Court Information

Date: March 6, 2018

Ontario Court of Justice (Toronto Region)

R v Salim Abdulatif Sagar

Counsel for Applicant: Malcolm McRae

Counsel for Respondent: Julia De Filippis

Heard: 7, 22 February 2018

Decision: 6 March 2018

Ruling on Application to Stay Proceedings for Unreasonable Delay

Charter of Rights and Freedoms, s. 11(b)

Libman, J:

Facts and Procedural History

[1] On 3 October 2016, police officers on the Guns and Gang Task Force executed a search warrant under the Controlled Drugs and Substances Act at an address in Toronto on Gatesview Avenue. A number of persons were present at the time, although not the accused. In a bedroom the officers located 410.72 grams of cocaine, as well as a digital scale and $2,000 in a leather jacket. The defendant was arrested in his vehicle, a Nissan Altima. The search warrant also authorized a search of it. Found inside the center console was 54.81 grams of cocaine. An air rifle was also found in the trunk.

[2] As a result, Mr. Sagar was charged with possession of cocaine, possession for the purpose of trafficking cocaine, and possession of proceeds of crime. He was subsequently released from the station.

[3] The defendant's first appearance in court was on 14 November 2016. He was represented by Mr. McRae's office by this time. The Crown indicated that the brief had just come into its office on 4 November, and requested an adjournment to the first week of December to provide disclosure.

[4] Accordingly, on 5 December 2016, initial disclosure was made by the Crown. This included the Information to Obtain the Search Warrant. The case was adjourned to 9 January 2017 for the defence to review disclosure and schedule a Crown pre-trial meeting.

[5] In fact, on the 9 January 2017 appearance, it was indicated that the defence had not reviewed disclosure with his client, nor scheduled the Crown pre-trial meeting. The matter was adjourned to February 6 to allow for this, and for defence counsel to indicate whether there was any outstanding disclosure. The defence was offered the date of January 30, but indicated February 6th "would be more agreeable."

[6] On the next court appearance, 6 February 2017, it was indicated that the Crown pre-trial had been held on 31 January. A judicial pre-trial was scheduled for 9 March, and the matter adjourned to that date.

[7] Unfortunately, the judicial pre-trial was not held due to "clerical error", according to the 9 March transcript. It was re-scheduled for 6 April 2017.

[8] According to the transcript of 6 April, a judicial pre-trial was conducted before Ray J. Crown counsel indicated that that the parties "did come to an estimate for a discovery prelim where committal would be conceded…" It was further indicated that there were 11 Emergency Task Force officers whose notes were still outstanding, and that they would be provided to the defence before the dates set out in mid-May by Justice Ray. It was estimated that three days would be required for the "discovery prelim". As the defence was unable to stay and attend at the trial coordinators' office to schedule those days on 6 April, the matter was adjourned to April 13.

[9] In the course of the 6 April 2017 appearance, there was this exchange on the record after selecting the return date of 13 April:

Ms. Rivers: And my friend and I had a friendly discussion on pour way here whether that was an express waiver for this one week, and I think the record will speak for itself. Certainly I think we're well within the Jordan guidelines given my friend's concession that this can be dealt with by way of a discovery prelim.

Mr. McRae: I don't have any further comments. I'm grateful for your time and consideration and my friend's...

[10] The 13 April 2017 appearance that followed confirmed that a judicial pre-trial had been held on 6 April, and the parties were looking to set "discovery hearing dates" if the dates were available. However, disclosure was still outstanding. The agent for Mr. McRae indicated that the Crown was going to provide disclosure in the next month, and counsel would review it with his client. Thereafter, it was indicated "we'll make elections in June – mid-June, at which point we'd go to the discovery hearing dates at that point in time." After obtaining the officers' leave dates for the hearing, the matter was set for a three day discovery hearing on November 27-29, 2017 in G court. A confirmation date was also booked for June 26, 2017.

[11] The next court appearance was the confirmation date, 26 June 2017. On this occasion Mr. McRae stated the following:

Good morning, Your Honour. My name is McRae, initial 'M'. I'm counsel for Mr. Sagar. I can appear pursuant to a designation previously filed. It's a matter that was judicially pre-tried with Justice Ray on April the 6th. Three dates of discovery were scheduled for late November on a subsequent date, and today's date was scheduled for me to attend, file a Statement of Issues with witnesses being sought by the defence and make defence elections. That was all to be contingent upon that initial disclosure being received from the Crown. I spoke with the Crown who conducted the pre-trial last week, Ms. Rivers. I have yet to receive any additional disclosure that was requested on January the 31st. I understand she was following up with the officer-in-charge last week. I suggested that today I would adjourn the matter for a couple of weeks to see if that disclosure came in before scheduling a further pre-trial with Justice Ray. I'm asking for two weeks in this court, please.

[12] Crown counsel (not Ms. Rivers) replied that she did not have the brief with her, and would "just have to take counsel's word for what he has advised the court." The matter was accordingly adjourned to 10 July.

[13] The 10 July 2017 appearance was before Justice Ray, although none of the counsel of record was in attendance. Defence counsel's agent indicated there while a discovery hearing was scheduled for November, there was still outstanding disclosure from its request of 31 January, and that its intention was "to make elections at the end of May and then the end of June once we received disclosure." A further judicial pre-trial with Justice Ray was scheduled by the trial coordinators office for 23 August.

[14] The parties next appeared on court on the 23 August date. Ms. Rivers indicated that there had been a continuing judicial pre-trial held earlier in the morning before Justice Ray. She added:

All right. So I'm Victoria Rivers if I didn't say that. And the comments I have is that we had a judicial pre-trial in April on the 6th. The matter was adjourned, Your Honour, for approximately one week for – to get the matter organized. I can't recall exactly why. But on that date, April 13, discovery dates were set of November 27, 28 and 29. My friend did not make an election on that date. It was adjourned then to the 26th of June. There was some outstanding disclosure that my friend had requested. It was not provided before the 26th of June. The matter was then adjourned to today's date for that disclosure to be made. Most of that disclosure has been provided to my friend. My friend may be changing his election and may be seeking to have a trial in the Ontario Court of Justice. As a result of that we are going to come back in two weeks on the September 7th date before Justice Ray for a further judicial pre-trial to do that estimate should that be my friend's – should that be how my friend is instructed by his client. Is that fair?

[15] Mr. McRae's response was as follows:

The only thing I would add, Your Honour, is that an election has not previously been made. And as I've indicated in the past, my ability to make an election was contingent upon disclosure that was outstanding. I received some responses – or anticipated responses from my friend yesterday that she's going to confirm in the next two weeks. I'm meeting with my client today. I expect I'll come back with instructions to set a trial in two weeks.

[16] The parties then adjourned the matter to 7 September, following the judicial pre-trial being held earlier that same morning.

[17] Following the continuing judicial pre-trial before Justice Ray on 7 September 2017, the parties appeared in court. According to the Crown, as was discussed at the pre-trial that morning, the defence "was effectively re-electing, even though he had not made a formal election on the record at that – at this stage we'd set discovery dates of November 27, 28, 29, 2017, and due to his desire to have an Ontario Court of Justice trial, as result of some disclosure he received in the past four weeks ... we vacated the dates of the discovery. So we've vacated November 27, 28 and 29. I will further advise the trial coordinator when I return to my office, of this in writing, but they're aware."

[18] Counsel proceeded to put on the record that the trial would consist of a number of Charter motions, commencing on 9 March 2018 with a blended Garofoli/Charter motion, to be followed by eight days of trial time in April where a blended hearing would consist of five to six witnesses called by the Crown, and seven emergency task force officers that the defence wished to hear.

[19] Defence counsel stated, in turn, that there was a likelihood that he would additionally call upwards of seven civilian witnesses. Consequently, the estimate of eight days of trial time was to hear from about 20 witnesses. There was then the following exchange between the parties and the Court:

Mr. McRae: And I think that my friend made it clear, but obviously there was never an election in this case and I think the prior record reflects the fact that defence was never prepared to make an election until substantial disclosure was received, which my friend has indicated was received. Some of it at the end of June and some of it in the last month.

The Court: Do you have full disclosure at this point?

Mr. McRae: Very close.

The Court: Very close.

Mr. McRae: There's some officer notes that my friend's following up on and she's been very helpful in that regard, and I don't have concerns about getting it or it somehow delaying the trial at this point.

The Court: All right

Ms. Rivers: There's no issue with delaying the trial at this point and I can just finally say for the record, and this is a – an October 3rd, 2016 offence date. The Jordan date in front of the Ontario Court of Justice was April 3rd of 2018

The Court: Mm-hmm

Ms. Rivers: April 3 and 8 days following that were offered by the trial coordinator and declined by my friend. So subject to any questions, Your Honour if we may please be excused.

[20] Prior to concluding, defence counsel formally elected trial in the Ontario Court of Justice, and the matter was adjourned to 22 January 2018 for a confirmation hearing.

[21] There are no further transcripts filed in respect of this Charter s. 11(b) application. However, the accompanying record does include a number of the trial verification forms. The one filed on the 7 September date when trial time was selected in the Ontario Court of Justice indicates that the defence was offered eight days of trial time between 3-6 April and 9-12 April, but was not available. The first date available that both parties could appear was 16 April; the matter was scheduled to conclude on 26 April (the trial dates set being April 16, 18, 19, 20, 23, 24, 25, 26).

Crown Disclosure Issues

[22] The parties have filed application records which set out numerous correspondence between them, particularly consisting of disclosure requests and replies. While the Crown's responses were timely, compliance with the disclosure request was not and disclosure dragged on for reasons that are not clear.

[23] It will be recalled that some disclosure was outstanding still on the September 7 date when eight days of trial time was set aside. The defence request of 31 January 2017 remained unsatisfied well into the summer.

[24] It is not necessary for the purposes of this application to review the entirety of the desultory manner in which the Crown took to its disclosure obligations, but a few examples will suffice. The notes of several of the emergency task force officers were sent to the defence on 10 July 2017. These were the very witnesses who would have been the subject of the discovery hearing, which was scheduled in April, 2017. No use of force reports by these officers, as required by the Police Services Act, was confirmed by the Crown until 23 August 2017. Thus, as originally contemplated, disclosure by the Crown for witnesses to be called at a trial proceeding scheduled for November, 2017, remained unfulfilled until a few short months before.

[25] The 31 January 2017 disclosure request has been referenced in several of the court appearances. Many of the matters referenced in it appear not to be particularly contentious, it seems to me, or difficult in satisfying. For example, the defence requested all the entries (42) on his client contained in the Toronto Police database, as well as four occurrence reports and officers' notes in relation to them. This disclosure request also referred to the search video footage relating to the case as well as search footage of the defendant while in custody. There was also a request for all emergency task force officer notes. While further items were requested for disclosure, I note that defence counsel's follow-up letter of 22 August 2017, that is, more than six months later, states that all of these items remained undisclosed. No written explanation was provided by the Crown for the missing disclosure.

[26] Also egregious is the fact that the judicial pre-trial judge, Justice Ray, set a proposed timeline for disclosure, namely, 17 May 2017. The Crown failed to comply with this deadline, making some additional disclosure in late June, 2017, but not in accordance with either the January 31 request, or Justice Ray's direction.

[27] I have been advised by the parties in the course of oral argument before me on this Charter s. 11(b) motion, that there remains outstanding disclosure to date, and that a court hearing will be required to address this. It also appears that on the Garofoli hearing date (9 March 2018), matters of disclosure will also be addressed, given that the Crown takes the position that the defendant is not entitled to disclosure of materials from a different investigation that were not reviewed by the affiant.

[28] To summarize to this point, what started out as an anticipated three day discovery preliminary hearing which would have been heard 13 months after the offence date (3 October 2016 to 27-29 November 2017) has morphed into an eight day trial that is scheduled to conclude a little more than three weeks after the 18-month Jordan anniversary (3 October 2016 to 16-26 April 2018).

Application of R v Jordan

[29] Turning to the application of the controlling case on this application of R v Jordan, 2016 SCC 27, I reject the Crown's position that the Jordan presumptive ceiling of unreasonable delay in this case is 30 months, consistent with the case first being treated as a preliminary inquiry, as opposed to the 18-month ceiling for trials in the Provincial Court, in which this matter, in fact, is proceeding. I do so for a number of reasons.

[30] To begin, the position of Crown counsel having carriage of the matter, as evidenced in all of the preceding court appearances until the argument of this motion, was that the Jordan clock was set at 18 months. In the court appearance of 23 August 2017, following one of the judicial pre-trials before Justice Ray, it will be recalled that Ms. Rivers stated, "There's no issue with delaying the trial at this point and I can just finally say for the record, and this is a – an October 3rd, 2016 offence date. The Jordan date in front of the Ontario Court of Justice was April 3rd of 2018."

[31] Stated shortly, the position of the Crown in setting this matter down for trial was that Jordan applied to the time period in the Provincial Court, and that the time allocated for trial was within in. The specific reference to a period of 18-months was an acknowledgment of this.

[32] The position of the Crown, thus, in now seeking to stretch the Jordan playing field to 30 months, is inconsistent with its position throughout the proceedings over the course of the past year. That is, it constitutes a repudiation of the position it has taken on every other court appearance in this case to date.

[33] Moreover, there is no basis for the Crown's assertion that the defence was attempting to delay its election unreasonably, and game the system so as to achieve a "Jordan windfall." Both the record of court appearances and correspondence make it clear that the defence was requesting additional disclosure to be made before finalizing his position as to mode of trial. The Crown was put on notice of this position, both in the court appearances and correspondence out of court. Indeed, it was only the Crown's late disclosure of the emergency task force police officers notes that obviated the need to discover them at a preliminary hearing, so as to lay the groundwork for a Charter motion at trial. There is, of course, no Charter jurisdiction at a preliminary hearing; the Charter motion at trial concerning the dynamic entrance of the accused's residence, as evidenced in the notes of the emergency task force officers, is in fact proceeding. Had the preliminary inquiry proceeded, the Crown would not have been required to call any evidence, much less argue committal to stand trial which was conceded.

[34] I fail to appreciate, then, how the ultimate election by the defence to be tried in the Ontario Court of Justice constitutes some form of "deliberate and calculated defence tactic aimed at causing delay": Jordan, para. 63. To the contrary, had the Crown not taken more than 6 months to disclose these officers' notes, as well as other routine matters of disclosure, such as confirming whether a search video existed and photographs of exhibits, the defence would have been in a position to indicate its preferred mode of trial at a much earlier date than 7 September 2017.

[35] Lastly, the cases upon the Crown relies in seeking to establish a 30-month ceiling are distinguishable. They are, unlike the instant case, either transitional Jordan cases, or ones where a re-election was actually made. In this case, it will be recalled, there was only one election, namely, trial in the Ontario Court of Justice, made almost three months before the discovery date, a proceeding where no judicial officer would be required to preside.

[36] Hence, this is not a case like R v D.M.S., 2016 NBCA 71; R v Wookey (26 August 2016) Doc. Toronto 15-15019715 (O.C.J.); R v Ladouceur, [2016] O.J. No. 6816 (QL) (S.C.J.) where re-elections were made, or R v Schenkels, 2017 MBCA 62 and R v Nyznik, 2017 ONSC 69, where direct indictments were issued. All of these cases are transitional cases applying Jordan, as is Justice Misener's decision in R v Lin, (29 May 2017) Doc. Newmarket 4911-008-16-03486-01 (O.C.J.).

[37] The concern noted in these cases is that a re-election entails additional preparation, scheduling and intake so as to prepare for trial. But in this case, the Crown was well aware and put on notice that the defendant's election as to mode of trial was dependent upon its provision of disclosure, and review by the defence. Indeed, the Crown made reference to this in the 23 August appearance in court, which was followed by the formal election two weeks later on 7 September 2017.

[38] I am satisfied having reviewed the record before me before that the driving force behind the "late" election was the lack of timely and responsible disclosure by the Crown. In other words, it does not lay at the feet of the Crown to complain that a longer period of delay should be tolerated simply because "the time set aside for the preliminary inquiry was gone": R v Lin, para 55; R v Wookey, para 25. To the contrary, had the Crown not taken more than six months to meaningfully comply with the defence disclosure request for officer notes and photographs and occurrence reports, as well as disregard disclosure deadline dates set by the judicial pre-trial judge, it would not find itself in the position of being on the cusp of the Jordan presumptive ceiling of unreasonable delay for a Provincial Court trial proceeding.

[39] Finally, even if I accept the Crown's position that the defence's formal election to be tried in the Ontario Court of Justice is the functional equivalent of a re-election, given the initial setting of preliminary hearing dates for discovery, it is important to note that the driving factor behind the so-called re-election was the defence receipt of disclosure in August, 2017, that had been requested in January, 2017, and many times thereafter. The late election or re-election, in so many words, is directly attributable to the Crown's exceedingly late disclosure practices.

[40] By way of contrast, the re-election in Lin was a result of the Crown's consent to a severance application of a co-accused party, or Wookey where the Crown elected to not proceed on some charges and combined all the remaining charges on one information, leading to the accused's re-election to be tried in the Provincial Court. In Dumont, the accused, who was self-represented, set a trial date in the Ontario Court of Justice when he was represented by his third lawyer, but upon discharging counsel, re-elected, with the Crown's consent, trial in the Superior Court where he could defend himself.

[41] It is patently obvious that these re-election cases do not approximate the so-called re-election, or late election, in the case at bar, which was attributable to one factor only: the late disclosure of evidence by the Crown which was the sole subject of the discovery hearing. Once the disclosure was provided, and there was no longer a need to discover the evidence, the preliminary hearing was no longer needed.

[42] In the particular circumstances of this case, then, I am satisfied that the presumptive ceiling of delay must be 18-months, notwithstanding the earlier indication that there would be a discovery preliminary hearing.

Assessment of Defence Delay

[43] The total delay in this case being 18 months and 24 days (3 October 2016 to 26 April 2018), I must now consider whether there is any defence delay that should be subtracted from this total period of delay: Jordan, para. 66.

[44] I have been asked by the Crown, in assessing the 18-month period which I find does apply, to subtract 4.5 months due to defence delay. It is argued, for instance, that in requesting a two month period to review disclosure (5 December 2016 – 6 February 2017), the defence acted unreasonably.

[45] Defence counsel, on the other hand, says that its conduct should be assessed globally. Unless there is any action by it that the Court considers to be unreasonable, there is no basis to attribute to it any of the portion of delay.

[46] Courts should be chary of engaging in "micro-counting" exercises, as Justice Nordheimer (as he was then) cautioned in Nyznik, para 20. There is a certain element of "Monday morning quarterbacking" inherent in such a process. For instance, the initial disclosure consisted of well over 150 pages of materials, and entailed review over a period of time when the courts were closed for statutory holidays, and the availability of parties is therefore impacted. Thereafter, well over 100 pages of additional notes and exhibits have been turned over to the defence.

[47] I do find, though, that there is a period of defence delay that constitutes 44 days over three discrete periods. I attribute it as follows:

(1) 9 January 2017 – 6 February 2017 [28 days] – defence counsel did not review disclosure with his client and book a crown pre-trial after picking up initial disclosure on 5 December 2016 and the next court appearance on 9 January 2017, as it indicated it would. For this reason the matter was adjourned to 6 February 2017;

(2) 6 April 2017 – 13 April 2017 [7 days] – defence counsel did not stay to attend at the trial coordinators' office on 6 April 2017 to set the days for the discovery hearing, due to being required elsewhere. The matter was then adjourned to 13 April for the hearing dates to be selected.

(3) 3 April 2017 – 12 April 2017 [9 days] – defence counsel was offered 8 days of trial time over April 3-6 and 9-12, but was not available for these time periods. The earliest period he was available commenced on April 16, and the trial was set for 8 days commencing on 16 April and concluding on April 26.

[48] I appreciate that Mr. McRae was diligent in following up his disclosure requests, and agreed to set hearing dates before the disclosure process was complete. Having regard to all the circumstances, including his election as to mode of trial almost one full year after the offence date (3 October 2016 – 7 September 2017) I respectfully conclude that while the defence did not act unreasonably in doing so, having regard to its receipt of the late disclosure, neither do I consider that its conduct comprises "meaningful, sustained steps to expedite the proceedings" (Jordan, para. 84), such that a shorter period of tolerable delay than 18 months obtains.

[49] To conclude, then, I find that the total delay in this case is 18 months, 24 days, to the anticipated conclusion of the trial. I have subtracted, for the reasons indicated, a period of approximately 1.5 months (44 days) due to defence delay. This means that the Jordan ceiling of presumptive delay has narrowly been avoided, given that the net delay comes in at just under 17.5 months.

Conclusion and Comments

[50] I want to end my reasons with the following comments. While I have dismissed this application for unreasonable delay, the Crown may well consider that its success on the application is a pyrrhic one, given that it was its conduct in causing delay due to its disclosure position in these proceedings which gave rise to it. I consider that its disclosure practices have been completely unacceptable and cavalier, particularly its disregarding the repeated directions of the pre-trial judge setting timelines for disclosure. It should not require the order of a judge to provide officers' notes and photographs and video of a crime scene, much less than take over half a year to do so.

[51] I have been informed during oral argument, as noted earlier, that there remains outstanding disclosure matters to litigate, and this may well entail further court time. At present, the hearing to review such disclosure items has yet to be scheduled. Given that the trial is scheduled to commence in little more than one month, it may well be that one of the days set for trial may have to be used to hear the disclosure motion.

[52] The 18-month presumptive ceiling of unreasonable delay in this case is rapidly flowing towards the banks of the Jordan, and is not far out of its sight. It is well within view. Applications for unreasonable delay that fail at one stage of the proceedings, may well be renewed, successfully, at a later time; see, for example, R v Live Nation Canada Inc., 2016 ONCJ 735 and R v Live Nation Canada Inc., 2017 ONCJ 590.

[53] To this end, I urge the parties to review the outstanding matters of disclosure, and consider what efforts can be made to expedite it, so as not to delay or otherwise impact these trial proceedings.