Ontario Court of Justice

Date: 2018-09-04

Court File No.: Newmarket 16-02198

Between:

Her Majesty the Queen

— AND —

Erhard Haniffa

Ruling on s.11(b) Application #2

Released September 4th, 2018.

Ms. Kellie Hutchison ............................................................................. counsel for the Crown

Mr. Boris Bytensky .......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] This is a second s.11(b) application. The delay to November 8, 2017 was reviewed in a ruling delivered that date. These reasons consider the various rights protected by s.11(b) of the Charter in the context of the overall delay including the period previously reviewed.

[2] While the Crown and defence do not agree on the legal test to be applied post-verdict, and don't agree on the reason for every delay, this s.11(b) application is unusual in that both parties agree that the Crown, the defence and the court have made continuous effort to move this matter forward in a timely way. Numerous post-verdict applications along with a few external events have extended the overall time, but the record shows that all parties have taken active steps to minimize delay and its effects throughout.

The Proceedings to Date

[3] The Information was sworn on March 23, 2016. Mr. Haniffa's first appearance was April 20th, 2016. In less than three months the case proceeded through the intake phase, two judicial pre-trial case management meetings and trial dates were set. The trial was set in stages as agreed by both parties. The trial itself was to be held June 5th to 7th 2017. If there was a finding of guilt the defence intended to bring an entrapment application. Target dates for that application were set for August 15th – 16th, 2017. In case that application was unsuccessful, further time was scheduled for a constitutional challenge to the statutory minimum sentence on September 18th – 20th. Scheduling the trial in that fashion accommodated the defence interest in minimizing client costs and the court interest in having some ability to use scheduled time for other cases if it turned out it wasn't needed.

[4] The trial was conducted in a focused fashion by both parties from June 5th to June 8th 2017. The verdict was rendered with written reasons on June 13, 2017. An added Kienapple issue was discussed. The court was not available for the scheduled August entrapment dates so the matter was adjourned to September, which had been set to argue constitutional minimums. On July 10, 2017 the Ontario Court of Appeal released its decision in R v Morrison 2017 ONCA 582 striking down the minimum sentence for the luring offences so that application in this case became unnecessary. The defence confirmed on July 13th that they would be proceeding with an entrapment motion and on July 18th counsel agreed that the Kienapple and entrapment issues could be heard on the scheduled September dates.

[5] On September 18th, 2017 the defence applied to adjourn the entrapment hearing and applied for further disclosure they say related to the issue of entrapment. The Kienapple application was argued. On September 19th the court released a ruling denying the further disclosure application and the application to adjourn the entrapment hearing. The entrapment hearing proceeded and evidence was completed September 20th. The court ruled on the Kienapple issue on October 2nd, 2017. The entrapment issue and an added defence s.11(b) application were argued on October 24th. The court delivered written rulings on both applications on November 8th, 2017.

[6] On November 8th, 2017 the defence applied to re-open the entrapment application. That application was dismissed on the next court date December 5th. On December 5th the Crown brought an application regarding the effect of a Superior Court declaration of invalidity that was relevant to this case. The application was heard and a written ruling was issued December 6, 2017.

[7] Sentencing was scheduled for February 20th, 2018. Just before that date the Crown and defence were advised that the police had obtained a production order that covered all of the text messages from this phase of Project Raphael. That information relating to other cases within the project was provided quickly to Mr. Bytensky without vetting on an undertaking, not because the Crown viewed it as relevant, but because it corrected a factually incorrect answer (now) Insp. Truong had given during the evidentiary phase of the entrapment application. Insp. Truong was not aware that another officer working on the project had obtained a production order so was truthful but not correct when he testified on that point. The officer who oversaw the case (now) Staff Sgt. Yan was away that week so he didn't catch the mistake. The text messages with respect to Mr. Haniffa had been fully disclosed so it was not plain what relevance if any this further information had with respect to this case, but in order to permit the defence to review the material and take instructions the matter was adjourned to May 1st as the next available date agreeable to all parties.

[8] The May 1st hearing was adjourned at the request of the defence as counsel was caught in an ongoing trial and no longer available for the dates set. The matter was adjourned to August 28th as the next available date to all parties. On August 28th the defence brought another s.11(b) application, an application to bring a Charter motion not made at trial, and another application to re-open the entrapment issue. Both parties provided written submissions with cases in advance as they have done with almost every application. Further evidence was heard and submissions made on August 28th and 29th. This ruling and the entrapment ruling are being delivered a week later.

The Delay and s.11(b)

[9] Not all of the interests protected by s.11(b) apply after a finding of guilt, but I agree with the defence that a person convicted retains a right to have post-trial applications heard and a sentence imposed within a reasonable time – R v MacDougall, [1998] SCJ No 74. The defence submits that this case has taken too long since it involves one individual facing three charges arising out of a focused fact situation. It's true that this case doesn't involve multiple parties and isn't complex in that sense, but all of the legal applications and issues in this case have taken almost three weeks of court time and in that way this case is far removed from the typical provincial court case referred to in R v Morin that could be heard in less than a day.

[10] Whether the Jordan analysis continues to apply post-conviction or whether the defence is right that a modified Morin approach is required, on either test the ultimate question is whether the case has taken markedly longer than what was reasonably required. The "bird's eye view" of the overall case shows that this matter has moved quickly at every stage. Post-verdict there were still numerous legal issues that required consideration. There were a number of discrete events that intervened.

[11] Each of the nine applications brought post-verdict (Disclosure, Kienapple, Entrapment, s.11(b)1, Re-Open Entrapment 1, s.52, s.11(b) 2, Re-Open to bring Charter, Re-Open Entrapment 2) have been necessary and were brought and heard in an efficient way, but given the number of issues and the very busy court in which this case is heard it's plain that this case could not have moved along much more quickly than it did. Everyone was alive to the issue of delay and took numerous measures throughout to minimize it. I find the overall time for this trial including the proceedings post-verdict is reasonable in that context.

Conclusion

[12] I find that the applicant has failed to prove a breach of his right to be tried within a reasonable time on the balance of probabilities. The application must be dismissed.

Released September 4, 2018.

Hon. Joseph F. Kenkel