ONTARIO COURT OF JUSTICE

DATE: 2023 02 01

COURT FILE No.: Central East - Newmarket 4911-998-21-06386-02; 4911-998-21-06386-05

BETWEEN:

HIS MAJESTY THE KING

— AND —

LAKHPREET BRAR and SUKHVIR SINGH

Before: Justice N. Dwyer

Heard on: November 14, 2022 and January 24, 2023

Reasons for Judgment on Charter Application released on: February 1, 2023

Counsel: Joseph Selvaratnam and Andrew Choat..................................... counsel for the Crown Maija Martin and Stephanie Brown......... counsel for the defendant Lakhpreet Brar Jag Virk............................................................ counsel for the defendant Sukhvir Singh

DWYER J.:

Introduction

[1] The Applicants seek a stay of proceedings pursuant to section 24(1) of the Charter as a remedy for the breach of their section 11(b) Charter right to be tried in a reasonable time.

[2] The Applicants were jointly charged with three other individuals, Didy Adansi, Simranjeet Singh Narang, and Balwinder Singh Dhaliwal, on a 27-count Information for drug trafficking, possession for the purpose of trafficking, possession of property obtained by crime, and conspiracy to commit an indictable offence. The charges arose from an investigation of the York Regional Police (“YRP”) entitled “Project Cheetah”.

[3] The Applicant Brar was arrested on April 8, 2021. An Information was sworn on June 4, 2021, charging Mr. Brar with the above-noted offences. The Applicants’ trial is expected to begin on March 21, 2023 and conclude on April 14, 2023. The total delay therefore is 679 days, or 22 months and 10 days.

[4] The Applicant Singh was arrested on April 14, 2021. The charges arose from a single drug transaction that was a part of the wider drug investigation. The allegation is that he sold one kilogram of cocaine to an undercover officer on January 23, 2021, for $60,000. An arrest warrant was issued on January 27, 2021. The Information was sworn on April 7, 2021. The start date of the trial is March 21, 2023, and the expected end date is April 23, 2023.

[5] There is no doubt that the charges against both Applicants are very serious.

[6] The Applicants submit that none of the delay in this case is defence delay attributable to the Applicants.

[7] The Applicants submit that their rights under s. 11(b) of the Charter were violated and their charges should be stayed under s. 24(1) of the Charter.

[8] The Respondent submits that there was significant defence delay and special circumstances that bring the time to trial below the 18-month Provincial Court ceiling.

I. The Law

1 R. v. Jordan

[9] The Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, is the governing law on section 11(b) applications. This test is based on a presumptive “ceiling” of delay. This ceiling is fixed at 18 months in the Ontario Court of Justice. When the net delay in a case exceeds 18 months, the delay is presumptively unreasonable.

[10] The calculation of net delay requires 3 basic steps:

(i) Determine the length of delay from the date the Information was sworn to the trial;

(ii) Subtract “defence delay”; and finally,

(iii) Subtract time resulting from “exceptional discrete events”.

[11] Subtraction of defence delay reflects the underlying concept that “the defence should not be allowed to benefit from its own delay-causing conduct”, Jordan, at para. 60.

[12] Defence delay occurs in two different situations:

(i) Where the defence explicitly or implicitly waives their 11(b) right in respect of a particular time period; or,

(ii) Where defence conduct either directly causes the delay, or the actions of the defence are shown to be a deliberate and calculated tactic employed to delay the trial.

[13] The Supreme Court provided non-exhaustive examples of defence delay in Jordan, including bringing frivolous applications, or where the defence is not ready and available to proceed when the Crown and the court are. Thus, defence delay can flow from action or inaction, Jordan, at paras. 63-64.

[14] Actions that are not properly attributable to the State, such as those attributable to defence counsel, the accused person, or an unprecedented societal event, are properly excluded from a determination as to whether the applicable ceiling is exceeded, Jordan, at paras. 120-124. The key here is that there must be a connection between the action and the resulting delay.

[15] If, after having deducted defence-caused delay, the time period remains above the 18-month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “…lie outside the Crown’s control” in that:

(i) they are reasonably unforeseen or reasonably unavoidable, and

(ii) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise, Jordan, at paras 69-71; R. v. Cody, 2017 SCC 31, at paras. 44-46, 48, and 54.

[16] To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible. However, the Court in Jordan emphasized that the Crown is not required to show the ultimate success of the steps it took — rather, just that it took reasonable steps to avoid the delay. The Crown is also not required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.”, Jordan, at paras. 69-71; Cody, at paras. 44-46, 48 and 54.

2 COVID Delay

[17] An issue in this case is whether there was delay caused by the COVID Pandemic.

[18] The COVID-19 pandemic clearly fits into the scope of a discrete event. As Nakatsuru J. put it in R. v. Simmons, 2020 ONSC 7209, at para. 60, “No reasonable person could contend otherwise.”

[19] The Crown submits the COVID pandemic is a discreet event that caused delay. The Crown further submits the COVID pandemic is directly connected to the delay in this case and that time should be deducted in the calculation of Net Delay. The Crown has requested a 90-day deduction as a result of this exceptional circumstance.

[20] Case law supports the submission that the COVID pandemic is a discreet event amounting to an exceptional circumstance. See R. v. Gonsalves, 2022 ONSC 6004 (Ont. SCJ) at para. 20. At paragraph 21 of Gonsalves, Justice Di Luca continues:

21 However, many cases also make the very valid point that delay caused by exceptional circumstances must nonetheless be analyzed with a view to the unique facts and the context of each case. There is no "standard deduction" for the COVID pandemic related courthouse shutdown.

[21] Further on in Gonsalves, at paragraph 24, Justice Di Luca states:

24. In my view, the trial judge erred in his conclusion that the pandemic rendered Crown and defence delay "moot" during the period of the shut down. This approach treats the period of the courthouse shut down as a standard or automatic deduction for the purposes of the Jordan analysis, regardless of whether the case was actually impacted by the shut down. This is not the correct legal analysis. As my colleague Leiper J. states in R. v. Agpoon at paras. 47-51:

[47] Delay caused by exceptional circumstances must be analyzed with a view to the unique facts and the context of each case of delay. For example, despite the obvious disruption to the work of the administration of justice, in some cases, the courts have declined to attribute all the [delay] following the start of the pandemic to exceptional circumstances, where there have been accompanying disclosure issues on the part of the Crown that added to the initial periods of delay: See R. v. Delaney, 2021 ONCJ 467, at para. 56; R. v. Bui, 2021 ONCJ 379, at para. 39.

[48] This aligns with the discussion of exceptional circumstances in Jordan and the obligation of the Crown to be proactive. The Crown must "show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling": Jordan, at para. 70.

[49] This must be the case even where the "past difficulty" is of the scope and scale of the global pandemic. Justice was delayed, yet the administration of justice modified and modernized its systems, adopted triage systems, and continued to operate after the initial period of shutdown in the second quarter of 2020. Each case must be examined to determine whether the Crown took the steps available to it to mitigate the delay.

[50] In other cases, the entire period of delay is attributable to the exceptional circumstance of the pandemic. This can be seen in cases where the pandemic triggered trial date adjournments without other factors intervening. There the courts considered the practical need for managing the backlog created exclusively by the pandemic. In those cases, the entire period from the adjournment to resumption of sittings has been deducted from the calculation of the period of delay: See for example, Simmons; Metatawabin; Dumpfrey.

[51] The rationale for doing so was well articulated by Justice Nakatsuru in Simmons, a case decided in November of 2020, at para. 70: ...Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

[22] There must be a causal link between COVID and the delay. See R. v. Hintenberger, 2022 ONSC 4860, at paras. 44 and 59, where a distinction is drawn between delay caused by a failure to provide disclosure and COVID.

[23] In line with showing the causal link is R. v. Ajgirevitch, [2022] O.J. No. 2299, where the Crown presented affidavit evidence comparing the setting of trial dates during the pandemic with before the pandemic.

3 Calculating Delay

[24] If the net delay falls below the 18-month ceiling, the delay is presumptively reasonable. It may nevertheless be held unreasonable where defence can show the following:

(i) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

(ii) The case took markedly longer than it reasonably should have.

[25] As put by the Supreme Court in Jordan, at paras. 84-85, “It is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date.” This language conveys the “high bar” of conduct that must be met by the defence when it applies to have charges stayed that fall under the ceiling. Actions or inactions of the defence that are inconsistent with expediting the case are a relevant consideration.

[26] It takes specific and tangible actions by the defence to justify a stay below the ceiling. “Passive” conduct is insufficient. It falls to the Applicant to delineate the specific steps taken to expedite proceedings, R. v. Vasylenko, 2017 ONSC 4714, at paras. 16-17.

II. History of the Case

[27] Project Cheetah is a broad investigation into trafficking in controlled substances. This is not to say that the Applicants’ charges as a part of the whole account for the entire breadth of the investigation.

[28] Project Cheetah began in May of 2020, when an undercover officer of the York Regional Police (“UC”) purchased heroin from one Parshotem Malhi. Through Malhi, UC made contact with three senior drug traffickers in the United States, known as Dudi, Lally, and Ravi. Over the next 11 months, UC coordinated drug transactions with Dudi, Lally, and Ravi: he would ask to purchase drugs, and they would arrange for a local supplier in the Greater Toronto Area. The focus of Project Cheetah was investigating targets who coordinated their drug transactions through Dudi, Lally, and Ravi.

[29] At the conclusion of the Project, in April of 2021, Canadian police arrested 29 people in Ontario and 3 in British Columbia. The Drug Enforcement Agency (DEA) in the United States arrested Dudi, Lally, and Ravi.

A. Allegations Against Lakhpreet Brar

[30] On December 2, 2020, UC contacted Parampreet “Dudi” Singh and asked to buy one kilogram of ketamine for $33,000. Dudi told UC that the ketamine would be available the following day.

[31] On December 3, 2020, UC called Dudi to confirm that the deal was on. Dudi told UC that he would receive a call from Dudi’s “guy”. UC then got a call from a person later identified as Amandeep “Ravi” Multani – Ravi’s first appearance in the investigation. Ravi told UC to go to the Tim Hortons at 9990 McVean Drive, Brampton, and meet someone driving a black Ford F150. UC asked Ravi to tell the driver of the F150 to say the word “Khalistan” so that UC would know he was dealing with the right person.

[32] UC went to the Tim Hortons. At 6:50 p.m., he saw a black Ford F150. UC was in contact with Ravi, who told him to approach the F150. The driver of the F150 said “Khalistan”. This was the Applicant Lakhpreet Brar (“Mr. Brar”).

[33] UC handed Mr. Brar $33,000 in an orange bag and told him there were “33” inside. Mr. Brar repeated “33” and told UC to go to Tim Hortons. Mr. Brar left the plaza.

[34] Mr. Brar stopped at 12 Moonland Drive, Brampton, and then drove on to a parking lot at 2 Intermodal Drive, Brampton. Another car entered the lot and parked beside Mr. Brar’s F150. A man later identified as Didy Adansi (“Adansi”) got out of that car, into the passenger side of Mr. Brar’s F150 for about one minute, and then back into his own car again. The two vehicles left 2 Intermodal Drive.

[35] At 7:41 p.m., Ravi called UC and confirmed that he was still at the Tim Hortons at 9990 McVean Drive. At 7:42, Mr. Brar’s F150 pulled into the parking lot and drove up to UC. Mr. Brar asked UC if he needed sheets. UC replied that he did. Mr. Brar handed UC a package of sheets and, underneath the sheets, an orange bag which in turn contained a Ziploc bag. The Ziploc bag contained 1,011 grams of diphenhydramine – a non-controlled substance.

[36] On December 8, 2020, UC arranged with Ravi to buy another kilogram of ketamine for another $33,000. The police had not received the test results from December 3 and did not know that the first kilogram had been of diphenhydramine.

[37] On December 9, 2020, UC returned to 9990 McVean Drive to meet with Mr. Brar. On route, Ravi called UC and told him that his “driver” would have something for him in addition to the ketamine.

[38] UC met Mr. Brar, once again driving the F150. Mr. Brar handed UC a Tim Hortons coffee cup containing a Ziploc bag and, in that, 9.62 grams of heroin. UC handed Mr. Brar an orange bag with $33,000 in it.

[39] Mr. Brar left the parking lot and went to 2 Intermodal Drive, where Adansi was already waiting. Mr. Brar parked next to Adansi’s vehicle. Adansi got into Mr. Brar’s vehicle, and about a minute later got back into his own vehicle carrying a brightly coloured bag.

[40] Mr. Brar returned to UC and handed him an orange bag. That bag contained 1,010 grams of diphenhydramine.

[41] On December 25, 2020, Ravi told UC that samples of ketamine and opium were available. On December 29, Ravi told UC that the samples were ready. UC met Mr. Brar at 9990 McVean Drive. Mr. Brar gave UC two small plastic bags. One contained 4.84 grams of opium, and the other 3.34 grams of ketamine.

[42] On January 7, 2021, UC arranged to purchase 900 grams of opium from Ravi for $20,000. Ravi told UC to go to 9990 McVean Drive and meet his driver. The police watched Mr. Brar depart from 12 Moonland Road and go to the plaza at 9995 McVean Road, which is adjacent to 9990 McVean. Here Mr. Brar parked next to a Ford Explorer driven by Simranjeet Narang (Narang).

[43] Mr. Brar then drove back to 12 Moonland Road and went inside. About 15 minutes later he came back out and drove to 9990 McVean Drive, where he met UC. UC gave Mr. Brar a red bag containing $20,000. Mr. Brar gave UC a cardboard box, which contained 902.7 grams of opium. Mr. Brar left the parking lot and returned to the adjacent lot, 9995 McVean Road. He parked beside Narang’s Ford Explorer. Narang got out of the Explorer. He spent 10 minutes in the passenger seat of Mr. Brar’s vehicle. He then got back into his Ford Explorer, and both left the plaza.

[44] Later that same evening, January 7, 2021, UC contacted Ravi and asked if he could purchase another 600 grams of opium for $11,500. UC returned to 9990 McVean. He met Mr. Brar and gave him $11,500. Mr. Brar gave him another 600 grams of opium.

B. Allegations Against Sukhvir Singh

[45] On January 23, 2021, UC arranged with Ravi to purchase one kilogram of cocaine for $60,000. On January 27, 2021, UC met with the same Ford Explorer that Narang had driven on January 7. Once again, Narang was in the driver’s seat.

[46] The Applicant Sukhvir Singh (“Mr. Singh”) got out of the front passenger seat of the Explorer, received $60,000 from UC, and took the money back to the Explorer. Narang and Mr. Singh left the meeting location.

[47] The police followed them to another location where they met with Balwinder Dhaliwal. After a short meeting with Dhaliwal, Narang and Mr. Singh returned to UC. Singh delivered a bag containing 1031.34 grams of cocaine to UC.

[48] On April 7, 2021, the York Regional Police (“YRP”) obtained a warrant for Mr. Singh’s arrest for the January 27, 2021 cocaine transaction.

[49] On April 7, 2021, the RCMP conducted an undercover operation in Coquitlam, British Columbia as part of Project Cheetah. After earlier RCMP undercover kilo-level cocaine transactions with Singh and his accomplice, orchestrated by UC and Ravi, they arranged through Ravi to purchase cocaine from Mr. Singh. Before completing the planned transaction, the RCMP arrested Mr. Singh and another male, Maninder Dhaliwal, who was travelling with him. When the police arrested him, Maninder Dhaliwal was carrying a duffel bag containing approximately five kilograms of cocaine.

[50] Upon his arrest, Mr. Singh was charged in B.C. and also charged with the January 27, 2021, cocaine transaction.

C. The Structure of the Prosecution of Project Cheetah

[51] The investigation of Project Cheetah spanned from May 2020 to April 8, 2021. There were 30 accused in Ontario. There were 27 judicial authorizations including a one-party authorization for an Undercover Officer. There were 114 days of surveillance. On the takedown day, 23 warrants were executed. At the time of the motion there were over 300GB of disclosure distributed to multiple accused.

[52] There were multiple prosecutors assigned to the prosecution and dedicated administrative staff assigned to organize and distribute the disclosure. The prosecution was split into groups. The Applicants were a part of a group of 5 defendants referred to as the Ravi Group based on the name of one of the main targets, Mr. Ravi, who was based in the United States. Though the Applicants were charged at different times they were part of the same group. By October 15, 2021, they were placed on the same Information.

D. Disclosure

[53] The pace and content of disclosure is an important issue in this motion. The Respondent takes the position that the Applicants should have been ready to elect the mode of trial and set a trial date by October 15, 2021, the date of the first judicial pre-trial. The Applicant Singh submitted that the disclosure was not sufficient by that date to make an election as to mode of trial. The Applicant Brar submitted that there had not been sufficient time to review the voluminous disclosure by that date, to make an election as to the mode of trial. In summary, their position is that the pace and volume of disclosure did not require an election by October 15, 2021.

[54] The first wave of disclosure was ready on May 3, 2021. This disclosure included: undercover officer notes from the dates involving the Applicants, text messages between the UC and targets, UC body pack audio with transcripts, surveillance reports and photos from the dates relevant to the Applicants and certificates of analysis. Mr. Singh’s lawyer, Mr. Virk, received the disclosure on June 11, 2021, which was the first appearance for Mr. Singh.

[55] On June 30, 2021, the second wave of disclosure was made available. This disclosure included: notes of 133 officers, some judicial authorizations, investigative activity reports, evidence of identification, the notes and documents related to the takedown and some undercover officer notes. It appears that the Applicants received the disclosure on July 2, 2021.

[56] On July 16, 2021, the Crown emailed the Trial Coordinator and copied all retained counsel to get a date for a judicial pre-trial. The Crown broke up the prosecution into groups of defendants. On August 13, 2021, a pre-trial was set for September 30, 2021. The Crown was available as early as September 2, 2021, but not all defendants were ready. Mr. Brar had almost retained counsel by August 13. On August 23, 2021, Mr. Brar had retained counsel. At counsel’s request the first two waves of disclosure were sent on September 7, 2021.

[57] The third wave of disclosure was sent on September 16, 2021, to all counsel. It included additional judicial authorizations and related Informations to Obtain (“ITO”), officer notes and surveillance reports.

[58] Around September 13, 2021, it was announced that Courts would close for Truth and Reconciliation Day on September 30, 2021. The judicial pre-trial was rescheduled for October 15, 2021.

[59] The judicial pre-trial judge indicated that a second judicial pre-trial was needed and that all counsel should be prepared to elect on the new date. The case was adjourned to November 19, 2021. The next judicial pre-trial was set for December 16, 2021. Dates as early as November 17 had been offered but counsel for one of the other co-accused was not available until December 16.

[60] On November 19, 2021, the Applicant Brar filed an election and a statement of issues and witnesses, however the mode of trial was unclear.

[61] On November 22, 2021, the Respondent sent a fourth wave of disclosure which included: additional disclosure from the RCMP investigation, additional surveillance photos and reports, additional officers’ notes, and investigative activity reports.

[62] On December 16, 2021, a second judicial pre-trial was held. Trial and motion time estimates were made. The case was adjourned for the Applicants to decide on pre-trial motions. One of the parties in this group was severed as he had decided to have a preliminary hearing and go to trial.

[63] A appearance in Blitz Court (set trial date court) was arranged for January 6, 2022, and a further judicial pre-trial was set for January 5, 2022. On January 6, 2022, the Applicants elected Provincial Court trial and the trial was set as follows: two days of pre-trial motions on February 3 and 4, 2023 and a three-week trial from March 21, 2023 - April 14, 2023. The first date offered for trial was February 13, 2023. The Applicants were ready but one of the other defendants was not.

[64] On February 15, 2022, a further judicial pre-trial was held to deal with disclosure issues and to potentially narrow the issues for trial.

[65] A fifth wave of disclosure was sent by the Respondent on February 16, 2022. This wave included, among other items: booking hall videos, in-car camera videos, exhibit photos, additional officer notes, additional judicial authorizations, text messages exchanged between suspects and undercover officers, and video statements.

[66] On July 22, 2022, the Respondent sent the sixth wave of disclosure to the parties. The sixth wave of disclosure included, among other items: CRA reports, audio recordings of officer radio communications, and tracking information.

[67] There had been some requests for disclosure between the fourth wave and the fifth wave that in my view were satisfied and did not make a difference on the trial dates.

III. Calculation of Delay

A. Total Delay

[68] For the Applicant Brar the total delay is 22 months and 10 days. The total delay between when the first Information was sworn on June 4, 2021, and the estimated conclusion of the Applicant’s trial on April 14, 2023, is 679 days, or 22 months and 10 days. This exceeds the presumptive ceiling by about 131 days or 4 months and about 10 days.

[69] For the Applicant Singh the total delay is 24 months and 8 days. The total delay between when the Information was sworn on April 7, 2021, and the expected conclusion of the trial on April 14, 2023, for a total of 738 days or 24 months and 8 days. This exceeds the presumptive ceiling by 190 days or 6 months and 8 days.

B. Defence Delay

1 Collective Delay Scheduling and Availability

[70] The Respondent argues that two of the co-accused in the group with the Applicants caused a total of 107 days of delay that must be attributed communally and thus is defence delay.

[71] The dates are:

1. September 2 - September 30 (29 days) from the date first offered for the judicial pre-trial to the date set. Counsel for the co-accused was not available until September 27 and counsel for Mr. Brar was not available on the 27th so the date was set for September 30.
2. November 19, 2021 – December 16, 2021 (28 days). The return date at this time was November 19, 2021, as ordered by the pre-trial Judge. The first date offered for the pre-trial was November 17. One co-accused was not ready until December 16.
3. January 30, 2023 – March 20, 2023 (50 days). The first date offered for a three-week trial was January 30, 2023. The co-accused were not available until March 20, 2023. Counsel for Mr. Singh was not available from the 16-20 of March. This led to the trial being set on March 21, 2023.

[72] The first issue on this point is whether the group in which the Applicants were placed is properly joined. This relates to the nature of the investigation and the charges faced by the Applicants in the context of the overall investigation.

[73] The focus of Project Cheetah was not on the Applicants. The targets of the project were high level drug dealers orchestrating transactions from the United States, with Mr. Brar and Mr. Singh delivering the drugs to the undercover officer. In the case of the Applicant Mr. Brar, there were four transactions, three of which involved controlled substances. In the case of the Applicant Mr. Singh, there was one transaction involving one kilogram of cocaine. The transactions involved Ravi as the source arranging the deals.

[74] I agree with the Respondent that it was logical to organize the Applicants in this group, given the common denominator of Ravi. It is however not the only logical way to organize the case. This arrangement invites difficulties in setting dates. It is inevitable that there will be conflicting dates in this type of situation. This reality has nothing to do with the conduct of the Applicants.

[75] Delays caused by the actions or inactions of co-accused persons can be a factor in the 11(b) analysis as an exceptional circumstance. However, delay attributed to the actions of a jointly accused person does not automatically count as an exceptional circumstance and justify an unreasonable delay. As Gillese J.A. stated in Gopie, 2017 ONCA 728 at paras. 128-130:

128 I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. Accordingly, I would not attribute delay caused by the actions of a co-accused to Sargeant or Gopie.

129 I begin by acknowledging that Jordan does not expressly address this issue. However, the Jordan framework is based on the concept of accountability, focusing on the conduct of individual players in the justice system. Furthermore, when discussing defence-caused delay, the court in Jordan directs an assessment of the "accused's acts" and whether his or her acts directly caused delay, or can be shown to be a deliberate and calculated tactic to delay the trial (Jordan, at para. 63). This language suggests that the conduct of the accused must be looked at on an individual basis and attributed accordingly.

130 The Supreme Court recently provided further guidance on the concept of defence-caused delay in R. v. Cody, 2017 SCC 31. At para. 30 of Cody, the Court emphasized that the only deductible defence-caused delay is that which "is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges".

[76] I agree with the Applicants that the Supreme Court of Canada has not adopted a bright line approach to calculating delay caused by counsel for co-accused being unavailable. See R. v. Boulanger, 2022 SCC 2 at paras. 7-10.

[77] Where there is a coordinated defence among a group of defendants with issues in tandem the result may be different. See R. v. Albinowski, 2018 ONCA 1084 at paras. 36-38:

36 How then is delay to be assessed in this joint trial? The trial judge did not have the benefit of this court's decision in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, which sets out an analytical framework for the assessment of delay in joint trials with multiple accused. Gopie instructs that "an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused": Gopie, at para. 128. This approach avoids "attributing to an accused the delay caused by the actions or inactions of a co-accused [which] is inconsistent with the approach and language of Jordan": Gopie, at para. 136.

37 In my view, however, the individualized approach in Gopie does not apply in this case because the delay was common to all respondents who proceeded as a collective in this joint trial. Here, the actions or inactions of a co-accused did not cause the delay. Rather, the delay at issue was entirely due to scheduling challenges, which arose directly and inevitably from the respondents' joint situation.

38 Not only is it common ground that joint proceedings were justified in this case (especially in light of the coordinated nature of the allegations), all parties accepted that severance was never an option. As Mr. Albinowski's counsel submitted before the trial judge on the s. 11(b) application, a severance application would have amounted to the kind of defence conduct decried under the Jordan framework. In essence, the defence presented a united front. For example, during the s. 11(b) application, counsel for Mr. Pipien commenced his submissions by stating he was speaking on behalf of the two other defence counsel. Moreover, each defence counsel largely endorsed the others' submissions on the application. Because the defence proceeded through the system as a collective, the delay caused by scheduling challenges must be analyzed in the same manner -- that is, communally.

[78] While the Ravi Group was properly joined, they are not subject to the same allegations. They are not all charged with the same offences and are not charged with criminal organization. That they are on the same Information is a matter of choice and convenience for the prosecution, based on the legitimate effort to avoid duplication and save resources.

[79] In my view, the defence not formally seeking severance is not dispositive. There was a discussion of severance prior to the December 16, 2021, Judicial Pre-trial. As well, there was severance of one of the Ravi Group who elected a Superior Court trial.

[80] The defendants are not subject to the lowest common denominator in this situation. A prosecution of Mr. Brar and Mr. Singh could have proceeded independently based on a formal severance application by the Applicants or a choice by the Crown in how to organize the prosecution. It made sense on one hand to put the Ravi Group together however it would also be logical to separate the smaller players.

[81] Mr. Brar and Mr. Singh did the physical transfer of the controlled substances to the UC. That was relatively distinct in terms of witnesses and issues. Evidence against them comes in the form of testimony by the UC and surveillance officers with some scientific evidence to prove the nature of the substances. There is no search or detention motion common to the Ravi Group.

[82] I do not find that the delays caused by the unavailability of the co-accused is a special circumstance in this case against Mr. Brar or Mr. Singh. I would thus attribute three days of this time to Mr. Brar (September 27-30, 2021) and four days of this time to Mr. Singh (March 16-20, 2023). During those respective days they were not available to proceed.

2 Delay in Election

[83] I do not agree with the Respondent submission that, the Applicants should have delay attributed to them for not being ready to elect mode of trial on October 15, 2021. While the Crown does not have to provide full disclosure before an election can be made and a trial date set, there must be substantial disclosure. In addition, counsel for defendants must have an opportunity to consult with their clients for a reasonable amount of time after a pre-trial to get instructions.

[84] The record does not reflect that there was any issue with the case proceeding to a second judicial pre-trial. Fault was not attributed to anyone for this on the record at the time, nor does the record reflect any concern being raised by either party. It appeared at the time that one of the group was going to elect trial in the Superior Court, which would have bound everyone on the information.

[85] In this case the judicial pre-trial judge called for a second judicial pre-trial and asked for all to be able to elect at that time, and given the anticipated preliminary hearing, prepare a statement of issues and witnesses in advance. There was no discussion about urgency in making an election after the judicial pre-trial on October 15. There was discussion about cleaning up the Informations, and continuing discussions among counsel.

[86] I do not see any urgency on the record.

[87] The fourth wave of disclosure arrived on November 22, 2021, which included a large amount of material. The second judicial pre-trial was set for December 16, 2021. After that judicial pre-trial it was apparent that the Applicants would be having a Provincial Court trial. The date targeted for the “Blitz” court was January 6, 2022, a purely administrative step.

[88] The allegations against Mr. Brar were from December 2020 and early January 2021. He was arrested on April 8, 2021. The allegations against Mr. Singh, in Ontario, were from January 27, 2021. He was arrested in British Columbia on April 7, 2021. The investigators and Crown had control over how to organize disclosure. While three waves of disclosure were given a month prior to the first judicial pre-trial there was still significant disclosure outstanding. There were eventually three more waves of disclosure into the summer of 2022.

[89] Given the number of accused and the multiplicity of proceedings keeping track of disclosure was time consuming and difficult. This is clear from the affidavit of Giannice Lund, the paralegal responsible for “vetting and managing disclosure”. There were also multiple Crowns involved in preparing the case. The paralegal spent hundreds of hours on the disclosure. One would expect the task to be similar for the defence given the volume of disclosure and the uncertainty of disclosure to come.

[90] The correspondence between the Crown and the defendants submitted on this motion do not shed any light on the issue of the Applicants failing to make an election on October 15, 2021, or leading up to December 16, 2021. The correspondence was about scheduling and about disclosure. The Crown was sending disclosure as outlined and there were some requests for further disclosure.

[91] The Respondent Singh submits that he was unable to elect earlier due to lack of disclosure. It is difficult to determine this from the record. I do not have the disclosure to examine only a description by items. The case against Mr. Singh stems from a single transaction involving a kilogram of cocaine. This is not complex on its face. It was, however, intertwined with the wider investigation which led to the voluminous disclosure in this case. Again, there is nothing on the record of the Court appearances to indicate any sense of urgency in electing other than the pretrial judge on October 15 asking everyone to be in a position to provide statements of issues and witnesses for the next pretrial. (At the time due to the indication of one of the parties the case appeared to be headed to a preliminary hearing followed by a Superior Court trial).

[92] In my view it was prudent by the defence to seek as much disclosure as possible prior to their election. In any event, the deadline of the second judicial pre-trial was met with the administrative Blitz Court step in between that date and the trial dates being set.

[93] I do not sense from the record that there was any sense of urgency at the first judicial pre-trial for a date to be set or for an election to be made.

[94] The trial dates were set on January 6, 2022 and elections were made.

3 Discrete Exceptional Circumstances

a) First JPT Adjourned as a Result of Truth and Reconciliation Day

[95] This delay was from September 30 to October 15, 2021. This was clearly an exceptional circumstance. The day was deemed a court holiday after it was set and caused a 15-day delay.

b) The COVID Pandemic

[96] This case was set for trial on January 6, 2022. The effect of COVID, if any, would not have been direct at this point. The record does not demonstrate this link. The main reason for the distance of the trial date is that a three-week slot was needed. There is nothing to show that this resulted from COVID. There is no affidavit or other evidence showing how this case was affected by COVID as in R. v. Ajgirevitch. See also the recent decision R. v. L.L., 2023 ONCA 52 at paras. 20 and 21:

[20] On the second ground, the appellant submits that the application judge erred in finding that the pandemic had no role to play in the delay in securing trial dates. As already noted, we dismiss the Crown’s application to adduce statistical evidence on appeal.

[21] At the hearing of the application, the Crown chose to convey his own state of knowledge about the impact of the pandemic on the scheduling of trials at that location. He made the vague submission about the “trickle down” effect of the pandemic on trial scheduling. The application judge drew upon her own knowledge of the culture at the court location where she sits. We see no error in her conclusion that the pandemic had no impact on the scheduling of this case.

[97] I have reviewed at length the disclosure and pre-trial process. Those steps were independent of COVID. The provision of disclosure was during a period over a year from the start of the pandemic. There is nothing to show that the process slowed down, as a result of COVID.

4 Complexity of the Case

[98] Complex cases are described in R. v. Jordan, [2016] S.C.R. 631 as follows:

77 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.

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78 A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.

79 It bears reiterating that such determinations fall well within the trial judge's expertise. And, of course, the trial judge 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 (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). 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. In a similar vein, and for the same reason, the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused's s. 11(b) right (see, e.g., Vassell).

[99] There are no complex or novel legal issues in this case. The facts are not complex. The allegations involve routine undercover work with surveillance. The case is big given the length of the investigation and the number of people involved but it is not complex in a legal sense. There are aspects of complexity due to the large number of charges and combinations of accused persons.

[100] The main point is that the Applicants were charged with discrete transactions that were not complex. The process was made complicated by having the Applicants’ charges as a part of the wide investigation.

[101] In the event of a complex or potentially complex case the Crown must show that they, “developed and followed a concrete plan to minimize the delay occasioned by the complexity.” The evidence on this point is that there were a team of prosecutors assigned to the case and dedicated staff who spent many hours collecting and distributing disclosure. This still led to disclosure being distributed over a long time with the Applicants asking for more disclosure and time to review the voluminous disclosure.

[102] There are no anticipated complex motions or evidentiary points that have been raised. The strategy if any to streamline the case or sever individual accused was reactive in my view.

[103] On balance I find that this case is not complex in the way contemplated by Jordan. Time above the ceiling would not be justified by complexity.

IV. Conclusion

[104] I find that defence delay in this case was minimal: 3 days for Mr. Brar and 4 days for Mr. Singh.

[105] The net delay for Mr. Brar is 22 months and 7 days. This exceeds the Provincial Court ceiling by 4 months and 7 days.

[106] The net delay for Mr. Singh is 24 months and 4 days. This exceeds the Provincial Court ceiling by 6 months and 4 days.

[107] I have already concluded that this is not a complex case justifying time above the ceiling of 18 months. I have also dealt with the discrete exceptional circumstances, finding 15 days delay for the adjournment caused by Truth and Reconciliation Day.

[108] This leaves the case still just shy of 4 months over the ceiling for Mr. Brar and just shy of 6 months over the ceiling for Mr. Singh.

[109] There is a breach of the Applicants’ 11(b) Charter rights.

[110] There is prejudice to both Applicants. See R. v. Askov, (1995) C.C.C. (3d) 449 (at pages 474-476).

[111] A stay of proceedings is ordered pursuant to Section 24(1) of the Charter.

Released: February 1, 2023 Signed: Justice N. Dwyer