



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Gordon, 2017 ONCA 436

DATE: 20170531

DOCKET: C60166

Doherty, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Gordon

Appellant

Paul Calarco, for the appellant

Michael Fawcett, for the respondent

Heard:  May 8, 2017

On appeal from the convictions entered by Justice Robert
    F. Goldstein of the Superior Court of Justice on February 23, 2015, with
    reasons reported at 2015 ONSC 1192, and the dismissal of the s. 11(b)
    application by Justice Katherine B. Corrick of the Superior Court of Justice on
    March 18, 2015, with reasons reported at 2015 ONSC 1757 and, an appeal, if
    leave be granted, from the sentence imposed by Justice Robert F. Goldstein of
    the Superior Court of Justice on June 9, 2015.

Doherty J.A.:

[1]

There are two grounds of appeal:

·

Did
    the trial judge err in holding that the appellants right to trial within a
    reasonable time was not breached?

·

Was
    the trial judges finding that the gun used in the robbery was a firearm
    unreasonable?

Was there a breach of s. 11(b)?

[2]

The trial judge considered and dismissed the s. 11(b) claim, following
    the analysis prescribed in
R. v. Morin
, [1992] 1 S.C.R. 771.
[1]

Morin

was overruled in

R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631.  The approach to s. 11(b) created by the majority in
Jordan
is radically different from the approach set out in
Morin
.  Even
    though the trial judge heard and decided the s. 11(b) motion almost a year and
    one-half before
Jordan
was decided,
Jordan
applies to the s.
    11(b) claim on appeal:
Jordan
, at paras. 92-95.

[3]

Jordan
declares that any delay beyond 30 months in
    completing a trial in Superior Court is presumptively unreasonable.  The burden
    falls on the Crown to rebut that presumption:
Jordan
, at para. 68.

[4]

The charges were laid in January 2010.  The appellant was tried and
    convicted in February 2015 and sentenced in June 2015.  In total, 65 months
    elapsed between the laying of the charge and the imposition of sentence.

[5]

A delay of 65 months is more than double the cap set in
Jordan
. 
    However,
Jordan
indicates that any time attributable to defence delay
    must be subtracted from the total delay to determine the net delay.  The net
    delay is then compared to the presumptive 30-month ceiling:  see
R. v.
    Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-36.


[6]

There was some defence delay.  The preliminary inquiry was delayed for
    about 7 months, due to the unfortunate death of defence counsel.  The setting
    of the first trial date in Superior Court was delayed by about 1.5 months at
    the request of defence counsel.  The first trial date in Superior Court was set
    11 months into the future in part to allow the defence an opportunity to
    finalize its retainer.  I do not accept the Crowns argument that this entire
    11 months should be treated as defence delay.  The appellant could not have been
    tried immediately even if he had a lawyer.  Some time was needed to make a
    trial court available and allow for Crown preparation.

[7]

I do, however, think that some part of the 11 months should be treated
    as defence delay.  The accuseds need to secure counsels retainer was one
    factor considered in adjourning the case for 11 months.  It cannot be said with
    any exactitude how much of the 11 months should be treated as defence delay. 
    Having regard to the time needed to set other trial dates in the course of this
    proceeding, I would attribute 7.5 months to the time needed to fix the trial
    date and 3.5 months to the time needed for the defence to secure its retainer.

[8]

Total defence delay amounts to 12 months.  Subtracting the 12-month
    defence delay from the total delay of 65 months, yields a net delay of 53
    months, still well beyond the 30-month limit in

Jordan
.


[9]

Jordan
further provides that when the net delay
    exceeds 30 months, the Crown may rebut the presumption that the delay is unreasonable
    by showing that the delay was justified by exceptional circumstances:
Jordan
,
    at para. 68.  Exceptional circumstances can include discrete, unexpected, or
    unavoidable events beyond the control of the Crown, the complexity of the
    particular case, or what Jordan describes as the transitional exceptional
    circumstances, referring to cases that were in the judicial system before July
    2016 when
Jordan
was released, and were subject to the s. 11(b) regime
    described in
Morin
:
Jordan
, at paras. 69-81, 96.


[10]

The Crown argues that the co-accuseds unanticipated decision to change
    his plea and cooperate with the police constitutes an exceptional circumstance
    on the facts of this case.  I agree.

[11]

The first trial started in September 2013.  After a day or two of
    pretrial motions, the co-accused decided that he would cooperate with the police,
    provide a statement, plead guilty and testify.    Crown counsel suggested to
    the trial judge that the trial could be adjourned briefly so that the police
    could take a statement from the co-accused and counsel for the appellant could
    consider the content of that statement before deciding how best to proceed. 
    Crown counsel suggested that the trial may be able to proceed to completion in
    the remaining time allocated in September for the trial.

[12]

Defence counsel took the position that the co-accuseds decision to
    change his plea and cooperate with the police radically altered the case that
    the appellant had to meet.  Counsel also acknowledged that he had inadvertently
    failed to book the final week that had been set aside for the trial.  Although
    defence counsel used the word adjournment, in his exchanges with the trial judge,
    it is clear that he wanted a mistrial.  Counsel wanted a new judicial pretrial
    and a new trial date.  Ultimately, the trial judge acceded to the defence request. 
    A new trial was set for June 2, 2014, 9 months later.

[13]

The 9-month adjournment from September 2013 to June 2014 was
    a direct result of the co-accuseds unanticipated decision to change his plea
    and to cooperate with the police.  This 9-month delay was reasonably unforeseen
    and reasonably unavoidable.  The delay qualifies as an exceptional circumstance
    under

Jordan
.


[14]

However,
Jordan
instructs that not only must the
    circumstance be exceptional, the Crown must also demonstrate it made reasonable
    efforts to mitigate any delay flowing from the exceptional circumstance:
Jordan
,
    at paras. 69, 75.  I am satisfied that the Crown did all that it reasonably
    could do to mitigate the delay flowing from the co-accuseds change of
    position.  Crown counsel suggested a brief adjournment to assess the
    co-accuseds statement and held out the possibility that the matter could proceed
    as scheduled in September.  Defence counsel wanted to start all over.  Once the
    trial judge accepted the defence position, there was nothing more the Crown
    could realistically do to mitigate the delay caused by the co-accuseds change
    of position.  The new trial date in June 2014 was, on the information made
    available to the Crown and the trial court, defence counsels first available
    date for a trial of the required length.  The 9-month delay between September
    2013 and June 2014 should be subtracted from the net delay of 53 months,
    yielding a delay of 44 months, still well above the 30-month ceiling set by
Jordan
.

[15]

The Crown submits that the additional delay between June 2014 and the
    eventual trial date in February 2015 should also be deducted from the net delay
    as attributable to the co-accuseds decision to change his plea and cooperate
    with the police in September 2013.  There is a but for causal connection in
    the broadest sense between the co-accuseds decision to cooperate with the
    police in September 2013 and the delay from June 2014 to February 2015.  Had
    the co-accused not decided to cooperate with the police, the trial would have
    proceeded in September 2013.

[16]

The delay from June 2014 to February 2015 was, however, directly
    attributable to two things.  First, defence counsel had mis-diarized the date,
    thinking that the trial was scheduled to start on a Wednesday rather than the Monday. 
    By Wednesday, there was no jury available to try the case.  Second, although no
    jury court was available, there was a judge available who could try the case
    without a jury.  The Crown would not agree to a re-election.

[17]

As a consequence of counsels mis-diarization, and Crown
    counsels refusal to agree to a re-election, the trial was adjourned from June
    2014 to February 2015.  Those two events, and not the co-accuseds decision nine
    months earlier to cooperate with the police, led to the delay from June 2014 to
    February 2015.  Neither qualifies as an exceptional circumstance under
Jordan
.

[18]

There were no other events in the course of the proceedings that
    could be characterized as exceptional for the purposes of the

Jordan
analysis.  Nor was the
    case sufficiently complex to justify delay beyond the 30-month cap.  The Crown
    is left only with what
Jordan
describes as transitional exceptional
    circumstances.


[19]

Jordan
recognized that the new approach to delay
    could not simply be applied without qualification to those cases that were in
    the system prior to the release of
Jordan
and had proceeded on the
    basis that
Morin
established the constitutional standard for
    unreasonable delay.
Jordan
addressed those cases by recognizing that
    some delays beyond the 30-month cap can be justified based on the Crowns
    reasonable reliance on
Morin
.  Several passages from the majority
    judgment explain how reliance on
Morin
must be taken into account in
    assessing the reasonableness of delay in those cases which were in the system
    before
Jordan
was decided:

[96] First, for cases in which the delay
exceeds
the
    ceiling, a transitional exceptional circumstance may arise where the charges
    were brought prior to the release of this decision.
This
    transitional exceptional circumstance will apply when the Crown satisfies the
    court that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed.





[102] Ultimately, for most cases that are already in the
    system, the release of this decision should not automatically transform what
    would previously have been considered a reasonable delay into an unreasonable
    one.  Change takes time.




[103] For cases already in the system, the presumptive ceiling
    still applies; however, the behaviour of the accused and the authorities 
    which is an important consideration in the new framework  must be evaluated
    in its proper context [citation omitted].
The
    reasonableness of a period of time to prosecute a case takes its colour from
    the surrounding circumstances.  Reliance on the law as it then stood is one
    such circumstance
.    [Italics in original; underlining added.]

[20]

The transitional exception is based on reasonable reliance on
Morin
. 
    The exception cannot assist the Crown if the delay was unreasonable as measured
    against the
Morin
criteria:  see
Jordan
, at para. 128.  To rely
    on the transitional exception, the Crown must show that the pre-
Jordan
delay was not unreasonable under the

Morin
analysis.

[21]

The Crown contends that the trial judge correctly held that the delay
    was not unreasonable under
Morin
.  The trial judge found, at paras.
    29, 36, 50, that the Crown/institutional delay in the Ontario Court of Justice
    was about 7 months and the Crown/institutional delay in the Superior Court was
    about 10.5 months.  The total Crown/institutional delay of 17.5 months is just
    below the top of the range of tolerable Crown/institutional delay described in
Morin
.

[22]

I see no reason to disagree with the factual findings underlying the
    trial judges allocation of the various time periods.  The trial judge also
    identified the other relevant factors under the
Morin
analysis and
    balanced those factors in an appropriate manner.  The trial judge correctly
    held that under the
Morin
analysis there was no breach of s. 11(b).

[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. 
    There will, however, be situations in which the delay, while tolerable under
Morin
,
    becomes unconstitutional under
Jordan
.  As explained in
Jordan
,
    at para. 98:

[I]f the delay in a simple case vastly
    exceeds the ceiling because of repeated mistakes or missteps by the Crown, the
    delay might be unreasonable even though the parties were operating under the
    previous framework.
The analysis must always be contextual.  We rely on
    the good sense of trial judges to determine the reasonableness of the delay in
    the circumstances of each case.  [Emphasis added.]

[24]

The language in the above-quoted passage describes a narrow category of
    cases.  This case was arguably not simple, but it was certainly not complex. 
    The 44-month delay significantly, if not vastly, exceeded the 30-month ceiling
    set in
Jordan
.  However, and this is crucial, I find no evidence of
    any repeated mistakes or missteps by the Crown that contributed to the delay.

[25]

The Crowns refusal to consent to a re-election in June 2014 caused an
    additional 9 months delay.  Considered in isolation, and from the new perspective
    on delay provided by
Jordan
, the Crowns decision could be characterized
    as a misstep, giving rise to further delay.  However, the Crowns decision must
    be considered in the context of the other steps taken by the Crown at about the
    same time.  In the weeks following the adjournment in June 2014, the Crown made
    efforts to shorten the upcoming trial by obtaining certain factual admissions
    from the defence.  Most importantly, after the February 2015 trial date was
    set, the Crown continued to seek out earlier trial dates for a jury trial.  The
    Crown secured dates in August 2014 and offered those dates to the defence.  Defence
    counsel did not respond to the Crowns offer.

[26]

Placed in its proper context, the Crowns refusal to consent to a
    re-election in June 2014 cannot be described as a misstep.  Nor, does it
    reflect the culture of complacency that so concerned the court in
Jordan
: 
    see

Jordan
, at para.
    104.

[27]

The circumstances of this case demonstrate the wisdom of the
    transitional exception built into the
Jordan
analysis.  When the Crown
    refused to agree to a re-election in June 2014, the Crown knew the prosecution
    was well within the
Morin
guidelines for delay.  Indeed, there had
    been virtually no Crown/institutional delay in the Superior Court to that stage. 
    The Crowns decision to keep the jury and consequently delay the trial, while probably
    unreasonable in the context of the hard cap approach in
Jordan
, was
    reasonable in the context of the
Morin
analysis as applied to the chronology
    of this case.

[28]

The Crowns reasonable reliance on
Morin
must be factored into
    the s. 11(b) assessment required by
Jordan
.  In my view, that
    reasonable reliance justifies the 14 month-delay beyond the 30-month ceiling
    created by
Jordan
.  I would not give effect to this ground of appeal.

Was the finding that the gun was a firearm unreasonable?

[29]

On the evidence of the victims, one of the robbers pointed a handgun at
    them and threatened to shoot them if they attempted to escape.  Fortunately,
    the gun was not fired during the robbery.  The police did not recover the
    weapon.

[30]

The appellant submits that it was unreasonable for the trial judge to
    conclude that the gun was real in the sense that it was capable of firing
    bullets and therefore fell within the definition of a firearm in s. 2 of the
Criminal
    Code
, R.S.C., 1985, c. C-46.  The appellant submits that the evidence was
    equally consistent with the conclusion that the gun was an imitation firearm.

[31]

There was ample evidence from which the trial judge could infer that the
    gun used in the robbery was a real gun capable of firing bullets.  Certainly,
    the victims thought it was real and the robbers acted as if it was real.  A
    trier of fact is entitled, although clearly not obligated, to take a robber at
    his word when, in the course of the robbery and to subdue the victims, the
    robber points what appears to be a gun at the victim and threatens to shoot them. 
    It is a fair inference that the threat is not an idle one and that the robber
    has the means at hand to make good on the threat.

[32]

Compagnoni, one of the perpetrators, testified for the defence.  On his
    evidence, one of the accomplices brought a gun to the robbery.  Compagnoni used
    the pistol to threaten the victims.  He pled guilty to committing robbery with
    a firearm.  Very late in his evidence, when questioned by the trial judge, Compagnoni
    indicated that he did not think the gun was real.  He offered no explanation
    for his failure to mention this belief the first three or four times he was asked
    about the weapon.

[33]

This single answer by Compagnoni, even if it was not disbelieved by the
    trial judge who found Compagnonis evidence unreliable, would not necessarily render
    the trial judges conclusion that the gun was a firearm unreasonable, having
    regard to the totality of Compagnonis evidence.  In any event, there was ample
    other evidence capable of supporting the conclusion that the gun was a firearm. 
    This ground of appeal fails.

The sentence appeal

[34]

The sentence appeal was contingent on this court accepting the argument
    that the Crown did not prove that the gun was a firearm.  As I would reject
    that argument, it follows that I would refuse leave to appeal sentence.

Conclusion

[35]

I would dismiss the appeal from conviction and sentence.

Released: DD  MAY 31 2017

Doherty J.A.

I agree B.W. Miller
    J.A.

I agree D.M.
    Paciocco J.A.





[1]

The s. 11(b) motion was heard prior to arraignment.  The judge
    who heard the motion did not conduct the subsequent trial.  For ease of reference,
    however, I will refer to her as the trial judge in these reasons.


