Court File and Parties
COURT FILE NO.: CR-18-10000435-0000 DATE: 20181108 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – dejan mitrovic Defendant/Applicant
COUNSEL: Marco Forte, for the Applicant Dejan Mitrovic John Stuart Dick, for the Respondent Her Majesty the Queen
HEARD: November 5, 2018
BEFORE: Low J.
Reasons for Judgment
[1] This is an application for a stay pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982. The application was dismissed by handwritten endorsement on the record on November 6, 2018 with reasons to follow. These are the reasons.
[2] The applicant is one of three accused on a multi-count indictment alleging trafficking in controlled substances, conspiracy to traffic, and participation in a criminal organization.
[3] The charges arise out of a large investigation, begun in 2015, known as Project Sizzle. This was an extensive investigation into the activities of a criminal organization called “Heart of a King” or “HOK”. As a result of the products of, inter alia, an omnibus general warrant, a transmission data recorder warrant, tracking warrants, assistance orders and a wiretap authorization, a “takedown” occurred on June 2, 2016 in which approximately 75 people were arrested and charged with a variety of offences including human trafficking, firearms and violent offences, criminal organization offences and homicide.
[4] The applicant was one of the individuals arrested on June 2, 2016.
[5] The individuals arrested were divided into groups for purposes of prosecution through the courts. The applicant was originally in a group of 10 accused. That group was further divided into two groups with the result that the applicant was charged together with five other individuals believed to be involved with him in a drug trafficking organization: John Nguyen, Petar Mihailovic, Herve Kalonji, Justin McGregor and Jagdeep Rathore. The information against these individuals contained 16 counts.
[6] The prosecution alleges that the applicant was the leader of a criminal organization who instructed other individuals to traffic in cocaine. Evidence in support of the prosecution includes a large number of audio intercepts, products of search warrant seizures, surveillance and expert evidence relating to the use of coded language and the modus operandi of drug traffickers.
[7] The applicant’s “Jordan date” is December 2, 2018. Although this prosecution began prior to the release of R. v. Jordan, 2016 SCC 27, no party to the proceeding took any steps or refrained from taking any steps in reliance on pre-Jordan jurisprudence. The case therefore falls within the Jordan regime. The four week trial is presently scheduled to commence on January 2, 2019, with a gross lapse of time of 31 months 28 days from date of arrest to the projected end of trial.
[8] At Appendix C of the respondent’s factum, Crown counsel has produced a comprehensive schedule of events relating to this prosecution. I find the document to be a fair summary of what occurred on each of the events as evidenced in the transcripts. I do not, however, adopt all of the characterizations attributed by the Crown to each of the time periods set out in the schedule.
[9] I find, however, that the net delay is under 30 months and that the presumptive ceiling in Jordan has not been violated.
[10] The applicant urges the court not to attribute any of the gross lapse of time to defence delay. I do not accept that contention. I find that the full month of September 2018 and a 4 week period commencing October 29, 2018 are attributable to defence delay in that applicant’s counsel was not available for trial while the court had capacity and the Crown was ready to proceed throughout that period. The relevant transcript is that of the first judicial pretrial before McMahon J. on March 20, 2018.
[11] Applicant’s counsel had indicated that he would be available in August 2018, when the court had no capacity, and that thereafter, he could not be available until November 26, 2018.
[12] It is argued on behalf of the applicant that because his counsel had indicated his availability for trial in August, earlier than the September and October dates offered by the court and agreeable to the Crown, his unavailability for trial in September and October should not be characterized as delay caused by the defence. The argument, if accepted, is capable of generating absurd results and potential for abuse. The issue arose in R. v. Mallozzi, 2018 ONCA 312 and the argument was rejected. I apply Mallozzi.
[13] The Crown argues that the exchange among the court and counsel on March 20, 2018 shows a four month delay attributable to the defence because, but for defence unavailability, the trial could have been set four months earlier, namely in September 2018.
[14] It is not apparent from the transcript that the court had capacity in October until the 29th and it is not clear that there was capacity in December although the issue of the Christmas holidays appears to have been a significant factor in rejecting that month.
[15] It is, however, unnecessary for me to opine on whether there should be a four month delay attributed to applicant commencing September 2018. I attribute one month and 28 days of delay to the applicant because of unavailability of his lawyer for trial in the month of September 2018 and the four weeks commencing October 29, 2018.
[16] There is a second period of time that should, in my view, be deducted from the gross delay and that is the hiatus between the judicial pre-trial scheduled to proceed before Justice Lipson on December 1, 2016 in the Ontario Court of Justice and the second judicial pre-trial date on January 10, 2017 when the conference was actually held.
[17] The judicial pre-trial scheduled for December 1, 2016 was abortive for two reasons: one reason was that defence counsel, although advised that he was required to complete a long case pre-hearing conference report for the pre-trial judge, did not do so; the second reason was that Dominic Basile, the lawyer for one of the co-accused, Mr. McGregor, announced at the eleventh hour that he had a conflict of interest.
[18] There is no evidence that counsel for the accused refrained from completing the case conference report for the pre-trial in anticipation that the conference would be aborted by reason of another lawyer’s conflict of interest. The conflict of interest was raised at the last moment. Pre-trial conferences can only be useful if the parties identify and focus on what the issues are, set out what their respective positions are and alert the court to the same.
[19] Defence counsel were not ready for the pre-trial and whether or not there was a conflict of interest relating to one of the other lawyers, the failure of defence counsel to comply with the pre-trial report requirement would have necessitated rescheduling a second date for the conference in order to have meaningful exchange. On the other hand, even if defence counsel had been compliant with delivery of the long case pre-trial report, the disclosure of the conflict of interest would have necessitated rescheduling the judicial pre-trial.
[20] The loss of time from December 1, 2016 to January 10, 2017 was therefore caused either by defence failure to comply with the case report requirement for the judicial pre-trial, or it was the result of an unforseen discrete event, the disclosure by Mr. Basile of a conflict of interest, or both.
[21] In my view, the 40 days lost should be deducted from the gross delay.
[22] In addition to the foregoing, there was also a loss of 1½ days occasioned by unavailability of applicant’s counsel to continue the preliminary inquiry on January 3 and 5, 2018. The preliminary inquiry started on September 21, 2017 and proceeded piecemeal through the fall and into January of 2018. January 3, 2018 was a date agreeable to the court and other counsel but not to counsel for the applicant. January 5 was a date for which counsel for the applicant originally indicated availability, but subsequently advised that he was occupied elsewhere for half of that day.
[23] Finally, it is my view that the time required by the preliminary inquiry judge to deliberate and to prepare reasons for disposition, a necessary and unavoidable step, is a discrete event and constitutes exceptional circumstances as defined in Jordan (see R. v. Brown, 2018 NSCA 62 at paras. 72 – 75 and R. v. Gambilla (appeal by Mamouni), 2017 ABCA 347 at 88 - 93).
[24] Submissions at the preliminary inquiry were completed on January 23, 2018 with judgment reserved. Reasons for committal were released on March 1, 2018. In my view, the lapse of one month 7 days should be deducted from the gross lapse of time from date of arrest.
[25] The net delay should therefore be calculated by deducting from the gross delay the 1 month 28 days of defence delay caused by applicant’s lawyer’s unavailability for trial in September and October 2018, the 1 month 7 days that the preliminary inquiry judge took to deliberate and prepare reasons, the 40 days lost between the originally scheduled judicial pre-trial date in the Ontario Court of Justice and the date when the pre-trial conference took place, and 1½ days lost during the preliminary inquiry when applicant’s counsel was unavailable. The deductions total, in round figures, 4 ½ months, with a net delay of 27½ months.
[26] As the 30 month ceiling was not broken, the onus falls on the applicant to show that the net delay was nevertheless unreasonable. In my view, the applicant has not met the onus.
[27] There are two parts to the burden: first, the applicant must show that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and second, the applicant must show that the case took markedly longer than it reasonably should have.
[28] It is argued that the applicant did everything he could to expedite the proceedings-- notably that he stated that he was prepared to waive a preliminary inquiry and that he did not launch a Dawson application.
[29] I will say more about the foregoing below, but those steps need to be viewed in the context of the applicant’s overall conduct of his defence.
[30] The applicant did not act promptly to retain counsel. Although the transcript indicates that the applicant had contact with a solicitor, Dominic Basile, in the early days after arrest and that Mr. Basile was receiving tranches of Crown disclosure, the applicant did not retain him and did not apply promptly for a legal aid certificate. At the September 6, 2016 appearance, some three months post-arrest, the applicant advised the court that he had not retained Mr. Basile. He stated, “I’m waiting for the full disclosure, first.” As an economic decision, that was a choice that the applicant was entitled to make, but contrary to expediting the matter, it was a strategy that had the effect of delay.
[31] It was not until after September 6, 2016 that the applicant applied to legal aid, and November 10, 2016 when he obtained two legal aid certificates. The applicant retained his lawyer Mr. Forte on November 18, 2016.
[32] Prior to the applicant retaining Mr. Forte, a judicial pre-trial had been scheduled for December 1, 2016. Upon learning of Mr. Forte’s retainer, Crown counsel Ms. Hughes immediately corresponded with him on November 18, 2016, providing Crown work product to assist defence at the judicial pre-trial. Included in the material provided were call charts setting out the intercepts that Crown would rely on, a synopsis, and a “roadmap to committal”. This material was not disclosure as required by Stinchcombe. It was work product – the Crown’s summarization, organization, analysis and digestion of the evidence and its argument. The sharing of this work product fosters the narrowing of issues, meaningful discussions toward resolution and aids the court in its functions. It also helps defence understand the case it has to meet.
[33] In her correspondence, Ms Hughes reminded applicant’s counsel of the requirement to complete the long case report form for the judicial pre-trial. In my view, despite the voluminous disclosure, the Crown work product shared by Crown counsel could reasonably equip defence counsel with the ability to comply with the case report requirement for the judicial pre-trial. As indicated above, applicant counsel did not complete the report at all for the December 1, 2016 judicial pre-trial date, and for the replacement date of January 10, 2017, he did not do so in timely fashion, delivering it the morning of the conference.
[34] In support of the argument that the applicant did everything he could to expedite the matter, considerable emphasis is placed on the fact that his lawyer expressed on his behalf a willingness to waive a preliminary inquiry and to elect trial in the Ontario Court of Justice. This was desultory, however, as the co-accused were not unanimous in desiring a trial in the OCJ and were not unanimous in desiring to waive preliminary inquiry. The applicant did not make an application for severance. Given that the applicant was alleged to be the leader of an organization carrying out criminal activity and there were a number of allegations of conspiracy with co-accused, an application for severance was unlikely to be successful.
[35] A more significant diminution of the meaningfulness of the offer to waive preliminary inquiry lies in the disconnect between what was said and what was done. First, the applicant was not prepared to concede committal on all the charges. Second, the applicant fully participated in the preliminary inquiry, requiring setting dates to accommodate his counsel’s availability and using time to accommodate submissions on applicant’s behalf. There is no criticism of the applicant’s exercise of his right to have and to take part fully in the preliminary inquiry. I find, however, that his offer to waive it was not meaningful in the context of what actually took place.
[36] As for the conduct of the preliminary inquiry, the applicant did not take steps to expedite its completion. At the close of the December 15, 2017 session, with submissions still outstanding, additional dates were needed. Dates of January 3, 5 and 8 were proposed and appear to have been agreed to, but counsel for the applicant subsequently indicated that he was not available on the 3rd, and that Mr. Chartier, counsel for a co-accused was not available on the 5th and 8th. Mr. Forte stated that he was also not available for half of January 5 and suggested that the days be vacated. That suggestion was not acceded to by the court.
[37] Mr. Forte proposed to the court: “Is your honour okay if we, as a group, on our own, try and figure out, potentially, other dates in January? I can canvass them—I’m here next week—with the trial coordinator—and maybe we can.”
[38] But Mr. Forte did not do the canvassing. He did not consult with the trial coordinator and in the period December 15 to January 2, 2018 did not send around an email to all counsel to try to establish dates. January 3 was wasted. Submissions were made on January 5 and 8 and the completion of submissions put over to January 17.
[39] It may be that there were no dates between January 8 and January 17, 2018 that were clear for all participants and that even if Mr. Forte had canvassed counsel to try to find a day or days agreeable to all participants, he may not have succeeded. The question, however, is whether the applicant, through his lawyer, was taking steps to move the process along. In my view, he was not.
[40] That none of the accused launched a Dawson application at the preliminary inquiry, opting instead for a Garofoli application at trial, probably saved some time at the preliminary inquiry. There is, however, no material upon which an assessment can be made as to whether there was merit or utility to a Dawson application. I am therefore not able to conclude whether refraining from launching a Dawson application was a meaningful action to expedite the proceeding.
[41] Finally, there is the timing of this application. An application for a stay for delay should be brought promptly. As of March 20, 2018, the applicant must have been alive to the fact that the gross time lapse from date of arrest to date of completion of trial was in excess of 30 months. The co-accused Nguyen launched an 11(b) application in June, 2018. His application was not, however, proceeded with through to hearing.
[42] The applicant waited until October to launch this application. The record was incomplete when originally served on October 15 and was supplemented on October 26 with a further (unindexed) volume of transcripts.
[43] On this application, the Applicant’s factum states that the court indicated its first available trial date was October 29, 2018. This was a misstatement of the evidence. The transcript of the appearance on March 20, 2018 before McMahon J. reveals clearly that the court had capacity and the Crown had indicated availability for trial in the month of September 2018. I draw no conclusions as to whether the misstatement was the result of carelessness or deliberate obfuscation, but either way, when the misstatement of the facts was pointed out in the Crown’s responding materials, the applicant was not prepared to proceed on the return date and sought an adjournment.
[44] There is no reasonable acceptable explanation for delaying the bringing of this application. It is said that the applicant was pursuing resolution and it was only when it was apparent that there was not going to be a satisfactory one that the decision was made to launch this application. That may have been the motive for the delay but is not a reasonable justification for it.
[45] Taking all of the above into account, I am not satisfied that the applicant took meaningful steps that demonstrated a sustained effort to expedite the matter.
[46] In light of the failure of the applicant to meet the first part of the two part burden, it is unnecessary to opine as to whether the case took markedly longer than it should have.
[47] It is only in a rare and clearest of cases that a net delay that does not violate the 30 month ceiling will be held to be unreasonable. This is not such a case.
Low J. Released: November 8, 2018
Court File and Parties
COURT FILE NO.: CR-18-10000435-0000 DATE: 20181108 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – dejan mitrovic Defendant/Applicant
Reasons for Judgment
Low J. Released: November 8, 2018
