castellanos, Cipollone
    and Oliver were actually completed within 27 months of their arrest; Brennans
    trial was completed within 27.5 months; and the trial of Kompon and Buffone was
    completed with 32.5 months.

C.

The
jordan
framework

[41]

Section
    11(b) of the
Charter
provides: Any person charged with an offence has
    the right  (
b
) to be tried within a reasonable time.

[42]

Jordan
established a new framework for the s. 11(b) analysis. It was designed to be
    simple in its application and predictable in its effect. It replaced the
    framework articulated in
R. v. Morin
, [1992] 1 S.C.R. 771, which the
    majority in the Supreme Court described as too unpredictable, too confusing,
    and too complex:
Jordan
, at para. 38. The
Jordan
framework
    is now well-understood: see
R. v. Coulter
, 2016 ONCA 704, 133 O.R.
    (3d) 433, at paras. 31-59;
R. v. Manasseri
, 2016 ONCA 703, 132 O.R.
    (3d) 401, at paras. 301-323, leave to appeal to S.C.C. refused, [2016] S.C.C.A.
    No. 513;
R. v. Picard
, 2017 ONCA 692, 137 O.R. (3d) 401, leave to
    appeal to S.C.C. refused, [2018] S.C.C.A. No. 135; and
R. v. Jurkus
,
    2018 ONCA 489, 363 C.C.C. (3d) 246, at paras. 4-9, leave to appeal to S.C.C.
    refused, [2018] S.C.C.A. No. 325.

[43]

At
    the centre of the new framework is a presumptive ceiling on the time between
    the date of the charges and the actual or anticipated end of the trial. Delay
    beyond that ceiling is presumptively unreasonable:
Jordan
, at para. 46.
    For cases tried in provincial courts, the ceiling is 18 months. For cases tried
    in superior courts, or in provincial courts after a preliminary inquiry, it is
    30 months.

[44]

The
    Supreme Court saw the presumptive ceiling as giving meaningful direction to
    the state on its constitutional obligations and giving guidance to all actors
    in the justice system who have a part to play in ensuring that trials are
    concluded within a reasonable time:
Jordan
, at para. 50. The
    presumptive limits also give assurances to accused persons, victims of crime,
    families, witnesses and the public that s. 11(b) is not a hollow promise:
Jordan
,
    at para. 50.

[45]

Delay
    waived by the defence, or delay attributable to the defence is deducted from
    the total delay (the time between the date of the charges and the actual or
    anticipated end of the trial) to determine the net delay:
Jordan
, at
    para. 66; and
Coulter
, at para. 35.

[46]

If
    the net delay
exceeds
the presumptive ceiling, it
    is presumptively unreasonable and the Crown bears the onus of establishing that
    the delay was reasonable:
Jordan
, at paras. 47, 68. It may do so by establishing
    that the delay was caused by exceptional circumstances:
Jordan
, at
    paras. 47, 68. These have two components: (1) they are reasonably unforeseen or
    reasonably unavoidable;
and
(2) the Crown cannot
    reasonably remedy the delays emanating from these circumstances once they arise:
Jordan
, at para. 69. Exceptional circumstances generally fall into two
    categories, either discrete events, which are not at issue in this case, or
    cases that are particularly complex as a result of the evidence or issues:
Jordan
,
    at para. 71; and
Coulter
, at para. 37.

[47]

If
    the net delay
is less than
the presumptive
    ceiling, the onus is on the defence to show that the delay is unreasonable:
Jordan
,
    at paras. 48, 82;
Coulter
, at para. 40; and
R. v. MacIsaac
,
    2018 ONCA 650, 141 O.R. (3d) 721, at paras. 22, 60. To do so, it must
    demonstrate: (1) that the defence took meaningful steps demonstrating a
    sustained effort to expedite the proceedings;
and
(2) that the case took
markedly longer
than it
    reasonably should have:
Jordan
, at para. 48. In the absence of
both
these factors, the s. 11(b) application must fail:
Jordan
,
    at para. 82; and
Coulter
, at para. 53.
Jordan
contemplates
    that stays of cases falling below the presumptive ceiling should only be
    granted in clear cases:
Jordan
, paras. 76, 83.

[48]

Particularly
    complex cases are those where the nature of the evidence or the nature of the
    issues, or some combination of both, require an inordinate amount of trial or
    preparation time:
Jordan
, at para. 77. The complexity of the case may
    also be impacted where there are multiple co-accused:
Jordan
, para.
    77. The hallmarks of cases where the complexity arises from the nature of the
    evidence include (
Jordan
, at para. 77):

·

voluminous disclosure;

·

a large number of witnesses;

·

significant requirements for expert evidence; and

·

charges covering a long period of time.

[49]

The
    majority in
Jordan
noted that the judge assessing the complexity of
    the case should consider whether the Crown, having initiated what could
    reasonably be expected to be a complex prosecution, developed and followed a
    concrete plan to minimize the delay occasioned by such complexity: para. 79.

[50]

It
    also noted, at para. 80: Where the trial judge finds that the case was
    particularly complex such that the time the case has taken is justified, the
    delay is reasonable and no stay will issue.
No further
    analysis is required
 (emphasis added).

[51]

While
    the gravity or seriousness of the offence cannot be used to establish
    complexity, more complex cases will often be those involving serious charges,
    such as terrorism, organized crime and gang-related activity:
Jordan
,
    at para. 81.

[52]

Jordan
also established transitional rules applicable to cases in which the delay
    exceeds the presumptive ceiling but the cases were in the system prior to the
    release of the decision in
Jordan
and the Crown establishes the
    parties reasonably relied on the law as it then existed: para. 96. Those
    circumstances do not apply to this case.

[53]

In
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, released approximately 11
    months after
Jordan
, the Supreme Court explained and confirmed the
    principles in
Jordan
. In particular, it explained the calculation of
    defence delay, the application of
Jordan
s transitional rules and the
    determination of particular complexity. As to complexity,
Cody
explained, at para. 64: case complexity requires a qualitative, not quantitative,
    assessment. Complexity is an exceptional circumstance only
where the case as a whole
is particularly complex
    (emphasis added). Unlike defence delay or discrete events, [c]omplexity cannot
    be used to deduct specific periods of delay but rather involves considering whether
    the net delay is reasonable in view of the cases overall complexity:
Cody
,
    at para. 64.

[54]

Both
Jordan
and
Cody
recognized that the determination of whether
    the net delay is reasonable in light of the cases overall complexity is well
    within the expertise of a trial judge:
Jordan
, at para. 79; and
Cody
,
    at para. 64.

[55]

With
    these principles in mind, I turn to the reasons of the application judge.

D.

The application judges reasons

[56]

The
    parties agreed that the net delay between the date of the charges and the
    anticipated end of the trial was 35 months. The Crown did not seek to attribute
    any of the total delay to defence conduct and it was agreed that the defence
    did not waive any delay.

[57]

The
    application judge rejected the defence submission that the case was a one-stage
    proceeding as a result of the preferred indictment and that the 18-month
    presumptive ceiling therefore applied. He observed that
Jordan
articulated
    a shift from previous practice and that pre-
Jordan
principles (i.e.,
    the principles in
Morin
), should not apply to a post-
Jordan
case.
    Nowhere in
Jordan
did the Supreme Court make a distinction between
    one-stage and two-stage proceedings. Indeed, the Supreme Court repeatedly drew
    a distinction between the ceiling applicable to cases going to trial in
    provincial courts and those tried in superior courts. The applicable ceiling
    was 30 months.

[58]

Because
    the net delay of 35 months exceeded the presumptive 30-month ceiling, the Crown
    had the onus of showing that the delay was reasonable due to exceptional
    circumstances. The Crown submitted that the delay was justified by the particular
    complexity of the case.

[59]

The
    application judge accepted that submission. He found that this case had many
    of the hallmarks of a particularly complex case as discussed in
Jordan
.
    Documentary disclosure was in excess of 250,000 documents which were stored in approximately
    220 gigabytes of data, and approximately 1.5 terabytes of data representing the
    contents of approximately 100 seized electronic devices. There were also approximately
    100,000 audio intercepts, 400 of which the Crown intended to use at trial. The
    evidence at trial would likely be extensive: the Crown intended to call 220
    witnesses, including approximately 85 surveillance witnesses and 22 expert
    witnesses in drug trafficking, coded language, American-Mexican cartels, money
    laundering, and the forensic investigation of electronic devices.

[60]

Although
    the application judge accepted the appellants submission that there is no
Jordan
exception for large-scale narcotics cases based on intercepts and surveillance,
    he found that the complexity of this case was substantially increase[d]
    because the Crown needed to weave together a large volume of surveillance
    evidence, intercepted evidence, expert evidence on coded language, and forensic
    evidence for many of the brief interactions between two or more people. This
    combination of evidence would need to be developed over and over again by the
    Crown in an effort to prove the activities of the parties and the relationships
    between them. Moreover, he noted that this case was more complex than a typical
    narcotics case due to the combination of the 3.5 year time-frame of the
    charges, the complex nature of the conspiracy and criminal organization
    charges, the international component to the charges, and the involvement of
    international police agencies. It would take an inordinate amount of trial
    time and preparation time. The fact that the trial proper was estimated to
    take approximately six months supported this view.

[61]

The
    application judge also accepted the Crowns submission that the complexity of
    this case was increased because it involved multiple co-accused. This meant
    there would be issues regarding the co-actors exception to the hearsay rule,
    the use that can be made of evidence as between different accused, and the
    potential for antagonistic defences.

[62]

The
    application judge concluded that the Crown had established that the case was
    particularly complex and that exceptional circumstances existed. He then
    considered whether the time the case has taken is justified by reason of the exceptional
    circumstances:
Jordan
, at paras. 68, 80. In particular, he asked
    whether the Crown had a plan to manage the case, whether that plan was
    reasonable, and whether it was implemented reasonably, such that the delay to
    trial was justified.

[63]

Ultimately,
    he answered each question affirmatively. In doing so, he made a number of
    findings:

·

he rejected the defence submission that the Crown did not have a
    plan and found that the Crown clearly had a plan to manage the case from early
    in the proceedings;

·

the Crowns plan included:

·

proceeding to a preliminary inquiry using the
Criminal Code
,
    s. 540(7) procedure;

·

a plan for disclosure, including disclosure of a large number of
    documents and electronic data early in the process;

·

offering to provide requested witnesses for cross-examination;

·

coordinating the schedules of the court and defence counsel for
    the purpose of scheduling the preliminary inquiry and trial;

·

requesting statements of issues and witnesses from the defence;

·

taking the initiative to engage in the case management process in
    both the Ontario Court of Justice and the Superior Court; and

·

streamlining the case by resolving the charges against 7 of the
    initial 14 co-accused, thereby reducing the complexity of the case.

·

while the ITOs should have been disclosed earlier, no time was
    lost by their late disclosure, as the parties were still able to engage in
    meaningful discussions at the first case management conference and by the
    second case management conference all ITOs had been disclosed;

·

the Crown did not act unreasonably by not accepting various
    defence proposals to shorten the process because those proposals would not
    realistically have done so and the Crown was dealing with multiple co-accused,
    many of whom were not involved in, or apparently not interested in, negotiating
    a shorter process;

·

the Crown did not act unreasonably in exercising its discretion
    not to sever the charges against some of the accused; and

·

the Crown was permitted to change its plan by preferring the
    indictment and, although it could have done so earlier, it ultimately reduced
    the time to trial by approximately eight months.

[64]

The
    application judge found that while preferring the indictment arguably resulted
    in some time lost in the Ontario Court of Justice, it saved time going forward.

[65]

The
    application judge concluded:

Overall, in consideration of the Crowns plan, the way in which
    the Crown managed the plan, the presumptive ceiling of 30 months, and the
    complexity of this case, I find that the Crown has proved that the 35 months
    that this case will take to the end of this trial is reasonable.

[66]

Accordingly,
    the application judge held that the appellants s. 11(b) rights were not
    infringed and he dismissed their applications.

E.

Analysis

(1)

The presumptive ceiling: 18 or 30 months?

[67]

In
    this court, the appellants renew their submission that by preferring the
    indictment and bypassing the preliminary inquiry, the Crown turned the case
    into a one-stage proceeding and therefore the 18-month ceiling applies. They
    refer to
Morin
, at p. 793, where the Supreme Court made a distinction
    between a one-stage and a two-stage proceeding.

[68]

The
    rationale for the 30-month ceiling in
Jordan
, the appellants submit,
    is that a case proceeding in the Superior Court, or in the Ontario Court of
    Justice after a preliminary inquiry, has increased time requirements. Where the
    Crown prefers an indictment, the inherent time requirements are reduced and the
    18-month limit should apply.

[69]

This
    submission fails for several reasons. First,
Jordan
created a
new framework
for the s. 11(b) analysis. In this and
    other aspects of their submissions, discussed below, the appellants rely on concepts
    in
Morin
that have been superseded by
Jordan
, except for some
    aspects of transitional cases. As the application judge noted, the Supreme
    Court repeatedly drew a distinction in
Jordan
between trials in the
    provincial court and trials in the superior court. Nowhere in
Jordan
did the court speak of a one-step or two-step proceeding, or suggest that
    different rules apply when an indictment is preferred in a superior court.

[70]

Second,
    in
Cody
, the Supreme Court did not adopt the submission of the
    intervener, the Criminal Lawyers Association of Ontario, which invited the
    court to carve out an exception to the 30-month ceiling for cases that have
    proceeded in a superior court without a preliminary inquiry. The absence of
    reference to this issue in
Cody
suggests that the Supreme Court felt
    that its reasons in
Jordan
were clear. It is reasonable to conclude
    that if the Supreme Court had intended an 18-month ceiling for cases tried in a
    superior court without a preliminary inquiry, it would have taken the
    opportunity in
Cody
to say so.

[71]

Third,
    as the Crown notes, not only is there no authority for the appellants submission,
    it has been rejected by numerous decisions across the country. See, in
    particular:
R. v. Schenkels
, 2017 MBCA
    62, 384 C.R.R. (2d) 266, at paras. 43-50, leave to appeal to S.C.C. refused, [2017]
    S.C.C.A. No. 268; and
the decisions of the Ontario Superior Court of
    Justice in
R. v. Millard
, 2017 ONSC 4030, at paras. 56-61;
R. v.
    Nyznik
, 2017 ONSC 69, at paras. 22-35; and
R. v. Maone
, 2017 ONSC
    3537, at paras. 11-22. See also the decisions in
:
Corriveau c. R.
, 2016 QCCS 5799,
    at paras. 21-35;
R. v. Jones
,
    2016 ABQB 691, at paras. 23-33;
Catania c. R.
, 2016 QCCQ 15023, at paras. 42-55;
R. v.
    Cabrera
, 2016 ABQB 707, 372 C.R.R. (2d) 62,
    at paras. 18-28;
R. v. Wilson
,
    2017 ABQB 68, at paras. 77-78;
R. v. Nasery
, 2017 ABQB 564, at paras. 44-56;
R. v.
    Barra and Govindia
, 2017 ONSC 6008, 394
    C.R.R. (2d) 1, at paras. 35-38;
R. v. Carter
, 2018 ABQB 657, 418 C.R.R. (2d) 133, at paras. 14-19;
    and
R. v. Rye
, 2018 ONSC 7474,
    at paras. 7-23.

[72]

I
    would not give effect to this submission.

(2)

Did the application judge err in finding the delay was reasonable in
    light of the particular complexity of the case?

(a)

Standard of review

[73]

The
    characterization of periods of delay, and the ultimate decision as to whether
    there has been unreasonable delay, is subject to a correctness standard, but
    the trial judges findings of fact are entitled to deference where they are
    relevant to the analysis required by
Jordan
: see
R. v. Schertzer
,
    2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71, leave to appeal to S.C.C.
    refused, [2010] S.C.C.A. No. 3;
Jurkus
, at para. 25; and
R. v.
    Albinowski
, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27.

(b)

Length of delay

[74]

The
    appellants submit that this court should consider the projected delay considered
    by the application judge  35 months  despite the fact that they were, in fact,
    tried in a shorter time. As events transpired, five were tried a few months
    under the
Jordan
ceiling and the other two were tried a few months
    over the ceiling.

[75]

No
    cases were cited to us in which appellate courts have applied the actual trial completion
    date when it results in a delay
less
than what was
    estimated by the application judge. There appears to be a uniform approach,
    however, of using the
actual
date when the delay
    is
greater
than what was projected by the application
    judge: See
R. v. Williamson
, 2016 SCC 28, [2016] 1 S.C.R. 741, at
    paras. 12, 19;
Manasseri
, at paras. 278, 284-285, 326;
D.M.S. v.
    R.
, 2016 NBCA 71, 353 C.C.C. (3d) 396, at paras. 13, 21;
R. v. Gordon
,
    2017 ONCA 436, 137 O.R. (3d) 776, at para. 4;
Schenkels
, at para. 21; and
R. v. Barna
, 2018 ONCA 1034, 371 C.C.C. (3d) 217, at para. 4, leave to
    appeal to S.C.C. refused, [2019] S.C.C.A. No. 40. Moreover, this court has
    previously suggested that there is no need to use the anticipated trial completion
    date where the conclusion of the trial is a date certain:
R. v. Faulkner
,
    2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 149.

[76]

Using
    the actual trial completion date would materially affect the
Jordan
analysis
    for the five appellants whose trials were completed within 30 months, as it would
    place the onus on them to show that the delay was nevertheless unreasonable,
    something they have not attempted to do.

[77]

As
    I find no error of law in the application judges analysis, and agree with his
    conclusion that the delay was reasonable based on the particular complexity of
    this case, it is unnecessary to address this issue. Had he made an error enabling
    us to consider this issue afresh, it may have been open to us to assess the alleged
    breach of the appellants
Charter
rights based on the shorter delay
    established by the full record: see
D.M.S.
, at para. 13.

(c)

Complexity

[78]

As
    the projected delay exceeded the presumptive 30-month ceiling, and as there was
    no waiver of delay by the defence or delay attributable to the defence, the
    onus was on the Crown to establish exceptional circumstances in the form of
    either discrete events or the particular complexity of the case as a result of
    the evidence or issues. There were no discrete events relied upon, so the sole
    issue was complexity.

[79]

The
    appellants do not challenge the application judges finding that the case was
    complex. Nor could they possibly do so in my view. The complexity of the
    evidence ticked every box in
Jordan
and then some: the number of co-accused
    (initially 14 and ultimately reduced to 7), some of whom spent long periods of
    time without counsel and many of whom, as the application judge noted, were not
    involved in, or apparently not interested in, negotiating a shorter process; the
    complex nature of the charges; the time span of the charges (3.5 years); the
    volume and complexity of the evidence; the number of witnesses (anticipated at 220);
    the need for complex expert evidence (22 experts); the international aspects of
    the case; and the projected length of trial (6 months). Moreover, as the application
    judge noted, presenting the evidence against each accused would involve piecing
    together a massive jigsaw puzzle of evidence and would raise complex
    evidentiary issues.

[80]

It
    is important to reiterate that the application judges analysis did not end
    with his finding that the case was particularly complex. He went on to conclude
    that the Crown had a plan to manage the case, that the plan was reasonable,
    that it was implemented in a reasonable manner and that the delay to the projected
    end of trial was reasonable in light of the particular complexity of the case.

[81]

Again,
    the application judges conclusion that the Crowns plan was reasonable is
    fully supported by the evidence. Although the initiation of this prosecution
    preceded
Jordan
by almost two years, the Crown was attentive from the
    outset to its disclosure and case management obligations. As I have noted, on
    the very day of arrest, the Crown gave each accused a lengthy and very detailed
    synopsis of the case. This was undoubtedly designed to show the Crowns hand
    and to incentivize early resolutions and possible cooperation.

[82]

Within
    three months of the arrest, the Crown had made massive disclosure, consisting
    of approximately 93 percent of its evidence by volume. It sought and obtained
    case management in both the Ontario Court of Justice and the Superior Court
    from the early stages in each court and it was proactive in its use of case
    management and judicial pre-trials. It actively engaged with defence counsel in
    scheduling and in attempting to streamline and simplify the preliminary inquiry
    and trial. It made ongoing efforts to resolve the proceedings with individual
    accused and it was successful in doing so for 7 of the 14 original co-accused at
    various times prior to trial. The Crowns conduct of the proceedings satisfied
Jordan
s
    admonition, at para. 70:

It is not enough for the Crown, once the ceiling is breached,
    to point to a past difficulty. It must also show that it took reasonable
    available steps to avoid and address the problem
before
the delay
    exceeded the ceiling. This might include prompt resort to case management
    processes to seek the assistance of the court, or seeking assistance from the
    defence to streamline evidence or issues for trial or to coordinate pre-trial
    applications, or resorting to any other appropriate procedural means. 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.

[83]

As
    this court observed in
Manasseri
, at para. 308, where the Crown takes
    reasonable steps to avoid and address delay: What counts is effort and
    initiative, not success.

[84]

While
    the Crowns efforts were not always successful, and while, as the application
    judge noted, there was some delay in disclosure of the redacted ITOs, that
    delay had to be considered in context. The application judge, having case
    managed the proceeding from the outset in the Superior Court, was well
    positioned to do so.

[85]

As
    I have noted,
Jordan
requires no further analysis once the application
    judge finds that the delay in trying the case is reasonable because of its
    particular complexity. I will, however, address the appellants submissions
    that the delay in this case was caused, not by complexity, but by wasted time
    in the Ontario Court of Justice as a result of delay in preferring the
    indictment and by systemic or institutional delay in both courts.

(d)

Preferring the indictment

[86]

The
    appellants say that after allowing for 5 months of intake, they spent 7.5
    months in the Ontario Court of Justice waiting for a preliminary inquiry that
    never materialized. This time, between February and October 2015, was wasted
    and, unless explained, cannot be cured by preferring an indictment. They say
    the 30-month presumptive ceiling reflects the inherent time requirements of a
    case with a preliminary inquiry. If the Crown prefers an indictment during the
    normal intake period there is no reason why a higher presumptive ceiling
    should apply. If the indictment is preferred at a later date, so the argument
    goes, the Crown must explain why it wasted time preparing for the
    preliminary. If it fails to do so, preferring the indictment cannot cure unexplained
    past delay.

[87]

I
    do not agree.

[88]

It
    is well settled that the Crowns decision to prefer an indictment is a matter
    of prosecutorial discretion and is reviewable only for abuse of process:
R.
    v. S.J.L.
, 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 24; and
R. v.
    Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 44, 48, 51. The
    Crown has no obligation to give reasons to justify its decision, absent an
    evidentiary basis for a claim of abuse of process:
Anderson
, at para.
    55; and
R. v. St. Amand
, 2017 ONCA 913, 358 C.C.C. (3d) 226, at para.
    23.

[89]

It
    has been recognized for some time that the avoidance of unreasonable delay is
    an appropriate basis on which to prefer an indictment: see Law Reform
    Commission of Canada, Working Paper 62,
Controlling Criminal Prosecutions:
    The Attorney General and the Crown Prosecutor
(1990), at pp. 93-94;
R.
    v. Charlie
(1998), 126 C.C.C. (3d) 513 (B.C.C.A.), at para. 32; and
S.J.L.
,
    at para. 38.

[90]

Thus,
    in
Manasseri
, at para. 376, n. 5, Watt J.A. observed:

Direct indictments under s. 577(a) of the
Criminal Code
have been infrequent in this province. However, after
Jordan
, with
    full disclosure as required by
Stinchcombe
, the Crown should give very
    serious consideration to preferring direct indictments to fulfill its mandate
    under s. 11(b) and to ensure, to the extent reasonably possible, that criminal
    trial proceedings do not exceed the presumptive ceilings set by
Jordan
.

This recommendation was expressly endorsed by the
    Manitoba Court of Appeal in
R. v. C.M.M.
, 2017 MBCA 105, [2018] 2
    W.W.R. 213, at para. 14. Moreover, as previously noted, the case management
    judge in the Ontario Court of Justice specifically advised the Crown in this
    case that it might need to seek a direct indictment in order to keep the
    proceedings moving forward.

[91]

I
    do not accept the appellants distinction between past delay and future
    delay, a distinction found nowhere in
Jordan
. Nor do I accept the
    appellants premise that preferring an indictment lowers the presumptive
    ceiling unless explained. This approach would restrict the utility of the
    preferred indictment as a remedial tool to ensure the protection of s. 11(b)
    rights.

[92]

Nor
    do I accept that the time in the Ontario Court of Justice prior to the
    preferred indictment was wasted. Similar arguments were rejected in
Maone
,
    at paras. 20-21, and in
Millard
, at para. 58, where Code J. observed:

[T]he main premise of the Applicant Smichs argument in favour
    of the eighteen month ceiling is that the time spent in the Ontario Court of
    Justice is wasted, when a direct Indictment is preferred, because the accused
    has been denied the benefit of a preliminary inquiry. In particular, it was
    submitted that the time has been wasted when the Indictment is preferred on
    the eve of the preliminary inquiry. I do not accept this premise. The time
    that a case spends in the Ontario Court of Justice, prior to a preliminary
    inquiry, is extremely valuable. Bail hearings are held, the accused has time to
    retain counsel, initial Crown disclosure is made and then reviewed by the
    defence, ongoing Crown disclosure is substantially completed and defence
    requests for further disclosure are made, counsel interview witnesses and
    preserve evidence that may be needed at trial, counsel take instructions from
    the client and negotiate resolutions, judicial pre-trials are held where the
    case against certain accused can be finally resolved and where admissions that
    shorten and simplify the case can be negotiated. See:
R. v. Maone et al
.,
    2017 ONSC 3537 at para. 21. In short, the time spent in the Ontario Court of
    Justice prior to preferring a direct Indictment is not wasted and it cannot
    simply be discounted or ignored, when determining a reasonable presumptive
    ceiling for overall delay. It is valuable time that the parties use and need.

[93]

The
    same occurred here. During the so-called wasted time between February and
    October 2015, some of the accused were still seeking counsel, Crown disclosure
    was taking place and there were three case management conferences. Resolution
    discussions took place and 4 of the original 14 co-accused pleaded guilty.
    Efforts were made by the Crown, albeit sometimes unsuccessful at the time, to
    shorten and simplify the case. While not all of these efforts were immediately
    successful, they helped to pave the way for expedited trials for five of the
    seven appellants  trials that were, in fact, completed within the 30-month
    presumptive ceiling. The application judge did not err in failing to
    characterize the time spent in the Ontario Court of Justice prior to the
    preferring of the direct indictment as wasted.

[94]

For
    these reasons, I reject the appellants submission that the Crown was required
    to explain the delay in preferring the indictment and that this had the effect
    of reducing the presumptive ceiling.

[95]

I
    turn to the appellants submissions concerning systemic or institutional delay.

(e)

Systemic or institutional delay

[96]

It
    bears repeating that
Jordan
established a new framework
for the s. 11(b) analysis.
    As this court has observed, the Supreme Court rewrote the law on unreasonable
    delay  with the release of its decision in
Jordan
:
R. v.
    Mallozzi
, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 24, leave to appeal
    to S.C.C. refused, [2017] S.C.C.A. No. 392; see also
Coulter
, at para.
    60.

[97]

Other
    than in transitional cases, which the Crown concedes this is not, pre-
Jordan
constructs have little utility in the
Jordan
analysis.

[98]

Jordan
s
    goal was to promote behaviour modification and predictability by encouraging
    parties to manage each case in advance to achieve
future compliance
with consistent standards:
Jordan
, at para. 35, quoting Michael A.
    Code,
Trial Within a Reasonable Time: A Short History of Recent
    Controversies Surrounding Speedy Trial Rights in Canada and the United States
(Scarborough, Ont.: Carswell, 1992), at p. 117 (emphasis in original).

[99]

In
    so doing,
Jordan
departed from
Morin
s retrospective inquiry,
    which focused on institutional delay and classifying stages of a case into
    categories of delay that could or could not be visited upon the Crown: see
R.
    v. Baron
, 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 46. Instead,
Jordan
relies on presumptive ceilings. As
Jordan
points out, particularly at
    paras. 52-56, the presumptive ceilings take account of the factors that can
    reasonably contribute to the time it takes to prosecute a case: para. 53. This
    includes the inherent time requirements of the case, institutional delay in
    the provincial court and in the superior court following committal for trial
    and the increased complexity of criminal trials since
Morin
: para.
    53. The Supreme Court also stressed that the presumptive ceiling includes a
    public interest component by giving clarity and assurance concerning the
    duration of trials, thereby building public confidence in the administration of
    justice.

[100]

The presumptive
    ceilings established by
Jordan
assume that there will be institutional
    delay in the courts below. Unlike delay waived by the defence or attributable
    to it, which is deducted from the total delay to produce the net delay,
Jordan
does not require an accounting for Crown delay or institutional delay. Instead,
    the focus is on the presumptive ceilings.
Jordan
permits the ceilings
    to be exceeded in exceptional circumstances, which can include discrete events
    and particularly complex cases. It recognizes that in some exceptional
    circumstances, the ceiling may not adequately reflect the time required as a
    result of the particular complexity of the case at hand. If the Crown is to
    avoid a stay in such cases, however, it must discharge the onus imposed in
Jordan
to show that the circumstances were outside its control. It may do so where it
    shows that it developed and followed a reasonable plan to minimize the delay.
    The question, ultimately, is not whether institutional factors or the
    particular complexity of the case caused certain stages of the delay, but
    rather, whether an inordinate amount of trial or preparation time was needed as
    a result of the nature of the evidence or the issues such that the time the
    case has taken is justified:
Jordan
, at para. 78.

[101]

In this case, there is
    little question that there was some institutional delay, particularly in the
    provincial court, where the Crown struggled to schedule a six-week preliminary inquiry
    in a jurisdiction (Welland, Ontario) with a one-judge courthouse. But
Jordan
recognizes that institutional delay will occur and makes provision for it in
    the presumptive ceiling.

[102]

As I have noted, the
    application judge did not end his analysis with his finding that the case was
    particularly complex. He went on to find that the time the case took was reasonable,
    was justified by its complexity and that the Crown implemented a reasonable
    plan to manage that complexity. The complexity included the scheduling
    challenges associated with a lengthy preliminary inquiry involving multiple co-accused.

[103]

The application judge
    was faithful to the analytical framework set out in
Jordan
for the
    determination of case complexity. He began to case manage the proceeding approximately
    one month after its arrival in the Superior Court and had presided over three case
    management conferences and three judicial pre-trials. His privileged
    perspective on the issue of complexity of the case as a whole informed his
    findings of fact, which are entitled to deference. I see no error in his
    ultimate decision that the projected delay in this case was reasonable given
    the particular complexity of the case.

F.

Disposition

[104]

For these reasons, I
    would dismiss the appeal.

Released: G.S.   JUL 15 2019

G.R. Strathy C.J.O.

I agree. David Watt J.A.

I agree. B. Zarnett J.A.


