Court of Appeal for Ontario

Date: 2018-11-07

Docket: C61617, C62879, C63241

Judges: LaForme, Watt and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Michael Lopez-Restrepo Appellant

AND BETWEEN

Her Majesty the Queen Respondent

and

Visar Mehmeti Appellant

AND BETWEEN

Her Majesty the Queen Respondent

and

Estifanos Tsegaye Appellant

Counsel

Aaron Prevost and Jenny Prosser, for Mr. Lopez-Restrepo

Robert Sheppard, for Mr. Tsegaye

James E. Dean, for Mr. Mehmeti

Andrew Choat and Brian G. Puddington, for the respondent

Heard: September 27, 2018

On appeal from: The conviction entered on October 2, 2015 by Justice Marc A. Garson of the Superior Court of Justice, on appeal from the conviction entered on June 9, 2016 by Justice Bruce G. Thomas of the Superior Court of Justice; and on appeal from the conviction entered on April 12, 2016 by Justice Bruce G. Thomas of the Superior Court of Justice, sitting without juries.

Judgment

Trotter J.A.:

A. Introduction

[1] This appeal arises from a large drug prosecution in the City of London. Following a joint forces investigation known as "Project O'Bunker", 31 people, including the appellants, were charged with over 100 offences.

[2] The appellants and six other individuals applied for stays of proceedings based on infringements of s. 11(b) of the Charter. The applications were heard by Justice Andrew J. Goodman (the "application judge") who did not preside over any of the appellants' trials. Some of the applications succeeded; however, the appellants were unsuccessful. They were subsequently convicted of drug offences.

[3] The appellants challenge the s. 11(b) ruling. Mr. Lopez-Restrepo also appeals his conviction on the ground that it was not proved that he was in possession of the drugs found in the home where he lived.

[4] For the following reasons, I would dismiss all three appeals.

B. Unreasonable Delay

(1) Introduction

[5] It took about 40 months to get the appellants from arrest to trial. Applying R. v. Morin, [1992] 1 S.C.R. 771, the application judge dismissed the s. 11(b) applications, over a year prior to the Supreme Court's decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Consequently, this is a transitional case.

[6] Based on the concession of the Crown, the application judge found that there had been no waiver by the defence, nor any defence-created delay. He characterized 17 months as institutional or Crown delay, which was within the Morin guidelines. After considering all of the circumstances, including the appellants' claims of prejudice, the application judge dismissed their applications (and the claims of two others, not under appeal). He allowed the applications of four other accused persons (not the subject of a Crown appeal).

[7] The appellants' main argument is that the application judge erred by classifying the prosecution as complex. Alternatively, they contend that, if the case were complex, it was because of unreasonable joinder decisions taken by the Crown. In my view, there is no merit to these arguments.

(2) The Investigation: Project O'Bunker

[8] Project O'Bunker involved 72 police officers from the London Police Service and the RCMP. In addition to many search warrants, two wiretap authorizations were obtained under Part VI of the Criminal Code. The application judge described the investigation as follows, at paras. 7 and 8:

Ultimately, evidence was gathered against a total of 30 adults and one young offender. This evidence included a total of 34,675 captured telephone calls with 584 calls deemed pertinent, as well as 25,170 captured SMS messages with 1,783 calls [sic] deemed pertinent.

Throughout the summer and fall of 2012, a series of Controlled Drugs and Substances Act warrants were executed at various residences in London and a total of 109 charges were laid primarily relating to trafficking in cocaine, marijuana and oxycodone.

As discussed below, these factors led the application judge to conclude that the case against the appellants was complex.

(3) Procedural Background and the Application Judge's Ruling

[9] The application judge detailed the many court appearances of the nine applicants who applied for relief under ss. 11(b) and 24(1) of the Charter. Given the issues on appeal, it is not necessary to reproduce all of that information here.

[10] The application judge calculated the total delay for each appellant (from arrest to their projected trial dates) as follows: Mehmeti – 1211 days (40 months); Tsegaye – 1175 days (39 months); and Lopez-Restrepo – 1174 days (39 months). In terms of pre-trial detention, Mr. Lopez-Restrepo and Mr. Tsegaye were released within days of their arrests. Mr. Mehmeti was detained for seven months, until being released after a bail review.

[11] There was considerable delay in the Ontario Court of Justice ("OCJ"). Initially, all accused were charged individually, or in small groups. On February 15, 2013, seven months after the proceedings were underway, the Crown joined all accused in one information (the "omnibus information").

[12] It took a long time before all search warrant and wiretap materials were disclosed, despite many court appearances. On September 4, 2013, when disclosure was still not complete, the case management judge forced the Crown to set preliminary inquiry dates, irrespective of the availability of defence counsel. Two weeks were obtained (and used) in March 2014. However, it was not until January 2014 that all disclosure was complete.

[13] During the preliminary inquiry, Mr. Tsegaye conceded committal and was ordered to appear in the Superior Court of Justice ("SCJ") on April 15, 2014. The preliminary inquiry judge committed Mr. Lopez-Restrepo and Mr. Mehmeti to stand trial on June 19, 2014.

[14] Applying the Morin framework to the appellants (and to the other two unsuccessful applicants), the application judge classified 10 ½ months as institutional or Crown delay while the case was in the OCJ. This assessment was based largely on the complexity inherent in the wiretap evidence that related to these accused persons. However, the application judge found that the other applicants, whose cases were not connected in any tangible way to the wiretap evidence, had their cases unnecessarily delayed by being joined with the others. Delay was assessed at 13 ½ months for this group.

[15] Things moved much faster in the SCJ. On July 22, 2014, the Crown advised a judge that it would sever some of the accused into smaller prosecutions. The application judge classified 6 ½ months as institutional or Crown delay while the case was in the SCJ. This delay applied to all applicants.

[16] The application judge concluded that the total delay of 17 months for the appellants (and two others) did not amount to an infringement of s. 11(b). Their applications were dismissed. However, for the non-wiretap applicants, the total delay of 23 months was sufficient to establish a breach of s. 11(b), resulting in stay of proceedings. As the application judge said, at para. 166, "these individuals were simply caught in the dragnet of the overall project investigation and a decision was made to join them in an omnibus information that perpetuated specific delay for their uncomplicated individual cases."

[17] Mr. Lopez-Restrepo was tried separately and found guilty of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ("CDSA"). Mr. Mehmeti and Mr. Tsegaye were tried together. After one day of evidence, Mr. Tsegaye entered a plea of guilty to one count of conspiring to traffic in cocaine, contrary to s. 5(1) of the CDSA and s. 465(1)(c) of the Criminal Code. A charge of trafficking in cocaine was withdrawn. At the end of the trial, Mr. Mehmeti was found guilty of two counts of conspiracy to traffic in cocaine, and one count of trafficking in cocaine, contrary to s. 5(1) of the CDSA.

(4) Analysis

(a) Is Mr. Tsegaye Entitled to Appeal the s. 11(b) Ruling?

[18] The Crown raises a preliminary issue on Mr. Tsegaye's appeal. Whereas Mr. Mehmeti and Mr. Lopez-Restrepo were found guilty after their trials, Mr. Tsegaye pled guilty. The Crown relies on this court's decision in R. v. Faulkner, 2018 ONCA 174 and argues that, by virtue of his guilty plea, Mr. Tsegaye is prevented from appealing the s. 11(b) ruling.

[19] It is necessary to briefly set out the facts and holding in Faulkner. Faulkner was charged with 17 offences. His s. 11(b) application was dismissed. The next day he pled guilty to 5 charges. He received a non-custodial sentence. After achieving this very favourable resolution, involving the withdrawal of 12 charges, Faulkner appealed the s. 11(b) ruling. There had been no discussion of an appeal at the time of his guilty plea.

[20] Writing for the court, Watt J.A. applied this court's decision in R. v. Fegan (1993), 13 O.R. (3d) 88 (C.A.) and concluded that the waiver inherent in Faulkner's guilty plea disentitled him to appeal the underlying s. 11(b) ruling. Notably, Faulkner did not attempt to withdraw his guilty plea on appeal.

[21] On this appeal, Mr. Tsegaye attempts to withdraw his guilty plea, claiming that it was not fully informed. In an affidavit he contends that he was not advised by his trial counsel (not Mr. Sheppard) that his guilty plea would prevent him from appealing the s. 11(b) ruling. He said, "that would have been a factor that I would have considered in deciding whether to change my plea to guilty." Mr. Tsegaye's trial counsel swore an affidavit in which he said that he was not aware that a guilty plea would preclude an appeal of the s. 11(b) ruling.

[22] Given my conclusion on the s. 11(b) issue, it is unnecessary to decide whether Mr. Tsegaye's situation is distinguishable from Faulkner and whether he should be permitted to withdraw his guilty plea. Nevertheless, I make the following observations which may assist in future cases.

[23] It is well-known that a guilty plea may have profound and far-reaching consequences. A guilty plea involves a broad waiver, sometimes extending beyond an admission of criminal responsibility. In R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), Doherty J.A. said, at p. 519:

A guilty plea is a formal admission of guilt. It also constitutes a waiver of both the accused's right to require the Crown to prove its case beyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected: Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 at p. 49, 65 C.C.C. (2d) 65 at p. 74; Brady v. United States, 397 U.S. 742 (1970), at p. 748, Fitzgerald, The Guilty Plea and Summary Justice (1990) at pp. 192-203. [Emphasis added.]

See also R. v. Parris, 2013 ONCA 515, at para. 121. The constitutionally protected procedural safeguards that are waived include the right to make constitutional claims at trial, as well as the ability to appeal unsuccessful constitutional challenges that were made (including rulings under s. 8 of the Charter (Fegan) and s. 11(b) (Faulkner)).

[24] Because of the broad scope of this waiver, a cautious approach is warranted when an accused person expresses the intention to plead guilty following the dismissal of pre-trial applications, constitutional or otherwise. In these circumstances, the trial judge may wish to enlarge the plea comprehension inquiry under s. 606(1.1) of the Criminal Code to determine whether the accused person understands that, by pleading guilty, he or she will forfeit the right to appeal all previous rulings associated with the case. The inquiry need not be extensive. It may only involve an additional question or two. However, it will ensure that the plea is truly informed, preventing misunderstandings down the road.

[25] Moreover, there is a way to preserve a right to appeal short of having a full-blown trial. In Faulkner, Watt J.A. commended the procedure discussed in Fegan, whereby an accused person pleads not guilty, accepts the case for the Crown (perhaps based on an Agreed Statement of Facts), and calls no defence evidence. A finding of guilt inevitably follows. As Watt J.A. said in Faulkner, at para. 92: "This procedure would preserve the accused's right of appeal against conviction on the real issue in dispute without imposing the additional burden of setting aside the guilty plea."

[26] This procedure is utilized regularly in Ontario. With appropriate safeguards, it is an efficient method of dealing with cases in which Charter issues play a crucial, if not determinative, role in a prosecution: see R. v. Tran, 2017 ONCA 329; R. v. G. (D.M.), 2011 ONCA 343; and R. v. P. (R.), 2013 ONCA 53. See also the helpful discussion of this issue in Michael Shortt, "Preserving Appeal Rights When Your Client's Only Defence is a (Failed) Charter Motion" (2018), 65 C.L.Q. 443.

[27] This procedure is not without its potential hazards. Before going down this path, a trial judge should engage in an exercise approximating a plea-comprehension inquiry to confirm that the accused person understands precisely what is at stake by participating in this procedure: P. (R.), at para. 60.

[28] Returning to Mr. Tsegaye's situation, the trial judge cannot be faulted for the scenario that unfolded in this court. When Mr. Tsegaye changed his plea, there was no discussion of an appeal. I recognize that the guilty plea proceedings occurred two years before this court's decision in Faulkner; however, it had been more than two decades since Fegan was decided. Nevertheless, defence counsel took the initiative and advised the trial judge, "I want you to know I've been through the plea inquiry with Mr. Tsegaye very carefully" and "I feel, as his counsel, that he's fully aware of the consequences of his….and the ramifications of his change of plea." This may not have been the case. But, in light of my conclusion on the merits of s. 11(b) issue, it is unnecessary to determine whether Mr. Tsegaye's plea was fully informed.

(b) Section 11(b): The Merits

[29] The application judge applied the Morin framework and found that s. 11(b) was not infringed. However, this appeal must be decided in accordance with Jordan. Given the fundamentally different methodologies employed in Morin and Jordan, reviewing Morin rulings through the lens of Jordan can be challenging: Faulkner, at para. 147.

[30] The application judge accepted the Crown's concession that there was no defence delay, nor any defence waiver of time periods. The Crown does not retreat from this position on appeal. Consequently, for Jordan purposes, the net delay in this case is equal to the total delay, which is 39-40 months. This exceeds the presumptive ceiling of 30 months established in Jordan, later confirmed in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. It is presumptively unreasonable.

[31] However, in my view, the delay in excess of the presumptive ceiling is justified by exceptional circumstances, driven by the fact that this prosecution was "particularly complex": see Jordan, at para. 71; Cody, at para. 64.

[32] The delay is also justified by the "transitional exceptional circumstance", based on the parties' reasonable reliance on the previous state of the law (i.e., the Morin framework): see R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at para. 24; R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 119; R. v. Baron, 2017 ONCA 772, at paras. 42-43; and Faulkner, at paras. 174-183.

(i) Complexity

[33] The appellants' arguments before the application judge were narrow. As he said, at para. 111: "The nub of this application is whether the delay giving rise to a remedy arose from the delayed disclosure, the laying of the omnibus information and indictments and the subsequent severing of accused from the main action led to unreasonable delay." The appellants renew these arguments on appeal but rely more heavily on the complexity issue. They point to their straightforward trials in support of the position that the case was not complex.

[34] In his thorough reasons, the application judge discussed the concept of case complexity, drawing on the previous decisions of this court in R. v. Schertzer, 2009 ONCA 74, at para. 126; and R. v. Nguyen, 2013 ONCA 168, at para. 72. As he said, at para. 121:

The investigation implicated more than 30 accused with numerous intercepted communications. The nature of this investigation was long and arduous and the disclosure was voluminous. While some of the substantive counts concern discrete events, there were several conspiracy counts alleged between various accused, many of whose charges where subsequently joined and interrelated. The complexity of the matter is also reflected in the length of the preliminary inquiry that required 10 days to complete despite the Crown proceeding via the expedited process provided for by s. 540 of the Criminal Code.

[35] This approach gels well with Jordan, decided more than a year later. Moldaver, Karakatsanis and Brown JJ. described complexity in the following way, at para. 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[36] The appellants concede that the application judge's definition of a complex case is not deficient in any way, especially in light of Jordan. Instead, they argue that he erred in finding that this case was complex. They say that their brief trials demonstrate that this was nothing more than a run-of-the-mill drug prosecution.

[37] I disagree. Case complexity must be considered more broadly, over the course of the entire proceedings. In R. v. Picard, 2018 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135, Rouleau J.A. held, at para. 62:

A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

[38] This case should be viewed in the same light. All counsel conceded before the application judge that, because of the complexity of the case at the early stages, the acceptable intake period was seven months. In accepting this concession, the application judge said, at para. 122: "Even for 'minor players' attached to larger prosecutions, the initial complexity of the matter will justify longer periods of inherent delay: R. v. Khan, 2011 ONCA 173, at para. 79."

[39] The appellants argue the Crown made this case complex when it joined all of the accused in the omnibus information. The application judge did not find this decision (or the later decision to separate accused persons into smaller groups) to be an unreasonable exercise of prosecutorial discretion. The application judge found, at paras. 158 and 166, that the joinder decisions were not impactful on the appellants, whose cases were tied to the use of wiretap evidence. However, for those accused whose cases were not tied to the wiretap evidence, their inclusion in the omnibus information caused unnecessary and avoidable delay.

[40] I see no error in this nuanced approach. The complexity of this large project-based prosecution justifies the delay in excess of the presumptive ceiling. The total delay was not unreasonable.

(ii) Transitional Exceptional Circumstance

[41] I would also rely upon the transitional exceptional circumstance to justify the delay involved in completing the proceedings against the appellants. At the core of this factor is the prevention of unfairness to the parties caused by their reasonable reliance on the Morin framework. As Moldaver, Karakatsanis and Brown JJ. said in Jordan, at para. 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."

[42] In Gopie, Gillese J.A. referred to Williamson and identified the criteria involved in applying this exception. As she said at para. 178, these include: (i) the complexity of the case; (ii) the period of delay in excess of the Morin guidelines; (iii) the Crown's response, if any, to any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused. A consideration of these factors justifies the delay that occurred in this case: see Faulkner, at para. 175; and R. v. Jurkus, 2018 ONCA 489, at para. 75.

[43] The application judge properly applied the Morin framework and concluded that the period of institutional and/or Crown delay fell within the guidelines that were operable at the time. This entailed a finding that the case was complex, which I have found to be reasonable in light of this court's past jurisprudence, and the approach prescribed in Jordan.

[44] In terms of the Crown's response to institutional delay, it cannot be said that this prosecution was a model of efficiency. Mr. Puddington (who was not Crown counsel at first instance) does not suggest otherwise. However, any missteps that the Crown may have taken was rightly allocated as Crown delay in the application judge's analysis.

[45] Moreover, the intervention of the OCJ case management judge in forcing the Crown to set preliminary inquiry dates had the salutary effect of containing further delay while disclosure issues remained unresolved. Once the case arrived in the SCJ, the Crown acted on the suggestion to sever accused persons. This allowed the case to move very quickly and, to a degree, compensated for the slow pace of the proceedings in the OCJ.

[46] Lastly, the application judge made careful findings about the appellants' claims of prejudice. He essentially found that there was none. There is no basis to disturb this finding on appeal.

[47] Cumulatively, a consideration of these factors leads to the conclusion that the parties were acting reasonably in their reliance on Morin. This case is not reflective of a culture of complacency. Instead, the record reflects the significant efforts of counsel and judges to respond to the challenges posed by this large project-based prosecution.

[48] In all of the circumstances, this is an appropriate case to apply the transitional exceptional circumstance.

(5) Conclusion

[49] I would dismiss this ground of appeal.

C. Mr. Lopez-Restrepo's Appeal from Conviction

[50] Mr. Lopez-Restrepo was found guilty of possession of cocaine for the purposes of trafficking. The case against him included an Agreed Statement of Facts and the testimony of two police officers.

[51] The police executed a search warrant at a house where Mr. Lopez-Restrepo was one of three tenants on the lease. The other two were Project O'Bunker accused. The police found the cocaine in a kitchen cupboard. They found scales in a drawer, which tested positive for cocaine. The lease, which included the signature of Mr. Lopez-Restrepo, was found in the kitchen.

[52] In the living room, the police found another set of scales, also containing cocaine residue, in addition to a marijuana grinder, 6.6 grams of marijuana, a debt list, and a functioning money counter. In a bedroom containing Mr. Lopez-Restrepo's identification, the police found $3,310 in cash. When he was arrested, he had $1,533 on his person.

[53] The trial judge reviewed the evidence thoroughly. He stated the correct legal principles relating to possession under s. 4(3) of the Criminal Code. He reached his ultimate conclusion, at para. 50:

Simply put, the inescapable conclusion on the evidence before me is of a common enterprise to traffic cocaine of which the defendant was a knowing and willing participant. The defendant's access to all of the common areas of the residence satisfies me beyond a reasonable doubt that he jointly and constructively possessed the 18 grams of cocaine found in the kitchen.

[54] I see no error in the trial judge's factual findings or in the inferences that he drew from the evidence. The only reasonable inference for the trial judge to draw in these circumstances was that Mr. Lopez-Restrepo jointly or constructively possessed the cocaine found in the house that he leased.

D. Conclusion and Disposition

[55] I would dismiss the appeals.

Released: November 7, 2018

"G.T. Trotter J.A."

"I agree. H.S LaForme J.A."

"I agree. David Watt J.A."

Footnotes

[1] The appellants were all convicted before the judgment in Jordan was released on July 8, 2016. Mr. Lopez-Restrepo was sentenced before this date, on January 20, 2016. Mr. Tsegaye was sentenced on July 29, 2016. Mr. Mehmeti was sentenced on October 5, 2016.

[2] Through no fault of the application judge, some of the projected trial dates turned out to be inaccurate. However, this was not an issue on appeal.

[3] Mr. Tsegaye was subsequently re-arrested, but he was re-released after about five weeks in custody.

[4] Mr. Tsegaye makes no claim of ineffective assistance of counsel. In his affidavit, Mr. Tsegaye referred to his trial lawyer's representation and said: "I do not take any issue with the quality of his representation of me."

[5] Before proceeding, the trial judge followed up with questions concerning the voluntariness of the plea.