ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
Daniel Reeve
Before Justice Anthony F. Leitch
Heard on June 14, 2022
Reasons for Judgment released on February 10, 2023
Christopher Walsh/ Ildiko Erdei/ Ira Galsner counsel for the Crown
Reid Rusonik counsel for the accused Daniel Reeve
Leitch J.:
1The defendant brings an application to stay these proceedings for a constitutional violation of section 11(b) of the Charter of Rights and Freedoms. These written reasons supplement my brief oral decision denying the application.
2These reasons must be read in conjunction with R v. Ivarone, 2023 ONCJ 69, released contemporaneously. In that judgement this court provides reasons for finding that Covid 19 is an exceptional discrete event justifying a subtraction of 90 days from the net delay. In this case I apply that reasoning to subtract 90 days delay from the net delay. Mr. Reeve stands co-accused with Joseph Ivarone and Caroline Cote. The same conditions apply as set out in those companion reasons for his case and therefore bring the same result for Daniel Reeve.
3In those same reasons this court found that these charges are particularly complex by virtue of the volume of disclosure and the interrelationship of these charges with other charges arising from the same large project (project OSkyfall). The delay in this case falls below the presumptive ceiling as a result of my analysis of the “gap period” produced by the crown decision to stay the original charges against the defendant and Caroline Cote on January 8, 2021. My reasons on complexity would justify a much longer delay in this case than actually occurred, arithmetic to follow.
4The charges were recommenced on December 2, 2021, and a replacement information was sworn charging Daniel Reeve with the same charges he faced before the s. 579 stay of proceedings, adding a conspiracy to traffic in cocaine charge and adding Joseph Ivarone as a co-accused on all three charges.
5As a result of an agreement between Mr. Reeve and the crown his charges will be settled by this court after determination of a section 8/Garofoli challenge he brings to the warrants in play. If the evidence is ruled admissible the defendant and the crown will file an agreed statement of facts supporting his conviction. This agreement will leave him free to challenge any adverse charter ruling on appeal.
6Since this application was heard and short oral reasons were delivered the originally scheduled dates for Mr. Reeve’s Garofoli application have passed. His counsel requested that the hearing of that application be delayed and heard in conjunction with another group of defendants who challenge warrants by a section 8/Garofoli application. Those motions are scheduled in March 2023 and are therefore the anticipated end date of his trial. By requesting the adjournment, he has caused the delay that accrues after August 19, 2022, the originally scheduled completion date of the section 8/Garofoli motion. The clock stopped on his trial on August 19, 2022, subject to some unforeseen development which delays the combined Garofoli motion in March 2023. Should this happen, it could represent a material change in circumstances justifying the re-opening of this matter for reconsideration of this application.
7The defendant was originally charged May 21, 2020. He was before the courts on the original charges for just under eight months. On January 8, 2021 the Crown stayed the charges against him and Caroline Cote. 7 months and 19 days (233 days) of delay had accrued at that point. The Crown admits there is no defence caused delay in this period
8On December 2, 2021, a new information was sworn charging the defendant along with Caroline Cote and Joseph Ivarone. Additionally, the original information which had been stayed was recommenced as permitted by section 579 of the criminal code. The decision to stay the charges in January 2021 was taken by the crown to protect an ongoing investigation that was much larger than the initial one that lead to this defendant being charged. It included joint police forces and considerable police resources. In my view the decision to stay the charges was not done to produce an end-run around the Jordan presumptive ceiling but was done in the interests of justice to ensure the integrity of the larger investigation. In other words, the stay was made for valid reasons to continue an investigation that netted a much larger catch than Daniel Reeve and Caroline Cote.
9The applicant’s position on this “gap period” is that the Jordan clock continues to run while the charges are stayed. The Crown position is that a valid section 579 stay to protect an ongoing investigation of public importance results in the Jordan clock stopping until the charges are recommenced. The applicant cites this passage in R. v. Milani for the proposition that 11(b) operates to protect the applicant from delay while the charges are stayed:
46 Accordingly, the reasoning of the court in R. v. Potvin suggests that the period that is relevant for a s. 11(b) analysis is the period when there is a proceeding "on foot"; that is, there must be active charges outstanding against the person. In the words of Sopinka J., "s. 11(b) does not apply unless the restriction of the interests which the subsection protects results from an actual charge" -- thus, "[c]ircumstances which produce the same consequences do not qualify for the protection of this provision unless those consequences proceed from a formal charge": at para. 62. R. v. Potvin therefore suggests that charges must be pending and not anticipated or spent in order to attract the protection of s. 11(b).
(iii)Conclusion
47 Section 11(b) serves to protect the charged person's right to freedom and to be dealt with fairly and without delay within the court system. The objective is to have an efficient system for dealing with accused persons. The ambit of s. 11(b) does not extend on a societal level to the speedy investigation of crime. Extending the protection of s. 11(b) to persons who are not actively charged with an offence would not advance the objectives of this protection.
48 There is a caveat however. There are circumstances in which unilateral state action may control whether or not charges are withdrawn or relaid. In such circumstances, where the formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a new information laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(b) analysis. In such circumstances, the person, although not formally charged during the "gap" period, remains subject to the judicial process, and his s. 11(b) interests will continue to be affected by the knowledge or expectation that further charges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurred in R. v. Antoine. (my emphasis)
49 For all of these reasons, I would interpret s. 11(b) as being engaged during any period that an accused person is in fact subject to charges, or when a person no longer actively charged remains subject to the very real prospect of new charges.
R v Milani, 2014 ONCA 536, [2014] OJ No 3247
10The crown relies on the reasoning in R. v. Kanda and counters that the general rule in R. v. Milani applies here, that the 11(b) clock runs only when a person is facing an active charge:
115 I conclude that there is nothing about the circumstances of this case that would properly exclude it from the general principle that, as stated in Milani, the relevant period for the purposes of section 11(b) is where there are active charges outstanding against an accused. The existence of an ongoing investigation after the stay of an original information, whether known to the accused or not, does not create an exception to that general principle in the absence of an element of illegitimacy or manipulation that would properly engage section 11(b) interests and the concerns addressed in Jordan.
R v Kanda, [2021] BCJ No 1479
11This was not an end-run around Jordan, it was a crown decision to protect an ongoing investigation into serious crime. They did not control the timing of the recommencement except in the most basic sense. They recommenced charges when the investigation had progressed sufficiently to justify charges against 18 different people. The defendant was not facing a charge in the gap period. No active charging information or conditions of release controlled his conduct or produced the anxiety of being under charge.
12Although not directly apposite, pre-charge delay is not protected by section 11(b) of the Charter in the investigative phase of a case. An illegitimate decision to stay charges could be different, though I am unsure if it would be protected by section 11(b) or section 7 of the Charter. In any event, stays to effect an end run around Jordan could be remedied by a Charter application pleading both sections. I find that the end-run exception does not apply in the facts of this case and cannot reframe the “gap period” as time when the 11(b) clock runs.
13As a result of this analysis I find the delay in this case ran from May 21, 2020 (1st information sworn) to January 8, 2021 (s. 579 stay). The delay ran again from December 2, 2021 (recommencement/ 2nd information sworn) to August 19, 2022 (anticipated completion of the Garofoli/ASF trial). The defence decision to delay the motion is a waiver of any delay that accrues until the scheduled completion of the Garofoli motion in March 2023.
14The 1st period is 233 days (7 months and 19 days) and the 2nd period is 261 days (8 months and 18 days). The total delay is 494 days (16 months and 7 days). Subtracting 90 days for the discrete exceptional event of Covid 19 leaves remaining delay of 13 months and 7 days (404 days). This is well under the presumptive ceiling of 18 months. I adopt the reasoning in the companion case of R. v. Ivarone, 2023 ONCJ 69, and find that the delay under the ceiling does not result in a violation of section 11(b).
15I find the defence has taken meaningful steps to expedite the proceedings, especially in its agreement with the crown to have the s8/Garofoli determine the outcome. However, I find that given the complexity of the case in litigating the Charter issues and the volume of disclosure 13 months and 7 days is not markedly longer than the case should take to complete the trial.
16For these reasons the application for a stay of proceedings for unconstitutional delay is dismissed.
Released February 10, 2023
Justice Anthony F. Leitch