COURT FILE NO.: CR-20-0010-00 DATE: 2022-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN, Respondent Counsel: Mr. Jones

- and -

MARCUS CHAC-WAI, Applicant Counsel: Mr. Moon

HEARD: February 17, 2022, re ZOOM video conference at Thunder Bay, Ontario Mr. Justice W. D. Newton

Reasons on 11(b) Application

Overview

[1] On October 24, 2017, Marcus Chac-Wai, Giacomo Lico, Michael Paul Marquez-Alcindor, and Roberto Russo were charged with conspiring to traffic in cocaine. Mr. Chac-Wai and Mr. Russo were charged with conspiring to traffic in methamphetamines. Mr. Chac-Wai was charged alone with trafficking in cocaine.

[2] The charges against Mr. Chac-Wai are the only charges outstanding. The charges against Mr. Lico and Mr. Marques-Alcindor were stayed at the request of the Crown on April 19, 2021. Mr. Russo pleaded guilty to a lesser included offence of possession of cocaine for the purpose of trafficking and the other charges against him were withdrawn. As a result of a joint submission, Mr. Russo received a conditional sentence order of two years less a day.

[3] Mr. Chac-Wai’s trial was set to proceed before me, sitting without a jury, on April 19, 2021, but did not proceed due to illness of his counsel. That trial was scheduled to conclude 42.5 months after his arrest.

[4] The trial is now scheduled to proceed before me on April 4, 2022. The period between the anticipated conclusion of the first trial date and the new trial date is acknowledged as defence delay not adding to the delay already incurred.

[5] In R v. Jordan[^1], the Supreme Court of Canada set a 30 month ceiling for the completion of prosecution of criminal matters in the Superior Court. Delay beyond 30 months is presumed to be unreasonable barring defence delay or exceptional circumstances. That this 30 month ceiling is a “clear line in the sand”, as described by counsel for Mr. Chac-Wai, was underscored by the Supreme Court again in R. v. Boulanger[^2] in which the Supreme Court upheld a stay of proceedings where the delay exceeded the 30 month ceiling by one month.

[6] Accordingly, following Jordan, Mr. Chac-Wai argues that his right to be tried within a reasonable period of time as guaranteed by section 11(b) of the Charter of Rights and Freedoms (the “Charter”) has been infringed and applies for a stay of these proceedings as a remedy pursuant to section 24(1) of the Charter.

The Facts

[7] Mr. Chac-Wai was arrested in October 2017.

[8] Prior to his arrest, search warrants of his residences and production orders for his bank records were authorized. This was, as described by counsel for Mr. Chac-Wai, a “dry conspiracy”, indicating that no drugs or drug paraphernalia were discovered as a result of the searches. There were no intercepted communications.

[9] The evidence against Mr. Chac-Wai consisted of KGB statements from three unindicted “co-conspirators”. One, Madeleine Rimkus, died in January 2019 and, at the preliminary inquiry, the Crown abandoned an application to introduce her statement. Another, Scott Rumbolt, may or may not attend at trial and the Crown may be required to bring an application to introduce his statement into evidence. The other, Raffaele Nigro, will testify according to the Crown.

[10] Attached as Schedule 1 to these reasons is a chronology of the key events I prepared based on my review of the transcripts and other documents contained in the application record and responding material.

[11] From the outset, counsel for Mr. Chac-Wai was diligent in the request for disclosure and insistent that “11(b)” would not be waived.

[12] Initially, Mr. Chac-Wai was denied bail. That decision was upheld after bail review in this Court. After a number of charges including kidnapping, uttering threats, and assault were either withdrawn or stayed, Mr. Chac-Wai was released by this Court on very strict conditions including GPS ankle monitoring and pledges of approximately $450,000 by number of sureties. [^3] Mr. Chac-Wai had been in custody for over eight months.

[13] A judicial pretrial (“JPT”) was held on January 30, 2018, in the Ontario Court of Justice to address disclosure issues. That JPT continued on June 29 and July 30, 2018, at which time the presiding Justice noted that disclosure was sufficient to set dates for a two-week preliminary inquiry.

[14] In August 2018, Mr. Chac-Wai was arrested on alleged breaches of his release order and held in custody for about another month until he was released on a s. 524 application on the same strict conditions. The breach charges were later stayed.

[15] The preliminary inquiry commenced on May 13, 2019, continued in July, and was not completed until December 10, 2019. The committal decision was released on January 10, 2020, and committed Messrs. Chac-Wai, Lico, Russo and Marquez-Alcindor to stand trial.

[16] This matter first appeared in this Court on January 23, 2020.

[17] On March 16, 2020, Covid 19 intervened.

[18] The presumptive Jordan ceiling “expired” on April 6, 2020.

[19] On July 31, 2020, all accused persons re-elected to be tried by judge alone and the trial was scheduled for three weeks commencing April 19, 2021.

Positions of the Parties

[20] Mr. Chac-Wai argues that the 42.5 months required to complete his trial is well beyond the 30-month Jordan ceiling, that his s. 11(b) rights were infringed and that he is entitled, therefore, to the Charter remedy of a stay of proceedings. Any delay, he says, is attributable to the “drip-feed of disclosure” and a limited period of delay due to the exceptional circumstances caused by Covid 19, not defence delay. Relying upon Jordan and Boulanger, any delay beyond 30 months is presumptively unreasonable and Mr. Chac-Wai is entitled to a stay of proceedings.

[21] The Crown acknowledges that the time beyond the Jordan “deadline” was 396 days, or about 13 months. The Crown argues that the defence was in a position to elect and set dates for a preliminary inquiry on April 10, 2018, but, due to defence delay, dates for the preliminary inquiry were not confirmed until October 10, 2018, thereby resulting in a delay of six months.

[22] Further, the Crown argues that the preliminary inquiry could have been completed by June 7, 2019, but for defence delay and that this further delay of six months and 13 days, from June 7, 2019 to the date of committal, January 20, 2020, should be attributed to the defence.

[23] Finally, the Crown argues that the exceptional circumstances of the Covid 19 pandemic, which reduced the operation of the courts, resulted in a further delay from March 20 to July 10, 2020, an additional three months and 20 days of delay.

The Law

[24] In its introduction to Jordan[^4], the Supreme Court of Canada emphasized the importance of section 11(b) of the Charter:

1 Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time".

2 Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs. [^4]

26 Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as "a fair and balanced criminal justice system simply cannot exist without the support of the community" (Askov, at p. 1221). [^5]

[25] However, the Supreme Court also recognized that defence delay and exceptional circumstances sometimes make it impossible for the prosecution to be completed within 30 months and that such delay should be deducted from the overall delay.

[26] Defence delay has two components. The first is delay waived by the defence. The second component of defence delay is delay caused solely by the conduct of the defence: [^6]

This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial"(Askov, at pp. 1227-28). [^7]

[27] Another example of defence delay is when the Crown is ready to proceed but the defence is not. [^8]

[28] Exceptional circumstances are those that:

… lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. [^9]

[29] The Court emphasized that the Crown must be proactive to ensure that the prosecution is completed before the ceiling:

70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pretrial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. [^10]

[30] In addition to case management, other options for avoiding the 30-month ceiling include severance of counts on indictments involving multiple accused persons and preferring an indictment. [^11] As the Ontario Court of Appeal noted in R. v. Bulhosen, “it has been recognized for some time that the avoidance of unreasonable delay is an appropriate basis on which to prefer an indictment.” [^12]

Analysis

[31] Counsel for Mr. Chac-Wai described this as a case of “moderate complexity”. I agree. After disclosure and the preliminary inquiry, the Crown’s case essentially relied upon the evidence of two unindicted “co-conspirators”. Complicating procedural aspects of the case was the fact that there were three co-accused: Lico, Marques-Alcindor, and Russo. At times, Mr. Russo was represented; at other times, he was not.

[32] Mr. Chac-Wai was arrested on October 24, 2017. His trial was scheduled to conclude on May 7, 2021, or 42.5 months after his arrest, 12.5 months after the Jordan ceiling. During those 42.5 months, Mr. Chac-Wai was in custody for nine months and subject to very restrictive bail conditions, including GPS monitoring, when released.

Exceptional Circumstances

[33] It is not disputed that the initial period of the Covid 19 pandemic disrupted court proceedings in this province and constitute exceptional circumstances. Therefore, the period from the Chief Justice’s order of March 16, 2020, suspending court operations, to the first scheduling trial management conference, 116 days or almost 4 months, is to be deducted from the overall delay.

Disclosure and Delay in Scheduling the Preliminary Inquiry

[34] A review of the transcript of the appearances in the Ontario Court of Justice demonstrate persistent, but unfulfilled, requests for Crown disclosure by counsel for Mr. Chac-Wai. It was also announced, quite clearly, as early as December 1, 2017, that Mr. Chac-Wai was not waiving his “11b” rights.

[35] On December 29, 2017, the Crown described the disclosure as “voluminous and complicated” and the defence noted that no substantive disclosure had been made. On January 4, 2018, the Crown stated that there would be disclosure by January 12, 2018. On January 18, 2018, the defence wrote to the Crown noting that the disclosure was missing the ITOs and Mr. Nigro’s statement of October 4, 2017. A JPT was set to address disclosure issues for January 30, 2018.

[36] At that pretrial, it was noted that the Crown would be endeavouring to provide disclosure as quickly as possible and that the Crown would be meeting with defence on February 12, 2018. On February 13, 2018, the Crown announced that the ITOs should be produced well in advance of the next pretrial set for March 19, 2019. On March 19, 2018, the ITOs were still not disclosed. By email dated April 10, 2018, ITOs from October 2017 were disclosed, approximately six months after Mr. Chac-Wai’s arrest.

[37] At the next JPT on May 22, 2018, it was noted that further disclosure was to be provided and the pretrial was adjourned to June 29, 2018.

[38] At the June 29, 2018 JPT, it was noted that there were still some disclosure issues involving outstanding ITOs, financial records and cell phone searches. The pretrial was to continue on July 30, 2018.

[39] By letter dated July 19, 2018, the Crown wrote to all counsel advising that it was the Crown’s position that disclosure “substantially is complete” and that the Crown was prepared to set dates at the June 29, 2018 JPT. Apart from this correspondence, there is nothing on the record from the Crown or the Ontario Court Justice critical of the defence or suggesting defence delay.

[40] At the July 30, 2018 JPT, the Justice noted that there was sufficient disclosure to start setting dates for a two-week preliminary inquiry. A focus hearing was set for October 1, 2018.

[41] The preliminary inquiry was set for two weeks at some point prior to October 1, 2018, for May 13-17 and June 3-7, 2019. There is nothing in the material before me confirming when the dates for the preliminary inquiry were set and whether there was any delay on the part of Mr. Chac-Wai in setting those dates.

[42] The Crown has argued that the Defence was in a position to elect on April 10, 2018. That does not accord with Crown’s letter of July 19, 2018, or the endorsement following the JPT on July 30, 2018. There is nothing in the record before me to support the conclusion that Mr. Chac-Wai is responsible for any delay in scheduling the preliminary inquiry.

[43] Similarly, there is nothing on the record before me explaining why there was a delay to May and June 2019 for the preliminary inquiry. As noted in Bulhosen[^13], the “presumptive ceilings established by Jordan assume that there will be institutional delay in the courts below.” [^13]

[44] Accordingly, I do not attribute any delay up to the commencement of the preliminary inquiry to Mr. Chac-Wai.

Delay in the Completion of the Preliminary Inquiry

[45] Although scheduled to be completed by June 7, 2019, the evidence on the preliminary inquiry was not completed until December 10, 2019, with the committal decision released on January 10, 2020.

[46] The Crown points to two actions on behalf of counsel for the accuseds, including Mr. Chac-Wai, as prolonging the preliminary inquiry: revoking their agreement to proceed under section 540(7) and bringing a “meritless and unsuccessful application” to have the prosecutor testify on an issue that did not relate to committal.

[47] With respect to the section 540(7) application, on the first day of the preliminary inquiry, the Crown stayed the charges against a another jointly charged accused, Giuseppe Pasquali. Counsel for the remaining co-accuseds indicated that, as a result of the stay of those charges, issues were raised with the s. 540(7) process. As the committal reasons indicate, the Crown abandoned that application and agreed to simply call his witnesses viva voce in chief. There is nothing before me to indicate how much time that added to the preliminary inquiry process, whether all of the days scheduled were in fact used, and whether it was unreasonable to object to the section 540(7) process in light of the stay proceedings against another co-accused. There is insufficient information before me to attribute or quantify delay arising from this.

[48] The “meritless and unsuccessful application”, arose from unusual circumstances. While the Crown witness, Nigro, was being cross-examined, issues relating to his status as a confidential informant arose. Consequently, Crown counsel (not the same Crown counsel conducting the preliminary inquiry) communicated with Mr. Nigro. Subsequently, Mr. Nigro waved his confidential informant privilege and testified again. The preliminary inquiry Justice noted that there were “some changes in his evidence”. The application sought to have Crown Counsel called as a witness at the preliminary inquiry to testify in relation to a potential abuse of process issue resulting from Mr. Nigro’s testimony. That application was dismissed on June 26, 2019. The preliminary inquiry Justice concluded that she did not have jurisdiction to embark on this line of inquiry as it did not bear on the issue of whether the accused should be committed to stand trial.

[49] There is nothing in the material before me to indicate how much of the time allotted for the preliminary inquiry was required for this application and whether all of the days allotted were used. If this application constituted defence delay, I am unable to assess its impact upon a delay of the proceedings.

[50] Two other facts bear on the issue of delay in the continuation of the preliminary inquiry. I note that on July 8, 2019, when the dates for the continuation of the preliminary inquiry in December 2019 were set, counsel for Mr. Marquez-Alcindor acknowledged that it was “largely” his fault that earlier dates could not be chosen. Further, the Crown did not abandon its KGB application regarding the Rimkus statement until the continuation of the preliminary inquiry on December 10, 2019.

[51] I am unable to conclude that the conduct of the defence in the section 540(7) application or the subsequent application directly caused the delay or was “a deliberate and calculated tactic employed to delay the trial” [^14].

Severance/Preferred Indictment

[52] As noted in Jordan[^15], the Crown must be proactive to ensure that the prosecution is completed before the delay exceeds the ceiling. [^15] Two tools reasonably available to the Crown to protect Mr. Chac-Wai’s s. 11 (b) rights were severance and preferring an indictment.

[53] With the benefit of hindsight, severance may have been a reasonable step given multiple accuseds and the ultimate disposition of the charges against the co-accuseds.

[54] A request to prefer the indictment and avoid the preliminary inquiry was a reasonable step for the Crown to consider as early as October 2018, because by then the preliminary inquiry had been set to conclude in July 2019. That would leave only about eight months between the anticipated end of the preliminary inquiry and the expiration of the 30-month Jordan time limit. While the Crown did seek to prefer the indictment in July 2019, that request was not granted.

Disposition

[55] From the 42.5-month delay, four months is deducted due to exceptional circumstances. The “net” delay is, therefore, 38.5 months and is presumptively unreasonable.

[56] I grant the application and the charges against Mr. Chac-Wai are stayed.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: February 24, 2022

Schedule 1

Chac-Wai – 11b chronology Simple adjournments excluded [^16]

2017 18 Oct ITO for production order sworn 23 Oct ITOs for search warrants sworn 24 Oct Arrest, jointly charged with Lico, Marques-Alcindor and Russo 27 Oct Search warrants executed 6 Nov Production order from TD obtained 15-17 Nov Show cause hearing, detained 1 Dec Chac–Wai seeking disclosure, 11(b) not waived 14 Dec Ninth appearance, no substantial disclosure from police says defence, 11(b) not waived 21 Dec New charges, requests disclosure, investigation initiated June, eight months later, no substantive disclosure says defence 29 Dec Crown says disclosure “voluminous and complicated”; no substantive disclosure says defence

2018 4 Jan Crown says will have some disclosure by 12 Jan 18 Jan Defence writes to Crown noting proffered disclosure missing officer notes, ITOs and Nigro statement of 4 Oct 2017 18 Jan JPT set to address disclosure issues on 30 Jan 30 Jan Crown advises issues pretrial addressed current state of disclosure and Crown will be endeavoring to provide as quickly as possible and will be meeting with defence on 12 Feb to discuss disclosure “that are required to move the matter along expeditiously” 13 Feb Crown: ITOs should be produced well in advance of 19 Mar JPT 19 Mar ITOs still not disclosed 10 Apr Email from Crown to counsel enclosing 104 pages of ITOs etc. 13 Apr Provincial charges withdrawn, to JPT on 22 May 22 May Further disclosure to be provided – adjourned to June 29 27 Jun SCJ releases after bail review – 8 months + in custody 29 Jun JPT – still some disclosure issues outstanding involving ITOs, financial records and cell phone searches, JPT to continue 30 July 19 July Crown letter re: disclosure – “Crown’s position that disclosure substantially complete” – “Crown was prepared to set date on June 29” – defence should be in possession to set dates… 30 July JPT continued – elections made – sufficient disclosure that we can start setting dates – prelim will take two weeks and will schedule over next few days; Crown seeks 540(7) application – focus hearing Oct 1 24 Aug Arrested and brought to Thunder Bay on three counts of breaches 10 Sept Bail hearing on alleged breaches in GTA… arrested and brought to Thunder Bay – JP transfers back to Brampton 24 Sept 524 application in Brampton dismissed - released 1 Oct Focus hearing adjourned for continuation 3 Jan 2019 – dates for PI set

2019 3 Jan Focus hearing concluded – remand to confirmation hearing Mar 1, PI set for May 13-17, Jun 3-7 25 Jan Rimkus deceased 29 Jan Breach charges stayed – Durno J. 1 Mar Confirmation hearing – dates for PI confirmed 13 May PI commences – witness to be Nigro, PCs Rybak and Jacobson, re 540 Nigro to testify in chief… 15 May Adjournment necessary – issues re: Nigro as CI, officers notes, Rimkus KGB statement 26 May Letter to Crown re: further disclosure required, notes of police pre-Sept 2017 and other items 7 June Defence files application to remove Crown counsel due to PPSC discussion with Nigro 26 June PI judge dismissed application to remove Crown counsel 4 July Defence correspondence to Crown noting minimal response to disclosure requests 8 July PI adjourned to December, not all counsel available earlier 9 July Crown seeks preferred indictment – denied 25 Oct Crown responds to defence letter re disclosure of July 5 10 Dec Evidence on PI completed, Crown abandoned Rimkus KGB application

2020 10 Jan Committal decision released 14 Jan Indictment in SCJ 23 Jan SCJ assignment court – jpt set for Feb 19 19 Feb JPT vacated as judge not available to assignment court Feb 23 23 Feb JPT set for Mar 20 16 Mar Covid intervenes. CJ order, JPT adjourned– to assignment court 2 June 6 Apr Jordan date – 30 months 6 July Adjourned to 10 July for scheduling 10 July Trial management conference, to July 31 to set date 31 July All accused re-elect to Judge alone, dates set for 11(b) application and trial to commence Apr 19, 2021, for 3 weeks 14 Dec Lico deceased

2021 6 Apr Defence motion to adjourn trial due to illness of counsel 19 Apr Charges stayed against Lico and Marques -Alcindor 19 Apr Trial to start 7 May Presumptive end of trial 25 May Russo pleads to possession s. 5(2), count 2, conspiracy, withdrawn

[^1]: R. v. Jordan, 2016 SCC 27, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^2]: R. v. Boulanger, 2022 SCC 2, https://www.canlii.org/en/ca/scc/doc/2022/2022scc2/2022scc2.html. This decision was released while this application was being argued. Argument was adjourned to allow counsel to make submissions on this case. [^3]: R. v. Chac-Wai, 2018 ONSC 3902, https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3902/2018onsc3902.html [^4]: Jordan, 2016 SCC 27 at paras. 1&2, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^5]: Jordan, 2016 SCC 27 at para. 26, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^6]: Jordan, 2016 SCC 27 at paras. 61 & 63, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^7]: Jordan, 2016 SCC 27 at para. 63, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^8]: Jordan, 2016 SCC 27 at para. 64, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^9]: Jordan, 2016 SCC 27 at para. 69 (emphasis in original), https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^10]: Jordan, 2016 SCC 27 at para. 70, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^11]: R. v. Mannasseri, 2016 ONCA 703 at paras 375 – 379, https://www.canlii.org/en/on/onca/doc/2016/2016onca703/2016onca703.html [^12]: R. v. Bulhosen, 2019 ONCA 600 at para. 89, https://www.canlii.org/en/on/onca/doc/2019/2019onca600/2019onca600.html [^13]: R. v. Bulhosen, 2019 ONCA 600 at para. 100, https://www.canlii.org/en/on/onca/doc/2019/2019onca600/2019onca600.html [^14]: R. v. Jordan, 2016 SCC 27 at para. 63, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^15]: R. v. Jordan, 2016 SCC 27 at para. 70, https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html [^16]: Counsel should note that not all endorsements made by me as SCJ trial management judge are reflected on the indictment. Counsel were provided with copies at the time. Nothing substantive that affects 11(b) analysis.