COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2013 ONCA 169

DATE: 20130320

DOCKET: C54526

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Tat Nguyen

Respondent

James Clark, for the appellant

Kim Schofield, for the respondent

Heard: October 5, 2012

On appeal from a stay of proceedings entered by Justice J. Getliffe of the Ontario Court of Justice on October 6, 2011.

Watt J.A.:

[1] Law enforcement agencies become interested in international trade when they suspect the commerce involves contraband. Like guns and drugs.

[2] The respondent Nguyen was one of more than three dozen individuals charged with gun and drug offences at the conclusion of a lengthy investigation involving several Canadian and American law enforcement agencies.

[3] Two years after his arrest, the respondent appeared for trial in the Ontario Court of Justice on a new information that charged only him with three drug offences and a single count of possession of the proceeds of crime. The presiding judge concluded that the Crown had not brought the respondent to trial within a reasonable time and ordered that the proceedings against the respondent be stayed.

[4] The Crown appeals. The reasons that follow explain why I conclude that the trial judge erred in his decision to stay the proceedings. I would allow the appeal, set aside the stay, and order a new trial before a different judge of the Ontario Court of Justice.

THE BACKGROUND FACTS

[5] A brief overview of the underlying investigation, followed by a trudge through its procedural sequents, suffices in assessing the correctness of the trial judge’s decision to order a stay of proceedings.

The Investigation

[6] Project Ulverston was an investigation involving several Canadian police forces, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Canadian Border Services Agency. The investigation continued for nine months and included execution of more than five dozen judicial authorizations, warrants, and production orders. Investigators conducted electronic, video, and physical surveillance, executed search warrants and production orders, and intercepted in excess of 60,000 telephone calls and text messages.

[7] The project concluded on October 5, 2009, when several search warrants were executed and more than three dozen persons arrested on drug, firearm, proceeds of crime, and criminal organization charges.

The Search of the Respondent’s Home and Vehicle

[8] On October 5, 2009, investigators executed search warrants at the respondent’s home. There, they found crack cocaine, hashish and marijuana, along with a money counter, digital scales and more than $7500 in cash. The crack cocaine was being dried a few feet away from the respondent’s bed. Components essential for the production of crack cocaine were also found in the respondent’s home. A warranted search of the respondent’s car yielded $8,000 in bundled currency.

[9] The estimated street value of the drugs found at the respondent’s residence was about $63,000. The estimated street value of all the drugs seized at the conclusion of Project Ulverston exceeded $3 million.

The Early Appearances and Prosecution Disclosure

[10] The respondent first appeared in court on October 6, 2009, the day following his arrest. Although he had retained counsel before October 7, 2009, duty counsel appeared on the respondent’s behalf on the first four occasions on which the respondent appeared before a justice of the peace.

[11] Counsel for the respondent, who has represented him throughout these proceedings including on appeal, and counsel for the Crown at trial (who was not Mr. Clark) agreed on the terms of the respondent’s release from custody. The respondent was released on a recognizance with sureties and a deposit. His release was subject to several conditions including a specified place of residence as well as a prohibition against possession of non-prescribed drugs, cell phones, Blackberries and pagers. The recognizance did not contain any house arrest or curfew conditions.

[12] The trial Crown anticipated that disclosure would be provided to the respondent on November 20, 2009. A case management judge was appointed and counsel for the respondent filed a designation under s. 650.01 of the Criminal Code prior to November 20. However, no disclosure was made on that date.

[13] On November 27, 2009, an agent appeared as counsel for the respondent, along with the trial Crown. The trial Crown advised the case management judge that a problem with the server at the police department would delay disclosure until December 18, 2009. The case management judge advised all counsel that on December 18, 2009 he would be assigning a series of dates over consecutive weeks in May, June, July, and August, 2010 for preliminary inquiries to be held. He directed all counsel to resolve any potential conflicts before December 18th and directed that any changes of counsel would require 45 days notice.

[14] The case management judge encouraged the trial Crown to follow the procedure detailed in s. 540(7) of the Criminal Code at the preliminary inquiry and instructed counsel for the accused to provide a list of witnesses and their anticipated evidence at counsel’s next appearance on December 18, 2009.

[15] On December 18, 2009, the case management judge provided several available dates in June, July, and August, 2010 for the parties to hold preliminary inquiries. The trial Crown provided “most but not all of the disclosure” to defence counsel that day and stated that he anticipated “that there will be more [disclosure] coming within the next approximately a month”. The December 18, 2009 disclosure included officers’ notes, surveillance videos, and informations to obtain various search warrants, some of which remained sealed and required editing before disclosure could be made.

[16] Counsel for the respondent did not appear before the case management judge on December 18, 2009. An agent appeared on her behalf.

[17] The case management judge fixed February 5, 2010 as the date for electing a mode of trial after counsel had reviewed the disclosure provided by the Crown.

Severance and Setting a Trial Date

[18] On February 5, 2010, the trial Crown reported that “the hard drive I expected to have here today is not finished burning yet. It should be ready in the next couple days”. He then continued:

… but there’s still a good deal of information that I think counsel are going to need to look at before they’d be in a position to do that.

[19] The case management judge noted that a month had been lost because of “the Crown’s inability to provide disclosure”. The trial Crown indicated that he expected the outstanding disclosure would be provided during the following week. He added that:

… [the disclosure is] going to be voluminous, and I would expect that it’s going to take about a month for counsel to get a grip on it.

[20] The case management judge indicated that the Crown’s conduct might violate s. 11(b) of the Charter, but neither the agent for counsel for the respondent nor counsel for any co-accused said anything in response. The case management judge adjourned the proceedings to April 9, 2010 and noted:

This means I want elections, this means resolution meetings. I’m also prepared to entertain any guilty pleas at that time for what I would still treat as an extremely early guilty plea worthy of all consideration that should be given for a guilty plea at earliest possible opportunity.

[21] In advance of the April 9, 2010 proceedings, counsel for the respondent, the trial Crown, and the case management judge participated in a focus hearing by telephone. The trial Crown indicated that he expected to remove the respondent from the joint information and lay a new information charging only the respondent before the court on which the Crown would proceed.

[22] The Crown made three appearances before the case management judge in May 2010 and confirmed that he would be proceeding on a separate information against the respondent alone. Counsel for the respondent did not attend at any of these appearances. A judicial pre-trial conference occurred on June 14, 2010 and proceedings were adjourned to July 27, 2010, to permit counsel to propose an agreed statement of fact for trial proceedings in the Ontario Court of Justice.

[23] On July 27, 2010, the trial Crown and an agent for the respondent’s counsel appeared before the case management judge. Trial dates of March 10 and 11, 2011 were fixed. Trial dates in early February 2011 had been offered, but counsel for the respondent was unavailable that month. A further pre-trial was directed by the case management judge because the earlier pre-trial had been conducted on the basis that proceedings in the Ontario Court of Justice would be a focus hearing or a preliminary inquiry.

[24] In the period between the respondent’s first appearance on October 6, 2009 and July 27, 2010 when the trial date was set, counsel for the respondent had yet to appear personally on her client’s behalf. None of the agents who did appear on counsel’s behalf remarked upon the pace of proceedings. A designation was filed on the respondent’s behalf in October, 2010 relieving him of the obligation to appear personally on each of the several occasions on which his case was before the court.

The Adjournment Application

[25] On March 10, 2011, the first day of the scheduled two-day trial, counsel for the respondent sought an adjournment. The basis of the request was that, two days earlier, counsel had been served with a “substantial” volume of casino records as further disclosure. Investigators had made a FINTRAC request on November 12, 2010 and received a reply 10 days later. They obtained a production order for the casino records on January 19, 2011. The records were available on January 31, 2011, picked up a week later, turned over for duplicating, and provided to Crown counsel’s office on February 22, 2011.

[26] Counsel for the respondent submitted that the casino records were relevant to the respondent’s defence (on the proceeds count) and bruited the prospect of an application to challenge the validity of the production order. She also considered abandoning a Charter motion she had filed earlier and proceeding directly to trial.

[27] Trial counsel for the Crown suggested that the allotted time for trial, two days, could be used to introduce evidence on other aspects of the case, for example, the warranted drug search and seizure on October 5, 2009. Counsel for the respondent opposed this suggestion. The trial judge added that she was retiring on May 31, 2011. She was concerned that she would be unable to complete the proceedings during her tenure if they were heard in instalments as the trial Crown proposed.

[28] The trial judge granted the respondent’s request for an adjournment and counsel discussed available dates to continue proceedings with the trial co-ordinator. Counsel for the respondent was not available for dates in early April 2011 or mid-November of the same year. Counsel agreed on trial dates of November 24 and 25, 2011.

[29] The trial judge asked about “the issue of 11(b)”. Her inquiry and the response of counsel for the respondent is in these terms:

THE COURT: You’re welcome. With respect to the issue of 11(b), do you wish me to just leave it for both of you to decide what you do with as time goes by? I won’t sing that, but ….

MS. SCHOFIELD: Well, it is a potential issue. My friend, in light of that I think, has agreed to vary Mr. Nguyen’s bail to delete the curfew, which, I’m not sure of the logistics in the building but we’ll discuss that.

[30] During the following month the trial Crown and counsel for the respondent discussed earlier trial dates. Counsel for the respondent rejected the available dates in July, August, and September 2011, as well as the suggestion that the author of the ITO testify by videotaped discovery in order to complete the trial at an earlier date. The trial was rescheduled for October 6-7, 2011.

The Application under s. 11(b)

[31] On October 6, 2011, the first of two days scheduled for trial, counsel for the respondent sought an order staying proceedings on the information on the basis that the respondent’s right to a trial within a reasonable time had been infringed. In her application of September 5, 2011, counsel for the respondent relied upon the respondent’s affidavit (to demonstrate prejudice), the transcript of various court appearances, and synopses compiIed by another police force in relation to another accused. In response, the trial Crown adduced affidavits from one of the lead investigators, a proceeds of crime investigator who described Project Ulverston. Specifically, the affidavit detailed the assembly of the materials in connection with the proceeds of crime count.

[32] On the hearing of the s. 11(b) application, Corp. Jennifer Asbury, a Proceeds of Crime investigator with the RCMP, testified that she was unaware of discussions on May 28, 2010 about severing the respondent from the joint information and proceeding against him alone on a separate information. She did not know when she had been advised of the respondent’s trial date. She acknowledged that she could have moved more quickly to obtain the financial records had she been aware of the respondent’s trial date. On November 12, 2010, Corp. Asbury completed her FINTRAC inquiry. Ten days later, the FINTRAC response advised the officer of several transactions made by the respondent at various casinos. Four months later, the officer provided disclosure disks to the trial Crown.

[33] The respondent testified that he had not been employed for the two-year period during which he awaited trial. He had been fired from his previous job due to “low energy” and “misbehaviour”. It was a very stressful period, during which he had “fallen apart”. His mood had changed, “big time”. In late August, 2010, about two weeks after his arrest in connection with a 300 plant marijuana grow operation, the respondent was referred for a psychiatric assessment at the insistence of his girlfriend. He was prescribed sleeping and other medication. He testified that because of the charges he faced, people looked down on him and thought he was an embarrassment. He was found not guilty on the marijuana charges on July 6, 2011.

The Trial Judge’s Ruling

[34] Immediately after counsel had concluded their submissions, the trial judge gave his reasons for staying proceedings against the respondent.

[35] The trial judge acknowledged that the respondent first appeared as one of a large number of accused arrested and brought before the court to answer several charges originating in Project Ulverston. In the trial judge’s view, however, “very quickly” after the respondent was charged, “the matter became quite simple if not focussed on him” due to the seizures made at the respondent’s home. Disclosure issues were or became “fairly simple”, and most of the disclosure was promised “in a reasonably appropriate period of time”.

[36] The trial judge derided the casual pace at which the prosecution had proceeded under the case management judge, as well as the failure of investigators to provide timely disclosure of the materials, causing an adjournment of the first trial date. He rejected the trial Crown’s earlier proposal of a bifurcated hearing on the first trial date, especially in light of the imminent retirement of the [then] trial judge and the prospect that the case might not be completed.

[37] The trial judge’s ultimate conclusion appears in two passages at the end of his reasons:

So that on all of the material before me and that I’ve looked at and I have considered the math here, I am satisfied that with the Crown and the institutional delay that’s been set out in the material filed by Ms. Schofield, the Application is successful.

The problem here is perhaps Justice Pockele has some involvement in this matter, because it was assigned to him as Project Ulverston, there were a number of lawyers, there were a number of accused, but very quickly, in my view, looking at all the transcripts, the matter could very easily have been moved ahead more quickly. We shouldn’t have been in March of 2011 looking to deal with a case that started in October of 2009.

THE GROUNDS OF APPEAL

[38] The Crown appeals from the order staying proceedings and advances several grounds of appeal. At root, the Crown submits that the trial judge failed to conduct a proper analysis of the relevant periods of proceedings and, as a consequence, erred in concluding that the delay was unreasonable.

[39] It is unnecessary to elaborate upon the chronology of events described above. However, it is helpful to recapture the positions advanced by counsel in their written submissions and oral argument.

The Arguments on Appeal

[40] For the appellant, Mr. Clark begins his arguments by recalling the standard of review. Characterization of the various periods of delay on a s. 11(b) application, as well as the ultimate decision about whether the delay is unreasonable, is reviewed on a standard of correctness. Underlying findings of fact are subject to review on a standard of palpable and overriding error.

[41] Mr. Clark submits that the trial judge erred by not providing reasons for his allocation of the periods of delay. The trial judge simply adopted the respondent’s allocations of Crown and institutional delay. The trial judge failed to examine the proceeding’s entire history, identify relevant time periods within it, and explain how and why he allocated the various delays. Mr. Clark further submits that the trial judge failed to adequately consider the inherent time requirements of the case. The trial judge failed to take into account the need for several pre-trial conferences to address the procedural and substantive issues associated with complex cases involving several accused and multiple charges and the use of a wide variety of investigative procedures, all of which may be subject to challenge and may also be interdependent.

[42] Mr. Clark contends that the trial judge failed to consider the conduct of the defence and its possible role in the delay. Defence counsel sought further pre-trial hearings even after severance had taken place. Moreover, the trial judge made no specific finding that the respondent had been prejudiced by the delay, nor did he balance any inferred prejudice to the accused against society’s interest in an adjudication on the merits.

[43] For the respondent, Ms. Schofield acknowledges that the appellant correctly characterizes the governing standards of review. She submits that, even if the trial judge failed to analyze the relevant time periods and assign responsibility for them as the authorities require, and even if the trial judge’s reasons are insufficient to permit meaningful appellate review, the trial judge correctly concluded that s. 1(b) was infringed. The delay was presumptively unreasonable. The Crown failed to rebut the presumption of unreasonableness in a case that began as a complex matter but soon developed into a manageable, potentially expeditious trial.

[44] Ms. Schofield submits that the trial judge appreciated the complexity of the case when it first entered the criminal justice system and recognized that a lengthier intake period was required. He was also alive to the inferred and actual prejudice suffered by the respondent and properly balanced it against society’s interest in an adjudication of the case on its merits. In sum, the respondent submits that the trial judge reached the correct conclusion in determining that s. 11(b) had been breached and staying the proceedings against him.

THE GOVERNING PRINCIPLES

[45] In order to assess the correctness of the trial judge’s decision to stay proceedings for infringement of the respondent’s right to be tried within a reasonable time, it is necessary to review, to some extent at least, some of the legal principles that govern applications under s. 11(b) of the Charter.

The Crown’s Right of Appeal

[46] I begin by reviewing the scope of the Crown’s right to appeal from the trial judge’s order. Section 676(1)(c) grants the Crown the right to appeal against an order made by a trial court staying proceedings on an indictment. Leave to appeal is not required. Unlike under s. 676(1)(a), the Crown’s right of appeal under s. 676(1)(c) is not restricted to grounds of appeal involving questions of law alone. Section 686, which enumerates the powers of the court of appeal, makes no express reference to the dispositive authority on appeals taken under s. 676(1)(c).

The Standard of Review and Analysis under s. 11(b)

[47] It is common ground between the parties that on appeal, the trial judge’s characterization of the various periods of delay on s. 11(b) applications, as well as the ultimate decision concerning whether the delay is unreasonable, is reviewable on a correctness standard: R. v. Tran, 2012 ONCA 18, at para. 19; R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 18; and R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71. The underlying findings of fact are subject to review on a standard of palpable and overriding error: Tran, at para. 19; Khan, at para. 18; and Schertzer, at para. 71.

[48] In allocating delay, trial judges should give sufficient reasons to permit the parties and the reviewing court to understand the time that has been allocated and the reasons underpinning it: R. v. Cranston, 2008 ONCA 751, 244 OAC 328, at para. 33. Reasons that reveal no real attempt to examine the time periods or to explain allocation of the delay are flawed for failure to permit meaningful appellate review: Cranston, at para. 33.

[49] For the purposes of unreasonable delay under s. 11(b) of the Charter, the relevant period of assessment is the overall period beginning at commencement of the proceedings to the end of the trial. In querying whether delay has been unreasonable, the trial judge must consider the length of the delay (subtracting any periods waived by the accused), taking into account the reasons for the delay, any prejudice suffered by the accused, and the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18; Tran, at para. 20; and Khan, at para. 20. This assessment of the period of delay must eschew the application of any mathematical or administrative formula and instead adopt a judicial determination that balances the interests s. 11(b) protects against factors that either inevitably lead to delay or otherwise cause delay: Godin, at para. 18; Khan, at para. 21; and R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 787.

[50] To assist in assessing the reasonableness of systemic delay, the Morin court suggested a guideline of eight to ten months from the start of proceedings to trial as an acceptable delay in the provincial courts: Morin, at p. 799; and Khan, at para. 22. However, guidelines are not fixed limitation periods and should not be applied in a mechanical way as though they were limitation periods. In individual cases, guidelines will yield to other factors: Morin, at p. 797. The presence or absence of prejudice also influences the application of guidelines: Morin, at p. 798.

[51] In its analysis and determination of an application for a stay under s. 11(b), a court must consider, among other factors, the reasons for the delay: Tran, at para. 20. Factors a court must consider in assessing the delay include:

i. the inherent time requirements of the case;

ii. the actions of the accused;

iii. the actions of the Crown;

iv. limitations on institutional resources; and

v. other reasons for the delay.

Morin, at pp. 787-788; and Tran, at para. 22.

[52] The inherent time requirements of a case vary. Prosecutions differ in their complexity. Some are simple and straightforward. A single accused and count. A handful of witnesses. Others entail many more variables. A complex property offence. Several accused and counts. Electronic surveillance. Experts. Complaints of unreasonable searches and other constitutional infringements. The inherent time requirements of the proceeding include the time needed to retain and instruct counsel, to conduct bail hearings, to comply with disclosure obligations: in short, the time required to get the parties ready to set dates for trial: Cranston, at paras. 37-38; and Khan, at para. 32.

Pre-Hearing Conferences and their Use

[53] Section 625.1(1) of the Criminal Code authorizes pre-hearing conferences to be held before trial or other proceedings (for example, a preliminary inquiry) “to consider the matters that, to provide a fair and expeditious hearing, would be better decided before the start of the proceedings and other similar matters”. Where a case is set to be tried by a court composed of a judge and jury, a pre-hearing conference “to consider any matters that would promote a fair and expeditious trial” is mandatory under s. 625.1(2).

[54] Pre-hearing conferences are an essential feature of our criminal procedure. Whether required by s. 625.1(2) or permitted by s. 625.1(1), pre-hearing conferences are and have proven to be an invaluable ally in the struggle to promote a fair and efficient criminal trial process. The conferences are of particular assistance in complex cases involving multiple accused and counts arising out of lengthy investigations where investigative procedures are likely to be tested for Charter compliance. Pre-hearing conferences, particularly where proceedings follow a lengthy investigation, sometimes add several weeks to the intake period in a case, but may well result in an earlier trial date, a shorter and more focused trial, or a reduction in the number of counts and accused going to trial. The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s.11(b) analysis: Khan, at para. 53; Tran, at paras. 36-37; and Cranston, at para. 46.

[55] As mentioned earlier, s. 625.1 of the Criminal Code permits and, in some cases, stipulates pre-hearing conferences between the prosecutor and the accused or counsel for the accused. In cases to be tried by a judge sitting alone, pre-hearing conferences are discretionary and may be requested by the prosecutor, the accused, or on the motion of a judge of the court. The conferences are held prior to the proceedings (whether a trial or a preliminary inquiry) and are presided over by a judge of the court. At the conference, the participants are required to consider anything that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings.

[56] The case management judge may help the parties to identify the issues to be resolved at the various stages of our criminal procedure and the nature and extent of the evidence required for the resolution of those issues.

[57] The case management judge may help the parties to make admissions and reach agreements about uncontroversial issues, thereby reducing the length and complexity of contested proceedings.

[58] The case management judge may hear guilty pleas and impose sentences on various participants, thus reducing the number of accused and counts that must proceed to trial. For those remaining, the case management judge may assist in making arrangements for tiered prosecutions, hearings to determine issues common to several accused, and, in general, setting a schedule for filing materials and argument on issues that remain outstanding.[^1]

[59] Pre-hearing and case management conferences are justified and necessary tools in busy judicial centres designed to ensure effective and efficient use of available court resources and to protect not only the Charter rights of the persons charged, but also society’s interest in determining allegations of serious criminality and their merits: Tran, at para. 34; and Khan, at para. 82.

[60] To conclude this discussion of pre-hearing conferences, I emphasize that barring cause to do so, courts tasked with deciding whether an accused’s rights under s. 11(b) have been infringed should be slow to second-guess the need for or number of such conferences.

[61] Large, complex prosecutions involving multiple accused and counts require concerted efforts on the part of investigators and prosecutors to ensure timely disclosure and trial. Amongst those charged, the involvement of some will be less than others: peripheral not central, discrete, perhaps disconnected from the principals and the core of the case. In some instances, the minor players can be tried separately, efficiently, and more expeditiously. But these decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or to withdraw charges, are contingent upon interdependent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown’s decisions absent clear reason to do so: Khan, at para. 30.

[62] Finally, an accused, by agreement or other conduct, may waive his or her rights to complain about delay in whole or in part. Waiver can be explicit or implicit, but must be clear and unequivocal, made with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights: Morin, at p. 790. To be implicit, there must be something in the conduct of the accused sufficient to support an inference that the accused has understood that she or he has the right to be tried within a reasonable time, understood the nature of that right, and has waived it: Morin, at p. 790. Conduct falling short of waiver may nonetheless be relevant to the s. 11(b) analysis as “actions of the accused”: Morin, at p. 790.

THE PRINCIPLES APPLIED

[63] The reasons of the trial judge, read as a whole, disclose no attempt to identify and analyze relevant time periods between the respondent’s first appearance in the Ontario Court of Justice and the entry of a stay of proceedings. Nor do the reasons explain to whom the trial judge allocated the delay or why he did so. In the end, the reasons do not provide an adequate basis for informed appellate review.

[64] The absence of sufficient reasons leaves it to this court, at one remove from the proceedings, to identify and analyze the relevant time periods, allocate the delay, determine whether the respondent has suffered prejudice, and balance the respondent’s rights against society’s interest in having those persons accused of crime be adjudicated upon fairly and expeditiously.

[65] Proceedings began when the original information was laid and process issued on October 5, 2009. Proceedings ended, so far as the respondent is concerned, when the trial judge entered a stay on October 6, 2011. The parties agree that this period of two years warrants an inquiry under s. 11(b) of the Charter.

The First Period: October 6, 2009 to March 27, 2010

[66] The first period that warrants examination commenced on October 6, 2009, when the respondent first appeared in answer to the charges, and concluded on March 27, 2010, when counsel agreed on trial dates of March 10 -11, 2011. The entire period aggregates about 9.75 months.

[67] Several factors inform the allocation of various time periods within this overall expanse and lead me to conclude that this entire period is properly characterized as intake or inherent time requirements.

[68] First, the inherent time requirements must take cognizance of the nature of the case involved. A more complex case that involves more extensive requirements demands and will serve to excuse longer periods of delay: Khan, at para. 32.

[69] These proceedings began as a result of evidence gathered during a nine-month joint forces investigation involving Canadian and United States law enforcement agencies and police forces. The investigation focussed on international traffic in guns and drugs. The investigative techniques and procedures included the issuance of 62 warrants and authorizations that permitted the seizure of substantial volumes of evidence, including the interception of more than 63,000 private communications. Drugs with a street value of $5 million were seized. Thirty-seven persons were arrested. Among the 139 charges were allegations of criminal organization and proceeds of crime offences.

[70] Prosecutions originating in lengthy investigations require significant time for investigators to prepare and deliver disclosure to the Crown for provision to the defence. In many cases, investigators are (or should be) in a position to provide disclosure to the Crown very soon after the charges have been laid, thus permitting the Crown to provide disclosure to the defence with equivalent to dispatch. But this is not an ordinary case. The scope of disclosure materials includes both the substantive evidence to be led against those charged as well as the underlying materials upon which the enabling orders, warrants, and authorizations that produced the evidence to be relied upon by the Crown were granted. In some instances, editing and vetting of the disclosure materials may be required.

[71] Nothing documented in the record of proceedings suggests that the investigative and prosecutorial decision to undertake prosecution of the joint accused constituted an inappropriate exercise of prosecutorial discretion or amounted to an abuse of process. The allegations concerned a joint enterprise carried out by members of a criminal organization for gain. In such cases, the Crown’s prima facie route of proceeding is one of joint venture, joint indictment, and joint trial. It is commonplace that the roles of the alleged participants may differ. We should be reluctant to second-guess prosecutorial decisions about joinder, both with regards to whether and when to remove some accused from the larger prosecution and to proceed against them separately: Khan, at para. 30.

[72] Second, the inherent time requirements of a case include the period required to retain counsel, arrange and conduct judicial interim release hearings, provide and review disclosure, schedule and prepare for judicial pre-trials: in sum, to get the case ready to set trial dates: Tran, at para. 32; and Cranston, at paras. 37-38.

[73] The prosecutions originating in joint forces “projects” such as the present case often result in informations which include multiple accused and counts, some alleging criminal organization and proceeds of crime offences. Challenges to the constitutionality of the manner in which investigators have obtained crucial evidence, and the admissibility of such evidence in the proceedings against some or all of the persons charged, are commonplace. The nature and extent of the participation by individual accused varies.

[74] In “project” prosecutions it has become routine that the pre-hearing conference judge or another judge will be assigned to manage the case as it makes its way from early appearances to trial.

[75] Pre-hearing and case management conferences are only meaningful if counsel participating in those conferences are fully informed of and authorized to take binding positions on the issues in contention. It is notable that counsel for the respondent first appeared on March 10, 2011, seeking an adjournment of the trial because she had been served only days before with disclosure relating to the proceeds of crime count. On many interim appearances, the agents who appeared on her behalf were not fully informed about the matter nor about counsel’s availability for trial.

[76] The respondent acknowledges that the first four months of the period between October 5, 2009 and July 27, 2010 represents inherent delay, but apportions the balance of the period, about 5.75 months, to neutral (3.5 months), Crown (1 month), institutional (1 month), and defence (8 days).

[77] Leaving aside the eight-day period for which the respondent acknowledges responsibility, I consider the balance of the period from February 6 until July 27, 2010 to constitute part of the inherent time requirements of the case.

[78] During this period, the parties were engaged in pre-trial discussions. The respondent had yet to elect a mode of trial. Defence counsel sought to persuade the Crown to sever his case from those of the co-accused by laying a new information. The new information was put before the court on July 23, 2010 and the respondent indicated an intention to have a trial on that information in the Ontario Court of Justice. Counsel estimated that the trial would take two days.

The Second Period: July 27, 2010 to March 10-11, 2011

[79] The next time period that requires examination is from July 27, 2010, when the first trial date on the new information was set, until the trial date of March 10-11, 2011.

[80] On July 27, 2010 the parties agreed on March 10th and11th, 2011 as the dates for what was anticipated to be a two-day trial in the Ontario Court of Justice. Counsel for the respondent was not present. Trial dates of February 7-8, 2011 were available, but counsel for the respondent was not available.

[81] The failure of the respondent’s counsel’s agent to advise the presiding judge of counsel’s availability makes it difficult, if not impossible, to determine with precision how the delay between the setting of the trial date and the date selected for trial should be allocated. It is a reasonable to infer, however, from respondent’s counsel’s unavailability for a two-day trial in February 2011 that she would not have been available earlier than March, 2011. It was also clear that respondent’s counsel was required to prepare, serve, and file any Charter motions she intended to bring at trial. Counsel’s agent offered no insight into the claims of constitutional infringement to be advanced at trial.

[82] The judge presiding on July 27, 2010 was the judge who had managed the proceedings that had originated in Project Ulverston. He pointed out that a further pre-hearing conference prior to trial was likely, since management of the case had proceeded on the basis that what was being scheduled would be a preliminary inquiry.

[83] I would apportion three months of this period to institutional delay, a further three months to neutral time requirements, and the remaining month to defence delay.

The Third Period: The Disclosure Problem and the Second Trial Date

[84] Counsel for the respondent appeared on the first date scheduled for trial, March 10, 2011. She sought and obtained an adjournment following Crown counsel’s disclosure of a substantial volume of information relating to the proceeds of the crime charged two days earlier. Most of the disclosure provided related to information obtained after the respondent’s arrest.

[85] In her submissions to the presiding judge, counsel for the respondent indicated that she was “considering perhaps abandoning the Charter and just going on the merits of the case this morning”. Later, counsel mentioned filing a Charter application to challenge the production order in accordance with which the new disclosure had been obtained. As detailed above, Crown counsel then proposed that the scheduled trial time could be utilized by introducing evidence relating to the seizures made on the date of the respondent’s arrest, but this suggestion was not accepted by the presiding trial judge, who was set to retire at the end of May, 2011.

[86] Once again, the record is barren about the earliest availability of counsel for the respondent to conduct the trial. She declined two proposed dates in early April, 2011 and others in mid-November of the same year. The dates of November 24-25, 2011, were selected as the new trial dates and later advanced to October 6-7, 2011.

[87] In my view, it is appropriate to assign responsibility for the seven month delay between the first and second trial dates to the Crown. That said, the second trial date upon which counsel agreed was over eight months after the first trial date. The expected length of trial, notwithstanding the further disclosure, remained at two days. While defence counsel are not expected to hold themselves in a state of perpetual readiness when trials do not proceed as planned, counsel for the respondent did not propose any available dates for a two-day trial and did not press for any earlier dates.

The Length of and Responsibility for the Delay

[88] I would apportion the total period of delay in this case as follows:

Neutral and Inherent: 13 months 23 days

Institutional: 3 months 9 days

Crown: 6 months 26 days

The total period of Crown and institutional delay is 10 months 5 days, only slightly beyond the Morin guidelines.

Prejudice to the Respondent

[89] The presence or absence of prejudice can justify deviations of several months in either direction from the Morin guidelines: Morin, at p. 807; and Tran, at para. 63. Yet the trial judge made no finding of prejudice, nor mention of prejudice in his reasons staying proceedings against the respondent.

[90] The respondent gave evidence that he experienced overwhelming stress and anxiety as a result of these charges. The stress intensified as the trial date approached. His family and friends in the Asian community shunned him because of the stigma associated with trafficking in crack cocaine. At the urging of his girlfriend, the respondent sought psychological counselling and was prescribed medication in August, 2011, about six weeks before proceedings were stayed.

[91] The respondent gave inconsistent accounts about how long he had worked at a restaurant/karaoke bar during his release pending trial. He attributed his firing there to a loss of energy due to his depression over the crack cocaine and related charges. About four months prior to his arrest on these charges, the respondent had been arrested on a gaming house charge and, in August, 2010, while on bail on the charges, he was arrested again on charges of production of marijuana. He was acquitted of marijuana charges in July, 2011.

[92] The respondent was granted judicial interim release about 10 days after his arrest. His recognizance did not include a term of house arrest or a curfew, even though he had a previous conviction for a related drug offence. From an early stage, counsel filed a designation under s. 650.01 of the Criminal Code relieving the respondent of appearing in person each time his case was before the court.

[93] In his affidavit filed in support of his application to stay proceedings, the respondent insisted that throughout the entire period presently under review he pressed for the earliest possible trial date, electing trial by a provincial court judge to give effect to these wishes. Yet, nowhere in the proceedings does respondent’s counsel, or any agent acting on her behalf, make any such statement on the record. The first mention of s. 11(b) is by the presiding judge on March 10, 2011, when the respondent’s adjournment application succeeded. It seems reasonable to infer that the respondent was satisfied with the pace of the litigation because it resulted in his severance from the co-accused in the original information.

[94] Finally, no one gainsays the societal interest in having this case involving the commercial production of crack cocaine tried on its merits. It is an interest that trumps the minimal prejudice suffered by the respondent.

CONCLUSION

[95] For the above reasons, I would allow the appeal, set aside the stay of proceedings, and order a new trial, in accordance with the respondent’s election, before a different judge of the Ontario Court of Justice.

“David Watt J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree E.E. Gillese J.A.”

Released: March 20, 2013 “RJS”

[^1]: See now the statutory scheme of Part XVIII.1, Case Management Judge, which came into force on August 15, 2011.