OCA delves deeper in applying Jordan

A panel of judges at the Court of Appeal for Ontario upheld a key decision about the application of the principles in R. v. Jordan, 2016 SCC 27.

The July 15 decision, R. v. Bulhosen, 2019 ONCA 600, will be an important one for lawyers who work on complex or document-heavy cases such as white collar fraud, drug trafficking, or terrorism charges, says Lisa Mathews, general counsel for the Ontario regional office, Public Prosecution Service of Canada.

“I think that one of the most significant impacts in Ontario is the decision on the threshold to apply when there is a direct indictment preferred,” says Mathews, one of the lawyers who represented the Crown in the case. “There has been no appellate decision in this province addressing that issue directly. The court very clearly in its judgement explained that it should be the 30-month Jordan ceiling ... I also think it is significant because it addresses the issues of complexity. It goes through the concrete example of the case to explain why it meets the definition of complexity — and why the Crown’s plan to manage that complexity was reasonable in the circumstances. So, I think it can have some practical utility for other people going forward, when they are dealing with big cases.”

The appellants in the decision were Raul Bulhosen, Jeffrey Kompon, Vito Buffone, Borja Vilalta-Castellanos, Dean Brennan, Marco Cipollone and John Oliver. Their arrest was the result of a three-year investigation into a multi-million dollar scheme to import large quantities of cocaine from Mexico into Canada. The drugs, imported in holes drilled into granite boulders, were distributed in at least 47 shipments throughout southwestern Ontario, after which the profits were laundered.

By 2014, the Crown had produced a “first wave” of “more than 240,000 documents in electronic form and approximately 100,000 intercepted text and audio communications,” wrote Justice George Strathy in the decision, with Justices Benjamin Zarnett and David Watt concurring. Bulhosen, Vilalta-Castellanos, Cipollone and Oliver had trials within 27-months of their arrest, while Brennan’s trial was completed within 27.5 months and Kompon’s and Buffone’s trials were completed with 32.5 months.

The framework for ensuring that trials are concluded within a reasonable time, Strathy wrote, dictates that cases in provincial courts have a ceiling of 18 months and cases in superior courts, or in provincial courts after a preliminary inquiry, have a ceiling of 30 months. Net delays beyond the ceilings are only allowed in exceptional circumstances, including “cases that are particularly complex as a result of the evidence or issues,” Strathy wrote.

The appellants in R. v. Bulhosen argued that the 18-month ceiling applied to the cases because the Crown preferred the indictment and bypassed the preliminary inquiry, making it a one-stage proceeding. But the court disagreed and dismissed the appeal, noting that the Criminal Lawyers’ Association had previously 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,” but the Supreme Court of Canada did not adopt that submission.

“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,” Strathy wrote. “This submission fails for several reasons …. 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.”

Lawyers for the appellants either declined to comment or did not respond by deadline.

Mathews says the decision is useful because it includes thorough analysis on describing the magnitude of a case. It also makes a “very significant contribution to the jurisprudence” at the appeal level on an argument about “wasting time,” and whether the Crown should have preferred the indictment sooner, she says.

“The complexity of the evidence ticked every box in Jordan and then some,” the appeal judges wrote. “[P]resenting the evidence against each accused would involve piecing together a massive jigsaw puzzle of evidence and would raise complex evidentiary issues.”

Mathews also says a fruitful area of future litigation was potentially raised by the decision’s discussion of what happens when the anticipated time to the end of a trial is different than the actual length of trial. The question remains open, says Mathews.

“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,” the judges wrote. “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.”