Court Information

Court: Ontario Court of Justice

Before: Justice Julie I. Bourgeois

Ruling on Application re: section 11(b) of the Charter

Released: February 19, 2016

Parties and Counsel

Between:

Her Majesty the Queen

— And —

Fawaz Abdullah

Counsel:

• Mr. Walter Devenz, for the Crown
• Mr. Lorne Goldstein, for the accused, Fawaz Abdullah

BOURGEOIS, J.:

INTRODUCTION

[1] This is my ruling in an Application brought by counsel for Mr. Abdullah in relation to section 11(b) of the Charter, arguing an unreasonable delay, in part caused by the Crown to get to trial and seeking a stay of proceedings pursuant to section 24(1) of the Charter.

[2] Mr. Abdullah is jointly charged on an Information with numerous counts related to the use of firearms and 2 counts of attempted murder. The allegations stem from what appear to be a long-standing rivalry within a group, divided amongst each other since the death of one of its member. The incident giving rise to the charges before the court took place on July 23, 2014. It can be characterized as a drive by shooting from individuals in one car, allegedly the co-accused in this case, towards individuals in another car, the victims named on this Information.

[3] In setting the trial date, defense counsel was of the view that 10 days would be required to hear the evidence. It appears a number of civilian witnesses would be required to testify as well as police witnesses given air and ground surveillance conducted in this case. It would also appear that expert witnesses will be heard given the forensic evidence obtained as a result of the execution of four search warrants, in two cars observed during the surveillance as being used during and after the events and the respective residences of the co-accused.

[4] Three other individuals were initially charged separately but in relation to allegations surrounding or following these events. All of these five individuals had retained separate counsels and all were involved in the proceedings leading to the setting of the trial date, including negotiations with the Crown.

[5] From the laying of the charges against Mr. Abdullah and his co-accused, sometime between July 23, 2014 and August 7, 2014 to the expected end of the trial date set for July 11 to 22, 2016, both counsels, for the accused and for the Crown, agree that the delay of 23.5 months or so warrant further inquiry by the Court.

[6] Defense counsel for Mr. Abdullah is of the view that this delay is unreasonably long and as a result, the court ought to stay the charges against his client. In a nutshell, it is argued that this matter, even though serious, is not complex and given the search warrant executed and the physical evidence seized as a result, the Crown ought to have taken its disclosure obligation more seriously. It is the accused position that the Information to obtain the search warrants constitutes material evidence and ought to have been provided to counsel without the necessity of a formal request but in any even much sooner than the four months it took in this case after it was requested. In the end, counsel argues that this delay, combined with the institutional delay and the prejudice caused to Mr. Abdullah, while waiting for his trial in custody since his arrest, should convince the court to apply the remedy pursuant to section 24(1) of the Charter and order a stay of proceedings.

[7] Crown counsel, on the other hand, takes the position that once the proper analysis required to be conducted in such applications is completed and after acknowledging the delay in providing the Information to obtain the search warrants, the totality of the circumstances, including society's interest, make it such that the charges ought not to be stayed but the accused should be tried on the merits. Indeed, it is the Crown's position that the bulk of the delay in this case falls within the inherent time required for parties to be ready to set a trial date and the institutional delay to bring this case to trial, brings us within one month of the guidelines provided by our Supreme Court in R. v. Morin, [1992] 1 S.C.R. 771.

OVERVIEW

[8] I have read the materials provided by both counsels, their factums, the transcripts of the court appearances and the case law each counsel provided. I have also attentively listened to their oral submissions. I have adjourned the matter to reflect upon all these materials and issues and to properly prepare my decision. It is as a result of this exercise that I have come to the conclusion that the accused application must be rejected. As such, I do so and will now explain how and why I have come to that conclusion.

[9] Both counsels agree with the test to be applied as a result of the teachings of the Supreme Court of Canada in R. v. Askov, [1990] 2 S.C.R. 1199 and Morin in analyzing the delay to get to trial. I will not review it extensively but will quote this recent passage from our Court of appeal, by Doherty, J. in R. v. Boateng, 2015 ONCA 857, at paragraph 21, to summarize it:

Section 11(b) protects the rights of an accused to liberty, security of the person and a fair trial by requiring that the accused be brought to trial within a reasonable time. The analysis required by s. 11(b) looks to the overall delay between the charge and the trial. It considers the reasons for various parts of the delay, characterizes the delay as defence delay, Crown delay, institutional/systemic delay, or neutral/inherent delay. Finally, the analysis considers the prejudice caused to the accused by the delay. Ultimately, the court will decide whether having regard to the total delay, the attributions of the various periods of delay, the prejudice to the accused, and the societal interest in a trial on the merits the overall delay was unreasonable. The inquiry is clearly fact-specific and focuses on the timeline of each individual case and the explanations for the delays revealed in the timeline: see R. v. Morin, at pp. 787-788; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 5; R. v. Lahiry, 2011 ONSC 6780, 283 C.C.C. (3d) 525 at paras. 3-9.

[10] I will not reproduce each court appearance as they were filed in counsels' materials but I will provide this overview of the chronology of events and timeline relevant to assist us in understanding the analysis:

[11] August 7, 2014: Replacement Information sworn – the accused arrested on the offence date of July 23, 2014 – I was not provided with the initial Information but all seem to agree these couple of weeks are not determinative but can be computed in the analysis – initial disclosure package was provided to counsel for the accused at that time – then Mr. Stuart Konyer.

[12] August 27, 2014: Accused bail denied – adjourned by defense to see status of co-accused.

[13] September 25, 2014: Parties had 1st JPT – substantial disclosure missing re: surveillance – unable to set PH or trial – further JPT set in hopes Crown will be able to obtain and provide missing disclosure.

[14] October 24, 2014: Disclosure mostly provided during Oct 21, 2014 JPT (2nd) – in position to set further JPT.

[15] October 28, 2014: Waiting co-accused bail status before setting JPT to then set PH or trial dates.

[16] November 14, 2014: Defense counsel has been appointed to the bench since last appearance but his firm is able to set 3rd JPT, with co-accused availability to Nov 19, 2014 – intention appeared to have been to set PH or trial dates.

[17] November 21, 2014: Accused gave instructions to his new counsel to conduct a bail hearing on the Monday - accused advised could not be done administratively from the Friday afternoon to the Monday morning.

[18] November 27, 2014: Change of counsel – new counsel requires time to review the disclosure and requests 1 week adjournment.

[19] December 4, 2014: Defense counsel seeks adjournment to review voluminous disclosure.

[20] December 10, 2014: 4th JPT (but 1st with this counsel) set for January 13, 2015 – we now know this is where ITO disclosure appears to have been discussed.

[21] January 16, 2015: As a result of JPT discussions, additional disclosure was requested and counsel needs to meet with his client – requests adjournment to January 30, 2015.

[22] February 13, 2015: Further JPT (5th but 2nd for this counsel) set for Mar 23, 2015.

[23] March 27, 2015: Adjourned by defense to COR court "so we could continue to get an update. I asked for that in early January at our judicial pre-trial (…) we're still waiting for it." Tab 24, vol. II, p.2, lines 15-19. Crown responded: "I had contacted and I got back to Mr. Friedman afterwards (…) I had contacted the officer who was quite sick with the flu, but we have made the contact such that as soon as I get the ITO and he is healthy, we will vet it and then disclose it to my friend-friends." p.3, lines 2-9.

[24] April 10, 2015: ITO not received yet and agent for defense counsel suggests adjourning 1 week to get update on getting the ITO disclosure – tab 25, vol. II, p.2, line 28-p.3, line 2.

[25] April 24, 2015: Defense still awaiting disclosure of ITO – accused complains about being transported to court in person (majority of appearances had been by video remand until Mar 27 '15) – court notes remand accordingly to accused request.

[26] May 1, 2015: ITO disclosure received – 6th JPT date set for May 6, 2015.

[27] May 8, 2015: Defense adjourns matter without indication of reason for it.

[28] May 15, 2015: Defense seeking further adjournment – requested further disclosure but unsure about original disclosure, verifying with initial counsel's firm.

[29] June 5, 2015: Defense advised awaiting original disclosure and further disclosure as a result of ITO – court set 7th JPT (4th for this counsel) to June 9, 2015, to move matter forward.

[30] June 17, 2015: Change of counsel – new counsel (4th) requests adjournment.

[31] July 31, 2015: Defense counsel not present but no discussions held re: admissions and issues, therefore no assessment of time required for either PH or trial – 8th JPT (1st for new counsel) date scheduled for Aug 25, 2015 at 4:30pm.

[32] August 28, 2015: Assigned Crown missed 8th JPT (see letter from assigned Crown at tab 3b of Defense Application Record) – nevertheless, trial date set along with 11(b) Application and any other pre-trial motion applications – court offered dates from April 2016 but assigned Crown not available until 2017 originally, agent for defense counsel indicates not available but would have attempted to make arrangements to accommodate these dates - upon further instructions, assigned Crown available from July 2016 – 10 days trial set July 11-22, 2016 – 11(b) motion set for Jan 11 & 12, 2016 – further JPT (8th) set for sept 23, 2015.

[33] September 18, 2015: Crown conveyed counsels for all accused to COR court to attempt to bring trial date forward as new Crown assigned carriage of this matter and available earlier than July 2016 – April dates no longer available to court since Aug 28, 2015 (assigned to other matters since) – May dates offered but defense counsel not available – July dates remain.

[34] December 4, 2015: Defense counsel request adjourning hearing of 11(b) motion – now set for Jan 15, 2016.

ANALYSIS

[35] In following the analysis and steps set out in Morin, I will now embark upon such judicial analysis required in this case.

i. Length of delay

[36] The Crown reasonably concedes the length of the delay from the swearing of the Information to the end of trial being close to 24 months, in fact 23.5 months, represents sufficient time to raise the question of further inquiries into the reasonableness of the delay. I agree.

ii. Waiver

[37] Two questions arise at this stage: Firstly, did the accused specifically waive his right to be tried within a reasonable time. The Crown acknowledges the absence of any explicit waiver from the accused. Secondly, in the absence of any explicit waiver, did the actions of the accused or his counsel were tantamount to a waiver. The onus rests upon the Crown then to demonstrate that the accused implicitly waived his constitutional right. As explained by Cory, J. in R. v. Askov, at para. 148: "The term 'waiver' indicates that a choice has been made between available options." In determining whether there has been an implicit waiver, the court has to assess the actions of the accused or his counsel, and determine whether there is a clear inference to be drawn to the effect of a waiver. By nature, the analysis of implicit waiver requires an examination of the accused or his counsel's actions, which is also found under the heading "reasons for the delay – actions of the accused". As stated by Sopinka, J. in Morin, at para. 33:

Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver.

[38] Given the way this case unfolded, I am of the view that even though the actions of the parties are obviously necessary in understanding the reasons for the delay, my assessment of some of the actions of the accused or his counsel bring me to conclude the accused implicitly waived his constitutional right to a trial within a reasonable time. It appears from the evidence on this record that the accused is, at times, responsible for some of the delay, by choosing to exercise his right to counsel of choice, requesting adjournments of his matter without clear or specific justification or at other times accepting the pace at which this matter was navigating.

[39] Of course the accused is not responsible for the appointment to the bench of his initial counsel. This loss for him obviously meant he had to choose another counsel. He had been diligent in retaining Mr. Konyer (now Konyer, J.) as reflected by the transcripts of his first appearance on August 7, 2014. The transcript of his November 21, 2014 appearance however seem to indicate that even though he was diligent in retaining another counsel from his initial counsel's firm, his instructions to proceed to a bail hearing after having been denied bail earlier in the proceedings (August 26, 27, 2014) might have created confusion but obviously frustration from his part when his expectations were not met.

[40] The accused changed counsel twice after his initial counsel was appointed to the bench. Each counsels, a total of four in this case, had to have at least one judicial pre-trial in order to discuss any available admissions and issues to make an appropriate assessment of the time required to be set aside to hear this matter, whether as a preliminary hearing or a trial. Such situation is part of the inherent time required to bring this matter to trial.

[41] However, the accused decision to further change counsels caused his matter to be adjourned from November 27, 2014 to January 13, 2015, to allow his new counsel to review the voluminous disclosure and set a judicial pre-trial date. His decision to yet again change counsel in July 2015 can only be interpreted at that point as waiving his right to a speedy trial as he is certainly aware of the delays his decision will entail, having done it before. Agent for his forth counsel on his matter appears on July 17, 2015 and counsel is not in position to set a preliminary hearing or trial date before August 28, 2015. His decision to change counsels on these two occasions represents a delay of approximately three months.

[42] Whether this period of time be characterized as an implicit waiver, inferred by his actions, or as reasons for the delay caused by the accused or his counsel's actions or even as part of the inherent time required by the accused or his counsel to prepare this matter to be brought to trial, it is certainly a period of time that is either attributed to the accused or characterized as neutral.

[43] Also, after receiving the ITO on May 1, 2015, the matter is adjourned to May 8 to review this piece of disclosure. However, on May 8, 2015, the matter is adjourned to May 15, 2015, at the request of counsel for the accused, without any indication as to why. It is only on that date that counsel for the accused indicates uncertainty in relation to the initial disclosure, received from the initial counsel – approximately six months after effecting the change of counsel on November 27, 2014. But also, on June 5, 2015, after being in possession of this specific piece of disclosure in the form of the ITO for over a month, still, counsel is not prepared to move this matter forward by setting a preliminary inquiry or a trial and it is the court who pushes a further judicial pre-trial to make the matter move forward at that point. It certainly appears the accused, through his counsel of choice at the time, was satisfied with the pace of the proceedings. There is a further change of counsel, as indicated above on July 17, 2015. The matter is then staled until August 28, 2015, when dates are set. In this period of almost four months, some time overlaps with the accused decision to change counsel as stated above and some time would have been required to review the content of the ITO. It certainly appears however that the period of time between June 5 and July 17, 2015 can be characterized as waived by the accused or his counsel's actions.

[44] Finally, of assistance and convincing also in determining whether the accused waived implicitly his right to a speedy trial is this counsel's correspondence with the scheduling assistant Crown, filed at tab 3c of its Factum, demonstrating annoyance at the efforts of the Crown in bringing the accused to trial at an earlier date than what was set. This piece of evidence certainly seems to be what our Supreme Court in Askov at para. 98 and 99 meant:

[…] there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee understood its nature and has waived the right provided by that guarantee.

(…) the accused must undertake some direct action from which a consent to delay can properly be inferred.

[45] Just to be clear, the fact that counsel turned out not to be available for trial at the proposed earlier date of May, is certainly not a waiver but the tone and content of the correspondence certainly shed light on the attitude of counsel towards efforts from the Crown to move the trial date forward. Counsel took time to draft and send out this correspondence as if the Crown's actions were something negative in this regard and a waste of the use of his time. It certainly leads me to conclude the applicant was quite satisfied with the pace and the time frame set in this matter.

[46] In this context, for these periods of time, it seems difficult for the accused to hold the arguments that the Crown failed in its burden to bring the accused to trial and also failed to prove that this implicit waiver can be inferred. I find that even if my assessment of the record is incorrect at this stage of the analysis and these periods of time ought not to have been characterized as a waiver, it certainly assist in better understanding at least some of the reasons for the delay in this matter, as characterized by "actions of the accused".

[47] In any event, the period of time I would qualify as waiver, approximately four months and a week, is insufficient to resolve the question of delay to get to trial in this matter in bringing the length of time just over 19 months.

iii. Reasons for delay

[48] It is at this stage of the analysis that we are able to understand best what happened in this particular case to bring the matter to trial at the time it is set to proceed at. As stated by Sopinka, J. in Morin, at para. 35, "some delay is inevitable. (…) Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare."

a. Inherent time requirement

[49] I have already discussed the factors related to retention of counsel and briefly the process of judicial pre-trial. I do not wish to revisit the change of counsel at length but I will offer these comments.

[50] In this case, four different counsel worked on this matter on behalf of the accused and each counsel obviously had to familiarize himself with the case but also had to take part in at least one judicial pre-trial to actively discuss admissions, if any and issues related to the case in order to determine the appropriate estimated amount of time required to be set aside for either a preliminary hearing or a trial. In this case the judicial pre-trials were held as such:

• Prior to Sept 25, 2014 with his initial counsel – substantial disclosure missing in relation to surveillance, therefore 2nd JPT to be required
• Oct 21, 2014 – 2nd with his initial counsel – disclosure mostly provide then
• Nov 19, 2014 – with his 2nd counsel after the appointment to the bench of his initial counsel
• Jan 13, 2015 – with his 3rd counsel – ITO requested
• Mar 23, 2015 – with 3rd counsel – to follow up on ITO
• May 6, 2015 – with 3rd counsel – discussion following ITO reception
• June 9, 2015 – with 3rd counsel – to move matter forward
• Aug 25, 2015 – with 4th counsel – 10 days to be set aside for trial

[51] I will further discuss these steps and activities later in the section "actions of the Accused and the Crown" but at this stage, it certainly offers a certain backdrop to the time required in this case to "bring the fire truck to the fire". Each time the accused changes counsel, it means an additional judicial pre-trial discussion since each counsel is entitled to its own admissions and strategy as to the issues it will raise and approach and defense to the case. This has an impact on the estimation of time required to be set aside by the court to hear the matter.

[52] Also of importance in counsels' submissions in this case is the question of complexity. Counsel for the applicant acknowledges the seriousness of the matter but is of the view that it is not a complex case.

[53] Sopinka, J. in Morin, at para. 36 and 37, discussed the question of complexity of a case in determining what a reasonable delay might be in each case. I would certainly not hesitate to qualify this matter as a complex case for the following reasons:

i. The nature of the allegations: a senior counsel, since appointed to the Superior Court of Justice, once told me, early on in my legal career that the attempted murder charge is probably one of the most challenging offence described in the Criminal Code of Canada to deal with on a legal basis by nature of its essential elements. I still hold this to be true today. Counsel for the Applicant did not refer to these two counts of attempted murder in his oral submissions and they are not included in para. 1 of his Factum within the offences listed therein but I see them as counts one and two on the Information. These counts are followed by numerous firearms related counts and drug trafficking related charges for a total of 32 counts. But looking at section 239 of the Criminal Code, just to name this one, is a straight indictable category of offence punishable by a maximum of life in jail and by a minimum of 4 years if a firearm is used in the commission of the offence.

ii. The 4 search warrants, including a sealed ITO, the air and ground surveillance and the forensic evidence seized in this case, all creating voluminous disclosure.

iii. The applicant being jointly charged with a co-accused on this Information but also keeping in mind 3 other individuals charged with other offences in circumstances related to the allegations giving rise to the charges against the applicant. In fact, this situation alone was so complex and confusing that a simple read of some of the transcripts in COR court demonstrates the difficulties it created. As expressed in the Crown's Factum, this concept was also recognized by the courts in R. v. Sapara, [2001] A.J. No. 256, 2001 ABCA 59 at para. 57, leave to appeal refused [2001] S.C.C.A. No. 237 and R. v. Whylie, [2006] O.J. No. 1127 (C.A.) at para. 24. Even though the matter is not as complicated as the one presented in R. v. Cranston, 2008 ONCA 751, the concept of complexity of the case and multiple co-accused is also recognized as extending "the time reasonably required to complete the proceedings." at para. 38.

iv. The case was set down for a trial, estimated by defense counsel, as the Crown had missed the 8th judicial pre-trial, to require 10 days to be completed. One must come to the conclusion that matter is complex enough when the accused is made aware, at tab 34, on July 31, 2015 that the previous judicial pre-trial (the 8th in this case) was held until 6:30pm, lasting some 1.5 hours.

[54] In this context, I don't know why this case, albeit serious, would be so easy as to be qualified as non-complex. The complexity of a case is not only assessed by the legal issues it raises. Following the activities required to be done in this case such as hiring counsel (4 in this case), conducting a 2-day bail hearing for this applicant alone, completing police and administration paperwork such as surveillance reports and disclosure such as vetting an Information to Obtain a search warrant, it appears to me that this is what the Supreme Court had in mind when Sopinka, J said, at para. 37: "As the number and complexity of these activities increase, so does the amount of delay that is reasonable."

[55] As it relates to the surveillance reports and the vetting and disclosure of the ITO specifically, it is not an activity that simply requires the making of a photocopy of a document but it requires the consideration of either safety issues or sensitive information. It also requires concerted work between the Crown and the police and orchestrating schedules. In this case, the investigating officer appeared to have been ill during part of the crucial timeframe the ITO was required. I will have more to say about this specific issue in discussing the actions of the Crown but suffice it to say at this juncture that the complexity of the case and its related activities to prepare to case to get it to trial, the "intake" period, certainly amounted to a longer delay being reasonable.

[56] As stated by Cory, J. in Askov at para. 85: "Complex cases which require longer time for preparation, a greater expenditure of resources by Crown officers and the longer use of institutional facilities will justify delays longer than that would be acceptable in simple cases."

[57] In the end, the inherent, neutral time it took for this case to be ready and for the parties to be ready to set a trial date appears to be between approximately 8 months.

b. Actions of the Accused

[58] Indeed, it is the responsibility of the Crown to bring the accused to trial by providing timely disclosure. But this does not mean that the accused or his counsel bears no responsibility whatsoever in the process of getting there. In Askov, Cory, J. said, at para. 95:

As Lamer J. so cogently observed in Mills, it is a fundamental precept of our criminal justice system that it is the responsibility of the Crown to bring the accused to trial. Further, the right to be tried within a reasonable time is an aspect of fundamental justice protected by s. 7 of the Charter. It follows that any inquiry into the conduct of the accused should in no way absolve the Crown from its responsibility to bring the accused to trial. Nonetheless, there is a societal interest in preventing an accused from using the guarantee as a means of escaping trial. It should be emphasized that an inquiry into the actions of the accused should be restricted to discovering those situations [page1228] where the accused's acts either directly caused the delay (as in Conway), or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial. These direct acts on the part of the accused, such as seeking an adjournment to retain new counsel, must of course be distinguished from those situations where the delay was caused by factors beyond the control of the accused, or a situation where the accused did nothing to prevent a delay caused by the Crown.

[59] The accused made choices in this case, which impacted the speed the proceedings took to get to trial. I have already discussed the change of counsel. Even though the process itself in doing so appeared not to have delayed matters (for example, there were not delays caused by transferring a Legal Aid Ontario Certificate or an Appeal process in this regard), the change of counsel in itself caused some delay and additional judicial pre-trials, each counsel having their own approach or tactic to the case. Indeed, it appears the initial counsel was prepared as early as Oct 28, 2014, subject to co-accused and co-counsel's availability, to set a judicial pre-trial for the purpose of setting preliminary hearing or a trial and his successor appeared to have been in a position to set a preliminary hearing or a trial as early as Nov 14, 2014. They had in hand what was qualified as most of the disclosure.

[60] On the other hand, his 3rd counsel was not even prepared to make an election without the ITO in hand. What seems at odd with the applicant's assertion of willingness to set a speedy trial is his action or inaction in this case of not securing a date for a trial or preliminary hearing even over a month after receiving the ITO. As discussed earlier, instead, counsel opted to not only wait to receive further obscure piece of disclosure flowing from the ITO but also confirming reception of initial disclosure. Counsel by then had been in possession of the disclosure for approximately 6 months and had sought adjournments to review the voluminous disclosure. There is no evidence before this court to conclude what the evidence sought was, flowing from the ITO or the "unconfirmed" initial disclosure for that matter, and therefore, even less evidence to conclude that the sought disclosure was even potentially relevant.

[61] It is in this context that I tend to conclude that the applicant and his counsel were quite content with the pace of the proceedings, including part of the delay caused by the Crown in disclosing the vetted ITO. It is not until Mar 27, 2015 that counsel starts expressing concern about the delay in receiving this piece of disclosure. The assigned Crown had agreed to vet it and disclose it and explained the reason for the delay. The matter was adjourned 3 more times and the vetted ITO was disclosed on May 1, 2015. I can only conclude the applicant took no issue with the period of time between Jan 13, 2015 when it was requested to Mar 27, 2015 when it first expressed concern with the delay. The Crown fairly concedes that the ITO ought to have been provided earlier than May 1, 2015. And I agree. But I have to also agree with the Crown that the applicant and his counsel did nothing other than to seek adjournments when the ITO was not forthcoming. Even though the Crown had consented to its disclosure, a simple 2-page Ex Parte Application pursuant to section 487.3(4) of the Criminal Code would have not only provided teeth to this request but more importantly, jurisdiction to a Judge to make an order and have it enforced.

[62] Ironically, another accessible tool to the applicant is specifically found at sec. 525 of the Criminal Code, the 90-day review, in situations where the trial is delayed and the accused has been denied bail. Pursuant to sec. 525(9), the judge hearing that application, "may give directions for expediting the trial of the accused.", a remedy to an argument of inaction of the Crown for example.

[63] I agree with the Crown's submissions on this point that not only can the applicant not wait for a perfect state of disclosure before setting a date but also the applicant could have easily made an election anytime, at least after May 6, 2015 and make use of the relevant sections of the Criminal Code to re-elect, should that choice turned out not to be in line with his strategy. But instead, he chose to seek further adjournments until the state of his disclosure was perfect, while the applicant is incarcerated. This situation is certainly what the Ontario Court of Appeal referred to in R. v. M. (N.N.), [2006] O.J. No. 1802, at para. 37:

Where outstanding disclosure is alleged to explain a defence request for an adjournment, it is necessary to consider what documents were outstanding, when and in what circumstances they were requested, and if their disclosure is mandated by the Crown's constitutional duty of disclosure. Where the defence has made a late request for material with no potential relevance, any delay that results should not be attributed to the Crown. A person charged with an offence should not be able to generate a basis for a s. 11(b) application by making a continuous stream of requests for materials that have no potential relevance, even if the Crown agrees to provide them. 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), 192 C.C.C. (3d) 91 at para. 47 (Ont. C.A.): "the Crown is not obliged to disclose every last bit of evidence before a trial date is set."

[64] Not to take away from the responsibility of the Crown to bring the accused to trial, but the applicant's decisions and choices not to utilize legally available and easy tools such as re-election or an Ex Parte Application to unseal an ITO certainly seems to fall within the teachings of our Court of Appeal in R. v. Kugathasan, 2012 ONCA 545 at para. 15:

In the context of the s. 11(b) calculus, the defence, like the Crown, must take responsibility for the delays that are the consequences of its tactical choices. We stress again that the exercise is not about criticizing defence counsel or assigning fault. It is about a realistic attribution of causes for delay in the context of considering whether the overall time period in issue is such as to result in a breach of the respondent's rights under s. 11(b).

[65] More specifically about the issue of disclosure of the sealed ITO, I am certainly not prepared to conclude that the Crown has an obligation to apply to have it unsealed immediately after the accused has been arrested, as suggested in R. v. Osei, [2007] O.J. No. 768. I do not share the applicant's view that the ITO ought to be disclosed automatically without a request made by the accused. The evidence before me, in fact, tend to show the contrary. The initial counsel of record considered that most of the disclosure was provided after the surveillance report was disclosed. The third counsel of record qualified it as an additional disclosure request he made to the Crown during a judicial pre-trial discussion.

[66] The situation at bar also leads me to believe that the ITO is not as central as one would expect it in a drug related case such as a grow operation as in R. v. Tang, [2007] O.J. No. 4606 and R. v. Do, [2009] O.J. No. 3649, or R. v. Li, [2010] O.J. No. 4692, or as in a wiretap case such as in R. v. Durette, [1994] 1 S.C.R. 469. Not only does the fact that the initial 2 counsels were ready to move the case along without being in possession of the ITO lead me to this belief but also the fact that no date has been set for a pre-trial motion pursuant to s. 8 of the Charter by the last 2 counsels of record once the ITO was disclosed and after 3 judicial pre-trials were held for this purpose. Also, the circumstances and allegations giving rise to the charges and leading to the search warrants tend to show that perhaps counsels did not expect much surprise in the ITO itself. It is not to say that the ITO is not material disclosure, both Crown and Defense counsel agree it is, but it does not appear to be the central element in this particular case.

[67] It would therefore appear that the most appropriate approach in this case is the one proposed by Armstrong, J. in R. v. Do, at p. 9. Once the disclosure request is made by defense counsel, the execution of search warrants being apparent from the initial disclosure (provided to counsel at the very first appearance in this case), the Crown is to apply to the court to obtain it, vet it and disclose it:

In my opinion, the Crown is entitled to wait either for the defense to request disclosure of the package or until the point it becomes clear that the case I not going to be resolved by a guilty plea or otherwise terminated before its obligation to disclose the vetted contents of the package crystallizes. Strictly speaking, it is the duty of the Crown to bring the application to unseal the package and vet it for delivery to the defense, although there is nothing in section 487.3(4) of the Criminal Code to prevent the defense from bringing such an application if it chooses to do so.

c. Actions of the Crown

[68] As indicated, the assigned Crown agreed to vet and disclose the ITO but as properly conceded by the Crown, this process was delayed. So regardless of conflicting authorities and opinions in related to mandated disclosure and its process, all agree it ought to have been disclosed and it took too long. The only question is how much time ought to be attributed to the Crown's action.

[69] As indicated above, I am of the view, especially given the circumstances in this case, that the applicant had to request it. There is no evidence before me that the practice in this jurisdiction is to automatically receive such specific element of disclosure in each and every case a search warrant is obtained and the ITO has been ordered sealed. It was indeed requested as a result of the Jan 13, 2015 judicial pre-trial.

[70] Nobody seemed offended or to have taken issue with the delay until Mar 27, 2015 at which time the assigned Crown provided the explanation for the delay. All seem to agree at that point that a further adjournment, to April 10, 2015, was appropriate under the circumstances. Accepting the teachings of our Supreme Court in Morin, at para. 36, that "[a]ccount must also be taken of the fact that counsel for the prosecution and the defense cannot be expected to devote their time exclusively to one case.", the correspondence of the assigned Crown at the time, filed at tab 3b of the applicant's materials, describing part of the work tended to in relation not only to this matter and the other related accused but also in relation to other serious and complex matters certainly offers a glimpse of such a practical example.

[71] Nevertheless, I would conclude that the Crown ought to be responsible for the delay from April 10, 2015 to May 1, 2015.

[72] Now how does this delay impact on the analysis of the reasonableness of the length of the delay in this case? Does is create an unreasonable delay, stripping the applicant of his right pursuant to sec. 11(b) of the Charter and entitling him to the extraordinary remedy available pursuant to sec. 24(1), that is a stay of the charges laid against him? I think not.

d. Limits on institutional resources

[73] As we learned from R. v. Morin, para. 42, "this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them."

[74] In this case, given the combination of the implicit waiver or the extended inherent time and the actions of the parties, they were ready to set a trial on Aug 28, 2015. That trial date was set for July 11-22, 2016. This is just shy of 11 months.

[75] The proposed guideline in Morin suggests 8 to 10 months in provincial court is to be considered as a reasonable delay. The Supreme Court of Canada clearly stated that this was not to be considered as "a limitation period nor a fixed ceiling on delay" and "inflexible".

[76] In fact, looking at the evidence before me it appears the court was able to accommodate a 10 day trial in April 2016. The assigned Crown at the time was not available and the July 2016 dates were set. Later in Sept 2015, the Crown attempted to bring the matter forward and dates in May 2016 were offered. However, at that time counsel for the applicant was not available and the July 2016 dates remained.

[77] It certainly seems the system was able to offer consecutive dates well within the recommended guidelines, even for an extended trial of 10 days. To accommodate the parties' schedules, the trial was set within 11 months. The typical most common source of delay found in "Askov-type" matters is certainly not problematic in this case.

e. Other reasons for delay

[78] No other reason for delay, which would not fall within one of the previous categories or factors, was pointed out.

f. Prejudice

[79] As we learned earlier from J. Sopinka in Morin, the prejudice is concerned with the accused 3 interests protected by s. 11(b) and they are described by J. Cromwell in R. v. Godin, 2009 SCC 26, at para. 30:

Liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise to raise a defence.

[80] Given my earlier comments in relation to the implicit waiver or the actions or inactions of the accused, I am also mindful of this passage in Morin, at para. 57:

[…] in taking into account inaction by the accused the court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that the accused has suffered as a result of delay.

[81] The applicant has been in custody since his arrest on July 23, 2014. He applied for bail but it was denied in August 2014.

[82] I find this passage, from our Court of Appeal in R. v. Boateng, supra, at para. 41 and 42, appropriately reflects the situation at hand:

(iii) Prejudice

41 There is no claim that the appellant's right to make full answer and defence or otherwise have a fair trial was prejudiced by any delay. He was, however, denied bail and was in custody for the two years between his arrest and his trial date. Any delay in bringing the appellant to trial would inevitably significantly impact on his right to liberty. That negative impact is, however, mitigated by the explanation for the delay. All but perhaps two or three months is attributed to the inherent time requirements of the case. Prejudice to a liberty interest accruing during a time period that is part of the inherent time requirements of the case cannot justify a finding of a breach of s. 11(b) and the automatic stay of proceedings that follows. Were it otherwise, time said to be part of the inherent time requirements of the case can hardly be described as "neutral" for the purposes of s. 11(b).

42 The prejudice to the appellant's liberty interest factors into the overall s. 11(b) mix. Considered along with the other relevant factors, it does not justify a finding that any delay in bringing the appellant to trial fell below constitutionally accepted requirements and infringed s. 11(b) of the Charter.

CONCLUSION

[83] In this case, the inherent time, neutral time, represents approximately 8 months, approximately 4 months was either waived or as a result of the accused or his counsel's own actions and approximately 1 month as a result of the Crown's actions, leaving approximately 11 months of institutional delay, including the two months to accommodate his counsel's schedule.

[84] When considering the purpose of s. 11(b) of the Charter, we are required to balance the accused interest against the interest of society and Sopinka, J. in Morin, at para. 25 said:

There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. [page787] In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[85] There is not dispute this case is very serious. Allegations of attempted murder in the context of allegations of a drive-by shooting on the streets of our City, in broad day light, certainly raises concerns for the public, to say the least. The dramatic increase of such events in the last few years, here in Ottawa, is certainly nothing to ease those concerns and increase societal demand to see those charged with such allegations, to be dealt with according to law, on the merits.

[86] It is as a result of my analysis of the factors as set out in Morin and of the exercise of balancing of the interests that I dismiss the Application.

Released: February 19, 2016

Signed: Justice Julie I. Bourgeois