COURT OF APPEAL FOR ONTARIO DATE: 20210518 DOCKET: C67187, C67906, C67907 & C67977

Doherty, Zarnett and Coroza JJ.A.

DOCKET: C67187 BETWEEN Her Majesty the Queen Respondent and Jansen Morash Appellant

DOCKET: C67906 AND BETWEEN Her Majesty the Queen Respondent and Nikola Pavlovich Appellant

DOCKET: C67907 AND BETWEEN Her Majesty the Queen Respondent and Peter Pavlovich Appellant

DOCKET: C67977 AND BETWEEN Her Majesty the Queen Respondent and Filippo Acciaioli Appellant

Counsel: Ian Carter, for the appellant, Jansen Morash Bruce Engel, for the appellant, Nikola Pavlovich Alan D. Gold and Laura Metcalfe, for the appellant, Peter Pavlovich Michel Davies and Meaghan McMahon, for the appellant, Filippo Acciaioli James D.M. Clark, for the respondent

Heard: January 6, 2021 by videoconference

On appeal from the convictions entered on January 9, 2019 and March 19, 2019 by Justice Célynne S. Dorval of the Ontario Court of Justice. On appeal from the conviction entered on May 10, 2019 by Justice Mathew C. Webber of the Ontario Court of Justice.

REASONS FOR DECISION

A. INTRODUCTION

[1] In 2015 and 2016, the Ottawa Police Service investigated drug trafficking in an operation known as “Project Step”. The investigation yielded charges against, among others, the appellant Jansen Morash (“Morash”) [1] and, on a separate information, against the appellants Peter Pavlovich (“Peter”), Nikola Pavlovich (“Nikola”) and Filippo Acciaioli (“Filippo”). [2]

[2] Morash was charged on December 13, 2016, with drug trafficking, firearm offences, and possession of the proceeds of crime, and on January 6, 2017, with conspiracy to traffic marijuana.

[3] Morash brought an application to stay the charges against him on the basis that there was unreasonable delay in bringing them to trial, in violation of his rights to be tried within a reasonable time under s. 11(b) of the Charter. The application was dismissed by Dorval J. and Morash was subsequently convicted and sentenced to four years in prison.

[4] Peter, Nikola, and Filippo were each charged with various drug and firearm offences on an Information sworn January 16, 2017.

[5] They also brought an application to stay the charges against them under s. 11(b). Their application was dismissed by Webber J. They were subsequently convicted. Peter was sentenced to 8 years in custody, Filippo to 42 months, and Nikola to 3 years.

[6] Both application judges held that the net delays in each case (25.5 months in the case of Morash and 26 months in the case of Peter, Filippo, and Nikola) were above the presumptive 18-month ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, that the defence had not waived any period of the delay, and that any delay that might be attributable to the defence was neither significant nor central to the s. 11(b) issue.

[7] Both judges dismissed the s. 11(b) applications. They each found that the Crown had met its burden of showing that the complexity of the case justified the amount of delay beyond the 18-month ceiling, and therefore the delay was not unreasonable in the circumstances.

[8] The appellants appeal, arguing that each of the application judges erred in failing to find a breach of their s. 11(b) rights. They concede that the cases were complex, but argue that each of the judges made reversible errors in finding that the Crown had developed and followed a concrete plan to minimize the delay caused by this complexity.

[9] The appeals were heard together. At the conclusion of the appellants’ arguments, we indicated it was unnecessary to hear oral argument from the Crown and we dismissed the appeals with reasons to follow. These are those reasons.

B. ANALYSIS

(1) The Crown’s Burden in a Complex Case

[10] These appeals focus on whether the courts below were right to find that the Crown had met its burden of rebutting the presumption that the delay in bringing the appellants to trial was unreasonable.

[11] A net delay (total delay less defence delay) of more than 18 months between charge and verdict is presumptively unreasonable. The Crown can rebut the presumption if it shows “exceptional circumstances”, that is, circumstances outside the control of the Crown because they are reasonably unforeseen or unavoidable, that give rise to delays that the Crown cannot reasonably remedy once they arise: Jordan, at paras. 46, 69.

[12] In a case where the Crown relies on exceptional circumstances, the Crown must show it took reasonable steps to avoid and address problems before the delay exceeds the presumptive ceiling: Jordan, at para. 70.

[13] Where the Crown contends that the exceptional circumstances are that the case is particularly complex, its burden has an additional feature; the judge dealing with a s. 11(b) application “will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity. Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control” (citations omitted): Jordan, at para. 79.

(2) The Standard of Review

[14] The ultimate decision as to whether there has been an unreasonable delay is subject to a correctness standard, but the trial judge’s findings of fact relevant to that analysis are entitled to deference: R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309 at para. 73, leave to appeal refused, [2019] S.C.C.A. No. 423. A conclusion that a case is complex is subject to deference: Bulhosen, at para. 6. A finding that a delay was reasonable in light of the complexity of a case is within the expertise of the trial judge: Jordan, at para. 71.

(3) The Morash Appeal

[15] In dismissing the s. 11(b) application by Morash, the application judge found that the case “embodies almost every factor which defines a particularly complex case”. She then found that “[f]rom the outset”, the Crown had “proceeded to avoid any unnecessary delays”. She referred, among other things, to the Crown having delayed arrests in order to have time to organize proper disclosure and division of the charges. She accepted the Crown’s submission that it “could not have done more to avoid the delay incurred in this case”.

[16] Morash argues that the application judge’s reasons reflect an application of the wrong test because she focused only on whether the Crown took steps to avoid delays once they occurred, as opposed to whether it developed and followed a plan that had been formulated in advance to head off delays.

[17] We reject this argument. Although it would have been preferable if the application judge had used the term “plan”, there is little doubt that that is what she meant. Her findings that the Crown had proceeded “from the outset” to avoid unnecessary delays and that no more could have been done, are both consistent with the existence of a proactive plan to avoid delays. As well, she specifically referred to the Crown delaying arrests in order to have time to organize proper disclosure and permit the proper division of charges, which also speaks to the formulation and implementation of a plan, rather than to simply reacting after delays occurred.

[18] Morash also argues that the Crown’s initial disclosure was deficient, in that it did not include source documents for the ITOs (which were disclosed). This led to delays in the defence review of the disclosure and then in the Crown compliance with the request for those documents. This deficiency, it is argued, indicated that there was no plan to reduce or avoid delays, or at least, not one that was reasonably formulated and implemented.

[19] The application judge considered this argument. She characterized what had been omitted from disclosure as evidence that would not have automatically been included in the initial disclosure, and found that the Crown “responded expeditiously to the requests for additional disclosure”. These findings are entitled to deference.

[20] Moreover, as this Court stated in Bulhosen, at para. 84, delays resulting from deficiencies in Crown disclosure must be considered in context. Here, the Crown notes in its factum that the request for source documents pertained to one paragraph of one affidavit in a case that had 94 judicial authorizations including 4 wiretap authorizations. This context fortifies the conclusion that there was no reversible error in the manner that the application judge dealt with this issue.

[21] Third, Morash argues that the application judge erred by treating the six-month period from the completion of the investigation to the laying of charges in a way that benefitted the Crown. He submits that given the problems with the initial disclosure; the application judge erred in effectively giving the Crown credit for using that time to organize disclosure. Since this was a period when Morash had been subject to personal detention, a search of a residence, the seizure of personal items, and had the prospect of charges looming over him, it should have been considered as exacerbating the delay.

[22] We reject the premises of this argument. First, as indicated above, the application judge was entitled to find a reasonable Crown plan to minimize and manage delays, and that this was not contradicted by the fact that the defence had to make the request it did for further disclosure. Second, despite the existence of looming charges, the reasonableness of delay is calculated from the time of the actual charge: R. v. K.E., 2013 ONCA 175, 106 W.C.B. (2d) 298, at paras. 22-23.

(4) The Appeal of Peter, Nikola and Filippo

[23] In dismissing the applications of Peter, Nikola, and Filippo, the application judge found that “this prosecution is properly characterized as a complex case”. He accepted the Crown’s submission that it put together and executed a plan to manage delay. He stated:

I am satisfied that the Crown did in fact have a concrete plan in place to address delay issues. Further, a review of the record confirms that with the exception of the single disclosure misstep discussed above, the Crown at no time caused, or in any way exacerbated, the delay in this case.

[24] The application judge gave a detailed history of the progress of the case and the matters cited by the Crown to him that supported a finding of complexity and were illustrative of a plan to manage delay. We refer to two in the latter category, as they are central to the appellants’ contentions.

[25] First, the application judge referred to the fact that search warrants were executed in June 2016, the appellants were arrested in December 2016, and they made their first post-bail court appearance on January 11, 2017. This “staged approach” to search and arrest had allowed the Crown and police to collect and organize disclosure, so that the appellants received the “lion’s share” of total disclosure, amounting to over 75,000 pages, before February 1, 2017. The first defence request for additional disclosure – for aspects of surveillance that had not been included – was made in May 2017 and responded to by June 23, 2017.

[26] He concluded that the failure to disclose all relevant surveillance was an oversight or misstep that was quickly corrected, and that “this was the only moment in the disclosure process that could be characterized as a misstep. Otherwise, the process unfolded very smoothly”; the misstep had only marginally contributed to the delay.

[27] Second, the application judge also referred to the Crown’s position that it “sought and accomplished the assignment of a case management judge at a very early stage of the proceeding”.

[28] The appellants argue that the application judge did not actually calculate or consider the net delay. We disagree. In our view, fairly read, it was clear that the application judge was focussed on the delay that the Crown had to justify.

[29] The appellants also argue that the application judge erred in finding that the Crown had a reasonable plan to minimize or avoid delays.

[30] They maintain that the application judge’s finding of a plan was not based on any affidavit evidence of the Crown that described when the plan was formulated and of what it consisted; rather, the application judge simply inferred the existence of the plan from counsel’s submissions and the way events in the prosecution had played out. Moreover, they say that the inference of a reasonable plan was unjustified. In a complex case with voluminous disclosure, in a case where the Crown had a six-month head start to get its disclosure ready, a reasonable plan would include the Crown’s disclosure being organized in a manner that made it accessible and easy to navigate for the defence – something they say was lacking in this case. Additionally, a reasonable plan would not require further disclosure requests after defence had undertaken a time-consuming review of the material.

[31] Nor, according to the appellants, was the application judge right to give the Crown credit for the prompt seeking of a case management judge, since there was nothing effective that could happen through case management until the defence had “slogged” through the disclosure and received the additional requested disclosure. The time it took for all of that to occur was attributable to the lack of a proper plan by the Crown.

[32] We do not agree. The argument that the Crown was required to prove its plan by affidavit was not made before the application judge, who was permitted to proceed as the parties put the case to him, and to draw inferences from submissions as well as from matters that were already part of the record.

[33] Similarly, the argument in this court that the initial disclosure was disorganized or difficult to access, if made below, does not appear to have been accepted; it is inconsistent with the application judge’s findings that other than one misstep that marginally contributed to delay, the initial disclosure was prompt and the disclosure process unfolded smoothly. We were not referred to any requests, by the defence, for organizational assistance with the initial disclosure after the Crown had provided it.

[34] The application judge was not prepared to draw the inference that the disclosure misstep contradicted the existence of a reasonable Crown plan. This finding is entitled to deference. Nor, in light of this, did the application judge err in correctly noting that the Crown’s invocation of case management at an early date spoke to taking pre-emptive steps to deal with and manage delay.

[35] Decisions of a judge of first instance on matters such as complexity, the existence of a reasonable plan, and the way the Crown implemented the plan and attempted to minimize delays, are subject to deference from this court. We see no basis on which to interfere with these findings.

C. CONCLUSION

[36] For these reasons, the appeals are dismissed.

“Doherty J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”

Footnotes:

[1] Morash was charged on an information with others who are not parties to this appeal.

[2] Peter, Nikola, and Filippo were also charged on an information with others who are not parties to this appeal.