R. v. Schertzer, 2009 ONCA 742

CITATION: R. v. Schertzer, 2009 ONCA 742

DATE: 20091028

DOCKET: C48318/C48315

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Moldaver JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

John Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus, and Raymond Pollard

Respondents

AND BETWEEN

Her Majesty the Queen

Appellant

and

Richard Benoit

Respondent

Kenneth L. Campbell, David Humphrey and Joan Barrett, for the appellant

John Rosen and Paul Alexander, for the respondent John Schertzer

Harry G. Black, Q.C., for the respondent Steven Correia

Peter M. Brauti, for the respondent Joseph Miched

Patrick Ducharme and Julie Santarossa, for the respondent Nebojsa Maodus

Earl J. Levy, Q.C., for the respondent Raymond Pollard

Alan D. Gold and Vanessa Arsenault, for the respondent Richard Benoit

Heard: August 31-September 2, 2009

On appeal from the decision of Ian V.B. Nordheimer of the Superior Court of Justice staying the proceedings against the respondents, dated January 31, 2008, with reasons reported at 2008 ONSC 3230.

BY THE COURT:

[1] This is a Crown appeal from the order of Nordheimer J. staying serious charges against six police officers because their rights to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms were infringed. The trial judge estimated that some 56 months would have elapsed before the trial of five of the six officers, John Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus and Raymond Pollard (“the Schertzer respondents”), could be completed. It would take even longer to complete the trial of the sixth officer, Richard Benoit. The trial judge stayed the charges because, in his words: “The vast majority of the time that has passed in this prosecution resulted from the Crown’s inability to make full and complete disclosure.” He also found that the prosecution was characterized by complacency and a lack of awareness of the need to prosecute the case without delay.

[2] In our view, the trial judge made two fundamental errors in finding that the s. 11(b) rights of the Schertzer respondents were infringed. First, he erred in finding that the delay was due to disclosure problems. Whatever the problems with disclosure, and there clearly were some, delay in making disclosure had no impact on the progress of the prosecution. There was no causal connection between problems with disclosure and the timing of the proceedings. To the contrary, the delay was a reflection of the inherent time required to prepare and prosecute this complex case.

[3] Second, the trial judge erred by failing to follow the direction in R. v. Morin, 1992 SCC 89, [1992] 1 S.C.R. 771, to expressly identify the causes for significant delays during the chronology of the case. Of the 56-month delay, the trial judge only specifically allocated 18 months of delay to any Morin category. The bulk of the time was unattributed.

[4] The trial judge delivered his reasons on the s. 11(b) motion after months of pre-trial proceedings. In those proceedings, he became very familiar with the long history of the charges before him, and the issues on which battle had been joined at the pre-trial stage. It is fair to say he knew a great deal about the investigation that led to the charges and the pre- and post-charge management of the case by the prosecution. Understandably, the trial judge formed certain opinions about the Crown’s conduct of the prosecution. In some respects, he was clearly not impressed. The trial judge was also justifiably concerned about the length of time the charges had been before the courts, particularly given the lengthy pre-charge history of the matter and what he found to be significant ongoing prejudice suffered by all accused.

[5] Whatever the validity of the trial judge’s assessment of parts of the Crown’s management of this case – upon which we explicitly refrain from commenting – s. 11(b) is not the medium through which the quality of the prosecution’s performance is measured. Section 11(b) focuses exclusively on delay and the causes of that delay, and this case proceeded in accordance with a schedule with which the accused and their counsel were content.

[6] When the causes of the delay are properly identified, there was no unreasonable delay in this case. This complex case proceeded at the pace contemplated and dictated by the parties. For this reason, the appeal in respect of the Schertzer respondents is allowed.

[7] The respondent Richard Benoit stands in an entirely different position. Following the preliminary inquiry, he was committed for trial only in relation to one set of allegations and, significantly, was discharged in relation to the most serious allegation, a charge of conspiracy to obstruct justice. It was anticipated that his trial would take no more than a week. There was no reason why Benoit could not have had that trial within months of the committal, but for the Crown’s decision to proceed with the much more complicated trial of the Schertzer respondents first. The resulting two-year delay is unreasonable and the trial judge properly stayed the charges against Benoit. The Crown appeal with respect to Benoit is dismissed.

THE FACTS

Introduction

[8] There is a lengthy history to this prosecution. As such, to understand the positions of the parties and the proper analysis of the delay, it will be necessary to set out the chronology in some detail. We will also refer to the lengthy pre-charge history, which provides some context for developments in the prosecution.

[9] In 1998, some members of the Toronto Police Service Central Field Command (“CFC”) drug squad came under investigation by their own police force. That investigation led to internal disciplinary charges under the Police Services Act, R.S.O. 1990, c. P.15, in 1998, and criminal charges in November 2000. The Police Services Act charges were dismissed in 1998, because they had been laid out of time. The 2000 criminal charges were stayed by the Crown in 2002, because they could not be prosecuted without compromising the more serious on-going investigation that ultimately led to the charges under consideration in this appeal.

[10] Those charges, which were laid against the respondents on January 7, 2004, consisted of charges of attempting to obstruct justice, perjury, assault causing bodily harm, extortion, theft and conspiracy to obstruct justice. The charges arose from five investigations the respondents conducted while they were members of the CFC drug squad.

The January 2004 Allegations

[11] The earliest allegation against any of the respondents in this prosecution relates to an investigation conducted by members of the CFC drug squad on January 30, 1997. It is alleged that Schertzer, Pollard and others conducted an illegal search of the residence of an alleged drug dealer, Larry Vacon, and stole money that they seized during that search. They then falsified their notes and other police records, claiming that they had obtained a search warrant before conducting the search, when in fact the search warrant was obtained after the search.

[12] The second set of allegations underpinning the 2004 charges is similar and relates to an investigation of an alleged drug dealer, Ho Bing Pang, on February 18, 1998. It is alleged that the Schertzer respondents conducted a warrantless search of his residence, and falsified their notes and records to claim that the search took place after the search warrant had been obtained. They then lied about the timing of the search at the preliminary inquiry of Pang and his co-accused, Yin Leong Chui.

[13] The third set of allegations arises out of the investigation of an alleged drug dealer, Kai Sum Yeung, on April 7, 1998. Schertzer, Correia and Miched are charged in relation to this investigation. The Crown alleges that the respondents falsified their notes and other records about the role of a police informant in this transaction and lied at Yeung’s preliminary inquiry.

[14] The fourth set of allegations relates to an investigation on April 30, 1998. It is alleged that Schertzer, Correia, Maodus and Benoit repeatedly assaulted an alleged drug dealer, Christopher Quigley, over a nine-hour period in an attempt to extort information from him as to the location of his drugs and money. While Quigley was detained, the respondents obtained warrants to search the residences of Quigley and his mother. During the search of the mother’s home, the respondents learned that Mrs. Quigley was holding money for her son in a bank safety deposit box. It is alleged that Schertzer and Correia subsequently seized approximately $54,000 from the safety deposit box, but reported seizing less than half that amount. They falsified their notes and other police records to cover up the assault, extortion and theft. This incident is the only one for which Benoit was ultimately indicted. He was charged with assault causing bodily harm and extortion.

[15] The conspiracy count alleges that the Schertzer respondents conspired to obstruct justice in relation to these four investigations as well as an investigation relating to two alleged drug dealers, Andreas Ioakim and Aida Fagundo. The Ioakim/Fagundo allegation arises out of events around October 30, 1997. It is alleged that the Schertzer respondents seized large amounts of money and drugs from Ioakim. They reported seizing some of the drugs and none of the money and then forced Ioakim to set up a cocaine deal with Fagundo. The Crown alleges that the Schertzer respondents falsified their notes and other records in relation to the investigation of both Ioakim and Fagundo. The conspiracy count covers a period from January 1, 1997 to March 31, 2002.

The Pre-charge Events

[16] While it appears that concerns about the CFC drug squad had been circulating for some time, the first formal charges against any members came in 1998 in the form of charges under the Police Services Act. On October 2, 1998, the hearing officer dismissed those charges because they had not been laid within six months from the time when the facts on which the complaints were based first came to the attention of the chief of police, pursuant to s. 69(18) of the Act. These charges related only to Schertzer, Maodus, Miched and Correia, and the underlying allegations did not form part of the criminal charges laid against the respondents in 2004.

[17] However, the investigation into the CFC drug squad continued, and on November 22, 2000, Schertzer, Pollard, Miched and Correia were arrested on Criminal Code charges of fraud, breach of trust, theft, forgery and uttering forged documents. The charges related to allegations of misuse of a fund used to pay confidential police informants, the so-called “fink fund”. The accused appeared numerous times in the Ontario Court of Justice in relation to these charges. The charges were finally stayed on February 13, 2002, out of concern that the prosecution might compromise an on-going criminal investigation: the investigation of the CFC drug squad that ultimately led to the charges against the Schertzer respondents and Benoit that were laid on January 7, 2004.

[18] Between the spring of 2001 and December 2003, the officers investigating the CFC drug squad came to have reasonable and probable grounds to lay charges arising from a number of investigations by the CFC drug squad. After obtaining advice from prosecutors, however, the police only laid charges in relation to the five CFC drug squad investigations described above. The earlier “fink fund” charges were not re-laid and form no part of the allegations involved in this case.

[19] In August 2001, the squad investigating the CFC drug squad was reorganized and renamed the “Special Task Force”. The then Chief of the Toronto Police Service asked the R.C.M.P. for assistance with the investigation. Chief Superintendent John Neily of the R.C.M.P. was placed at the head of the Special Task Force. Importantly, in March 2003, Chief Superintendent Neily wrote a letter addressed to the Director, Special Prosecutions Unit of the Ministry of the Attorney General to update him on the progress of the investigation. In that letter, Chief Superintendent Neily indicated that the Special Task Force believed that it had reasonable and probable grounds to lay 173 criminal charges against 9 officers of the CFC drug squad.

[20] However, Chief Superintendent Neily went on to complain about a lack of assistance from the Crown and in particular its failure to review the court briefs that the investigators had provided. Chief Superintendent Neily also expressed particular concern that the lack of action by the Crown would affect its ability to meet its disclosure obligations:

Further, each time we have spoken of this, I have mentioned to you the overriding complexity of some of the priviledge [sic] issues and the results that this will have on witness and informant safety as well as other complicating factors. This will require an extraordinary effort on your part supplemented by my team to ensure that disclosure is appropriate. About the only thing that has been resolved is a joint desire to have disclosure ready for arrest and a general protocol for that process. Yet despite providing you’re [sic] the required information in December for you to make application for resources to this end, I am told that this has yet to occur. I have and continue to offer technical and physical support to this end. In the meantime, we have reached the one million page mark of our investigation.

[21] It is unclear whether Chief Superintendent Neily sent this letter to the Director; the copy disclosed to the defence and filed on the s. 11(b) motion before the trial judge was clearly a draft and was not signed, dated or put on letterhead, as Chief Superintendent Neily’s other correspondence had been. It is also unclear whether the alleged lack of co-operation between the Special Task Force and the Crown continued after March 2003. There is no evidence of any response from the Director, and Superintendent Neily was not called on the s. 11(b) application. In any event, some ten months later, charges were laid against only six officers of the CFC drug squad and only in relation to five of their investigations.

The Post-charge Chronology

Proceedings in the Ontario Court of Justice

[22] The post-charge chronology is complicated and lengthy. However, for the purpose of resolving the issues on these appeals it is only necessary to identify certain important markers relating to the pace of disclosure and the setting of dates for the preliminary hearing and the trial.

[23] All of the respondents were arrested and released on January 7, 2004. They were suspended with pay and were required to comply with various conditions of their release orders, including a no-contact condition and limits on travel outside Ontario. The Chief of Police also initially required the respondents to report to work twice daily.

[24] The respondents first appeared in the Ontario Court of Justice on February 25, 2004. Two days earlier, counsel for Schertzer wrote to the Crown requesting full disclosure as quickly as possible. At the February court appearance, Crown counsel advised the court that disclosure would be “voluminous”, and said that he was “hopeful” disclosure could be completed “in a two or three-stage process” during March and April. All of the respondents except Maodus appeared at this court date. Maodus and Pollard did not yet have counsel.

[25] The matter was adjourned to April 2, 2004. At that time, Maodus still did not appear, apparently because he was subject to bail conditions on unrelated charges that limited his ability to travel from his home in Windsor to Toronto. Maodus and Pollard were still unrepresented. (Maodus obtained counsel later in April 2004 and Pollard obtained counsel by June 2004.) Crown counsel indicated that the first portion of disclosure was available but would not be provided until defence counsel agreed to give an undertaking as to the use of the material. The Crown’s principal concern was that the material contained information identifying confidential informants.

[26] In the end, all of the counsel agreed to provide this undertaking, except Schertzer’s then counsel. The undertaking issue concerning Schertzer was not resolved until September 1, 2004, when Ewaschuk J. ruled that the Crown could require an undertaking as a condition for providing disclosure. At the next court appearance in the Ontario Court of Justice on September 14, 2004, Schertzer’s counsel withdrew.

[27] At the September 14 appearance, Schertzer, who was now unrepresented, asked that he be given full disclosure as quickly as possible. Crown counsel indicated that the Crown was looking into the question of providing disclosure to Schertzer. He also addressed the question of disclosure more broadly, stating that disclosure had been ongoing for several months and that almost 100,000 pages of disclosure had been provided to counsel for all the accused except Schertzer. He stated there was a third large instalment of disclosure coming, which the Crown hoped to have delivered by the end of October. He stated that counsel were agreeable to the case being adjourned to early to mid-November so that the matter could be spoken to after the delivery of the further disclosure. Defence counsel agreed to the adjournment “for the purpose of further disclosure”, and Schertzer objected. The case was adjourned to November 9, 2004.

[28] By November 9, 2004, Schertzer had retained new counsel, who had provided the necessary undertaking respecting disclosure. Crown counsel told the court that all counsel agreed that it was now time for a judicial pre-trial, which was subsequently scheduled for December 15, 2004.

[29] The judicial pre-trial took place, as scheduled, before Sheppard J. The matter was then spoken to in court and a target date was set for the preliminary inquiry to begin in January 2006, some 13 months hence. One factor favouring the January 2006 date was that an electronic courtroom would then be available. The Crown had been making disclosure electronically. Crown counsel said this in the presence of counsel:

I can also note for the record that in setting the target date for the preliminary inquiry, the Crown and counsel and Justice Sheppard, the issue was raised as to whether counsel viewed the amount of time necessary for the target date of the preliminary inquiry as reasonable and counsel, I understand, indicated that it was a reasonable amount of time and there were/was no request or complaints about that.

[30] In response, counsel for Miched said the following:

[J]ust for the record, though, there’s no complaints being made; but certainly at least on behalf of my client, nobody's waiving any rights.

[31] Because of Miched’s counsel’s comments, Crown counsel wrote to defence counsel later the same day seeking to confirm that “counsel agree that the target date for our preliminary inquiry is reasonable, and that there are no concerns or complaints with respect to section 11(b) relating to the passage of time from today’s date to the proposed commencement date of the preliminary inquiry in January of 2006.” Crown counsel also stated that if any counsel thought the proposed target date was not reasonable and might “contribute to an 11(b) problem”, he wanted to be advised, as it was his understanding that an ordinary (i.e. non-electronic) courtroom would be available “considerably sooner” than January 2006. Only counsel for Miched responded. In his letter he confirmed that he was “not currently complaining about delay” but was also “not waiving any s. 11(b) rights.”

[32] A number of events took place in 2005, none of which resulted in a postponement of the scheduled start of the preliminary inquiry in January 2006. First, the process of disclosure continued, with further disclosure being made in February, April, July, October and December 2005. Much of this disclosure was new, but some of it was simply a reorganization of documents that had already been disclosed. In September 2005, the Crown also provided a “consolidation” of all the disclosure made to date in a single database to allow for more efficient searching. The parties offer different perspectives on the importance of this additional disclosure. The Crown submits that it had disclosed the “heart” of its case in April 2004, and that the disclosure provided after this time was largely peripheral, the result of further investigative steps or in response to defence requests. The defence submits that the 2005 disclosure – and indeed the disclosure that continued right up to the anticipated start of the trial – was essential to their ability to make full answer and defence.

[33] Second, in February 2005, Crown counsel informed the defence that he would be bringing an application to remove certain counsel on the basis of alleged conflicts of interest because they had represented some of the other accused persons or Crown witnesses in other proceedings. On May 19, 2005, the respondents were arraigned before Blacklock J., the judge who would preside over the preliminary inquiry. It seems that one reason for the arraignment was so that Blacklock J. would be able to deal with the conflicts application. In the end, it was not necessary for Blacklock J. to do so because the Crown accepted waivers from the affected persons. However, correspondence at the time indicates that the waivers were for the preliminary inquiry only and that the Crown intended to revisit the matter if the case proceeded to trial.

[34] Third, beginning in September 2005, Blacklock J. conducted three focus hearings intended to narrow the issues for the preliminary inquiry. During these hearings, defence counsel agreed that the disclosure was sufficient to permit the preliminary inquiry to proceed. There were, however, continuing complaints from the defence about the state of disclosure and especially about excessive editing or vetting of the materials. For their part, Crown counsel complained that the defence requests were not sufficiently specific. On December 2, 2005, the case was adjourned to January 9, 2006, for the hearing of evidence at the preliminary inquiry. Counsel estimated that the Crown’s case would take six weeks of court time.

[35] Ultimately, the preliminary inquiry occupied 45 court days, including the hearing of evidence and submissions. During the preliminary inquiry, counsel for the respondents complained about disclosure. On several occasions they received disclosure relating to a witness only shortly before that witness was to testify. On at least one occasion they received disclosure relating to a witness who had already testified. On four days the court adjourned early because of disclosure problems.

[36] The evidence was completed on March 30, 2006, and submissions were completed on April 28, 2006. On May 31, 2006, Blacklock J. released lengthy reasons committing all the respondents for trial. However, Benoit was discharged on the conspiracy count and committed for trial only on the charges of assault and extortion in relation to the Quigley matter. Thus, to summarize some of the key proceedings in the Ontario Court of Justice:

January 7, 2004 Accused charged and released on bail.

April 21, 2004 First stage of disclosure (65,000 pages) is ready to be provided to counsel after undertaking signed.

June 14, 2004 All respondents now have counsel and have received first stage of disclosure, except Schertzer’s counsel, who refuses to provide undertaking.

September 1, 2004 Ewaschuk J. confirms that Crown can require undertaking as condition for providing disclosure.

September 14, 2004 Schertzer’s counsel withdraws.

November 9, 2004 Case adjourned for judicial pre-trial.

December 15, 2004 Judicial pre-trial held; all counsel agree to January 2006 as target date for preliminary inquiry.

June 2005 Conflict of interest matter resolved for preliminary inquiry with waivers from affected accused and witnesses.

January 9, 2006 Hearing of evidence at preliminary inquiry begins.

May 31, 2006 Blacklock J. releases reasons committing all respondents for trial but discharging Benoit on conspiracy count.

Proceedings in the Superior Court of Justice: The Schertzer Respondents

[37] Following the committal for trial, the Crown prepared two indictments. The long indictment charged the Schertzer respondents on 14 counts, including conspiracy to obstruct justice. The short indictment charged only Benoit with assault causing bodily harm and extortion relating to Quigley. The respondents appeared for the first time in the Superior Court on June 21, 2006. However, prior to this date, the respondents launched certiorari applications to quash their committals for trial. As well, the Crown launched an application to remove counsel for Correia, Schertzer and Miched on the basis of conflicts of interest. On June 21, the case was adjourned to August 16, 2006. In the meantime a judicial pre-trial was held on June 28, 2006. At the pre-trial, the parties estimated that the trial of the long indictment would take six months.

[38] On August 16, 2006, Crown counsel asked for a trial date to be set. However, Watt J. refused to do so, since the conflicts application was still outstanding and, as a result, it was unclear who would be representing two of the respondents. (By this time, Schertzer had a new lawyer who did not have a conflict.) The parties were having difficulty dealing with the conflicts application because of a dispute about the materials necessary to settle the issue. Crown counsel suggested that the application could be dealt with on the basis of an agreed statement of facts. Defence counsel contended that the entire transcript from the preliminary inquiry was required to show that there was no real foundation for the alleged conflicts of interest. Watt J. set January 22, 2007 as the target date for the hearing of the certiorari applications, and adjourned the long indictment to October 25, 2006, to set a trial date.

[39] Between August and October 2006, the parties were able to resolve the conflicts issue by the affected respondents and witnesses providing waivers. The waivers were similar to those provided prior to the preliminary inquiry but now took into account that some of the respondents might testify and be cross-examined by their former counsel, who now acted for co-accused. The possibility of resolving the conflict issue with waivers had apparently been raised by defence counsel in June, but was not pursued by Crown counsel until August. By October 17, 2006, the necessary waivers had been provided.

[40] The parties appeared briefly on October 25, 2006, to set a trial date. However, it became clear that setting a trial date would be somewhat complex because of commitments by some defence counsel and other, unrelated criminal trials involving Maodus which were scheduled for 2007. Then J. adjourned the matter to November 3, 2006, to give counsel an opportunity to settle on a trial date.

[41] On November 3, 2006, Crown counsel told Then J. that defence counsel were not available to begin the trial until July 2007, and that, in the circumstances, everyone agreed it made more sense to begin the trial after the summer. Thus, everyone was content to have the pre-trial motions begin on September 10, 2007. Those motions would take most of the fall. As a result, the suggested target date for the trial proper was January 8, 2008.

[42] Counsel for Miched confirmed that July 2007 was the earliest date all defence counsel were available, but noted for the record that the setting of the trial date had been held up until the conflicts issue could be resolved. He also clarified that the decision to postpone the start of the pre-trial motions until September 2007 reflected the “practicalities” of commencing with the case over the summer.

[43] Between November 2006 and September 2007, a number of other matters were dealt with. The certiorari motions were heard and ultimately dismissed on February 15, 2007. The parties had a series of case management meetings with Nordheimer J., who had been designated as the trial judge. The Crown disclosed further material comprising more than 100,000 pages. In a letter to defence counsel accompanying the largest batch of disclosure delivered during this time (comprising some 81,000 pages), Crown counsel explained that “much or most of the material is not properly or necessarily disclosable”, but was being provided “to avoid unnecessary debates later.” The balance of the disclosure provided in the run-up to the start of the pre-trial motions was described by the Crown as duplicates of material provided during the preliminary inquiry, records relating to investigative steps taken in 2007 and materials provided in response to defence requests. By September 2007, a total of approximately 300,000 pages of disclosure had been provided to defence counsel.

[44] Nevertheless, there were continuing disputes about disclosure. Counsel for the respondents complained about excessive vetting of the materials, gaps in the disclosure and the Crown’s failure to respond to disclosure requests in a timely way, if at all. The Crown took the position that some disclosure requests should properly be dealt with as third-party records applications, and also argued that the defence had not been specific enough in its requests for disclosure to permit the Crown to respond.

[45] The pre-trial motions commenced as scheduled before the trial judge on September 10, 2007. A number of those motions related to disclosure, including motions for production of Crown briefs relating to the criminal records of various prosecution witnesses and an application to resolve disputes over what the defence claimed was excessive vetting of the disclosure materials. There were also applications for production of third-party records concerning Pang, Quigley and Vacon, and applications to unseal informations used to obtain search warrants.

[46] By the end of December, it was apparent that the pre-trial motions would not be completed in time to start the trial on January 8, 2007. The date for jury selection was therefore pushed back to February 19, 2008, on the basis that the pre-trial motions would be concluded by February 1, 2008. Some court time was lost during October and November because counsel for Correia was required to try another case and Crown counsel needed time to review the many edits of disclosure that, in the trial judge’s view, had not been properly explained.

[47] From January 7 to 11, 2008, the parties argued the application by the defence to stay the proceedings. The defence application proceeded on two alternative bases. First, they argued that their rights to a fair trial under s. 7 of the Charter had been violated. In particular, they submitted that the combination of pre- and post-charge delay violated their fair trial rights because of the impact of lost evidence and fading memories. Second, they argued that the passage of time from the laying of charges to the estimated end of the trial violated their s. 11(b) rights to be tried within a reasonable time.

[48] The trial judge reserved his decision and in the meantime continued to deal with other pre-trial motions. On January 31, 2008, the trial judge released his reasons staying the proceedings under s. 11(b). He dismissed the s. 7 application on the ground that it was premature to decide whether the applicants’ rights to a fair trial had been violated.

[49] Thus, to summarize some of the key proceedings in the Superior Court of Justice:

June 21, 2006 First appearance in the Superior Court.

June 28, 2006 First judicial pre-trial; defence raises the possibility of waivers to resolve the conflicts issue.

August 16, 2006 Second appearance in the Superior Court; dispute about the record necessary to resolve the conflicts issue.

October 17, 2006 Affected parties provide the necessary waivers resolving the conflicts issue.

November 3, 2006 Court sets September 10, 2007 as the date for pre-trial motions and January 8, 2008 as the target date for jury selection.

September 10, 2007 Pre-trial motions commence.

December 21, 2007 New date for jury selection is set for February 19, 2008.

January 7-11, 2008 Section 11(b) motion is argued.

January 31, 2008 Trial judge stays proceedings for violation of s. 11(b).

Proceedings in the Superior Court of Justice: Benoit

[50] From the first appearance in the Superior Court of Justice in June 2006, counsel for Benoit sought the earliest possible trial date. Crown counsel, however, took the position that Benoit’s trial should follow the trial of the long indictment. On numerous occasions, Benoit’s counsel objected to this sequencing of the proceedings. He also sought an early date to argue Benoit’s s. 11(b) motion and indicated that if he could get an early trial date he would abandon Benoit’s certiorari application. At the request of Crown counsel, Then J. ruled that Benoit’s s. 11(b) motion would be heard with the similar motion brought by the Schertzer respondents. Crown counsel asked that the s. 11(b) motions be heard first, but the trial judge accepted the Schertzer respondents’ suggestion that the disclosure motions be heard first. While there was no firm estimate of how long the Benoit trial would take, there seems to be agreement that it would not exceed a week.

THE TRIAL JUDGE’S REASONS

[51] The trial judge considered whether the respondents’ s. 11(b) rights had been infringed in light of the four factors identified by the Supreme Court of Canada in Morin: (1) the length of the delay; (2) whether the accused waived any time periods; (3) the reasons for the delay; and (4) prejudice to the accused.

[52] Under the first heading, the trial judge found that the overall time to be assessed was 56 months for the Schertzer respondents (i.e. from the date the charges were laid in January 2004 to the anticipated end of the trial in August 2008). The total time for Benoit would exceed 56 months since his trial was to commence after the trial on the long indictment was completed. The trial judge found, and the Crown did not dispute, that these time periods were sufficiently lengthy to warrant an inquiry under s. 11(b).

[53] The trial judge next found that there were no instances of defence waiver throughout the proceedings.

[54] The trial judge then turned to the reasons for the delay. Following Morin, he first considered the inherent time requirements of the case. The trial judge accepted that the case against the respondents was a complex one, having regard to the number of accused persons and the sheer volume of disclosure. However, he rejected the Crown’s submission that the complexity of the case justified the time taken to ready it for trial, because of the length of the pre-charge delay. In his view, the pre-charge period should have been used to prepare the case, especially to prepare disclosure. The trial judge found that Chief Superintendent Neily’s letter of March 2003 was clear evidence that the Crown had not used the pre-charge period as efficiently as it should have. He went on to find that this state of affairs persisted after the charges were laid.

[55] Despite this, the trial judge was prepared to accept that a ten-month intake period in the Ontario Court of Justice was a reasonable, if lengthy one, given the complexity of the case. He rejected the Crown’s submission that the timing of the preliminary inquiry was in any way affected by the problems some of the respondents had in retaining counsel, finding instead at para. 97, that “given the pace at which disclosure was being made, no earlier preliminary inquiry date could have been set.” The trial judge was not prepared to accept an intake period in the Superior Court longer than the one-month period that he considered “normal”.

[56] Turning next to the actions of the accused, the trial judge rejected the Crown’s submission that the defence was responsible for the delay arising from Schertzer’s first counsel’s refusal to sign an undertaking as a condition of receiving disclosure. The trial judge instead concluded that, given the unusual nature of the Crown’s request, the time taken to resolve the undertakings controversy was more properly treated as part of the inherent time requirements of the case. It appears that this time was included in his calculation of the ten-month intake period.

[57] The trial judge also rejected the suggestion that the defence contributed to any delay in agreeing to a target date for the preliminary inquiry more than 13 months away. To the contrary, he found that, had the defence insisted on an earlier date, an adjournment would likely have been required. He explained at para. 111:

[I]f the state of disclosure was ultimately unsatisfactory when the preliminary inquiry began in January 2006, as it clearly was, it was not going to be any less so if the preliminary inquiry had commenced earlier. I am satisfied that defence counsel, in agreeing to the January 2006 date, fairly and reasonably assumed that, if a somewhat lengthier period of time passed prior to the preliminary inquiry commencing, the prosecution would be able to ensure that disclosure would be largely, if not entirely, complete. The case could then proceed efficiently and without interruption. The fact that over 80,000 pages of disclosure were made throughout 2005 provides after the fact justification for the reasonableness of that assumption.

[58] The trial judge went on to find that the only period of time attributable to the defence was one month of delay in setting the trial date. The Schertzer respondents had indicated in November 2006 that they were not available to begin the trial until July 2007. Based on the trial judge’s own knowledge of the state of the long trial list, it was apparent that the parties would have received a trial date about six months from the date of their request. In other words, the trial would not have commenced before June 2007. However, since the defence was not available until July, that one-month gap should be attributed to them. The trial judge treated July and August 2007 as neutral time since all the parties agreed that it was not practical to start the trial during the summer.

[59] The trial judge then considered the actions of the Crown and concluded at para. 116 that “the largest portion of the delay in this case results from the actions of the Crown relating to the manner and timing of the disclosure.” Again, the trial judge found that the time it took for the Crown to make disclosure was particularly unreasonable having regard to the length of the pre-charge period. He stated at para. 119 that as the police concluded that there were reasonable grounds to lay charges, “the process of readying disclosure should have begun.”

[60] The trial judge did not explicitly quantify the delay in the Ontario Court of Justice that he thought was attributable to the Crown’s approach to disclosure.

[61] The trial judge also found that the Crown was responsible for a four-month delay in the Superior Court of Justice, owing to its decision to renew the conflicts application following the preliminary inquiry and its initial refusal to resolve the issue by way of waivers. He did not specifically attribute any other delay in the Superior Court to the actions of the Crown.

[62] The trial judge went on to find that there was no institutional delay in this case.

[63] Turning to the final Morin factor, the trial judge found that the delay had caused a great deal of prejudice to the accused, both inferred and actual, and that their liberty, security and fair trial interests had been affected.

[64] In balancing the prejudice experienced by the accused with the public’s interest in having a trial on the merits, the trial judge found at para. 166 that while the charges against the accused were not the “most serious offences under our criminal law”, they were serious charges made even more so because they involved police officers acting in the course of their duties. The trial judge acknowledged that the public would reasonably expect that an officer accused of such crimes would be required to account for his actions in a court of law. At the same time, however, the trial judge observed at para. 167 that the public “would expect that this accounting should happen expeditiously.”

[65] The trial judge concluded at para. 172 that the Crown had failed in its obligation to bring the accused to trial within a reasonable time:

The vast majority of the time that has passed in this prosecution resulted from the Crown’s inability to make full and complete disclosure. I have not forgotten the fact that this is a somewhat complicated case and that, as a consequence, more time will be required to get the case from the time of arrest to the trial door. I have made allowances for that fact in my allocation of time for the inherent time requirements of the case. The fact that the case may have a measure of complication associated with it cannot, however, be used as an excuse to provide the Crown with a blank cheque against the bank of time that would otherwise be considered to be reasonable to get a case to trial. This is especially so, in my view, when the Crown fails to place any evidence before the court by way of explanation for what is presumptively inordinate delay. [Emphasis added.]

[66] In conclusion, the trial judge found that Benoit’s s. 11(b) rights were clearly infringed. The delay of more than five years before he could be tried was unacceptable and was caused by the Crown’s decision to try the large indictment first.

[67] With respect to the Schertzer respondents, while the matter was not as clear-cut, the trial judge held that the passage of time in their case was also unreasonable. He concluded that the Schertzer respondents’ interests in a prompt trial outweighed the societal interest in having the charges tried, and that a stay of proceedings was necessary.

[68] To summarize, the trial judge expressly attributed the delay as follows:

Intake period in the Ontario Court of Justice: 10 months (which may include the time to resolve the disclosure undertaking issue)

Intake period in the Superior Court of Justice: 1 month

Neutral delay in the Superior Court of Justice (the summer months in 2007): 2 months

Delay by the defence (setting the trial date): 1 month

Delay by the Crown (conflicts issue): 4 months

[69] Thus, of the 56 months under scrutiny, the trial judge expressly allocated only 18 months to any Morin category. As to the balance of the time, we are left with the trial judge’s observation at para. 116 of his reasons that “the largest portion of the delay in this case results from the actions of the Crown relating to the manner and timing of the disclosure.”

[70] The trial judge failed to identify other obvious explanations for the delay such as the five months taken to complete the preliminary inquiry and the six months anticipated to complete the trial. The trial judge did not expressly attribute the delay of 13 months from the date the preliminary inquiry was set until the evidence commenced, except to say that the period was not waived by the defence. While he attributed one month between November 2006 (when the trial date was set) and September 2007 (when the pre-trial motions began) to defence delay and characterized two months as neutral, he did not identify the reason for the remaining seven months.

THE STANDARD OF REVIEW

[71] This court has repeatedly held that the characterization of various periods of time is reviewed on a standard of correctness, as is the ultimate decision whether the delay was unreasonable: see e.g. R. v. Cranston (2008), 2008 ONCA 751, 244 O.A.C. 328 (C.A.); R. v. Quereshi (2004), 2004 ONCA 40657, 190 C.C.C. (3d) 453 (Ont. C.A.). However, the underlying findings of fact are reviewed on the standard of palpable and overriding error.

[72] In our view, the trial judge made a palpable and overriding error with respect to the impact of the Crown’s disclosure obligations on the delay. This error undermines his ultimate determination that the delay in respect of the Schertzer respondents was unreasonable. The trial judge also erred in failing to allocate lengthy periods of time to any category in the Morin framework. In our view, these and other errors led the trial judge to come to the wrong conclusion in respect of the Schertzer respondents’ s. 11(b) application.

ANALYSIS: THE SCHERTZER RESPONDENTS

Introduction

[73] As explained above, the trial judge found that the “vast majority” of delay in this case was attributable to the Crown’s failure to make full and complete disclosure. On appeal, the Crown submits that the trial judge erred by failing to quantify the amount of delay attributable to disclosure and by failing to identify those periods of time that, in his view, resulted from Crown disclosure practices. Instead, the Crown submits, the trial judge placed undue emphasis on the volume of material disclosed throughout the course of the proceedings without regard to its content or to the circumstances under which it was provided, in order to reach his conclusion that an unreasonable delay had occurred.

[74] The respondents support the trial judge’s characterization of the reasons for the delay. Further, in a compelling presentation before this court, counsel for Schertzer argued that the entire pace of the prosecution was dictated by the Crown’s approach to disclosure and that, had the Crown disclosed material as it should have in light of the lengthy pre-charge period, the case would have proceeded much faster.

[75] The difficulty with the Schertzer respondents’ submission is that it is simply not borne out by the record. When the chronology of this case is reviewed in light of the positions taken by the parties throughout, it becomes clear that the trial judge’s broad finding that the vast majority of delay resulted from the Crown’s failure to make full disclosure in a timely fashion is unreasonable and constitutes a palpable and overriding error. To the contrary, as we will explain, the time taken to bring the Schertzer respondents to trial should be regarded almost entirely as inherent time required to prosecute this complex case.

[76] We now turn to an analysis of the seven time periods that comprise the 56 months between the laying of the charges and the anticipated end of the Schertzer respondents’ trial. We will then assess the overall delay.

Analysis of the 56-month delay

The first time period: January 7, 2004 – December 15, 2004

[77] We begin with the period from January 7, 2004, when the respondents were charged, to December 15, 2004, when the target date for the preliminary inquiry was set. The trial judge at para. 101 of his reasons accepted that ten months was a reasonable, if lengthy, period for intake in the Ontario Court of Justice. It appears that he included the time taken to resolve the undertaking issue as part of this period by characterizing it as part of the inherent time requirements of the case. In our view, the eight months from January to September 2004 can be attributed to the intake period in the Ontario Court of Justice. This was the time needed for counsel to be retained, initial disclosure to be made and the disclosure undertaking issue to be resolved.

[78] As to the remaining three months, all accused except Schertzer agreed that the case should be adjourned from September to November so that the Crown could make further disclosure. At this time, the Crown also had to determine how to make disclosure to Schertzer now that his counsel had, eight months into the case, removed himself from the record. A two-month adjournment to deal with that issue and make further disclosure was not unreasonable and is also properly considered part of the intake period.

[79] As it turned out, Schertzer did retain counsel in the interim. The case was adjourned for an additional month, to December 2004, for the pre-trial. None of the counsel, including Schertzer’s new counsel, objected to this adjournment. This is hardly surprising considering that Schertzer’s counsel had just received thousands of pages of disclosure. All counsel would require some reasonable period of time to prepare for the judicial pre-trial. They were about to set the date for a proceeding which would demand considerable time and resources. In the circumstances, a one-month adjournment is properly considered an aspect of the intake period and thus part of the inherent time requirements of the case.

[80] In summary, we would characterize this entire time period as part of the inherent time requirements of the case.

The second time period: December 15, 2004 – January 9, 2006

[81] The second period to be considered is the 13 months between the setting of the target date for the preliminary inquiry and the commencement of that proceeding. This is the key period for the purpose of the s. 11(b) analysis because, although the trial judge did not specifically allocate this time to the Crown, he found that no earlier date could have been chosen because of the inadequacy of the disclosure. In our view, that was speculation. There is nothing on the record to support such a finding.

[82] The closest one comes is in Miched’s counsel’s letter of December 17, 2004, confirming the January 2006 target date, in which he wrote in part as follows:

In my view, we are not at the point of which we can assess the reasonableness of any delay or even the intake period for that matter, since we do not have full disclosure.

In summary, my client’s position is that he is not currently complaining, but he would like to deal with this matter in a timely fashion. He is currently indifferent in relation to the use of the electronic courtroom, but I have yet to receive all disclosure in this matter, therefore, I am unable to make a full informed decision.

[83] In our view, that letter cannot fairly be read as a claim that the preliminary hearing date was set for 2006 because the defence did not have enough disclosure to proceed any sooner. To the contrary, counsel expressly stated that he was not complaining about the delay. Further, as we explained above, this letter was sent in reply to a letter written by the Crown immediately after the target date was set, in which Crown counsel sought assurances that the contemplated 13-month delay was “reasonable” and that “there are no concerns or complaints with respect to section 11(b)” vis-à-vis the target date. The Crown concluded his letter by stating that if he had clearly stated counsel’s “common understanding and position” there was no need to reply to the letter. Only counsel for Miched responded.

[84] Moreover, though the trial judge correctly found that more than 80,000 pages of disclosure were provided by the Crown in 2005, the numbers do not tell the whole story. Counsel for Miched made precisely this point in his submissions on the s. 11(b) motion:

[T]he material isn’t quite as large as it might seem if you just look at the numbers. The prosecution in this case has provided documents and there were thousands of pages that were useless or weren’t properly part of the prosecution’s case. And those included things such as cover pages, blank pages, duplicated material. So as you go through the material, you may go through one portion and find a warrant and – sorry. A letter or series of documents and then go through another portion of disclosure. It’s been repeated either three or four times. So the material isn’t quite as voluminous as it quite appears.

[85] The trial judge found at para. 111 of his reasons that the state of disclosure was clearly “unsatisfactory” in December 2004 when the target date for the preliminary inquiry was set, as evidenced by the fact that “over 80,000 pages of disclosure was made throughout 2005.” However, in so finding, he mistakenly equated the volume of disclosure with the significance of disclosure. Not only was much of the disclosure a duplication of earlier disclosure, some of it was arguably peripheral and some of it related to events that occurred in 2005. It follows that the trial judge erred in concluding that an earlier preliminary inquiry date would inevitably have been adjourned owing to inadequate disclosure.

[86] The trial judge also erred in finding at para. 109 of his reasons that the contemporaneous correspondence leading up to the setting of the target date for the preliminary inquiry “makes it clear that there was considerable frustration at, and opposition to, the delays in receiving disclosure.” To be sure, the record reveals such exchanges, but they occurred in the immediate run-up to the preliminary inquiry and after it – not in the months leading up to the setting of the target date in December 2004. The exception is correspondence from Schertzer’s first counsel to the Crown demanding disclosure in early 2004, but this must be considered in the context of his refusal to sign the disclosure undertaking.

[87] Our conclusion that disclosure problems did not affect the scheduling of the preliminary inquiry is supported by subsequent appearances in the Ontario Court of Justice in 2005. Between February and September of that year the parties appeared for a variety of reasons, but there is no indication in the record that the target date was in jeopardy because of the pace of disclosure. Significantly, while disclosure was discussed at the three focus hearings before the preliminary inquiry judge in the fall of 2005, at no time did the defence suggest that disclosure was insufficient to permit them to proceed.

[88] On appeal, the Crown argues that the defence should be seen to have waived this entire time period. The waiver submission is founded on the principle set out in R. v. Smith, 1989 SCC 12, [1989] 2 S.C.R. 1120, and reiterated in Morin that consent to a court date can give rise to an inference of waiver, unless that agreement is mere acquiescence to the inevitable.

[89] It is important to look at exactly what Sopinka J. said at p. 1136 of Smith that is the foundation for the waiver argument:

Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant’s s. 11(b) rights might be inferred based on the foregoing circumstances. [Emphasis added.]

[90] Acquiescence to the inevitable is one circumstance that will show that counsel has not impliedly waived the accused’s s. 11(b) rights. But there can be other circumstances and other factors that will indicate that there was no waiver. This case presents such an example.

[91] This was a complex proceeding. By the time counsel came to set a date for the preliminary inquiry, they had the equivalent of approximately 125,000 pages of disclosure in hand, with the promise of more to come. While some counsel had had the disclosure for some time, Schertzer’s then counsel had only recently been retained. The expectation was that the preliminary inquiry would last for many weeks. Crown and defence counsel required time to prepare. The selection of a target date some 13 months away afforded them that opportunity. The January 2006 date also allowed for the use of the electronic courtroom, which was clearly advantageous given that disclosure had been made electronically.

[92] In our view, the best interpretation of the events leading up to the setting of the target date was that counsel were all of the view that 13 months was a reasonable time to prepare for a difficult preliminary inquiry. This is consistent with Crown counsel’s statement made at the time the date was set, where he indicated that “counsel viewed the amount of time necessary for the target date as reasonable” and “there were/was no request or complaints about that.” It is also consistent with the fact that, apart from counsel for Miched, no other defence counsel responded to the Crown’s letter soliciting objections to the reasonableness of the target date.

[93] One further point. Defence counsel’s agreement to set a target date for the preliminary inquiry, even though more disclosure was anticipated, is consistent with this court’s direction in R. v. M. (N.N.) (2006), 2006 ONCA 14957, 209 C.C.C. (3d) 436 (Ont. C.A.), where Juriansz J.A. said the following at para. 37:

Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. As this court stated in R. v. Kovacs-Tator (2004), 2004 ONCA 42923, 192 C.C.C. (3d) 91 at para. 47: “the Crown is not obliged to disclose every last bit of evidence before a trial date is set.”

[94] It would be an odd result if counsel, by acting responsibly in accordance with this court’s directions, were deemed to have waived their clients’ rights. In our view, the 13-month period was part of the inherent time required to prepare for the lengthy preliminary inquiry. Some of it might conceivably be considered reasonable institutional delay as the time necessary for the electronic courtroom to be available, but the record does not permit us to make a conclusion on this point.

The third time period: January 9, 2006 – May 31, 2006

[95] This time period was taken up with the preliminary inquiry. Once the preliminary inquiry began, it proceeded as scheduled, except for four days when court adjourned early owing to disclosure issues. While the defence complained on many occasions about disclosure being made during the preliminary inquiry, the pace of disclosure did not otherwise affect the pace of the preliminary inquiry. To the contrary, the preliminary inquiry started and finished within the anticipated time frame. Moreover, many of the disclosure issues about which the defence complained were not by any means clear cut. There were serious questions on grounds of relevancy and privilege about whether or not disclosure of certain materials was required. In accordance with Stinchcombe, these questions would have to be resolved by the trial judge. Many of the disclosure issues were a direct result of continuing, extensive demands from defence counsel. This time period was part of the inherent time requirements of the case.

The fourth time period: June 1, 2006 – November 3, 2006

[96] The trial judge found that the intake period in the Superior Court of Justice was one month. He made this finding based on his experience in the court, and we would defer to his assessment. However, that finding fails to account for the approximately one month between the committal for trial (June 1) and the first appearance in assignment court (June 21). In our view, that time is also part of the intake period in the Superior Court of Justice.

[97] Following the respondents’ first appearance in the Superior Court of Justice there was a four-month period from June 21 to October 17, 2006, which the trial judge attributed to the Crown’s refusal to accept waivers to resolve the conflicts issue. In our view, this was an error.

[98] As explained above, prior to the preliminary inquiry the Crown signalled its intention to seek to remove certain counsel on the basis of conflicts of interest. This issue was resolved through the provision of waivers from the affected parties. Upon accepting the waivers, Crown counsel expressly indicated that they were valid for the purpose of the preliminary inquiry only, and that the issue would likely be renewed for the purpose of the trial.

[99] Immediately upon receipt of the order committing the respondents for trial, the Crown commenced an application to remove counsel for Miched, Correia and Schertzer because of the alleged conflicts of interest. Schertzer later retained new counsel and so the application ultimately only concerned counsel for Miched and Correia. At the judicial pre-trial on June 26, 2006, co-counsel for Correia apparently raised the possibility of resolving the conflicts issue by waivers, as had been done at the preliminary inquiry. Crown counsel did not accept the offer.

[100] In his submissions before the trial judge, Crown counsel explained his initial reluctance to accept waivers. In short, he was of the view that accepting waivers to deal with the conflicts issue was somewhat risky. The risk was a tolerable one at the preliminary inquiry. For one thing, as explained in correspondence prior to the preliminary inquiry, if one of the accused resiled from his waiver, the Crown had the remedy of preferring a direct indictment. However, for the trial, the Crown initially sought the finality of a court ruling to deal with the conflicts issue. The risk was also more likely to crystallize at the trial because one or more of the accused who had been represented by Correia’s or Miched’s counsel might testify and be subjected to cross-examination by his former counsel.

[101] Before the trial judge, Crown counsel also explained his change in position and why the Crown ultimately decided to accept waivers similar to those that had been offered at the preliminary inquiry. In short, the conflicts application was becoming bogged down in procedural wrangling over the record that was necessary for hearing the application. Defence counsel were insisting that the whole preliminary inquiry transcript was required, while Crown counsel wanted to proceed on the basis of an agreed statement of facts. More importantly, the assignment judge in the Superior Court of Justice understandably refused to set a trial date until the conflicts issue was resolved, since until then the court would not know who would be acting for the various respondents.

[102] Thus on August 18, 2006, Crown counsel wrote to outside counsel who had been retained to argue the conflicts application and asked whether he was prepared to provide waivers, in which case the Crown would reconsider its position. Counsel did not respond to this overture, prompting Crown counsel to write to counsel for the respondents directly on September 15, 2006. The text of the letter shows that the Crown was acutely aware of the passage of time and was eager to set a trial date as soon as possible.

[103] This letter set in motion the waiver process and by October 3, 2006, Crown counsel had been provided with copies of the waivers. Signed copies of the waivers were delivered to the Crown during the week of October 17, 2006. The waivers were similar to those provided for the purposes of the preliminary inquiry but also addressed the question of waiving conflict of interest as a ground of appeal.

[104] The trial judge held that the Crown was responsible for four months of delay because of its decision to launch the conflicts application rather than seek waivers, as had been done before the preliminary inquiry. He said that the Crown had not offered an explanation for the different positions taken before the preliminary inquiry as opposed to the trial.

[105] In our view, the trial judge erred in attributing the four months while the conflicts issue was resolved to actions of the Crown. He misapprehended the record in stating that there was no explanation for the different positions taken before the preliminary inquiry and the trial. We have set out the explanation provided in submissions to the trial judge. The Crown’s position was a reasonable one. The parties were about to embark on a difficult and complex six-month trial. The possibility of disqualifying conflicts of interest was real and the Crown’s application was not frivolous, arbitrary or taken in bad faith. The risks were different and greater at the trial than at the preliminary inquiry. The Crown had every reason to be concerned about the trial being derailed by a conflict of interest. A conflict could result in a mistrial and even further lengthy delay.

[106] The Crown moved promptly to bring the conflicts issue to the attention of counsel and the court. The Crown also indicated it was willing to reassess its position on the question of waiver two months after the first court appearance in the Superior Court of Justice. There was no response to that suggestion for a month. Close to one more month elapsed before the waivers were in place.

[107] While an argument could be made that the time required to resolve the conflicts issue should be divided between actions of the Crown and actions of the accused, it is more realistic to consider this as part of the inherent time requirements of the case. The issue had to be resolved. In retrospect, four months seems a long time to do so, but it was not so unreasonable that this court should attempt to dissect the delay and assign responsibility accordingly.

[108] The manner in which the Crown approached the conflicts issue also provides an example of the Crown taking steps to expedite the proceedings. It was Crown counsel who sought to simplify and expedite the conflicts application through an agreed statement of facts. And when it became apparent that the application was leading to delay, the Crown raised the possibility of waivers, prompted in part by a desire to secure a trial date. This is inconsistent with the trial judge’s finding at para. 179 that there was nothing in the record to show that the Crown had made an effort “to move this matter forward more quickly, more efficiently and more proactively”. Other examples include the Crown’s willingness, both in the Ontario Court of Justice and in the Superior Court, to agree to earlier dates if the accused were dissatisfied with the pace of the proceedings.

[109] Within days of the Crown receiving the waivers, the parties re-appeared to set a trial date but were unable to settle on a date at that time, apparently because they had expected the court to provide them with possible dates. The matter was put over a week, and on November 3, 2006, the trial date was set. We would not attribute the time between October 17, when the waivers were received, and November 3, when the trial date was set, to either side but would simply characterize this as neutral delay.

The fifth time period: November 3, 2006 – September 10, 2007

[110] As we explained above, at the set date appearance on November 3, the court was informed that the defence was not available to start the trial before July 2007, and that in the circumstances everyone agreed it made more sense to begin the trial with pre-trial motions in September 2007. There is no suggestion on the record that the trial was set more than ten months away because of problems with disclosure. Rather, the date was dictated by defence counsel’s availability and the fact that Maodus had other, unrelated trials scheduled for 2007.

[111] In his stay ruling, the trial judge declined to find that the Schertzer respondents waived the period between the setting of the trial date and the start of pre-trial motions, but he did attribute one month to them due to their unavailability in June 2007. As we explained above, this was because, even though the Schertzer respondents were not prepared to proceed until July 2007, the trial judge found at para. 104 that “in the normal course, once counsel are ready to set a trial date on the long trial list, they can expect to receive a trial date that is about six months away.” If counsel had indicated in November 2006 that they were prepared to accept the first available date, that date would have been in June 2007. However, the respondents were not actually available until July. The trial judge therefore concluded that they were responsible for the delay from June to July 2007. He characterized the delay from July to September as neutral.

[112] We accept the trial judge’s finding that in the normal course, accused on the long trial list in Toronto can expect to receive a trial date that is about six months from the time they are ready to set the date. Ordinarily, this would be considered institutional delay, assuming the parties are otherwise ready to proceed. The trial judge, however, found that there was no institutional delay in this case. In the result he did not characterize the six-month period during which both the defence and the court were unavailable. In our view, the six-month period was either waived by the defence or was part of the inherent time requirements of the case. The delay was not caused by the Crown. We accept the trial judge’s characterization of the summer months as neutral time.

The sixth period: September 10, 2007 – January 31, 2008

[113] This time period was taken up with pre-trial motions and concluded with the issuance of the stay ruling. As noted above, the trial judge did not account for this five-month period in his Morin analysis. Before this court, counsel for the Schertzer respondents submit that most of the time consumed in pre-trial motions was a direct consequence of Crown disclosure practices, and that this time should therefore be attributed to the Crown. The Crown initially took the opposite view, arguing that the time taken for pre-trial motions should mostly be attributed to the defence. However, in oral argument, we took the Crown to have retreated from that position and instead argued that the pre-trial motions should be considered part of the inherent time requirements. We agree with that submission.

[114] Ordinarily, the time taken to complete the trial, including resolution of pre-trial motions, the hearing of evidence and, in a judge-alone case, time while the decision is under reserve, is part of the inherent time requirements of the case. It is neither Crown delay because the Crown seeks to adduce certain evidence nor defence delay because the defence objects.

[115] Exceptionally, the time taken at trial will lead to a finding of unreasonable delay. R. v. Rahey, 1987 SCC 52, [1987] 1 S.C.R. 588, was such a case. There the trial judge reserved for 11 months to resolve a motion for a directed verdict, a matter that should have been resolved in a few days. We can also envisage circumstances where time spent during pre-trial motions could be attributed to either the Crown or the defence. If the trial judge concluded that defence motions were frivolous and served no legitimate purpose, the time to deal with those motions might be attributed to the defence. Similarly, if the trial judge was of the view that, for example, the Crown acted arbitrarily or in bad faith in refusing to make disclosure or unnecessarily delayed the proceedings by failing to accept reasonable admissions from the defence, the resulting delay could be attributed to the Crown.

[116] The trial judge here was obviously concerned with the pace of disclosure. He also made rulings that indicate he disagreed with the Crown’s overall approach to disclosure. For example, he held that the Crown had not satisfactorily explained many of the passages that had been edited out or vetted. It is also apparent that the trial judge considered that the time taken to make disclosure prior to trial was unsatisfactory. That view may have been coloured in part by the trial judge’s erroneous finding that disclosure should have been prepared as the police found they had reasonable and probable grounds to lay a charge, a matter to which we will return shortly. That aside, we have not been persuaded that the time taken to resolve the disclosure issues during the pre-trial motions was due to arbitrary or bad faith conduct by the Crown.

[117] We would consider the five months spent on pre-trial motions part of the inherent time requirements. We acknowledge that not every day of that time was used for argument. At different times the Crown or defence requested adjournments to prepare their materials. Some time was lost because counsel for Correia had to conduct another trial. It will also be recalled that the trial proper was to commence on January 8, 2008, but the start date was pushed back to February 19 to allow more time for pre-trial motions. The respondents submit that this time was caused by the Crown’s failure to make adequate disclosure. In our view, this is not a reasonable characterization of this period. For various reasons the pre-trial motions took longer than expected. Those reasons are complex and not by any means due solely to disclosure issues.

[118] In short, during the pre-trial motions counsel were engaged in a difficult and complex task. The time taken was reasonably necessary to provide a coherent record for the trial judge.

The seventh period: February 1, 2008 – August 2008

[119] Since the charges were stayed on January 31, 2008, this final period represents time that would have passed had the trial proceeded as scheduled. As explained above, pre-trial motions were expected to conclude by February 1, with jury selection beginning on February 19. The trial was expected to wrap up by the end of August, lasting a total of six months. Obviously, the time taken to conduct the trial should be considered part of the inherent time requirements.

[120] To summarize, we would attribute the following periods of time to the inherent time requirements of the case:

Intake in the Ontario Court of Justice: 11 months

Intake in the Superior Court of Justice: 2 months

Time from setting date for preliminary to commencement of preliminary inquiry: 13 months

Preliminary inquiry: 5 months

Resolving the conflicts issue 4 months

Pre-trial motions: 5 months

Trial (estimated) 6 months

Total 46 months

[121] In addition, we would attribute one month of delay to the Schertzer respondents in scheduling the trial. We would attribute an additional six months of delay in scheduling the trial either to defence waiver or to the inherent time requirements. The summer preceding the start of the pre-trial motions was neutral time, as was the approximately three-week period in the fall of 2006 between when the waivers were received and a trial date was set. This accounts for the 56 months that passed between the laying of the charges and the anticipated end of the trial on the long indictment.

Assessment of the overall delay

[122] As L’Heureux-Dubé J. explained in R. v. Conway, 1989 SCC 66, [1989] 1 S.C.R. 1659, at p. 1674, the court must evaluate the reasonableness of the overall delay and not simply focus on individual time periods when assessing a claim under s. 11(b). Arbour J.A. made a similar point in R. v. Bennett (1991), 1991 ONCA 2701, 3 O.R. (3d) 193 (C.A.), at p. 211, aff’d 1992 SCC 61, [1992] 2 S.C.R. 168, where she observed that “[i]t is easy to lose sight of the importance of the total period of delay” and that “[u]ltimately, it is the reasonableness of the total period of time that has to be assessed, in the light of the reasons that explain its constituent parts.”

[123] As we have demonstrated, far from this being a case where the vast majority of the 56 months passed because of the Crown’s failure to make full disclosure, virtually none of the time can be so characterized. Rather, the bulk of the time that passed is attributable to the inherent time required to prosecute this complex case. In Morin, at pp. 791-92, Sopinka J. observed that inherent time requirements will vary with the complexity of the case. There was a dispute here as to the degree of complexity of the case. The Crown submits that the case is highly complex. The defence submits that the case is relatively straightforward, essentially involving several discrete events. The dispute is reflected in the trial judge’s reasons at para. 87 where he observed, on the one hand, that the case was complicated by the volume of disclosure, and on the other hand, that the charges against the accused were relatively straightforward and may not have warranted such extensive disclosure.

[124] There are a number of objective factors that suggest this was a very complex case. The long indictment included five accused. It related to events over a five-year period. While, as the trial judge noted, the substantive counts concerned discrete events, the Crown also alleged an overall conspiracy to obstruct justice. The complexity of the case is reflected in the length of the preliminary inquiry (six weeks of evidence), the time for the pre-trial motions (five months) and the projected length of the trial (six months).

[125] Finally there is the disclosure. As the trial judge noted, by the time of the motion to stay the proceedings, the Crown had disclosed the equivalent of over 330,000 pages. However the complexity of the case is not simply reflected in the volume of disclosure, which, as explained above, is a somewhat misleading measure. The disclosure also required considerable editing or vetting because of privilege concerns. The defence made numerous extensive demands for disclosure, some of which were litigated in the pre-trial motions. There were also requests for documents held by third parties. Many of the disclosure and third-party demands did not relate to the core of the Crown’s case, but concerned matters going to the credibility of Crown witnesses. For example, the defence sought the Crown briefs that underlay the convictions of a number of Crown witnesses. Some of these Crown briefs were held by the Toronto Police Service, but others were in the possession of other police forces and related to convictions that were entered many years earlier. The defence cannot at once contend that this was a simple case which could be tried in relatively short order, and at the same time make extensive disclosure and third-party records requests that significantly add to the complexity of the case and lengthen the time needed to get the case to trial.

[126] Plainly, this was a complex case. The inherent requirements of such a case will serve to excuse longer periods of delay than for cases which are less complex. The trial judge, in our view, made two related errors in his approach to the complexity of the case and hence his approach to the inherent time requirements. First, he held that the disclosure should have been prepared as the officers concluded that they had reasonable grounds to lay charges. Second, he considered that in view of the lengthy pre-charge delay, the time that could reasonably be allowed to make disclosure should be shortened.

[127] As to the first error, relying in part upon Chief Superintendent Neily’s letter, the trial judge suggested at para. 119 that once the officers had reasonable and probable grounds to lay a charge “there is no reason why someone could not have been tasked with beginning the preparation of the disclosure relating to those charges.”

[128] In many prosecutions, the police should be in a position to provide the Crown with the disclosure very soon after the charges are laid, so that the Crown can then provide disclosure to the defence. But this was not an ordinary case. As the trial judge noted, the police reviewed many transactions, only some of which led to charges being laid. The police, quite reasonably, were not prepared to lay charges until they had obtained advice from the Crown. It would have been a waste of time and effort to begin preparation of disclosure before the decision was made about the charges to be laid. The courts should be wary about imposing deadlines for pre-charge preparation: see R. v. Atkinson (1991), 1991 ONCA 7113, 5 O.R. (3d) 301 (C.A.), at p. 318, aff’d 1992 SCC 43, [1992] 3 S.C.R. 465.

[129] Second, in paras. 89-91, the trial judge held that the time the authorities take to “ready their case prior to charges being laid” must have an impact on what should be considered the inherent time requirements of the case. He noted at para. 91 that “the allegations surrounding these officers and others became the subject of investigation commencing at least by 1998.” He returned to this subject at paras. 120-122, where he held that “if the charges have, as in the case here, been preceded by a lengthy and exhaustive investigation, that fact should militate against any suggestion that a longer period of post-charge delay can be justified for the purposes of making disclosure.”

[130] However, the relevant period of pre-charge delay did not go back to 1998. While the CFC drug squad had been under investigation since 1998, if not earlier, the investigation into the events that led to the charges in the long indictment commenced in August 2001. The earlier Police Services Act charges and the “fink fund” charges were not part of the allegations in the long indictment.

[131] Given the complexity of the case, it is our view that the inherent time requirements are necessarily longer than might otherwise be considered appropriate. In reaching this conclusion, we should not be taken as either validating or criticizing the pace of or the Crown’s approach to disclosure. However, it must be borne in mind that the defence approach to disclosure will impact on the pace of the proceedings. Some counsel may choose to pursue every possible relevant piece of information in the Crown’s possession, while other counsel may choose a more focused attack on specific crucial Crown witnesses. Neither approach is necessarily unreasonable, but the former approach can result in significantly longer inherent time requirements.

Prejudice to the Schertzer Respondents

[132] The trial judge found that the respondents suffered actual and inferred prejudice as a result of the delay. The trial judge inferred prejudice to the respondents’ security interests from the “inevitable stress” that arises when criminal charges are outstanding for “prolonged periods of time”.

[133] The trial judge gave lengthy and comprehensive reasons for finding actual prejudice. Each of the respondents filed lengthy affidavits setting out the nature of the prejudice they experienced. As the trial judge noted, these affidavits had common themes. The respondents all stated that they essentially lost their employment as police officers, although most of them continued to receive pay while under suspension. They lost opportunities for advancement and extra pay from overtime and paid duty. The trial judge described the respondents as having become pariahs in the police community. Most of the respondents were being treated or had been treated at different times for depression. They were subject to various restrictions on their liberty, such as complications when travelling to the United States and limitations on their ability to socialize with each other. A particularly disturbing aspect of the prejudice was that members of the Special Task Force appear to have intentionally leaked information regarding the investigation to the media.

[134] The trial judge also found prejudice to the respondents’ fair trial interests because of the impact of the delay on witnesses’ memories and the loss or disappearance of evidence. When considering the respondents’ application under s. 7 of the Charter, the trial judge was not prepared to conclude at the pre-trial stage that those problems had so impaired the respondents’ fair trial rights as to warrant a stay of proceedings. However, when considering the s. 11(b) application, the trial judge held at para. 155 that “the delay in this case both in its impact on memories and the loss or disappearance of evidence is indisputable and, by definition, it has affected the fair trial rights of the [respondents]”.

[135] While it was open to the trial judge to find that there was prejudice due to faded memories, in our view, the impact of the delay on lost evidence was not established by the respondents. The respondents failed to establish that any of the evidence would have existed had the case come to trial within a shorter time. They also failed to show that the evidence, had it existed, would have assisted their case, as opposed to bolstering the prosecution case. The respondents relied upon five instances of lost records. We will deal with one to show the problem with the lost evidence argument.

[136] Jonathan Reid was a member of the CFC drug squad at the relevant time and interviewed Quigley’s mother on the night of Quigley’s arrest. The respondents claimed that Mrs. Quigley had told Reid that there was only $20,000 to $25,000 in her safety deposit box. The respondents claimed that by the time of trial, Reid’s steno notes of that part of the interview, which would have bolstered the defence position that there was no theft from the safety deposit box, no longer existed. The difficulty with this submission is that there was a serious contest as to what had happened to these notes. While the defence submitted they had been lost during the STF investigation, the Crown submitted that in fact Schertzer had destroyed the notes. There was no other evidence to support the contention that the steno notes would have assisted the defence; the notes in Reid’s memo book and the information to obtain the warrant to search the safety deposit box do not contain any reference to the amount of money contained in the box. Although Reid testified before the trial judge, the trial judge made no finding that the steno notes ever existed. He referred at para. 70 of his reasons simply to the “unresolved issue regarding possible loss of an officer’s notes relating to the monies that were alleged to be in the Quigley safety deposit box.”

[137] To conclude, it was open to the trial judge to find that there was inferred prejudice and actual prejudice to the respondents’ liberty and security interests. It was also open to him to find some inferred prejudice to the respondents’ fair trial interests because of faded memories: see R. v. Godin, 2009 SCC 26, at paras. 35-36. We are not persuaded that prejudice by reason of lost evidence was made out.

Balancing

[138] In balancing the Schertzer respondents’ rights to a trial within a reasonable time against the societal interest in a trial on the merits, the most significant factor is that almost all of the delay was due to the inherent time requirements of the case. The lengthy delay was not the result of Crown or defence conduct or a lack of institutional resources. Simply put, this was a complex case that required and would require significant expenditures of court time at the preliminary inquiry, pre-trial and trial stages. It was also a case that required time for all the parties to prepare adequately. The case imposed significant burdens on the Crown and the respondents in dealing with and responding to the extensive disclosure. There was no submission made to this court that the Crown made too much disclosure or that the Crown and police should not have responded to the defence demands for further materials beyond the core disclosure that was made in 2004. The case also posed unique problems because of the involvement of confidential informants as witnesses, which led to the need for editing and vetting of disclosure materials. As the case proceeded through the Ontario Court of Justice and the Superior Court of Justice, the parties all recognized that this was a case that would require a lengthier period of time to prepare. There can be no better gauge of the reasonableness of that delay than the positions the parties took when they set the target date for the preliminary inquiry.

[139] Objectively speaking it is not unreasonable that a case that would require some 16 or 17 months of court time at the Ontario Court and Superior Court levels, would take some time to prepare. Admittedly, 56 months is a lengthy period of time, but it was not unreasonable. These were very serious charges. As the trial judge noted at para. 166:

The possibility that police officers intentionally embarked on a course of conduct designed to distort the criminal process, from the laying of charges through the disclosure process and ultimately to the evidence that they gave in court, strikes not only at the very foundation of our justice system, it also seriously undermines the public confidence that our police services must enjoy if they are to function effectively.

[140] This serious and complex case proceeded at the pace contemplated and accepted by the accused and their counsel. The Crown submits that, in the absence of any delay that can be properly attributed either to systemic factors or otherwise attributed to the Crown, it is unnecessary to engage in a balancing analysis. We do not have to address that submission. Assuming that prejudice remains a relevant consideration, we are satisfied that in the balancing required under s. 11(b), the Schertzer respondents’ rights to a trial within a reasonable time were not infringed, notwithstanding the prejudice to their liberty and security interests and the prejudice resulting from fading memories inevitable in a case that relates to events that took place many years earlier.

[141] Giving full weight to the prejudice suffered by the respondents because of the delay, the charges should not have been stayed. This case proceeded slowly but it also proceeded at the pace dictated by its complexity and the actions of all the parties.

REMEDY – Schertzer respondents

[142] At the hearing of the appeal, the court raised with counsel whether, if the appeal were to be allowed, the court should order a new trial or order that the trial proceed before the trial judge. In R. v. Allen (1996), 1996 ONCA 4011, 110 C.C.C. (3d) 331 (Ont. C.A.), aff’d 1997 SCC 331, [1997] 3 S.C.R. 700, this court left open the question of whether the court has the jurisdiction to set aside the stay and direct a continuation of the trial from the point where the stay was entered. Since Allen, Martin J.A. in R. v. Yelle (2006), 2006 ABCA 276, 397 A.R. 287 (C.A.), has written convincingly that an appeal court does have the jurisdiction to make such an order.

[143] Crown counsel submitted that a new trial was preferred. Counsel for the respondents argued that we should order the trial to continue so as not to lose the progress that has already been made in pre-trial motions, thus risking a further delay. We do not share the respondents’ counsels’ concern. All the parties have repeatedly stated that they are interested in a speedy trial. While the judge at the new trial will of course not be bound by any of the rulings or findings of fact made by this trial judge, all counsel can demonstrate their commitment to a speedy trial by agreeing, if deemed appropriate, that rulings made by this trial judge will apply at the new trial.

[144] This is not a proper case to order a continuation, especially in light of findings made by the trial judge in his s. 11(b) ruling that could have an impact on future applications by the defence under s. 7 of the Charter as to the significance of the lost evidence and responsibility for problems with disclosure. In our view, this is a case for the usual order made by this court, that there be a new trial. In so ordering, we trust that all counsel will move with an appropriate sense of urgency to get this matter back on track.

ANALYSIS – BENOIT

[145] In our view, Benoit stands in a starkly different position from the Schertzer respondents. The approximately 29-month delay to his committal for trial is fully explained and not unreasonable; it is what occurred thereafter that led to a violation of Benoit’s rights. From the first appearance in the Superior Court of Justice in June 2006, counsel for Benoit sought the earliest possible trial date. Benoit’s trial was relatively simple and could have been tried within a few months. The trial itself would have taken, at most, one week, not six months as was the projected length of the trial of the long indictment. It was because the Crown took the position that Benoit’s trial should follow the trial of the long indictment that some two and a half to three years more would elapse before Benoit could be tried. That a relatively simple case should take that time to try in the Superior Court of Justice after the lengthy period of time spent in the Ontario Court of Justice is unreasonable.

[146] We accept that the courts should be hesitant to second guess or monitor the tactical or strategic decisions of Crown counsel in deciding the order in which cases are tried. But where that decision leads to an unreasonable and unnecessary delay, the courts must protect the accused. Obviously, the trial court will give careful consideration to Crown submissions as to the order in which trials should proceed. But once the two indictments were laid before the Superior Court of Justice, that court had the power to order that Benoit’s trial proceed before the trial of the long indictment so as to protect his constitutional rights.

[147] In short, Benoit should not have been held hostage to the trial of the long indictment. No cogent reason has been provided as to why the Crown could not try Benoit first. Benoit had a right, which his counsel repeatedly sought to vindicate, to have his trial held as soon as possible. That trial did not have the complexities of the long indictment trial. Benoit suffered serious prejudice from the delay. The difference between him and the other respondents is that the delay in his case is unjustified and inexcusable. His case, while serious, does not have the same seriousness as do the charges in the long indictment, especially the allegation in that indictment of a long-standing conspiracy to obstruct the course of justice.

DISPOSITION

[148] Accordingly, the Crown appeal with respect to Schertzer, Correia, Miched, Maodus and Pollard, is allowed, the stay of proceedings is set aside and a new trial is ordered. The Crown appeal from the stay of proceedings against Benoit is dismissed.

Signed: “Doherty J.A.”

“M. Rosenberg J.A.”

“M.J. Moldaver J.A.”

RELEASED: ``DD`` October 28, 2009