DATE: July 15, 2021 COURT FILE No.: 19-15008291

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TUAN BUI

Before: Justice M. Block

Heard on: June 25, 2021 Judgment on Charter s. 11(b) Application released on: July 15, 2021

Counsel: Mr. B. Crackower/Mr. E. Lo Re ................................................... counsel for the Crown Mr. M. Lacy/Ms. S. Little ............................................................. counsel for Tuan Bui

Overview

[1] Tuan Bui was charged with multiple counts under the CDSA on November 15, 2019. He has applied to have the matter stayed pursuant to s. 11b of the Charter. The allegations concern possession of substantial quantities of cocaine for the purpose of trafficking. Mr. Lacy was retained by Mr. Bui shortly after he was charged and has represented him throughout. The conclusion of the present trial is expected on July 30, 2021. The total period of delay in this case is 20 months and 14 days (622 days). The constitutional presumption specified in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 is that delay in excess of 18 months (547.5 days) violates the right to trial in a reasonable time.

[2] The central issues in this application are the following:

i. The first trial date, ultimately adjourned due to disclosure issues, was delayed 85 days as a result of the unavailability of defence counsel. Should this time be deducted from the period of total delay?

ii. The second trial date was delayed 21 days as a result of the unavailability of defence counsel. Should this time be deducted from the period of total delay?

iii. Can the Crown rely on the Covid-19 presumption as an exceptional circumstance to excuse 5 months of the net delay?

iv. Does the volume of disclosure in this case render it sufficiently complex to meet the threshold of an exceptional circumstance such as to reduce the period of delay below the 18 month Jordan threshold?

[3] I have determined that the charges against Mr Bui must be stayed. Here are my reasons.

[4] Prior to substantial disclosure, counsel sought and received several redacted Informations to Obtain (ITO). On February 11, 2020 Mr Lacy wrote to the Crown to express his disclosure concerns in advance of the receipt of expected substantial material by way of hard drive. At this early stage it was already clear that the defence in this case would focus on warrant/Charter s.8 concerns, specifically the propriety of the installation of covert cameras in the defendant’s condominium without prior judicial authorization and the steps that were taken to corroborate the information supplied by the confidential informant (CI).

[5] The germane sections of the letter read as follows:

Mr Oakey & Mr Lo Re,

I understand from you that electronic disclosure in the form of a hard drive is forthcoming. Nonetheless, having reviewed the redacted Informations to Obtain that have been disclosed, I wanted to advise you that I am requesting the following disclosure just in case it is not included on the hard drive.

1. All source documents relied upon by the affiant in his information to obtain the General Warrant:
2. Notes, briefing reports and like documentation in relation to information received from confidential informants redacted to protect disclosure of their identity:
3. Details of the “covert hallway cameras” set up at residences and whether there was any prior judicial authorization for the same:
4. Details of how and when police gained access to CCTV footage for condominium common areas utilized by the police during this investigation including whether they had judicial authorization to do the same:
5. Details of any surveillance conducted:
6. Disclosure of all investigative action reports:
7. Disclosure of all video created and/or obtained during the investigation:
8. Colour versions of what was provided to the issuing justice for the General Warrant and Tracking warrants and any other judicial authorizations:
9. Copies of all officer’s notes:
10. Details of any covert entries /searches made pursuant the General Warrant:
11. All reports to Justices filed:
12. The status of any pending or ongoing analysis of electronic devices: and
13. All other information in the possession or control of the Crown.

Mr Lacy ended the letter by expressing the following concern:

“I am particularly anxious in receiving disclosure in relation to the details of the police setting up a covert camera in common areas at the condominiums and accessing CCTV footage.”

[6] The disclosure was received in the form of a hard drive by defence counsel on February 20, 2020. Mr Lacy sent a reply to the Crown that same day. That reply contained a lengthy list of items of disclosure still sought by the defendant in relation to the warrant/Charter s. 8 issue. Counsel specified items 1, 2, 3, 8, 11, 12 and 13 previously referenced in his letter of February 11, 2020. Mr Lacy also sought the details of any videos supplied to the police by condominium management; in particular, whether the persons providing the videos to the police had the requisite necessary authority and whether the police had obtained written consent. He also sought any rental or condominium documents relevant to this issue.

[7] The Crown noted many of Mr Lacy’s concerns in their February 27, 2020 reply. They stated that they were working to provide the general warrant ITO source documents. (#1 in the February 11, 2020 letter) The Crown took the position that, at this point, the CI handler notes were not disclosable, but that they were willing to discuss the issue with the defence. (#2 in the February 11, 2020 letter). The Crown queried whether the defence sought all of the videos in the police possession. The Crown indicated that their receipt of videos was ongoing. (#7, in the letter dated February 11, 2020). The Crown indicated that they provided the consents to the videos in the February 20, 2020 disclosure hard drive. (A somewhat unresponsive answer to the request made in #4 of the February 11, 2020 letter). The Crown indicated that it would provide the Reports to Justice sought and would make inquiries regarding any analysis that may have been made of electronic devices that had been seized. (#11 and #12 in the letter of February 11, 2020)

[8] If the above pertinent disclosure requests were not enough warning of the defence focus, the bail review application concluded before Justice Himel on March 13, 2020 laid out with specificity the particular alleged warrant deficits. In her ruling granting the application, Justice Himel determined that “there are very viable Charter arguments” that amounted to a change in circumstances for the applicant/defendant. The issue of particular interest to Justice Himel was the Charter propriety of the hidden camera record of activities in the immediate vicinity of the defendant’s unit without prior judicial authorization.

[9] A judicial pre-trial conference (JPT) with Judge Silverstein was conducted on April 14, 2020 and concluded on April 27, 2020. In the Case Management Form executed by Judge Silverstein he noted “There is a fair amount of disclosure outstanding but counsel are confident that it will be delivered soon and that there will be no dispute that will require a disclosure motion.”

[10] Alas, it was not to be. Some disclosure was provided June 18, 2020 by courier and July 15, 2020 by email according to the email traffic recorded in the application materials. There is no evidence before me of the content of the disclosure on those dates, but it suffices to say that significant disclosure enumerated in the defence correspondence of February 11 and 20, 2020 was still outstanding as of the March 18, 2021.

[11] There is no evidence of any attempt to provide further disclosure between July 15, 2020 and March 18, 2021. There is no evidence which might explain the failure to provide disclosure during this period. There is no evidence of any impediments the Crown may have encountered, nor any evidence of any matters relevant to the efforts made by the Crown to fulfill their obligation.

[12] The Court reopened the trial date setting process on September 28, 2020. On September 30, 2020 trial dates starting April 12-16, 2020 were set. Trial dates of January 18-22, 2022 were offered by the trial coordinator and acceptable to the crown but unavailable to the defence. At this time the requested disclosure had still not been provided.

[13] In their response to this application, the Crown reported that at the September 30, 2020 set date the defence representative did not explicitly state that trial dates were being set on the understanding that disclosure would be completed in a timely way prior to trial. By implication, I assume that the Court is meant to infer that the defence had waived the outstanding disclosure. I know of no authority that would permit this conclusion. Waiver of the disclosure obligation would have to be explicit and unequivocal, not created by the absence of an anodyne ritual utterance at a set date appearance. The Crown response also alluded to the absence of disclosure correspondence by the defence in the period surrounding the set date. In my view the same law is applicable. The disclosure obligation remains with the Crown until satisfied by the production of the material requested. As the defence had made repeated specific focused demands for relevant material there was no obligation on them to inundate the Crown with requests that they act on the onus imposed on them by law. If there were objections to the provision of the material on the basis of privilege or irrelevance, the Crown should have advanced their position in a manner that would have enabled a timely ruling by the Court. No such concern was ever uttered by the Crown, save the reservation expressed by Mr Lo Re in respect to the CI handler notes in his February 27, 2020 correspondence.

[14] Judge Silverstein’s remarks at the JPT clearly reflected the hope that the outstanding issues would be resolved quickly. Based on the history of the correspondence, His Honour’s remarks and the absence of any waiver by the defence, it is clear that the defence assumed that disclosure would be provided before trial in time to allow digestion of the material, consultation with the client regarding the new material and the completion of the long anticipated Charter s.8 application. The defence would have been entitled to resist setting a date until the disclosure obligation had been fulfilled. The defence conduct in setting the trial date before receiving substantial disclosure suggests that they were committed to expedite the trial despite the limitations imposed by the pandemic. I reject the suggestion that this commitment to get the case moving forward amounts to waiver of the disclosure.

[15] On March 8, 2021 Mr Lacy wrote to the Crown counsel concerning, inter alia, the outstanding disclosure issue. There had been no disclosure provided to the defence and no communication regarding when it might be expected since July 15, 2020. In particular, the Crown had still not satisfied the requested items 1, 2 and 3 in the correspondence of February 11, 2020.

[16] On that day Mr Lo Re responded for the Crown. He indicated that he would attend the office to sort out the “disclosure confusion between the two of us”. On March 10, 2021 Mr Lacy filed a disclosure application in relation to the source documents and the redactions in the ITO. He indicated that he did not waive the other outstanding disclosure. He invited Mr Lo Re to reference the defence correspondence of February 20, 2020 in respect of the Crown’s anticipated inventory of the disclosure.

[17] On March 12, 2021 Mr Lacy made further inquiries on the status of the disclosure. On March 19, 2021 Mr Lacy received a USB key with 799 files in 71 folders totaling 4.71 GB of data.

[18] On March 24, 2021 the defence received an email advising that still more surveillance notes were pending. Mr Lacy replied that items 1, 2 and 3 of his letter of February 20, 2020 were still outstanding. In reference to item 3 in particular, Mr Lacy indicated that he needed information on the specific number of hours the police recorded on their covert surveillance cameras in the condominium hallways and how many hours of video of the condominium security camera footage were accessed with the apparent permission of the condo management. This is the very area of concern emphasized by Justice Himel in her ruling on the defendant’s bail review one year earlier. Mr Lacy also referenced information provided to investigators from Canada Post by email that had not yet been disclosed.

[19] Mr Lacy also received disclosure of the notes of 6 officers at that time. The metadata in the index provided by the Crown indicates that this information was in their possession on June 18, 2020.

[20] A large amount of disclosure was ultimately provided on March 29, 2021. This included a proposed judicial summary of the redacted material in the ITO for the general warrant, newly redacted ITOs in respect of both warrants with substantially fewer redactions than the original disclosed version, redacted versions of 2 confidential appendices not previously disclosed and a new will-say regarding camera layout in the defendant’s condominium.

[21] Counsel wrote to the Crown the same day to alert them to the defence position that the latest disclosure revealed new areas of relevant and necessary disclosure. Mr Lacy flagged the need for an adjournment of the impending trial in order to obtain and digest new material, review the new material with his client and potentially revise the applications before the court in view of the unanticipated, newly unredacted material in the ITOs. Mr Lacy expressed his surprise, as the defence had put the Crown on notice 16 months before that the attack on the general warrant was based substantially on the insufficient basis for its issuance There is no evidence before the Court that might explain why the substantially less redacted ITOs would not have been available at an earlier date.

[22] Both parties appeared in front of Judge M. Felix on April 8, 2021. The defence brought an adjournment application on the basis that significant disclosure had been recently received. The Crown consented to the adjournment. New trial dates were provided resulting in the instant application and the anticipated trial before this court expected to finish on July 30, 2021.

[23] The final provision of disclosure, including that which had been newly requested, took place on May 11, 2021. The Crown also provided items referenced in items 1, 2, and 3 in the disclosure request of February 20, 2020. In its correspondence of May 11, 2021 to defence counsel, the Crown stated “We believe that all of the source documents relied on by the affiant have now been provided. If we are incorrect, please advise.“ In context this is an acknowledgement, without explanation, that significant disclosure requested almost 15 months and one aborted trial previously was only now being provided.

Law

[24] The respondent correctly asserts that “courts have consistently held that the Covid-19 pandemic is a discrete exceptional circumstance”. However, the pandemic is not a free pass from s. 11b impact. The courts have consistently required that the crown mitigate the impact of the pandemic wherever possible.

[26] Judge Monahan’s remarks in R v. Greenridge, 2021 ONCJ 57, captured the necessity for a causal link between the delay sought to be deducted as a discrete exception and the pandemic.

“it is not sufficient for the Crown in this case to point to the pandemic as an exceptional event and then say that it sought to provide an earlier date in the SCJ. This misses a critical point in the legal analysis. In my view, the Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic.” at paragraph 26

[27] Judge Monahan also addressed the onus on the Crown when it looks to rely on the pandemic as an exceptional circumstance:

“it is my view that in this case, for the Crown to rely on the pandemic as an exceptional circumstance, the Crown must prove on a balance of probabilities that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 18 month ceiling or at least the Crown would have been able to secure earlier dates from the trial coordinator’s office to offer the defence which would have permitted the trial to be completed below the presumptive ceiling.” Paragraph 30

[28] Judge Monahan’s view of the onus was adopted by Justice T. Nieckarz in R v. Schardt, 2021 ONSC 3143.

[29] The Supreme Court in R v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, clearly stated that there must not only be a causal connection between the delay and the discrete event for it to be subtracted from the total delay but that the Crown was also required to attempt to mitigate the delay.

“the period of delay caused by any discrete exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance.” at paragraph 75

[30] The Court in Jordan outlined and defined circumstances in which a particularly complex case may require a conclusion that exceptional circumstances exist:

As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. 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.

At paragraph 77

[31] The unreported case of [R. v Ravikumaran, Ontario Court of Justice, Justice L. Pringle, released June 29, 2021], stands for the proposition that delay in providing disclosure may extinguish the Crown’s attempt to rely on the pandemic as an exceptional circumstance, at least for the time that disclosure was outstanding.

[32] Her Honour also briefly considered the issue of delay due to the unavailability of defence counsel, though the issue was not central to her determination of the of the s. 11b application before the court. Her Honour noted that

“the ‘Godin issue’ is one that is the subject of ongoing judicial debate and can be complex: see my decision in R. v. Han, 2016 ONCJ 648 at paras. 19-47, and recently the Ontario Court of Appeal decision in R. v. Safdar, 2021 ONCA 207 at para. 50”.

[33] In Safdar, supra, the Court of Appeal considered, in paragraph 50, a period of defence unavailability:

In my view, based on the trial judge’s factual findings, he was entitled to conclude that this period of delay was not solely or directly caused by the defence. First, and importantly, the April dates were offered as continuation dates in the midst of the ongoing trial. The inadequacy of the trial estimate was therefore part of the cause of the delay. Second, these dates were offered on relatively short notice. Third, as the trial judge found, defence counsel had agreed to all other dates that were offered, including other dates offered with little notice. The April dates were the only exception. Finally, defence counsel had legitimate reason to decline these continuation dates. One counsel was booked on a serious Superior Court matter for a client who was in custody, while another was scheduled for medical treatment. The trial judge appropriately recognized that counsel could not, in good faith, “compromise one client’s interests for another.

[34] The point to this discussion is the recognition that there is often no ready and rigid formula which can easily applied to defence unavailability. These situations must be considered in their particular circumstances.

[35] In R v. Lobo, unreported, April 1, 2021, Ontario Court of Justice, Judge Blacklock surveyed a number of recent cases that considered the response to defence unavailability post-Jordan.

In Ontario there are decisions indicate that in light of the new regime established in Jordan supra the principles in Godin supra do not survive at all. These cases suggest, as the Crown here argues, that delay in the proceedings following even a single date being offered upon which the defence is unavailable should be simply treated as defence delay. See for example Regina v. Grewal, 2018 ONCJ 108, Regina v. Bilachi, 2019 ONSC 5149 and Regina v. Brown, 2020 ONSC 4582. On the other hand, there are cases suggesting Regina v. Godin supra survives Jordan supra and consequently the offering of a single date does not mean that any subsequent delay is to be treated as falling to the defence. See for example Regina v. Dhaliwal, 2019 ONSC 5460.

There are also cases which are perhaps more nuanced. These cases suggest that context beyond the mere number of dates offered is important. See Regina v. Albinowski et al., 2018 ONCA 1084, Regina v. Dhillon, 2019 ONCJ 3148 and Regina v. Ameerullah, 2019 ONSC 4537, 2019 OJ No 3975 Ont SCJ Factors recognized in these cases going to that context include what is the cause for the need to set the date in question, is the date offered far enough out to have realistically permitted preparation, as well as how many dates were provided.

Ameerullah supra provides a further gloss. It also suggests that in some cases in which even one date is offered to the defence some portion of the subsequent delay may be taken as falling to the defence. See Ameerullah supra para 28 and 30.

I can say at a minimum I definitively do not accept the notion that defence unavailability when only one date is offered should necessarily be treated as completely irrelevant to the section 11(b) analysis. Without making a final determination I must say I am drawn to the notion that the full impact of the defence being unavailable on a particular date should depend on all the circumstances.

[36] While the approach to periods of defence unavailability has generated controversy, the nuanced and fact-specific approach set out by the Court of Appeal in Safdar, supra suggests that the two periods of defence unavailability in the case before me must be considered in the light of the essential factual context in which they took place.

Analysis

[37] The defence provided specific focused details of their disclosure requirements even before the provision of meaningful disclosure on February 20, 2020. The defence acquired redacted copies of the warrant materials in advance of this guidance. The defence responded immediately to the receipt of that disclosure with correspondence that outlined outstanding material with great specificity. Significantly, the Crown response of February 27, 2020 didn’t reject any of the defence requests other than demurring “at this time” to provide CI source handler notes. This leads me to the conclusion is that none of the defence requests were unreasonable or irrelevant to the s.8/warrant issues then, as now, being raised. The only reasonable conclusion is that the defence was highly energetic and pro-active in its treatment of the disclosure issue.

[38] The provision of long-awaited material on March 29, 2021 and on May 11, 2021 by the Crown and their consent to the April 8, 2021 trial adjournment indicates that the Crown concedes that the outstanding material met the Stinchcombe test.

[39] There is no satisfactory explanation for the 15-month delay in providing disclosure central to the only contested issue in this matter. There is no evidence that the pandemic prevented the Crown from acquiring, vetting and providing the requested material. The Crown had a lengthy period of time in which court-attendance obligations were sharply reduced. If the disclosure process was performed with no urgency after February 27, 2020, the inescapable conclusion is that it was entirely neglected by the Crown in the period between July 15, 2020 and March 19, 2021. In this case trial delay has had little or nothing to do with the pandemic.

[40] I do not accept that this is a complex case. The matter was set for 5 days. No experts were expected to testify. No cross-examination of the affiant was expected. Mr Bui was the sole defendant since the spring of 2020. The defence has been consistently focused on the Charter s. 8/warrant issue from the beginning of their involvement. There are no novel legal issues involved. This is a routine warrant case. There is no doubt that the experienced counsel involved have conducted a significant number of similar matters. Voluminous disclosure does not equal complexity.

[41] Mr Lacy’s unavailability for a period of approximately 2 ½ months in the January 22, 2021 -- April 8, 2021 period is hardly unusual in the case of a busy senior counsel. The trial was set some 6 ¼ months after the September 30, 2020 set date. This would appear to me to be a reasonable period of time in which counsel may be unavailable because he is serving other clients. But such a reflection may be missing the point.

[42] The evidence does not suggest that the Crown would have satisfied their disclosure obligation had January 2021 trial date been set. Any suggestion that an earlier trial date than April 8, 2021 would have met a better fate is speculation contradicted by the actual events and the pattern of Crown conduct.

[43] Neither the defence representative’s silence regarding the outstanding disclosure at the set date proceeding of September 30, 2020 nor the absence of any correspondence by the defence regarding the disclosure in the period Sept 30, 2020 – March 8, 2021 could possibly constitute waiver of the Stinchcombe obligation. There was no room for misunderstanding the defence posture leading up to and through the JPT process with Judge Silverstein. Their specific requests were unambiguous and, aside from the CI handler note issue, the propriety of the requests unchallenged by the Crown. The defence never abandoned those requests. To state the obvious, it was the Crown’s obligation to satisfy the disclosure requests, not the defence’s job to repeatedly urge the Crown to comply with their Stinchcombe obligation.

[44] There was no evidence of any attempt to mitigate the pandemic situation. The Crown could have used the period of the courts’ slowdown to deal with a disclosure obligation not substantially different from many similar cases in this jurisdiction. Their clear failure to do so must doom their attempt to use the pandemic crisis as an exceptional circumstance to rebut the presumption of unreasonable delay.

[45] Finally, the 21 days lost because the defence was unavailable for the current trial until the anticipated trial dates of July 26-30, 2021 cannot reasonably be attributed to the defence in all of the circumstances. The first trial dates were postponed because of the Crown’s lack of diligence in providing disclosure. The Crown provided the last of the disclosure material on May 12, 2021. In my view the scheduling of the second trial date 105 days after the end of the anticipated end of the first trial was a speedy response by both the office of the trial coordinator and defence counsel.

[46] The excessive delay in this matter is the product of a profound lack of diligence in providing disclosure. Responsibility for this unhappy waste of time and resources must belong to the Crown.

Released: July 15, 2021 Signed: Justice M. Block