



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Daponte, 2021 ONCA 14

DATE:
    20210111

DOCKET:
    C67109

Juriansz,
    Jamal and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Floriano
    Daponte and Vivian Hamilton

Respondents

Anjie Tarek-Kaminker and Brian G.
    Puddington, for the appellant

Mark C. Halfyard, for the respondent
    Floriano Daponte

Etai Hilzenrat, for the respondent
    Vivian Hamilton

Heard: December 10, 2020 by video
    conference

On appeal from the stay entered by
    Justice Michael D. McArthur of the Superior Court of Justice on June 6, 2019,
    with reasons reported at 2019 ONSC 3822, 156 W.C.B. (2d) 447.

Coroza J.A.:

I.

OVERVIEW

[1]

The respondents, Floriano Daponte and Vivian
    Hamilton, were charged with several drug offences, possession of proceeds of
    crime and possession of a prohibited weapon (a flick knife). The trial judge
    found that their right to a trial within a reasonable time under s. 11(b) of
    the
Canadian Charter of
    Rights and Freedoms
had been infringed and stayed
    the proceedings.

[2]

The trial judge, relying on the framework set
    out by the Supreme Court of Canada in
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631, held that the net delay was 30.5 months, which
    exceeded the presumptive ceiling of 30 months and was presumptively unreasonable.
    He held that the Crown did not rebut the presumption that the delay was
    unreasonable because it had not established the presence of exceptional
    circumstances or that the case was particularly complex.

[3]

The Crown appeals on the basis that the trial
    judge erred in his application of the
Jordan
framework. It
    argues that the trial judge erred in finding that a
certiorari
application brought by the respondents after they were committed for trial was
    not an exceptional circumstance. The delay caused by this proceeding (3 months)
    should have been subtracted from the net delay, resulting in remaining delay of
    27.5 months. Since the remaining delay fell below the presumptive ceiling, the
    onus was on the respondents to show that the delay was unreasonable. According
    to the Crown, the respondents have not established that this is one of the
    clear cases where a stay should be granted.

[4]

I would allow the appeal. The trial judge erred
    in finding that the respondents
certiorari
application was not an exceptional
    circumstance. This court has previously held that when the defence brings a
certiorari
application in good faith, that proceeding is an exceptional circumstance
    because the decision to bring the application would be outside the control of
    the Crown, unless in opposing such an application the Crown is acting in bad
    faith, taking a frivolous position, or responding in a dilatory manner.

[5]

In my view, the trial judge improperly focused
    on the fact that the Crown took a frivolous position with respect to just one
    aspect of the
certiorari
application in order to find that the entire application was not an
    exceptional circumstance. While the respondents were partially successful on
    the
certiorari
application because the prohibited weapon count was quashed, it is
    apparent that the trial judge lost sight of the fact that the balance of the
certiorari
application was dismissed. The committals for trial on the drug charges and the
    proceeds charge were upheld. The Crown did not act unreasonably in opposing the
    application and the proceeding should have been considered an exceptional
    circumstance. The time allocated for that proceeding (3 months) should have
    been deducted from the net delay, leaving remaining delay of 27.5 months that
    did not breach the presumptive ceiling. This case is also not one of the clear
    cases where a stay should be granted notwithstanding that the delay falls below
    the presumptive ceiling.

II.

history of proceedings

[6]

The respondents were arrested on December 2,
    2016, following a year long police investigation. The investigation included
    acting on information provided by ten confidential informants and police
    surveillance of a rural property owned by one of the respondents. On the day the
    respondents were arrested, the police executed a search warrant at the property
    and seized drugs, cash, paraphernalia consistent with drug trafficking and a
    flick knife.

(i)

The
Certiorari
Application

[7]

The case proceeded in the Ontario Court of
    Justice in a straightforward manner.

[8]

After a preliminary hearing that took place over
    three days, the respondents were committed on a total of nine charges on
    November 17, 2017. The case was then adjourned to December 12, 2017 in the
    Superior Court of Justice. In the meantime, the respondents challenged the
    committals for trial by serving a
certiorari
application in relation to all
    nine counts on December 1, 2017.

[9]

The application was heard on January 25, 2018.
    On March 16, 2018 the application judge rendered her decision dismissing the
    application except for the weapon charge which she quashed.

(ii)

The Delay Following the
Certiorari
Application

[10]

Following the release of the application judges
    ruling, the trial was scheduled for ten days starting on March 4, 2019 with
    pre-trial motions scheduled for December 10 and 11, 2018. The pre-trial motions
    filed by the respondents claimed that the police had violated their s. 8
Charter
rights
    against unreasonable search and seizure.

[11]

In response to the motion, the Crown made
    further disclosure to the respondents on December 3, 2018. That disclosure
    consisted of unredacted portions of the search warrant that was issued in this
    case. The Crown had previously withheld portions of the warrant based on
    changing levels of perceived harm to informants and based on the privacy
    interests of other individuals. Upon receipt of this disclosure, the
    respondents filed an additional pre-trial motion alleging a breach of s. 7 of
    the
Charter
and seeking the remedy of excluding this new disclosure.
    Both parties agreed that the s. 7 application logically had to precede the
    hearing of the s. 8 application since the relief sought by the respondents
    included the exclusion of evidence required for the s. 8 application. Both
    parties also agreed that four days instead of two were now required to argue
    the motions.

[12]

As a result of these developments, the motions
    did not proceed on December 10, 2018 as originally scheduled. The parties met
    with the local administrative judge and the trial coordinator to reschedule the
    motions. However, there were no available dates to hear the motions until the
    originally scheduled trial date commencing March 4, 2019.

[13]

Ultimately, the original trial dates scheduled
    for March were now scheduled as dates for the pre-trial motions and the trial
    dates were rescheduled to start on June 4, 2019. On May 13, 2019, the
    respondents filed the s. 11(b) application. The trial judge heard the
    application and granted a stay of proceedings on June 6, 2019.

III.

LEGAL FRAMEWORK

(i)

The
Jordan
Framework

[14]

In assessing the s. 11(b) application, the trial
    judge was required to apply the framework set out by the Supreme Court of
    Canada in
Jordan
. That framework has been summarized by Gillese J.A. in
R. v. Coulter
,
    2016 ONCA 704, 133 O.R. (3d) 451, at paras. 34-41, as follows:

[
34
]

Calculate the
total delay
, which is the period from the charge to the actual or anticipated end
    of trial (
Jordan
, at
    para. 47).

[
35
]

Subtract
defence delay
from the total delay, which results in the 
Net Delay
 (
Jordan
, at para. 66).

[
36
]

Compare the Net Delay to the presumptive ceiling (
Jordan
, at para. 66).

[
37
]

If the Net
    Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To
    rebut the presumption, the
Crown must establish the
    presence of
exceptional circumstances
(
Jordan
, para. 47).
    If it cannot rebut the presumption, a stay will follow (
Jordan
, para. 47). In general, exceptional
    circumstances fall under two categories:
discrete
    events
and
particularly
    complex cases
(
Jordan
, para. 71).

[
38
]

Subtract delay caused by discrete events from the Net Delay (leaving
    the 
Remaining Delay
)
    for the purpose of determining whether the presumptive ceiling has been reached
    (
Jordan
, para. 75).

[
39
]

If the Remaining Delay exceeds the presumptive ceiling, the court must
    consider whether the case was particularly complex such that the time the case
    has taken is justified and the delay is reasonable (
Jordan
, at para. 80).

[
40
]

If the
Remaining Delay falls below the
    presumptive ceiling
,
the
    onus is on the defence to show that the delay is unreasonable
(
Jordan
, para. 48).

[
41
]

The new framework, including the presumptive ceiling, applies to cases
    already in the system when
Jordan
was released (the 
Transitional Cases
) (
Jordan
, para.
    96) [Emphasis in original.].

(ii)

Standard of Review

[15]

The trial judges characterization and
    allocation of various periods of delay, as well as the ultimate decision to
    impose a judicial stay for unreasonable delay, involves a question of law
    subject to a correctness standard of review:
R. v.

Albinowski
,
    2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27. However, the trial judges
    underlying findings of fact are reviewed on a standard of palpable and
    overriding error:
R. v.
    Schertzer
, 2009 ONCA 742, 248 C.C.C. (3d) 270, at
    para. 71, leave to appeal refused, [2010] S.C.C.A. No. 3;
R. v. N.N.M.
,
    209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6.

IV.

DISCUSSION

[16]

The Crown makes two submissions on the appeal.
    First, the trial judge erred by not properly characterizing the time to hear
    and complete the respondents
certiorari
application as an exceptional
    circumstance to be deducted from the net delay. Second, if that time had been
    deducted, the net delay would have fallen below the presumptive ceiling to 27.5
    months, and the respondents would have the onus to establish that this was a
    clear case where the case should be stayed.

[17]

The respondents argue that the trial judge did
    not err in applying the
Jordan
framework. According to the respondents, the trial judge found that
    the Crowns response to the weapons count was frivolous and this court should
    defer to the trial judges ultimate finding that the
certiorari
application was not an exceptional circumstance that should be deducted from
    the net delay.

[18]

Alternatively, the respondents contend that even
    if the remaining delay in this case did not breach the presumptive ceiling, the
    delay of 27.5 months was nonetheless unreasonable. The respondents rely on the trial
    judges findings that the defence did not cause any of the delay, the case was
    not complex, there were a chronic lack of judicial resources in London, and the
    Crown made untimely disclosure.

Ground #1: Did the Trial Judge Err in Finding
    that the
Certiorari
Application was not an Exceptional Circumstance?

[19]

In
R. v. Tsega
, 2019 ONCA 111, 144 O.R. (3d) 561, leave to appeal refused, [2019]
    S.C.C.A. No. 106, this court held that delay caused by defence applications for
    extraordinary remedies, including
certiorari
, generally constitutes an
    exceptional circumstance. Hourigan J.A. held, at para. 83:

With regard to defence applications, where they
    are frivolous or made in bad faith, they will generally constitute defence
    delay. Where they are brought in good faith, they constitute an exceptional
    circumstance because they would be outside of the control of the Crown,
unless in opposing such an application or an
    appeal therefrom the Crown is acting in bad faith, taking a frivolous position,
    or responding in a dilatory manner
[Emphasis
    added.].

[20]

The trial judge in this case distinguished
Tsega
because he found that
    the outcome on the prohibited weapon count was obvious and foreseeable and
    litigation on this count was avoidable and within the Crowns control to
    address and remedy. In his view, the Crown should have conceded the weapon charge
    before or at least at the
certiorari
hearing.

[21]

I do not consider it necessary to address the Crowns argument on
    appeal that the trial judge erred in finding that the outcome of the prohibited
    weapon count was obvious and foreseeable. Assuming that there was a basis to
    find that litigation about the flick knife was avoidable, I do not agree that
    the Crowns conduct in relation to that single count distinguished this case
    from this courts holding in
Tsega
.

[22]

The respondents had been committed for trial on nine counts. The
    litigation did not focus on a single count of a weapon in relation to a flick
    knife that was found in the home. This case remains one involving the seizure
    of drugs and proceeds of crime. There is no suggestion in this case that the
    Crown acted in bad faith, took a frivolous position or responded in a dilatory
    manner in relation to the drug and proceeds charges. Indeed, the
Crown had no control over the respondents decision to bring a
certiorari
application on all of the charges and there is no suggestion that the
    litigation was avoidable in relation to those counts.

[23]

A review of the application judges reasons
    fortifies my conclusion. In a decision that spanned 17 pages and 82 paragraphs,
    one single paragraph is devoted to the issue of the flick knife. Respectfully,
    the trial judge erred by concluding that the respondents application was not
    an exceptional circumstance because of the Crowns conduct in relation to just
    one count, notwithstanding its appropriate conduct and successful defence in
    relation to all the other counts.

[24]

The parties on this appeal do not dispute that
    if the delay for the
certiorari
application (3 months to argue the application and receive reasons
    for ruling) is subtracted from the net delay, the remaining delay would be 27.5
    months, which falls below the ceiling. As set out above,
Jordan
holds
    that if the remaining delay falls below the presumptive ceiling, the onus is on
    the defence to show that the delay is unreasonable. I now turn to the Crowns
    second argument.

Ground #2: Have the Respondents Demonstrated
    that this a Clear Case of Unreasonable Delay?

[25]

The Crown argues that since the remaining delay
    falls under the presumptive ceiling, it is the respondents onus to establish
    that this is one of the clear cases where, notwithstanding that the delay falls
    below the ceiling, it is unreasonable.

[26]

The respondents contend that if the remaining
    delay falls below the presumptive ceiling, the delay will still be unreasonable
    if they can establish the following two conditions:

1)

The defence took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings; and

2)

The case markedly exceeded its reasonable time
    requirements.

[27]

At the outset, it is important to recall that
Jordan
expected stays for delay in cases that fell below the presumptive ceiling to
    be rare, and limited to clear cases: at para. 48.

(i)

Sustained Effort to Expedite the Proceedings

[28]

I acknowledge that the trial judge found that
    the respondents acted in a timely, diligent, and reasonable manner and that
    they desired for the case to move forward. His findings do not disclose
    palpable and overriding error and support the respondents submission that they
    took meaningful steps that demonstrated a sustained effort to expedite
    proceedings. Accordingly, the respondents have satisfied the first condition.

(ii)

Markedly Exceeded Reasonable Time Requirements

[29]

However, as noted above, the respondents must
    also meet a second pre-condition for obtaining a stay of proceedings in cases
    of delay falling under the 30-month ceiling. That pre-condition requires the
    respondents to show that the case markedly exceeded the reasonable time
    requirements of the case, which is a question of fact:
Jordan
, at
    para. 91.

[30]

As set out in
Jordan
, determining
    whether a case has taken markedly longer is not a matter of precise
    calculation. The reasonable time requirements to get a case to trial depend on
    a variety of factors, including the complexity of the case, whether the Crown
    took reasonable steps to expedite the proceedings and local conditions. I turn
    to the application of those factors.

[31]

I see no basis to interfere with the trial
    judges finding that this was not a complex case. Although the case was set for
    two weeks of trial, the trial judge noted that the Crowns witnesses were
    police officers, the issues to be litigated at trial were relatively narrow and
    the proceedings were straightforward.

[32]

I also agree with the trial judges observations
    that the Crown exclusively had the control, power and obligation to
    periodically revisit and reassess the withholding of disclosure involving
    confidential informants and to be sensitive to timeliness in relation to the
    defence and their rights to full answer and defence. I agree with the trial
    judge that this did not happen and that the late disclosure was as a result of
    a somewhat late response to the s. 8 application.

[33]

With respect to local conditions,
Jordan
instructs trial judges to employ knowledge of their own jurisdiction, including
    how long a case of that nature typically takes to get to trial in light of
    relevant local considerations and systemic circumstances.

[34]

The question then becomes whether the delay of
    27.5 months for a ten-day drug trial involving two accused is markedly longer
    than was reasonable for London, Ontario. While the trial judge and the local
    administrative judge made some comments about the shortage of judicial
    resources, including judicial vacancies, nothing on this record would establish
    how long a case of that nature typically takes to get to trial in light of the
    relevant local and systemic circumstances:
Jordan
, at para. 89. I
    also note that the trial judge specifically found that the case progressed
    normally while it was in the Ontario Court of Justice; the 11 months and 15
    days before that court was not impacted by the judicial vacancies in the
    Superior Court of Justice.

[35]

The respondents highlight the trial judges
    comments that significant ongoing limited judicial resources impacted this case
    and played a role in the difficulties encountered. I acknowledge that the trial
    judge expressed his concern that the Superior Court in London was under-resourced
    and did not have the luxury to address late-breaking unforeseeable
    circumstances. However, the trial judges comments do not assist in this regard
    because, as noted above, he proceeded on the erroneous premise that the presumptive
    ceiling had been breached. He did not turn his mind to whether this trial took
    markedly longer than it should have even with the late-breaking developments of
    the case.

[36]

According to the Supreme Court of Canada, in
    determining whether a trial took markedly longer than it should have, it is
    necessary to step back from the minutiae and adopt a birds eye view of the
    case:
Jordan
, at para. 91.

[37]

According to the trial judge, the parties agreed
    that up until December 7, 2018, the case was on track for the trial which was
    initially scheduled to proceed on March 4, 2019 for 10 days. The trial judge
    explained that it was only after this point that the critical and problematic
    circumstances in this case then arose. If the trial had proceeded as initially
    scheduled, the remaining delay would have totalled approximately 24.5 months.
    While the respondents had indicated availability for earlier trial dates, they
    accepted the dates in March, and no complaint was made that 24.5 months meant
    the case was taking markedly longer than it should have. Although the Crowns
    late disclosure and respondents s. 7
Charter
application
    served on December 7, 2018 led to a further delay of 3 months, the net delay of
    27.5 months remained well below the ceiling. Taking a birds eye view of the
    case, I have concluded that this is not one of the clear cases where a stay
    should be granted for delay.

V.

DISPOSITION

[38]

For these reasons I would allow the appeal, set
    aside the stay of proceedings and remit the matter to the Superior Court of Justice
    for trial.

Released: R.G.J. January 11, 2021

S.
    Coroza J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. M. Jamal J.A.


