Court of Appeal for Ontario

Date: July 25, 2019

Docket: C64954

Judges: Watt, Tulloch and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

Wayne Anthony Locknick Appellant

Counsel:

• Kenneth Grad and Karen Heath, for the appellant
• Christopher Walsh, for the respondent

Heard: June 28, 2019

On appeal from the conviction entered by Justice Gregory J. Verbeem of the Superior Court of Justice on March 21, 2017.

Reasons for Decision

Lauwers J.A.:

[1] Introduction

While the appellant was incarcerated on unrelated charges, he conspired to smuggle drugs into the Windsor Jail and Joyceville Penitentiary. The police intercepted the appellant's telephone conversations with his alleged co-conspirators. Twenty-three individuals were charged collectively on a 65-count information. About 41.5 months later, the appellant was convicted of two counts of conspiracy to traffic in a controlled substance.

[2] Grounds of Appeal

The appellant appeals his conviction on two grounds. First, he argues that the trial judge erred in refusing to stay the prosecution for undue delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, under the principles set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659.

Second, the appellant contends that the trial judge erred in refusing to exclude evidence obtained from a wiretap authorization, predicated on information gathered pursuant to several earlier dial number recorder warrants. The initial warrant was issued in circumstances that gave rise to a reasonable apprehension of bias. The issuing justice gave correspondence to the police officer seeking the warrant, in which he requested clarification and more specifics on several points in the Information to Obtain ("ITO"). The appellant submits that the issuing justice effectively advised the officer on how to prepare the ITO, which raised a reasonable apprehension that the justice was biased against the appellant. The appellant asserts that his rights under s. 8 of the Charter were breached and the evidence obtained should have been excluded under s. 24(2).

[3] Disposition

I would dismiss the appeal for the following reasons.

A. Did the delay in the prosecution breach the appellant's rights under s. 11(b) of the Charter?

[4] The Jordan Analysis Framework

The first issue in this appeal is whether the trial judge was correct in his attribution of the delay in the Jordan analysis. The structure of that analysis and the need to apply it on an individual basis, even in the context of a multi-party, multi-count trial, was outlined by this court in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 128.

[5] Trial Judge's Detailed Analysis

The trial judge's reasons for dismissing the appellant's application for a stay under s. 11(b) consume 45 pages and 231 paragraphs of text, and are reported at 2017 ONSC 3563. His detailed analysis regrettably belies the expectation expressed in Jordan, at para. 111, that "the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting."

The trial judge was intimately familiar with the context, the facts, the people involved and the numerous moving parts engaged in the complex pretrial and trial process. While his decision must be reviewed on a correctness standard, I note that the underlying facts are to be reviewed on the standard of palpable and overriding error: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25. I note as well the point made in Jordan, at para. 71, that the analysis "will depend on the trial judge's good sense and experience", both of which are evident in his reasons. I do not intend to repeat the trial judge's detailed and laborious analysis.

[6] Total Delay and Presumptive Ceiling

It is common ground that the total delay from the date of the charge to the anticipated end of the trial was 41.5 months, in excess of the 30-month presumptive ceiling set for cases going to trial in the Superior Court of Justice: Jordan, at para. 47.

The trial judge made several adjustments that reduced the delay from 41.5 months to 29.25 months, which is below the 30-month ceiling, before accounting for the complexity of the case or for transitional exceptional circumstances. In his view, both of these considerations would have justified the Jordan delay even if it had exceeded the presumptive ceiling. (I note that the actual delay, calculated using the actual date of the trial's completion rather than the anticipated end date, was about two weeks longer, and several cases have suggested that the actual delay should be used: R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741; R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776; and R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59.)

[7] Three Grounds for Reducing Total Delay

The trial judge raised three separate grounds for reducing the total delay.

Defence Delay in Scheduling Garofoli Application

First, I agree with the trial judge that 1.5 months must be counted as defence delay in scheduling the Garofoli application (named after R. v. Garofoli, [1990] 2 S.C.R. 1421) for all the accused jointly. The court and the Crown were ready to proceed but the defence was not. The appellant has not established that the trial judge was incorrect in this determination. This reduces the Jordan delay to 40 months.

Unforeseen Preliminary Inquiry Delay

Second, the trial judge deducted three months to account for the unexpected, unforeseen and unavoidable delay caused by the preliminary inquiry judge's desire to review the content of each intercept separately. As this court noted in R. v. Antic, 2019 ONCA 160, at para. 11, "there are some events that no one can anticipate and those events should simply be removed from the delay analysis." See Jordan, at paras. 73-75. The Crown had taken all reasonable steps to mitigate the delay. The appellant has not established that the trial judge was incorrect in making this deduction. This reduces the Jordan delay to 37 months.

Mistrial Delay

Third, and most significantly, the trial judge deducted 7.75 months to account for the mistrial that occurred. If this deduction is correct, it reduces the Jordan delay to 29.25 months, below the presumptive ceiling. Adding an additional two weeks, to account for the actual end of the trial, would bring the total delay to 29.75 months, also below the ceiling. Justice King, the judge previously assigned to the case, declared himself to be in conflict of interest about two months after he reserved his ruling on the standing issue in the original Garofoli application. The parties agree that the conflict event constituted a discrete exceptional circumstance.

[8] The Trial Judge's Assessment of the Mistrial Delay

The trial judge held that the discrete exceptional delay caused by King J.'s conflict began on February 1, 2016, which was the first day of the original proceeding, and terminated on September 20, 2016, the first date after the conflict arose that the appellant and Crown were ready to proceed, but the court was not.

The trial judge rejected the co-accused's argument that the delay started on April 8, 2016, the first assignment court date after the conflict that gave rise to the mistrial arose. As a result of the conflict and the related mistrial, there was no meaningful progress at all on the Garofoli application between February 1, 2016, when the application commenced, and April 8, 2016. The parties were required to embark on trial scheduling anew.

The first date offered for the parties' one-week fresh Garofoli application was September 13, 2016. Mr. Locknick's counsel was not available on that date but was available on September 20, 2016. The court was not available on September 20, 2016. The trial judge agreed with the appellant that because the court could not accommodate the parties until December 5, 2016, the time between September 20, 2016 and December 5, 2016 should not be deducted. The trial judge acknowledged the unusual difficulty in the court's availability caused by six out of twelve judges having some sort of conflict in presiding over this matter. He noted that not being able to offer the parties more than one week in a nine-month period does not accord with the justice system's duty to mitigate delay resulting from a discrete exceptional circumstance or the necessity to prioritize cases that have faltered due to an unforeseen event.

This led the trial judge to conclude, at para. 149, that he would attribute 7.75 months (February 1, 2016 to September 20, 2016) to the discrete exceptional circumstance, bringing the delay for s. 11(b) purposes to 29.25 months, under the Jordan presumptive ceiling of 30 months. I agree with the trial judge's conclusion.

The trial judge also considered two additional factors that, in the event that he erred in concluding that the remaining delay fell below the 30-month ceiling, would have nevertheless justified the delay: complexity and transitional circumstances.

[9] Complexity

This was a particularly complex case. The trial judge acknowledged that the accused were charged on a multi-count conspiracy indictment involving an alleged drug trafficking network. He noted there were three distinct conspiracies, all involving the appellant and various combinations of the co-accused and unindicted co-conspirators. He set out other details about complex features at paras. 178-182 of his reasons.

The trial judge found that, from an "evidentiary perspective", the proceeding was moderately complex: the evidence primarily consisted of intercepted communications, potentially the results of the execution of number recorder warrants, tracking warrants and production orders, together with observations made during physical surveillance; given the nature of the counts, the co-conspirators exception to the hearsay rule would likely be engaged; and there was voluminous disclosure, an anticipated two-week trial, and an unknown number of witnesses to be called by the Crown. He further held that the legal issues in the context of the Garofoli application are of "moderate to marked" complexity, and the nature of the offences, the nature of the evidence, and the legal issues involved on the pretrial applications made this case "above moderate" in its complexity. In Jordan, the court noted, at para. 79, that "such determinations fall well within the trial judge's expertise."

The trial judge found that it was in the interests of justice to structure the prosecution as the Crown did. He found that the Crown proposed and executed a concrete plan to minimize the impact of a joint prosecution on the overall delay, while the matter was before the Ontario Court of Justice. Similarly, he held it was in the interests of justice to have a single trial on the three-count conspiracy indictment, as it represented an efficient manner of dealing with the charges that promoted judicial economy. At the Superior Court of Justice the Crown took steps designed to mitigate and minimize delay to all of the accused every time the matter was before an assignment court.

The inference is that there was a margin for Jordan purposes. In my view this reasoning was sound.

[10] Transitional Circumstances Related to Morin

This case originated in a time covered by the delay guidelines specified by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771. The trial judge adverted to several circumstances that he found to be exceptional in a transitional sense, since the parties had been proceeding under the guidance of Morin for 33 months and 19 days from the date the information was sworn to the date Jordan was released and the rules changed.

Considering the Morin guidelines, the trial judge calculated seven months of institutional delay in the Ontario Court of Justice and 5.5 months of institutional delay in the Superior Court of Justice. The total institutional delay of 12.5 months did not exceed the acceptable range of 14 to 18 months permitted under the Morin guidelines.

The trial judge elaborated on two points related to neutral delay. First, 2.5 months of delay between the last day of the originally scheduled preliminary hearing on November 7, 2014 and the first continuation date on January 22, 2015 was neutral. The transcripts revealed that the difficulty in scheduling the continuation dates resulted from competing defence counsel schedules. Second, 5.5 months of delay between March 30, 2016, when counsel were notified that King J. had declared a conflict, and September 13, 2016, the first date offered by the court for rehearing the Garofoli application, was neutral. The mistrial resulted from an unforeseeable event not attributable to the court or Crown. He held that such events necessarily increase the inherent time requirements of the case.

The trial judge noted that even if the 2.5 months between November 7, 2014 and January 22, 2015 was found to be institutional delay, and the neutral period after April 8, 2016 was limited to three months (resulting in a further 2.25 months of institutional delay), the total institutional delay would be 17.25 months, still within the Morin guidelines.

In the trial judge's view, the Crown made good faith efforts to minimize delay throughout the proceedings: at paras. 217-220. He took no issue with defence efforts to move the case along: at paras. 221-222.

Finally, the trial judge acknowledged that the appellant experienced prejudice because his liberty was restricted, having been in custody at the time of the charges and having remained in custody until he applied for bail in December 2015. Nevertheless, since the total institutional delay was within the Morin guidelines, the trial judge concluded that, under the previous state of the law, the appellant's s. 11(b) rights were not infringed. Even if there had been an infringement, the appellant's interests in a speedy trial were outweighed by society's interest in having the matter tried on the merits, particularly given the seriousness of the offences.

The appellant has not established that the trial judge made any error in assessing the complexity of the case or in his assessment of the application of the Morin guidelines.

For these reasons, I would not give effect to the argument that delay led to a breach of s. 11(b) of the Charter under the principles set by the Supreme Court in Jordan and Cody.

B. Was the trial judge correct in ruling that the justice who issued the dial number recorder warrants was not biased?

[11] The Bias Allegation

This is the second issue in this appeal. As noted, the appellant argues that the justice who issued the initial dial number recorder warrant had effectively advised the police on how to repair the corresponding ITO in a memo given to the officer seeking clarification and more specifics on several points in the ITO. The appellant asserts that this raised a reasonable apprehension that the issuing justice was biased against the appellant. The appellant argues that this breached his s. 8 Charter rights and the evidence obtained should have been excluded under s. 24(2).

[12] The Issuing Justice's Correspondence

To obtain the dial number recorder warrants, an officer applied for judicial authorization. The first application for the initial warrant was declined, after which the issuing justice provided correspondence to the officer. The entire text of the issuing justice's memorandum is set out at para. 108 of the trial judge's reasons:

Hoffman J. did not issue the warrant at that time. Instead, he directed correspondence to P.C. Hamlin dated April 9, 2013, stating:

Attention P.C. Hamlin WPS

April 9/13 10:45 PM

Re Warrant request J306

If you decide to make any alterations and resubmit this please include a copy of this document as well as the original warrant submitted today. For security reasons I do not keep copies of either.

As well add a note indicating which paragraphs have been altered to assist me in my re-review.

1. Paragraph (Par) 15 – I do not understand what the sentence "I have summarized the aspects of the informants" means.

a. Par. 15 – 'crimes of dishonesty' must include at least all theft related offences, fraud related offences, perjury related offences, personation related offences as well as obstruct police and obstruct justice.

b. Par 15 re reliability of Informant #1 – (a); best to differentiate if possible between information obtained from direct contact with persons involved and other sources if this can be done and if it does not jeopardize revealing Informants ID.

c. Par 15 re reliability of Informant #1 – (f); best to differentiate between direct and indirect contact and explain how information can be obtained by indirect contact if this can be done and if it does not jeopardize revealing Informants ID.

2. Pars 17-18; Is Wayne Locknick the same person as Wayne Anthony Locknick but used different named query on different systems. If so please clarify?

3. Pars 19-20: same question as above for Mike Stiller and Michael Stiller.

4. Par 58 -- Is Source A the same person as Informant 1 in par 15? Either way please clarify and if different nothing about reliability of Source A?

5. Par 59 a) – best to differentiate if possible between information obtained from direct contact with persons involved and other sources if this can be done and if it does not jeopardize revealing Informants ID.

a. Par 59 c) – Additional detail regarding how it has been verified may be more helpful.

b. Par 59 re negative consideration for Informant 2; crimes of dishonesty include -------- please standardize definition as outlined in par 15.

6. Par 60 a) – f): Did Informant #2 receive this information directly from Locknick or some other means if this can be revealed without jeopardizing the Informant identity?

7. Par 61 – How do you know Brown is a high level drug dealer?

8. Par 65 – Again is Source A the same person as Informant 1?

a. Re a), and b); Approximately when did this take place, even what year or within what period of time?

9. Par 67 – 69; Update these pars with any new information added further to these requests

The second application was also declined. Eventually, the third application for the warrant was granted. Three other dial number recorder warrants were eventually issued as well. Later, the police successfully applied for judicial authorization for intercepts. In seeking the wiretap authorization, the police relied on information gathered pursuant to the dial number recorder warrants.

[13] Trial Judge's Ruling on Bias

The trial judge dismissed the appellant's application to exclude evidence (reasons reported at 2017 ONSC 4833). He concluded that the appellant failed to demonstrate "serious grounds" to rebut the strong presumption of judicial impartiality, and failed to establish reasonable apprehension of bias.

The trial judge found that, in all the circumstances, the "purpose and effect of [the issuing justice's] correspondence was to obtain clarity and specificity with respect to certain aspects of the content of the April 9, 2013 ITO [filed in support of the first application], in an effort to assess the reliability of elements of the information already set out therein, and to determine whether that information was sufficient to satisfy the requisite grounds to issue the warrant sought": at para. 127. The trial judge pointed out that there was no evidence of additional correspondence between the issuing justice and the officer after the first application.

The trial judge said the issuing justice's questions about the informants' prior convictions for crimes of dishonesty sought to elicit information that was necessary and directly relevant to his assessment of the reliability of the information provided by the informants. The trial judge held that instead of directing or advising the officer about the specific wording or substance of a subsequent ITO, the issuing justice identified the categorical nature of the information he needed to assess whether the warrant should issue. Further examples of benign clarification included the issuing justice requesting that the officer differentiate between information obtained from direct contact with persons involved and other sources to the extent that it could be done without risking exposure of the informants' identity. The trial judge noted this clarification was appropriate because it was potentially relevant to the issuing justice's assessment of the reliability of that information. Overall, the trial judge found that the issuing justice did not effectively draft the content of the ITO, nor did his inquiries impair his ability to act objectively and neutrally when considering subsequent warrant applications.

The trial judge found that the issuing justice had not inserted himself into the ITO drafting process in a manner designed to ensure the warrant would issue, by vetting and editing an unsworn draft ITO, or otherwise: at para. 128. Instead, the issuing justice fulfilled his duty in accordance with the principles articulated in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, by not being reluctant to ask questions or to require more information. The issuing justice never suggested what the substantive content of the responses to his inquiries should be. He did not indicate that a warrant would necessarily issue if he received particular responses to his inquiries in a subsequent ITO, or at all. The issuing justice sought clarification with respect to certain aspects of the information already provided in the April 9, 2013 ITO, to give him a greater appreciation of the reliability of that information so that he could make an impartial determination of the merits of the application.

In the context of the issuing justice's duty as outlined in Araujo, the trial judge found that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not view the conduct as giving rise to a reasonable apprehension of bias. A reasonable person would conclude that the issuing justice was engaged in appropriate efforts to fully appreciate the evidence relied upon in support of the warrant police sought to be issued.

[14] Court of Appeal's Conclusion on Bias

I agree with the trial judge's assessment. I would not give effect to this ground of appeal.

Finally, since there were no Charter breaches, a review of the impact of the alleged breaches under s. 24(2) of the Charter is not required.

C. Disposition

I would dismiss the appeal.

Released: July 25, 2019

"P. Lauwers J.A."

"I agree. David Watt J.A."

"I agree. M. Tulloch J.A."