R. v. Caruso, 2017 ONCJ 888

CITATION: R. v. Caruso , 2017 ONCJ 888 DATE: December 19, 2017 COURT FILE No.: Toronto Region, Old City Hall Court ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. Helen Song ) for the Crown ) — AND — ) ) ) IDA CARUSO ) Mr. Gianfranco Piccin ) for the Defendant ) ) ) ) K.J. caldwell J.: [ 1 ] On September 19, 2017 I found Ms. Caruso guilty of impaired driving, drive over 80 and dangerous driving. Ms. Caruso now argues that her

section 11(

b) right to a trial without unreasonable delay has been breached. Mr. Piccin, her counsel, wished to bring this application partway through the trial but I refused to hear it at that time as there had been numerous delays in this case, the vast majority stemming from the defence, and I refused to delay the completion of the trial yet again. I was concerned that hearing the application would derail the proceedings given the tenor to date. The trial needed to finish and the application could be heard at the end of the trial, assuming Ms. Caruso was convicted. [ 2 ] Ms. Caruso was charged on December 4, 2011 and the information was sworn on January 6, 2012. This is one of the least meritorious

section 11(

b) applications I have heard despite the five year, eight month and two week period between the date the information was sworn and the date judgment was rendered. The lengthy time period certainly warrants an examination of the reasons for delay but I dismiss the application.

Section 11(b) – The Law [ 3 ] The

section 11(

b) law changed in on July 8, 2016 when the Supreme Court of Canada (“SCC”) handed down R. v. Jordan . [1] This decision seemed to provoke Ms. Caruso’s application given that it laid out an 18-month timeline to complete trials at the provincial court level. Obviously we are well beyond that presumptive ceiling. In argument Ms. Song for the Crown stated that it never crossed her mind that

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b) was an issue for the defence in this case given the attitude of the defence throughout. I share Ms. Song’s sentiments. [ 4 ] This is clearly a transitional case as most of the time period unfolded during the R. v. Morin [2] era when that SCC case governed the approach to

section 11(b). The SCC in Jordan made it clear that cases unfolding prior to Jordan must be assessed “contextually” and flexibly given that the parties and the Court were governed by a different regime and were unaware of the new Jordan framework.

Jordan applies retrospectively but the Morin analysis cannot be ignored until the transitional period has passed. [ 5 ] The Court stated that "[u]ltimately, 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." [3] [ 6 ] The Morin framework required an assessment of the following: 1. the length of the delay; 2. waiver, if any, of the time periods; 3. the reasons for the delay, including a. the inherent time requirements of the case b. the actions of the Crown c. the actions of the accused d. the limits on institutional resources

e. other reasons for the delay and 4. prejudice to the accused [ 7 ] Under the Jordan framework delays exceeding 18 months are presumed unreasonable. A stay follows unless the Crown can show "exceptional circumstances" justifying the further time period.

The 18 months is the ceiling for the “net delay” – the total delay from the date the information was laid until the end of the trial minus delay caused or waived by the defence. [ 8 ] Defence delay does not cover defence actions such as preparation time that are legitimately done in response to the charges. [4] [ 9 ] Exceptional circumstances are those that are outside the control of the Crown as they are reasonably unforeseen or reasonably unavoidable. [5] Discrete events such as a witness’s illness would be an exceptional circumstance. [ 10 ] I will address the different time periods in blocks of time rather than addressing each appearance.

I have analyzed each period pursuant to both Morin and Jordan given that the Jordan analysis applies retrospectively yet flexibly with awareness that the parties were operating under Morin for most of this case. The Delay in This Case (

a) January 6, 2012 until September 13, 2012 [ 11 ] Mr. Robert Burke represented Ms. Caruso for most of 2012. Sadly, Mr. Burke passed away a year ago. At some point between the end of July and September 13, Ms. Caruso discharged Mr. Burke and retained Mr. Piccin, her current counsel. [ 12 ] Under the Morin framework, this nine-month period would classify as the inherent time requirements of the case combined to a lesser extent with neutral seemingly joint actions on the part of both parties to resolve. Nine months is a very lengthy period for inherent time requirements but it seems that Mr.

Burke was away for the beginning of 2012 and still away as of April 2. During those first three months, a designation was filed (first appearance), initial disclosure was provided (also first appearance), and further “non- routine” disclosure was given pursuant to a defence request. [ 13 ] Two judicial pre-trials were held between June and the end of August. It is impossible to know why the double pre-trials as the pre-trial forms no longer exist. The transcripts do reference resolution discussions, however, and at the end of July Mr. Burke asked to adjourn the matter to August for a guilty plea.

That plan changed with Mr. Piccin’s retainer prior to the September 13 appearance. [ 14 ] Under the Morin framework I find that the first six months classified as inherent time requirements of the case. I find that the summer months up until September 13 classified as neutral time given the objective of both parties to move towards resolution. [6] [ 15 ] Under the new Jordan framework, this period of time is an 8 ½ month passage of time leading toward the 18 month presumptive ceiling. It would not surprise me, post- Jordan , if the Crown would seek a

section 11(

b) waiver if the time was passing while the defence pursued resolution discussions but that is a matter of speculation though it also highlights why pre- Jordan periods of time must be assessed flexibly. (

b) September 13, 2012 to February 26, 2013 [ 16 ] There were clear

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b) waivers on all appearances during this five month and two week time period. (

c) February 26, 2013 to March 28, 2013 [ 17 ] This time period was required to have yet another JPT given new counsel. Mr. Piccin argued that this was an unnecessary event but I do not accept counsel’s submission given that back in September, 2012 Mr. Piccin disagreed with Mr. Burke’s JPT trial estimates. Mr. Piccin and Crown counsel estimated two days for trial. [ 18 ] Under the Morin framework, I find this month long period to be part of the inherent time requirements of the case. [ 19 ] Under the new Jordan framework I find it to be an “exceptional circumstance”.

I realize it is not unusual for counsel to change but the Court in Jordan noted that “exceptional circumstances” do not need to be rare or uncommon. They are, however, outside the Crown control and retainer of new counsel is clearly beyond the control of the Crown. Further the time required for new counsel to become familiar with the case and meet with the Crown are not events that are part of the usual time required to prepare for trial and thus I find that the time that unfolded as a result should be deducted from the overall delay. It was an unforeseen circumstance, similar to the illness of a witness. (

d) March 28, 2013 to May 7, 2013 [ 20 ] This time period was required for the defence to continue attempting to obtain an expert and for “talks” which I infer were resolution discussions. Under the Morin framework, this was inherent time required as a result of new counsel being retained or, alternatively, neutral time due to “other reasons”. [7] [ 21 ] Under the Jordan framework, this one month and one week period is part of the 18-month calculus though I make the same comment regarding whether the Crown now would seek a

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b) waiver during the resolution discussions. (

e) May 7, 2013 to March 3 and 4, 2014

[ 22 ] The case was set down for a two-day trial. Mr. Piccin stated, “there’s lots of experts involved”. Neither party took issue with the two-day estimate. February 20 and 21 were the first dates offered by the Court but Mr. Piccin was not available thus March 3 and 4 were set. [ 23 ] This block of time is ten months in length.

Under the Morin analysis, I find that two weeks of that time period falls to the defence (February 20 until March 3). [8] Further, a portion of the ten months time classifies as neutral as there is no evidence that the defence was in a position to proceed with the trial as of the final set date, May 3, 2013. Clearly some time would be required to prepare for the trial particularly given that both parties received a defence expert report in mid April. I attribute four months as was attributed in R. v.

Ralph . [9] [ 24 ] Under Morin , then, 5 ½ months is institutional delay, two weeks is defence delay, and four months is neutral. [ 25 ] Under the Jordan analysis, the entire ten-month period counts toward the presumptive ceiling. (

f) March 3 and 4, 2014 to July 2, 2014 [ 26 ] These were the first two days of trial. Originally the defence requested an adjournment to provide more time to look for a witness, the bartender Mr. Martel. The Crown objected, noting that the Crown’s case could be started. Part of a day was lost due to counsel’s late arrival and due to two continuations of mine that took over half a day. One involved an accused that was in custody and the other involved a hearing that had to be scheduled with tight timelines. July 2, 14 and 16 were set to continue this case. [ 27 ] In R. v.

E.(K.) [10] a judge was unavailable for a sentencing proceeding as he was required to take a jury verdict in another jurisdiction. The Court of Appeal found that it was neutral delay as the Court noted, “things happen from time to time in the criminal justice system for which no one can be faulted and which inevitably require an adjournment. Inherent in the process is that time is required to reschedule the adjourned proceedings. That happened here. The accommodation was reasonable, the delay neutral for the purposes of the s. 11(

b) assessment.” [ 28 ] Under the Morin analysis, I find that any extra time that flowed from the ½ day of continuations is irrelevant to the

section 11(

b) calculation as the case needed to be adjourned to continue in any event given the gross underestimation of time by counsel. [11] [ 29 ] Further, I find that the four months that followed was neutral time that was part of the inherent requirements of the case and flowed from the poor time estimate. [12] [ 30 ] Under the Jordan analysis, it is part of the time leading up to the presumptive ceiling. (

g) July 2, 2014 to October 22, 2014 [ 31 ] This was a disjointed day of evidence. The defence wanted Mr. Moftah, a potential defence expert, to sit in on the trial to hear the evidence. Mr. Moftah was late on July 2. That caused the Crown to change the order of witnesses to accommodate the situation. Both Mr. Piccin and I raised concerns regarding splitting up one officer’s cross-examination though Ms. Song said, “I want to use every remaining amount of time we have available”. [ 32 ] July 14 and 16 were abandoned as Mr. Moftah was unavailable.

No reason was provided at the time, other than that he was unexpectedly unavailable. Mr. Piccin states now that he believes the lateness and the missed dates were due to Mr. Moftah’s health struggles. Sadly, Mr. Moftah passed away at a later date. [ 33 ] October 22, 23 and November 3 were set to continue. [ 34 ] Under the Morin analysis, I find the three months and one week time period from July 2 until October 22 is neutral time due to the illness of a witness. [ 35 ] Under Jordan I find it to be an exceptional circumstance that is ultimately deducted from the total time period. [13] (

h) October 22, 23 and November 3, 2014 to December 1, 2014 [ 36 ] Mr. Moftah’s late attendance meant that the matter began late. The breath technician was cross-examined for much of the two days, and two other officers were called. The Crown wished to lead Ms. Caruso’s utterances, which took the defence by surprise. No Charter application had been made to exclude these utterances. There was discussion regarding the legal issues that might be raised but it was necessary for Mr. Piccin to seek further information from his client. The matter was put over to November 3 to allow Mr.

Piccin to consider his position. [ 37 ] On November 3 we returned. No Charter application had been filed. Mr. Piccin took the interesting position that a Charter application was unnecessary because, in his view, the statements so clearly violated the Charter that the Crown should be conceding the point. Alternatively, he argued that there was no application because the Crown had not told him whether he needed to bring one. There was further discussion regarding possible legal issues that were raised by the statements. Mr. Piccin asked again for further time to consider the point. Ms. Song argued that Mr.

Piccin should have considered these issues prior to November 3. She also raised

section 11(

b) concerns. [ 38 ] The only witness who had been subpoenaed to attend was the officer to whom the statements were made as it had been anticipated that the officer would take the day. That officer’s evidence couldn’t proceed until the statement issue had been settled. The matter was put over to November 20 to obtain a final defence position. On November 20 the defence confirmed that no Charter application would be made.

[ 39 ] Both Ms. Song and I were tactful back in October, 2014 regarding the reason for the delay, and the potential statement issues. I did not want to embarrass Mr. Piccin and my sense was that Ms. Song was of the same view. This

section 11(

b) application requires a much blunter response. It was clear to me that Mr. Piccin did not know the potential legal implications that flowed from his client’s statements. He didn’t know the law. Further, it is totally inappropriate to contend that a Charter application is not required because a violation is clear. The contrary is the case – if the violation is clear, then the application should be brought. Furthermore, the Crown had indicated back on October 23 that she did not share Mr. Piccin’s view.

That fact further bolstered the need for an application if the defence wished to pursue this avenue. [ 40 ] At paragraph 65 of Jordan, Mr. Justice Moldaver stated, “[t]o be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay…defence applications and requests that are not frivolous will also generally not count against the defence”. I find that the delay flowing from the Crown’s intention to tender the statements does not fall into the category described in paragraph 65.

The legal implications flowing from these statements, and the Crown’s possible intention to tender them, should have been considered by the defence well in advance of the trial’s start date. [ 41 ] Under both the Morin and the Jordan analyses, I find that the delay from October 23 to December 1, one month and one week, falls to the defence. (

i) December 1, 2014 to December 17, 2014 [ 42 ] An intervening sentencing matter took ½ of this date and another officer’s evidence was completed in the afternoon. [ 43 ] For the reasons outlined in paragraphs 27 and 28, I find that the delay occasioned by the ½ day sentencing is neutral under the Morin analysis and counts toward the presumptive ceiling under the Jordan analysis. [ 44 ] I find it difficult to determine what length of delay flowed from the sentencing given what unfolded on December 17, 2014 and February 2, 2015.

I will, however, note the 2 ½ week block from December 1 to December 17 as neutral under the Morin analysis and as counting towards the presumptive ceiling under Jordan . (

j) December 17, 2014 and February 2 nd , 2015 to February 10, 2015 [ 45 ] These dates were adjourned because Ms. Caruso had a school concert on December 17 that she felt she couldn’t miss. She is a kindergarten teacher’s assistant and she thought the children would be very upset if she wasn’t there. Mr. Piccin asked for an adjournment of February 2 because he had agreed to the date, forgetting that it overlapped with his annual trip to the United States to attend the Super Bowl with friends. [ 46 ] The defence waived the two month and one week period from December 1, 2014 to February 10, 2015. (

k) February 10, 2015 to March 26, 2015 [ 47 ] The matter started late because Mr. Piccin was stuck in traffic and he also experienced a minor medical issue. The Crown called the toxicologist, Dr. Woodall. She was recalled during the defence case to deal with various issues. The Crown had been prepared to deal with all issues at once however Mr. Piccin wanted to split the testimony, hearing part of the evidence after his client testified. This division, though understandable, added to the time the trial took.

Ultimately the Crown agreed with the defence position. [ 48 ] I find that the six-week period from February 10 until March 26 counts as part of the inherent neutral requirements of the case under Morin and counts towards the presumptive ceiling in Jordan despite the lack of evidence regarding the reason March 26 was chosen. There is no question that further time was required to hear this case. (

l) March 26, 2015 to June 22, 2015 [ 49 ] This date was adjourned at the defence request as Ms. Caruso was concerned about the amount of time she was missing from work. [ 50 ]

Section 11(

b) was waived for this three-month time period until June 22, 2015. (

m) June 22, 23 and 25, 2015 and August 27, 2015 to September 17, 2015 [ 51 ] June 22 involved Ms. Caruso’s testimony in chief and part of her cross-examination. It was the only date utilized. Ms. Song requested an adjournment of June 23 as she needed to attend an end of year school event for her son. Ms. Caruso requested an adjournment of June 25 as it was the last day of school for her kindergarten students. Mr. Piccin also had a conflict on June 25 as his son was being called to the Bar and he was required to deal with out of town guests. [ 52 ] Further, the defence asked to adjourn August 27 because Dr.

Woodall, whom the defence wished to recall, was away on vacation. August 25 was suggested as an alternative date but she was away then too. [ 53 ]

Section 11(

b) was explicitly waived. [14] [ 54 ] September 17, October 19 and 22, 2015 were scheduled to continue. [ 55 ] I therefore find that the almost three month period from June 25 until September 17 constitutes a

section 11(

b) waived time period.

[ 56 ] It is impossible to attribute time to the Crown flowing from the June 23 adjournment given what unfolded throughout the rest of 2015 and the early part of 2016. (

n) September 17, October 19 and 22, 2015 to January 25, 2016 [ 57 ] Ms. Caruso’s cross-examination continued on September 17. Mr. Piccin requested an adjournment of October 19 as it was the federal Election Day and he needed to campaign for his candidate as matters had taken a negative turn.

Section 11(

b) was waived.

October 22 was adjourned as I was ill. [ 58 ] I find that the one-month period between September 17 and October 19 counts toward the presumptive ceiling in Jordan and is part of the inherent time requirements in Morin . [ 59 ] Under the Morin analysis, the three-month period from October 19 until the next scheduled date, January 25, 2016, essentially is neutral as one adjournment stemmed from unforeseen illness and on the other date there was an explicit waiver. [ 60 ] Similarly, under the Jordan analysis, the three-month period does not count towards the presumptive ceiling given that one incident classifies as an exceptional circumstance that could not be controlled and the other resulted in an explicit waiver. (

o) January 25, 2016 to May 19, 2016 [ 61 ] This date had to be adjourned because Ms. Caruso was due to give birth to her second child. It was decided that no dates should be set before May, 2016, as it would have been extremely difficult for Ms. Caruso to attend court in the months immediately following the baby’s birth. May 10, 19, June 10, 13 and 19 were set to continue. [ 62 ] I am unable to determine why these specific dates were chosen as I do not have a transcript for October 22, 2015 and the matter was not spoken to before me thus I have no notes and cannot access the DRD recordings.

Missing or incomplete transcripts have been a serious problem with this application. Some transcripts were never provided and others were incomplete as only the evidence was ordered. The obligation to provide these transcripts rests with the defence. [ 63 ] I find that under the Morin analysis the three month and three week period from January 25, 2016 until the May 19 continuation dates was either an implied

section 11(

b) waiver or, alternatively, it was defence delay. Under the Jordan analysis, I also find that there is an implied

section 11(

b) waiver though alternatively this period clearly classifies as an exceptional circumstance. (

p) May 19, 2016 to February 8, 2017 [ 64 ] At one point the May 10 date was vacated though I can’t determine the reason from the transcripts with which I have been provided. No delay flowed in any event from the May 10 adjournment as June 3 was substituted and that date fell squarely within the already scheduled block of further evidence time. [ 65 ] On May 19, matters took an unusual turn. Ms.

Caruso had been in the midst of extensive cross-examination when she stated that her testimony on the previous date had been seriously compromised due to the extreme effects she was feeling as a result of medication she had taken. Discussion unfolded about how to handle this scenario. I allowed time for Mr. Piccin to look into the matter, potentially obtaining a doctor’s report. The trial ground to a halt as it was impossible to continue with her evidence without knowing what the ramifications were, if any, of the medication. [ 66 ] I had assumed that obtaining a report would be relatively straightforward.

The weeks, however, turned into months and ultimately no report was provided. The matter was adjourned six further times over the course of nine months, until the trial continued on February 8, 2017. On each occasion, the defence put forth that resolution of the issue was imminent thus leading to the further adjournment.

Doctors’ holidays, difficulties reaching doctors, and difficulties determining which doctor needed to be contacted were put forth as reasons for the delay. [ 67 ] Under the Morin analysis, I find that this eight month three week period falls to the defence. [ 68 ] Under the Jordan analysis, I find that part of the time classifies as an exceptional circumstance akin to a recanting witness. [15] The bulk of the time classifies as defence delay. [ 69 ] I appreciate that the Court in Jordan stated, “[t]o be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”.

It is difficult to comprehend how this issue could have legitimately required almost nine months to resolve. I find that the matter should have been dealt with in two months, and that the time beyond that flowed from a lack of defence diligence in pursuing the issue with the doctors. (

q) September 29, 2016 [ 70 ] Seven further dates were set, all in 2017. Those dates were February 8, March 1 and 2, March 27, April 24 and 25, and May 12. I cannot determine from the transcripts provided the reason these specific dates were chosen. (

r) February 8, 2017 to March 1, 2017 [ 71 ] Ms. Caruso’s testimony continued on this date despite the lack of any medical evidence. Ms. Caruso’s mother also testified. [ 72 ] I find the time period from February 8 until March 1, approximately three weeks, constitutes inherent delay under Morin

and counts toward the presumptive ceiling in Jordan . I make that finding despite the lack of clarity surrounding the reason why these specific dates were chosen. (

s) March 1 and 2, 2017 to April 25, 2017 [ 73 ] The bartender, Mr. David Martel, testified. His testimony was lengthy in both direct examination and cross-examination. [ 74 ] Ms. Caruso also applied for yet another adjournment (of March 27, 2017) given that her mother-in-law had paid for a non- refundable holiday for Ms. Caruso, her husband, and children. The cost of the holiday was several thousands of dollars. Apparently Ms. Caruso did not realize at the time of booking that it conflicted with the further trial dates. [ 75 ] Initially I was very unwilling to grant the adjournment given both Jordan and the fact that it was clear that a

section 11(

b) motion would be brought. As a further date was found that fell within the block of time previously scheduled, however, I allowed the adjournment. [ 76 ] Dr. Woodall’s evidence, the final evidence in this trial, unfolded over April 11 and April 25. [ 77 ] I find that the five-week period from March 2 until April 11 and the two-week period from April 11 until April 25 constitute inherent delay under Morin for the reasons outlined in paragraph 28 and towards the presumptive ceiling in Jordan . The remaining trial dates were vacated. (

t) April 25, 2017 until September 19, 2017 [ 78 ] At the end of the case, we discussed timelines for written submissions. The Crown pushed to have everything completed by May 12 given her delay concerns. I did not find it feasible to have a judgment prepared that quickly especially given that both sets of submissions still needed to be filed. Mr. Piccin found it difficult to state a date for his submissions, noting “I’ve read a lot of this – I’ve reviewed the case law, I, I don’t, I don’t it [sic] would take me more than a week. It’s just because I’m busy doing other things, like that’s the problem”. Ms.

Song then pushed for May 2, and Mr. Piccin replied, “I would hope – we can strive for that, I, I can hope I can have it done by May 2 nd , hopefully. I just don’t want to be – right now be put on the spot with that”. [16] [ 79 ] Ultimately timelines were set of May 26 for the defence submissions, June 16 for the Crown submissions, and July 7 for the defence reply. [ 80 ] May 26 came and went without the defence submissions being filed. [ 81 ] On Friday June 9, both the Crown and I received a letter from Mr. Piccin indicating that he had “completely misjudged” how long it would take to complete his submissions.

He added that he was leaving on vacation on Tuesday June 13, returning Monday July 3, and that he required until July 13 to complete his submissions but adding that he wanted to “review the status” of the submissions on July 20. He added that he was “tied up on personal matters this weekend and Monday” thus he would not be able to work on them over the three remaining days before he left. [ 82 ] On Monday June 12 I responded by email to both the Crown and Mr. Piccin.

I noted that his submissions were three weeks overdue and that he was asking for an extension that would add almost two months to his submission deadline. Further, asking for an extension via email immediately prior to an impending vacation departure essentially made the extension a foregone conclusion. I requested that he have counsel attend with full instructions in order to deal with the matter in his absence. [ 83 ] On June 13 Mr.

Piccin responded by letter stating that he was leaving for Europe at 4 pm that day but that he had contacted the Crown and agreed to address the matter on July 7 upon his return. [ 84 ] The Crown simply filed her submissions on June 21 without waiting for the defence submissions. [ 85 ] On July 4, I received the defence submissions. The Crown filed a reply to those submissions on July 12 and the defence filed further submissions on August 2. [ 86 ] I wasn’t provided with transcripts post April 25, 2017 but my notes indicate that my judgment was to be rendered on September 12, 2017. Mr.

Piccin subsequently asked that I render judgment on September 19 as he was out of the country on September 12. He also wished to wait to prepare his

section 11(

b) application until after the judgment was given as he submitted that it made no sense to spend the time and money preparing if his client was acquitted.

I have some sympathy for his position but pointed out that the further delay that flowed as a result could not fall to the Crown. [ 87 ] The time between April 26 and September 19 is four months and three weeks. [ 88 ] The Crown was prepared to have her submissions completed within two weeks and ultimately filed them without even waiting for the defence submissions. [ 89 ] I find that the original one-month period that was allotted for the defence submissions is a reasonable length of time. [ 90 ] Further, I had originally required six weeks to complete the judgment.

My own holidays fell immediately after the final defence submissions filed on August 2. [ 91 ] I find under the Morin analysis that three months would classify as neutral inherent delay required to complete both sets of written submissions (two weeks for the Crown and one month for the defence) plus the judgment (six weeks). I find that the remaining one month and three weeks falls to the defence.

[ 92 ] Under the Jordan analysis, I find that three months counts towards the presumptive ceiling and the remaining one month and three weeks classifies as defence delay for the reasons outlined above. (

u) September 20, 2017 until December 19, 2017 [ 93 ] The

section 11(

b) application was formally filed post conviction and the defence filed a factum on October 26, with a revised factum following on November 2. November 15 had been set for oral argument. On November 15, Ms. Song apologized for filing her factum the night before, on November 14. She said that she thought she had sent her factum electronically on Friday November 10 and then realized upon her return to work on Tuesday November 14 that it had not gone through. Mr.

Piccin requested that the oral argument be adjourned as a result until November 20. [ 94 ] Argument took place on that date and the matter was adjourned to December 19, 2017 for judgment. Mr. Piccin has already indicated that if the charges are not stayed his client does not want to be sentenced right before Christmas and he is asking that sentencing be delayed until January, 2018. [ 95 ] It is difficult to classify the time required by the

section 11(

b) motion. I note that Jordan left open the question of delay in sentencing: The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(

b) applications brought after a conviction is entered or whether additional time should be added to the ceiling in such cases. [17] [ 96 ] An analogy can be drawn between a sentencing post-conviction and a

section 11(

b) motion post-conviction. The Ontario Court of Appeal, in R. v. St. Amand , held that the presumptive ceilings apply to sentencing given that the issue was left undecided in Jordan and that counsel did not raise the issue in the St. Amand case. [18] [ 97 ] It would strike me as counter-intuitive, however, to find that the time taken to hear a

section 11(

b) motion would tip the balance in favour of a stay unless the application itself took an undue amount of time. In this case, I find that the time taken was well within the realm of reasonable. Further, I note that the defence requested that the

section 11(

b) motion preparation be delayed until a decision had been rendered on the substantive charges. [ 98 ] Further, defence has asked that any sentencing be delayed until the New Year. I find that amounts to an implied waiver. [ 99 ] As a result, I am going to assess the time in this case up to and including the date of judgment, September 19, 2017. Overall Analysis [ 100 ] This is a transitional case. Most of the case unfolded prior to this Court and the parties having the benefit of Jordan . As a result, I have divided my analysis above into two groups, a Morin analysis and a Jordan analysis.

I am quite aware, however, that Jordan applies to this case though the transitional aspect must remain front and centre. An assessment under Morin assists in assessing the impact of the transitional component. [ 101 ] Five years, eight months and two weeks passed between the January 6, 2012 date the information was sworn and the September 19, 2017 decision on the substantive charges. [ 102 ] This trial was originally estimated to last two days. Ultimately fourteen days of evidence were heard.

Unfortunately the judicial pre-trial forms are no longer available thus it is impossible to know what the parties said during those pre-trials. Mr. Piccin contended that the trial greatly exceeded the original time allotment because it was “underestimated by the Crown”. A trial estimate is a joint effort, not just the responsibility of the Crown. Further, Ms. Song, the trial Crown, was not the Crown present at the judicial pre- trials though Mr. Piccin was the counsel that attended. [ 103 ] Ten witnesses were called in total, including an expert that was called twice. Further, Mr.

Piccin, not the Crown, knew the complicated nature of his client’s defence and the detailed testimony that would be required to launch that defence. It defies all logic that he could have thought that this case would complete in two days. This is a crucial fact that must be considered when assessing whether the delay in this case is unreasonable. [ 104 ] Under Morin , only 5 ½ months constitutes institutional delay. [19] No quantifiable time can be attributed to Crown delay. 20 ½ months, almost two years, was either explicitly or implicitly waived. Just over one year is attributable to defence delay.

Finally, 2 ½ years is neutral given the nature of the case scheduling. If this case had been estimated properly at the outset, this time would have been much shorter. The difficulty is that the gross underestimation of the time required meant that the case was scheduled in successive blocks as time progressed, each necessitating finding a block of time within the already busy court schedule. If any of these periods of time had been excessive, I would have attributed that time to institutional delay.

I find however that the amount of time that was required to accommodate the case was reasonable though the lack of complete transcripts made it impossible to assess fully why specific dates were chosen. [ 105 ] I will also touch briefly on the issue of prejudice though that is no longer relevant under Jordan . Ms. Caruso filed an affidavit but her comments in that affidavit go towards the fact that she was charged, not the delay itself. I do infer some prejudice from her adjournment requests relating to concerns over missed time at work. [ 106 ] The Morin assessment simply provides context.

Jordan now is the paramount case on delay. Jordan dictates that the total period minus waiver and defence delay should be less than 18 months unless there are exceptional circumstances. Five years, eight months and two weeks minus the 20 ½ months of waived time equals four years. The nine months and one week I have attributed to defence delay under the Jordan framework also must be subtracted, leaving three years, two months and one week, roughly double the 18-month ceiling in Jordan .

[ 107 ] The next question is whether this period can be justified by the Crown given exceptional circumstances. The answer to that question is a resounding “yes”. [ 108 ] First, there are exceptional circumstances easily quantifiable in time that flowed from the change in counsel and Ms. Caruso’s alleged difficulties under cross-examination. [ 109 ] Most importantly, however, the overall tenor of this case must be considered. [ 110 ] The defence requested nine adjournments in addition to the numerous adjournments that were requested during the ultimately futile search for an expert report relating to Ms.

Caruso’s medication. The Crown was granted one adjournment. [20] [ 111 ] I am very live to the fact that I made the decisions to grant those many defence requests. I suspect most of those adjournments would not have been granted at the time if I had had the benefit then of knowing where we are today with this case. Hindsight is often a great illuminator. [ 112 ] Some of these requests were very legitimate, most strikingly the need for time to give birth and recuperate. Others had a much shakier foundation – requests for holidays, the Super Bowl attendance, the election campaign assistance.

I appreciate that the latter related to Mr. Piccin’s personal wishes but I must operate on the assumption that he was making these requests with the full consent of his client. [ 113 ] I also find it very significant that nine requests were made in contrast to the one Crown adjournment. One of the difficulties always faced by the Crown is that the longer the case takes, the greater the likelihood of Crown delays occurring. Witnesses that were present on one occasion may not be present on a subsequent occasion due to forgetfulness, failures with police notifications, etc.

The vagaries of life also intervene, potentially causing the Crown to have issues on subsequent dates for personal and other reasons. [ 114 ] The Crown’s conduct in this case has been exemplary. Frankly, it is very surprising that only twice over the entire time period did the Crown ask for an adjournment, and I reiterate that it was only granted once. On only one occasion was the Crown late and that was on a morning when I needed to deal with another matter in any event.

Throughout the Crown was ready to go, and repeatedly raised concerns regarding delay. [ 115 ] In contrast, my impression was that delay was not a serious issue for the defence. I do think Ms. Caruso took these charges very seriously and was very engaged in the process. I never thought, however, that there was a great deal of concern about the time the process was taking. [ 116 ] Further, the underestimation of trial time is a significant exceptional circumstance.

The gross underestimation of time, with the attendant inefficiencies in court scheduling, rests predominantly with the defence for the reasons I have already stated. Time estimates are notoriously difficult to do accurately and underestimation continues to be an issue that bedevils the criminal justice system. It is rare, though, that time is underestimated to the extent that it was in this case. [ 117 ] Finally, this is a transitional case. I have already outlined the very limited amount of Crown/institutional delay that flowed from the Morin analysis.

It was that body of law that governed the parties and the Court through the vast bulk of this trial. The transitional nature of the case is itself an exceptional circumstance. [21] Conclusion [ 118 ] The

section 11(

b) application is dismissed. Released: December 19, 2017 K.J. Caldwell J.