Court File and Parties

Court File No.: 17-1563 Date: August 12, 2019 Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

-AND-

Andrew MacDonald Applicant

-AND-

Alisha Thomson Applicant

-AND-

Brandon Thomson Applicant

-AND-

Jacob Thomson Applicant

Before: Justice Michael G. March

Heard on: June 25 and July 2, 2019

Reasons for Decision on s. 11(b) Charter Application released on: August 12, 2019

Counsel

Teresa James – Counsel for the Crown

Cedric Nahum – Counsel for the Accused, B. Thomson

Dan Howard – Counsel for the Accused, A. Thomson

Paolo Giancaterino – Counsel for the Accused, J. Thomson

Jodie Primeau – Counsel for the Accused, A. MacDonald

Introduction

[1] On October 18, 2017, Brandon Thomson, Jacob Thomson, Alisha Thomson and Andrew MacDonald were charged jointly with numerous break and enter type offences and some sundry drug offences. By the time their trial proceeded for the full week of January 14, 2019, there were 56 counts in total before the Court. In terms of delay, the Crown's case against them was already in jeopardy. Roughly 15 months had elapsed since the date the four co-accused were originally charged.

[2] A further week of trial, save February 12, 2019, ran from February 11 to 15, 2019. Three days in May and four days in June 2019 were also dedicated to trying the 56 counts. Then, on June 25, 2019 and July 2, 2019, the hearing of this Application was conducted.

[3] Defence counsel collectively sought a stay of proceedings on all charges the four co-accused faced. The defence contended that there was a violation of their Section 11(b) rights to a trial within a reasonable time under the Canadian Charter of Rights and Freedoms ("the Charter").

[4] On the last day of trial to date (and the second day of the hearing) - July 2, 2019, I asked the Assistant Crown Attorney assigned to the case and each defence counsel representing the four accused to meet with the Acting Trial Co-ordinator in order to determine when the anticipated end of the trial would be, if 10 more days were dedicated to it. The Crown's estimate was that five more days were required. The Crown's case would involve calling 10 to 20 more witnesses. The majority of defence counsel opined that 10 to 15 more days would be required.

[5] Estimating as best we could, as justice system participants, and co-ordinating schedules of Crown, defence and the Court, the trial, it seemed, would take until mid-April 2020 to finish. A total delay of 30 months would thus have accrued from the date the four co-accused were originally charged to the anticipated completion of the trial. On its face, this was plainly unacceptable.

Position of the Defence

Counsel for Brandon Thomson, Mr. Nahum

Disclosure

[6] Mr. Nahum, counsel for the accused, Brandon Thomson, was first to bring a section 11(b) Charter Application. Mr. Nahum essentially assumed the role of lead defence counsel in arguing the application for a stay of all charges against the four co-accused. All other defence counsel adopted Mr. Nahum's position that the main cause for delay was the lack of timely disclosure made by the Crown. Indeed, disclosure was provided by the Crown even after commencement of the trial in accordance with the its ongoing obligation to hand all relevant material over, as the Crown comes into possession of it.

[7] On April 3, 2018, some 5 ½ months after the charges were laid, the Crown emailed all defence counsel to notify of its intention to seek a list of admissions on behalf of their clients. That same day, Mr. Nahum indicated his unwillingness to make any blanket concessions. He wished instead to have disclosed to him the contact information for the complainants/property owners, as well as their criminal records, assuming they had any. In essence, Mr. Nahum was proposing to speak to the proposed witnesses, and having done so, he would let the Crown know whether their evidence could be admitted. No such contact information was ever provided to him by the Crown.

[8] On July 10, 2018, the Crown sent a list of 35 witnesses' names to all defence counsel seeking to have their evidence admitted. On July 17, 2018, Mr. Nahum responded pointing out that he had not yet received statements, police interviews and/or notes for 30 out of the 35 witnesses. Nor had he received criminal records, if any, for all civilian witnesses. As well, he had not been provided with copies of their original complaints, presumably their written and/or audio statements, interview reports, etc.

[9] As of March 18, 2019, the date the Section 11(b) Charter Application was served on the Crown, Mr. Nahum had not obtained a significant component of disclosure.

[10] Earlier, on October 29, 2018, the Crown sent to defence counsel a USB key of disclosure with assurances from police that… "they have given us [Crown and defence] everything they have." Of the 35 witnesses for which the Crown had sought to have evidence admitted, disclosure was provided for only 9 of them. From some of those 9, police had taken statements a year after their initial complaints were made. Affidavits, audio interviews and other disclosure relating to 5 other witnesses was additionally provided for the first time ever.

[11] On December 13 and December 21, 2018, defence counsel received disclosure of the searches of cellular phones and GPS data belonging to one or more of the four co-accused. Mr. Nahum had requested them for his client, Brandon Thomson, a year previously.

[12] On January 14, 2019, the first day of trial, a police officer, Cst. Yarmel, involved in investigating one of the 11 break and enters for which the four co-accused were charged, disclosed copies of his duty book notes to their counsel for the first time. Another officer, Cst. Rebertz, disclosed his on February 6, 2019.

Judicial Pre-Trials

[13] In total, thirteen judicial pre-trials were conducted before Justice Selkirk in an attempt to resolve the problem of outstanding disclosure, to obtain admissions from the defence, if any were to be had, and generally to case manage the matter to ensure an efficient use of any allocated trial time. Mr. Nahum contended that insufficient disclosure was given to all parties to allow for the Crown to propose specific admissions and for the defence to properly consider them. The request for admissions had be reasonably focussed with specific facts set out based on the evidence each witness was expected to give. That did not happen in this case. Although the Crown had indicated its intention to seek admissions on individual "break and enters, property taken and property received," no such specific requests were made.

[14] Mr. Nahum criticized a lack of any steps taken by the Crown to ensure complete and timely disclosure was made. He argued the Crown needed to take more pro-active measures to see to it that police fulfilled their duty in providing all fruits of their investigation to the Crown.

[15] On April 3, 2018, the pre-trial Judge reserved two days for the anticipated, pre-trial applications the defence wished to bring, as well as two weeks for the trial of the matter. Granted the Crown and all defence counsel estimated the trial would take longer. Of course, if the trial did not finish within the allotted two weeks, more delay would be engendered.

[16] Mr. Nahum submitted that there was no appreciable defence delay. Each adjournment of the matter and pre-trial was necessitated by the pursuit of further relevant disclosure the Crown was obliged to provide. There was no action or inaction on the part of the defence that contributed to the delay.

[17] Lastly, now that the trial has already exceeded the presumptive limit of 18 months, (October 18, 2017 to July 5, 2019 equating to 20 months and 18 days), the Crown cannot point to any exceptional circumstances to justify its prolongation. No discrete events occurred to delay the trial. Nor was the case complex.

Counsel for Alisha Thomson, Mr. Howard

[18] Mr. Howard echoed Mr. Nahum's submissions on problems with disclosure as the major cause for delay, but Mr. Howard took a slight step further. He argued that the pre-trial Judge would not have even allocated two weeks to the conduct of the matter if a trial in the Ontario Court of Justice ("OCJ") had not been fully expected. One of the defence counsel, Ms. Primeau, had elected trial in the Superior Court of Justice ("SCJ") on March 6, 2018. By April 3, 2018, she had re-elected trial in the OCJ. This was not at all surprising, Mr. Howard submitted. Her client, Andrew MacDonald, was in custody at the time.

[19] Mr. Howard also contended that the period of time between March 1, 2019 and May 13, 2019 (2 ½ months), when the Crown and Court were available over the course of 20 actual dates to continue the trial, and either one or more of the defence counsel involved were not, was not defence caused delay. It was unrealistic on such short notice to the defence to expect them all to be available, when the 20 dates began to be offered by the Court as of February 11, 2019.

Counsel for Jacob Thomson, Mr. Giancaterino

[20] Mr. Giancaterino conceded that his availability to continue the trial beyond the week of February 11, 2019 was limited, but the Crown could not point to deliberate or calculated tactics on his part to cause delay. No frivolous requests or applications were made on his client's behalf. Defence counsel should not be expected to hold future dates in abeyance to continue an ongoing trial.

[21] In essence, Mr. Giancaterino argued that there was no illegitimate conduct on his or his client's part to delay the trial. He reassigned matters as best he could to other lawyers in his firm, when he could not be available to continue the trial. Indeed, he had another properly instructed member of his firm step into his shoes on February 11, 2019 when he could not appear on his client's behalf. It was always his client's instruction to proceed to trial. Mr. Giancaterino acted on that instruction. His conduct cannot be criticized for not having taken all reasonable steps to advance the matter.

[22] The "bird's eye view", not the minutiae, is the appropriate vantage point for assessing the parties' conduct in the litigation. The two days set aside in October 2018 to challenge the validity of the warrants to search Brandon Thomson's and his client's residence, as well as the residence of the common-law spouses, Alisha Thomson and Andrew MacDonald, could not have proceeded in any event with the massive amount of disclosure provided to defence in October 2018. Again, he argued the cell data disclosure made in December 2018 did not delay the first scheduled week of trial commencing January 14, 2019.

Counsel for Andrew MacDonald, Ms. Primeau

[23] Ms. Primeau contended that the Crown ought to have proceeded against the common-law spouses, Alisha Thomson and Andrew MacDonald, separately from their co-accused, the brothers, Brandon and Jacob Thomson. Her client, Mr. MacDonald, lived in a different residence than Messrs. Thomson. This, she argued, could have led to an earlier completion of Ms. Alisha Thomson's and her client's trial. Presumably, the number of witnesses the Crown needed to call to testify would be reduced if the focus was more on what Mr. MacDonald and Ms. Thomson had done. She argued that her client should not have been held hostage to the conduct of his co-accused. She emphasized as well that the conduct of each co-accused must be assessed individually (see R. v. Manasseri (2016), 2016 ONCA 703, 132 O.R. (3d) 401 at para. 323).

[24] She adamantly contended that the Crown's disclosure obligations under Stinchcombe and its progeny have not been lessened by the language of R. v. Jordan, 2016 SCC 27, 2016 S.C.C. 27. The decisions of the Supreme Court of Canada in Jordan and R. v. Cody, 2017 SCC 31, 2017 S.C.C. 31, have not placed a higher duty on the defence to take more ardent, active steps to ensure the defence has all of the disclosure to which it is entitled. There was the assurance as of October 29, 2018 that all relevant disclosure had been made. The reason it was provided late to the defence was in most instances due to a lack of organization. It affected the defence thereby in the following ways:

a) the ability to make informed defence elections,

b) the ability to make an accurate estimate of the time it would take to complete the trial,

c) the ability to negotiate an Agreed Statement of Facts, and

d) the ability to make considered admissions.

[25] In sum, the duty on the Crown to make timely disclosure of all relevant information in its power to possess or to control is a longstanding and ordinary task for it to perform as a minister of justice.

Position of the Crown

The Scope of the Investigation

[26] On behalf of the Crown, Ms. James fairly pointed out that the evidence collected by the police for use by the Crown is voluminous. It includes:

a) witness statements,

b) forensic evidence and analysis,

c) results of the execution of search warrants,

d) physical evidence,

e) photographs,

f) analysis of cell phones and GPS,

g) video footage,

h) surveillance evidence,

i) will says and notes for some 40 police officers, and

j) documentation, reports and notes gathered and/or prepared by 5 identification officers.

All of this material, of course, had to be assessed for relevance by the Crown before being disclosed to the defence.

[27] Between July 23 and October 14, 2017, Renfrew OPP were called upon to investigate more than 70 complaints of break and enters at hunt camps, cottages and local businesses within Renfrew County. Items stolen consisted of:

a) money,

b) firearms,

c) jewelry,

d) electronics,

e) tools,

f) gas cans, and

g) alcohol.

In some instances, the perpetrators may or may not have taken items, but the mischief they caused was more in the nature of extensive vandalism and senseless damage to property.

[28] Each break and enter was investigated by whichever officer was available to respond. As a result, dozens of officers were involved. A mass of police reports, will says, notes and other evidence were generated over time.

[29] In September 2017, the four co-accused became persons of interest for police. By October 2017, the police formed grounds to believe the four committed a number of the break-ins and thefts. Ultimately, 56 charges were laid against them. The alleged offences related to 11 different properties. Other sundry charges were laid as well following the execution of search warrants at their residences.

Calculating the Jordan Ceiling

[30] The Crown acknowledged that the Jordan ceiling, at first blush, appears to have been exceeded. The initial charges were laid against the four co-accused on October 18, 2017. The last day reserved for trial of this matter, when the section 11(b) Charter Application was argued on July 2, 2019, was July 5, 2019. A total delay of 625 days or 20.8 months have elapsed since the outset. The Jordan cap for matters in provincial courts (in Ontario, the OCJ) is a net delay of 18 months. Net delay is calculated by subtracting defence caused delay from the total delay.

[31] Presumptively thus, the delay is unreasonable only if net delay exceeds 18 months. The charges must then be stayed unless the Crown can rebut the presumption by establishing that exceptional circumstances exist in this case.

Defence Caused Delay

[32] The Crown submitted that the defence caused delay, which period must be subtracted from the total delay, is as follows:

a) the unavailability of mainly two defence counsel in the period prior to establishing the first week of trial, and

b) the unavailability of mainly three defence counsel post February 2019.

The First Set of Trial Dates Offered

[33] On March 6, 2018, defence elections were made as follows:

a) Brandon Thomson elected trial in the OCJ;

b) Jacob Thomson elected trial in the OCJ;

c) Alisha Thomson elected trial in the OCJ; and

d) Andrew MacDonald elected trial in the SCJ with a preliminary inquiry.

[34] Counsel anticipated that two weeks would be required for the preliminary inquiry. The Court offered dates from October 9 to 12, and 22 to 26, 2018.

[35] On April 3, 2018, the accused, Andrew MacDonald re-elected through his counsel, Ms. Primeau. He now wanted a trial in the OCJ. Brandon Thomson's counsel, Mr. Nahum, indicated that he was not available for the October dates offered. No counsel made submissions as to whether the nine days originally reserved for a preliminary inquiry would suffice for a trial.

The Second Set of Trial Dates Offered

[36] On April 6, 2018, the Court offered November 5 to 9 and 19 to 23, 2018 to conduct the trial. Mr. Nahum then indicated that he wished to bring a Charter Application. The dates of October 11 to 12, 2018 were reserved for the hearing of that Application. Mr. Nahum appeared to now be available for those October dates. However, Mr. Nahum and Mr. Howard were not available for the November trial dates offered.

The Third Set of Trial Dates Offered

[37] On April 11, 2018, the Court offered December 4, 6, 10, 18 to 21, 2018 and January 2 to 4, 2019 for the trial. The Crown was not available for the January dates. The October dates were maintained for the hearing of Mr. Nahum's intended Charter Application. However, Mr. Nahum was not available for the December dates offered. All other defence counsel were available.

The Fourth Set of Trial Dates Offered

[38] On April 13, 2018, the Court offered December 4, 6, 10, 18 to 21, 2018 and January 7 to 11, 2019 for trial, while retaining October 11 to 12, 2018 for the Charter Application. Again, Mr. Nahum reconfirmed he was not available for the December trial dates, but was available October 11 to 12, 2018 and the week of January 14, 2019, as well as any date after February 4, 2019.

The Fifth Set of Trial Dates Offered

[39] On April 16, 2018, the Court offered the week of January 14, 2019, and the week of February 11, 2019 for trial. On the record on April 17 and May 7, 2018, counsel confirmed:

a) Mr. Howard (Alisha Thomson) was not available for any dates offered in November 2018,

b) Mr. Nahum (Brandon Thomson) was not available for any dates offered in December 2018,

c) the Crown was not available from January 2 to 4, 2019,

d) the weeks of January 14, 2019 and February 11, 2019 were confirmed for trial, and

e) October 11 and 12, 2018 were reserved for the hearing of Charter and disclosure applications.

The Abandonment of a Discrete Hearing of the Charter Application, and the Disclosure Application altogether

[40] On August 28, 2018, defence counsel confirmed that they had received substantial disclosure, approximately 200 pages in length. Another JPT was sought as a result on September 27, 2018. The October 11 to 12, 2018 dates for the hearing of the Charter Application were vacated. It was jointly decided that the Charter Application to challenge the reasonableness of the search of Brandon Thomson's home by police, which his counsel, Mr. Nahum, wished to bring, could proceed in a blended fashion during the trial. The fate of the intended, but now abandoned, disclosure Application was not discussed on the record. Ms. Primeau, on behalf of Mr. MacDonald, indicated she was joining Mr. Nahum in the Charter relief sought in respect of the search by police of the home of her client, Andrew MacDonald.

[41] The Crown argued that the decision to proceed with a blended Charter Application and trial added to the time to complete this matter. However, no one appeared to have squarely address this issue.

Crown's Calculation of Net Delay

[42] The Crown contended that the first period of defence delay, caused by one or more defence counsel being unavailable, ran from October 26, 2018 to February 15, 2019 (i.e. the first set of trial dates offered by the Court to the end of the first two weeks of trial conducted). This period equated to 112 days or 3.7 months.

[43] The Crown submitted that the second period of delay caused by defence unavailability ran from March 1, 2019 to May 13, 2019 – the dates where the Court and Crown were available, but one or more of the defence counsel were not. This period equated to 74 days or 2.5 months.

[44] Accordingly, total delay (20.8 months or 625 days) minus defence caused delay, according to the Crown (3.7 months or 112 days and 2.5 months or 74 days), equated to 14.6 months. Thus, the net delay of 14.6 months did not exceed the Jordan ceiling of 18 months and was not presumptively unreasonable.

Exceptional Circumstances

[45] Alternatively, if the Court found that the defence did not cause the two distinct periods of delay as earlier addressed, the Crown argued that exceptional circumstances justified extending the trial beyond the 18 month cap. The Crown pointed to the two categories into which exceptional circumstances generally fall, discrete events and complexity of the case.

Discrete Events

[46] The Crown essentially submitted that three such events transpired in this case:

a) the change in election made by Mr. MacDonald's counsel, Ms. Primeau,

b) Mr. MacDonald's failure to attend court and Ms. Primeau's inability to obtain instructions, and

c) the limited availability of 'out of town' counsel (Mr. Nahum, Mr. Howard and Mr. Giancaterino) to sit through the entire court days of trial due to weather, travel time and family responsibilities.

[47] The Crown raised other arguably discrete events, (a medical emergency for a family member of the then assigned Crown Attorney, and the requirement by the next assigned Crown and the presiding Judge to assist a neighbouring jurisdiction in a conflict situation), but the delay caused thereby, if any, was so negligible as to warrant virtually no consideration.

a) The Re-election

[48] The Crown argued that when Mr. MacDonald elected his mode of trial, it necessitated a re-adjustment of the time required to try all of the charges for the four co-accused, especially in light of the lack of admissions made by defence.

b) The Absconding Accused

[49] The Crown contended that this delay was caused when Ms. Primeau lost contact with her client, Mr. MacDonald. In the absence of instructions, Ms. Primeau could not proceed with her intended disclosure application. Presumably, the intended disclosure application may have forced the issue and focussed the parties need for action. The defence ought to have specifically articulated what was outstanding, and sought to compel the Crown to organize and marshal the forces of the state, to locate the missing disclosure, compile it and comply with an Order of the Court, assuming the application was successful.

c) The Limited Availability of Out of Town Counsel

[50] This Crown submission appeared to be, in a nutshell, that three of the four co-accused chose counsel who practices are situated primarily in Ottawa, a 90 minute drive from Pembroke, where the trial was being conducted. On occasion, court ended early to accommodate them. Weather and family responsibilities saw regular court sittings, on occasion, end earlier than normal. A medical issue for one of Mr. Giancaterino's family members looked to require the cancellation of one of the scheduled trial dates. At the eleventh hour, Mr. Giancaterino was able to have another member of his firm substitute for him, but Mr. Nahum, assuming an adjournment under the circumstances would be granted, double-booked himself. A dedicated trial day of February 12, 2019 was thus lost.

Complexity of the Case

[51] The Crown fairly pointed out that the nature of the evidence in this case, although not intrinsically complex, did entail voluminous disclosure, a large number of witnesses and an expanded temporal range for the alleged offences. There were potentially 25 to 30 civilian witnesses to be called to give evidence. All relevant information obtained by police from them would have to be disclosed, of course. Equally, the will says, notes and reports of approximately 40 police officers and 5 identification officers, their notes, reports and other documentation generated by them would have to be turned over to the defence. The task of compiling and co-ordinating the material was far from simple or routine.

[52] Additionally, the nature of the issues for trial were somewhat intricate. The owners of the properties would have to testify about the alleged break in, what was taken and what was recovered. Proof of identity of the perpetrators of the crime, that it was the four co-accused, was likely to be strenuously contested by the defence.

[53] Defence counsel brought Garofoli Applications to cross-examine affiants on Informations to Obtain search warrants. Section 8 Charter Application to challenge the existence, or lack thereof, of reasonable grounds to issue search warrants had been anticipated and launched seeking to exclude the seizure of evidence from the two homes of the four co-accused. As well, Disclosure Applications were contemplated, but ultimately abandoned.

[54] The Crown submitted that counsel made good faith estimates as to the time a preliminary inquiry would take – two weeks assuming defence counsel made admissions to shorten the proceeding. The preliminary inquiry was then converted to a trial with Mr. MacDonald's re-election for trial in the OCJ. No admissions were made until the first week of trial from three of the counsel for the co-accused, that break and enters had occurred. Mr. Nahum, counsel for Brandon Thomson, remained 'a hold out' on what appeared to be a fairly obvious fact.

[55] The Court and the parties did not adjust time estimates in light of a lack of admissions. The conversion of the proceeding from preliminary inquiry to a trial went by the wayside. No extension of trial time was provided for, when the Section 8 Charter Application was agreed upon by counsel to proceed in a blended manner during the trial.

[56] Last but not least, all counsel agreed that two weeks was insufficient to complete the matter, but the pre-trial/case management Judge was intransigent. Only two weeks were reserved. All counsel knew the trial would not come to a close in two weeks. More trial time before the presiding trial judge, once the matter commenced before him, had to be found. The resulting delay in finding more time to finish the trial was consequently unavoidable.

[57] In sum, the Crown contended that exceptional circumstances existed beyond the control of the Crown. They were reasonably unforeseen and unavoidable. They could not be reasonably remedied by the Crown once they arose. The Crown has thus rebutted the presumption that the amount of time it had taken to bring the trial to the stage where it is at present was not unreasonable. Consequently a stay, a remedy to be reserved for the clearest of cases, was not appropriate.

The Evidence on the Section 11(b) Charter Application

Ariya Sheivari

[58] On March 18, 2019, Mr. Sheivari, who was an articling student in Mr. Nahum's firm, swore an affidavit in support of the s. 11(b) Charter Application brought by the accused, Brandon Thomson. Subsequently, the relief sought by Brandon Thomson, a stay of all charges, was set out in written Applications individually filed by each counsel for the remaining three co-accused.

[59] Most of Mr. Sheivari's Affidavit was dedicated to chronicling the difficulties the defence encountered with obtaining timely disclosure. Some reference was made to trial scheduling efforts as well.

[60] As early as January 12, 2018, all defence counsel were signalling a general malaise about the state of disclosure. They were seeking a date for the hearing of an application for its production. The Crown was insisting on compliance with the Rules of the OCJ regarding minimum notice (ie. 30 days).

[61] None of the items sought by defence counsel for Jacob Thomson, Mr. Giancaterino, on February 6, 2018 were frivolous requests. They included:

a) video surveillance for properties where alleged break and enters occurred,

b) footwear impression photos and analysis,

c) photos of locks that appeared to be cut with bolt cutters,

d) notes of officers, and specifically those of Det. Cst. St. Cyr, all of whom were involved in the review of surveillance video purportedly used to identify Jacob Thomson,

e) surveillance conducted by Det. Cst. Hartwick on October 2, 2017,

f) fingerprint evidence and an analysis report prepared by Sgt. Burley,

g) forensic identification of Cst. Christinck,

h) any other forensic reports,

i) appendices to an Information to Obtain, namely "C", "D" and "E",

j) copies of the analyses of the cell phones seized by Det. Cst. St. Cyr at the Ottawa Carleton Detention Centre including all downloaded raw data, and

k) an exhibit/inventory list of all items seized during the searches of various residences and vehicles.

[62] On October 30, 2018, the Crown disclosed electronically on a USB thumb drive some 319 documents. It came, one must remember, with an assurance that counsel had everything the police had. A further JPT was scheduled for November 1, 2018. The day prior, October 31, 2018, Mr. Nahum asked for guidance from the Crown as to whether some of the 319 documents constituted additional disclosure. No response to his October 31, 2018 email was received.

[63] On December 13, 2018, more disclosure was provided to the defence as follows as additional disclosure:

a) a CD dated November 8, 2018 containing statements from three witnesses,

b) Will Say of Sgt. Davenport,

c) notes of Cst. Cassidy,

d) notes of Cst. Moore,

e) notes of Cst. Carruthers,

f) notes of Sgt. Linton,

g) summary of Martika Barr's videotaped interview,

h) General Report dated October 14, 2017,

i) Supplementary Occurrence Report dated April 3, 2018,

j) notes of Sgt. Hartwick,

k) notes of Sgt. Sawbridge,

l) notes of Cst. Holmes, and

m) notes of Cst. Burns.

[64] On December 17, 2018, the Crown handed over the results of the analyses done on the cell phones and a GPS belonging to one or more of the accused.

[65] Further, on December 21, 2018, the Crown made additional disclosure available to the defence as follows:

a) Case File Synopsis,

b) Centre of Forensic Sciences DNA letter dated December 6, 2017,

c) Supplementary Occurrence Report dated October 2, 2017,

d) General Report dated October 25, 2017,

e) Statement of Tom Murack dated October 2, 2017,

f) Property Report,

g) notes of Cst. Todd, and

h) General Report with photos.

[66] On January 3, 2019, Brandon Thomson's counsel, Mr. Nahum wrote the assigned Crown Attorney, Ms. James, expressing his concern that all of the materials relied upon by the Crown to obtain a search warrant for the cell phones had still not been disclosed. Nor had the Information to Obtain that search warrant been handed over to defence, presumably after vetting.

[67] Mr. Nahum thus questioned his ability to be ready for the commencement of trial on January 14, 2019.

[68] On January 14, 2019, Cst. Yarmel's notes were disclosed to the defence. He was a witness in the trial the first day of the second week, namely February 11, 2019.

[69] On January 17, 2019, Ms. James on behalf of the Crown emailed the OCJ Trial Co-ordinator to query whether another judge could cover for the presiding judge seized of trial for the four co-accused on future dates in order to free up the presiding judge's calendar and to allow him to dedicate his time exclusively to the ongoing trial of the four co-accused.

[70] On January 18, 2019, the Trial Co-ordinator asked all counsel, Crown and defence, to attend at her office with their calendars to find future dates for trial.

[71] On February 6, 2019, the Crown disclosed Cst. Rebertz's notes to defence.

[72] During the second full week of trial – February 11 to 15, 2019 – the Court communicated confirmation via an email of February 14, 2019 from the Trial Co-ordinator to all counsel that February 15, May 30 and 31, June 7 and 25, and July 2 through 5 inclusive, 2019 had been reserved for the continuation of the trial.

[73] On March 11, 2019, counsel reached an Agreed Statement of Facts as to the issue of trial scheduling as follows:

"The trial time was limited to two weeks in addition to the two days for the Charter motions by the [JPT judge]…. The two week estimate was not made by the Crown or the Defence."

"Mr. Nahum suggested that the trial would take at least three weeks and [the JPT judge] indicated that he would not [allocate] more than 10 days."

"[The] Crown Attorney said that trial will take more than two weeks without admissions being made by the defence."

[74] Under cross-examination, Ms. James was able to uncover some of the inaccuracies in the broad sweeping claims of no disclosure made in certain paragraphs of Mr. Sheivari's Affidavit. For example, in paragraph 22, he deposed that Mr. Nahum's office had no disclosure for four named individuals as of March 18, 2019. The Crown suggested to Mr. Sheivari that in fact, the Crown had sent to Mr. Nahum an email from one of the individuals from as early as December 2, 2017. For a second individual, an Interview Report and an Affidavit of Property Ownership were sent out on December 21, 2018. For a third individual, an Occurrence Report relating to him had been disclosed to Mr. Nahum. The Report indicated that he was a homeowner where a break and enter had occurred and what property had been taken. Essentially, Mr. Sheivari's claim of "no disclosure" really meant that no formalized written or audio recorded statements had been taken from the named individuals.

[75] Mr. Sheivari clarified as well that he had done the best he could to review each involved officer's duty book notes for any information they may have contained regarding statements of witnesses, but he could not guarantee that he had read them line by line. Mr. Sheivari had been a student in Mr. Nahum's office for a period of ten months. Generally, it appeared as though he was primarily tasked with reviewing the disclosure in relation to Mr. Nahum's client, Mr. Brandon Thomson, going forward from the 3rd week of August 2018.

[76] In re-examination, Mr. Sheivari explained that he made a chart with roughly 35 names on it. He obtained the list of names from an email which Mr. Nahum received from the Crown. His chart did not include names of police officers. He expected that the Crown would get Interview Reports from those 35 individuals, because otherwise, the defence would not have sufficient information about them.

Cst. Burns

[77] In response to the s. 11(b) Charter Application brought by the defence, the Crown filed an Affidavit from Cst. Burns sworn June 11, 2019. Cst. Burns had been a member of the Renfrew/Arnprior detachment of the OPP from September 2009 to January 2019. Before leaving the detachment, she held the rank of Detective Constable with the Renfrew Community Street Crime Unit as of July 3, 2017. Her duties included the investigation of property crime offences including the authoring and executing of search warrants. Her specialized police training included the completion of courses in interviewing witnesses, warrant writing and major case management.

[78] On September 6, 2017, the Renfrew Community Street Crime Unit was assigned to investigate a rash of break and enters (over 70). Cst. Burns was tasked as the officer in charge. Her role was to follow up on all investigative leads, conduct canvasses, complete judicial authorizations, manage the Record Management System ("RMS") police computer program for the investigation, complete the initial Crown Brief and file disclosure as it was submitted. The evidence the police gathered was voluminous. It included witness statements, forensic evidence, phone and GPS analysis, as well as video and surveillance evidence.

[79] Cst. Burns deposed that in September 2017, suspicious vehicles were sighted at or around the time the break and enters were occurring. As a result, the four co-accused became persons of interest.

[80] Some five and a half months later, on February 23, 2018, Cst. Burns left inexplicably the Renfrew Community Street Crime Unit. She was relieved of her duties as the officer in charge of the investigation.

[81] In her prior duties as the officer in charge, her responsibilities included gathering and disclosing will says and notes for approximately 40 police officers. In addition, 5 different identification officers generated documentation, reports and notes which had to be disclosed. Lastly, there were occurrence reports, supplementary occurrence reports, photographs, will says, summaries, affidavit and statements to assemble and disclose.

[82] Cst. Burns explained that carriage of the prosecution at the Crown Attorney's Office passed through three sets of hands as well. Ms. James, the Assistant Crown Attorney assigned to carriage of the trial of this matter, did not begin to have dealings with Cst. Burns until December 1, 2018. By that time, the charges against the four co-accused had been outstanding for roughly 13 and a half months.

[83] Cst. Burns observed that the role of police in respect of disclosure was one of organizing the information and then providing copies of it to the Crown. In turn, the Crown is expected to review the material and disclose it to defence counsel or the accused, as it deems appropriate.

[84] The Crown kept a log from October 13, 2017 to October 17, 2018 to keep track of what was sent to defence counsel for the four co-accused in the way of disclosure. Of course, it warrants repeating that on October 29, 2018, under cover of a letter signed by the Crown Attorney, the police were assuring the Crown, and the defence by extension, that the police had turned over everything in their possession.

[85] Paragraphs 18 to 23 of Cst. Burn's Affidavit indicated that there was information being disclosed to the defence as early as December 12, 2017 setting out addresses where break and enters occurred, and setting out the names of the individuals who were on scene. Further, a General Occurrence Report was disclosed indicating the names of the individuals present when police arrived to investigate a break and enter at a golf course. One of the individuals told police about what was taken. Another attended at a police storage facility and reclaimed some of the stolen items.

[86] Paragraph 23 of Cst. Burn's Affidavit was particularly illustrative. It indicated that a Ford Ranger was stolen from 132 Black Point. It did not specify in which township 132 Black Point is located. Sgt. Sawbridge found the Ford Ranger at 102 South McNaughton Road. He was off duty, but Sgt. Sawbridge apparently did not make notes about the incident. He did however contact Cst. Rebertz. Cst. Rebertz attended and prepared a General Occurrence Report. He took notes and photos. That same vehicle had its ownership papers recovered at the scene of another break and enter at 1646 Colton Road. The municipality or township was not indicated where Colton Road is located. This information was not disclosed until February 5, 2019, three weeks after the first full week of trial.

[87] On February 9, 2018, the Crown, to a degree, answered the February 6, 2018 request for disclosure from Mr. Giancaterino. Of the 14 specified items requested, only three met with a positive response from the Crown. The remainder required further efforts.

[88] On April 3, 2018, Mr. Nahum's office indicated they were not willing to make any admissions at that time. They were still awaiting contact information and criminal records from the civilian complainants.

[89] On February 8, 2019, Ms. James on behalf of the Crown wrote to Mr. Nahum seeking admissions from all defence counsel in respect of the following items:

a) photographs taken by officers,

b) surveillance videos,

c) items located during the search of the four co-accused's residences, and

d) MTO information regarding a Caravan and Sebring –motor vehicles associated with one or two of the co-accused.

[90] Mr. Howard, on behalf of Alisha Thomson, was prepared to make these admissions. Mr. Giancaterino was likely to make them on behalf of Jacob Thomson, but needed time to confirm. Ms. Primeau, on behalf of Andrew MacDonald, required instruction from her client. Mr. Nahum, on behalf of Brandon Thomson, was only prepared to make admissions with respect to MTO documents in respect of certain vehicles. Otherwise, any admissions he was prepared to make were qualified.

[91] The remainder of Cst. Burn's Affidavit deals with setting court dates. It is information about which Cst. Burns likely has no personal knowledge, but is non-contentious in any event. The email exchanges between all counsel and the Court as to availability for conducting the proceedings speak for themselves.

[92] Under cross-examination on her Affidavit, Cst. Burns testified that she was assigned to the investigation of this matter due to the vast number of break and enters in question. She explained that the individual officers who responded to the complaints made by the property owners were still responsible for ensuring any statements taken were inputted to the RMS program. Alternatively, they could hand over paper records to Cst. Burns and she would do the data entry.

[93] She explained that this was a strange case. The sheer number of break and enters commanded the attention of the Renfrew Community Street Crime Unit.

[94] At the time these break and enters were occurring, police officers within the detachment had moved to a dictation method for recording their investigative work. Details such as whose property was broken into, what was stolen, what else was of note, etc. was inputted on a general computer registry via dictation. An officer would call a telephone number and speak into a recording device. All officers were required to use this protocol. At times, it could take a couple of days before everything was recorded. Officers, who dictated information in this fashion, were to follow up on any missing items or particulars. They could pursue any problems encountered through their staff sergeant as well. Alternatively, Cst. Burns could mention any difficulty she noticed to her staff sergeant.

[95] Cst. Burns readily conceded that this was the first time she had ever been tasked to an investigation of this type and magnitude. The volume of break and enters was extraordinary, although she did have training in major case management.

[96] Cst. Burns agreed that break and enters are 'run of the mill' crimes, which police typically investigate. She expected to see officers, who responded to such calls, to:

a) take notes,

b) generate Occurrence Reports,

c) if warranted, take statements from the aggrieved parties, and

d) record their names and contact information.

[97] Depending on the type of break and enter committed or attempted, a 'scene of crime' officer could be dispatched. Identification officers may also be utilized to search for fingerprints or DNA evidence. Cst. Burns agreed that she, as an officer-in-charge, would expect to receive notes from such officers, General Occurrence Reports, property lists, descriptions of property stolen, etc.

[98] Cst. Burns made allowances for those witnesses who might not immediately realize the full extent of the items which had been stolen from them. In light of that reality, officers might wish to follow up with the witnesses.

[99] Cst. Burns confirmed that in respect of the four co-accused, they were implicated with break and enters at 11 different locations. She acknowledged as well that she prepared the disclosure packages for those 11 locations. She did not keep a list, but she knew that there were upwards of 40 officers involved in investigating these offences. She agreed with the suggestion it would have been helpful to have kept a list. Nevertheless, she insisted that everyone who was involved in the investigation had been identified and disclosed to the defence.

[100] Cst. Burns was adamant that her main goal was to forward to the Crown what was provided to her by fellow officers, as each investigated the spree of break and enters, whether it was by way of general occurrence reports, duty book notes, search warrant materials, etc. In consultation with the assigned Crown, she supplied all such items to the Crown Attorney's Office to be disclosed. The full package of disclosure was complete, in her view, by February or March of 2018, but for the work being done by identification officers.

[101] When questioned about the late disclosure of Cst. Yarmel's notes, Cst. Burns testified that she was not aware his notes had not been disclosed to the defence until the first week of the trial (ie. January 14 to 18, 2019). Nor was she aware that he had ever been off work during the time the break and enters were occurring. To Cst. Burn's recollection, Cst. Yarmel was in the Renfrew detachment of the OPP on duty when she was there.

[102] With respect to Cst. Rebertz, Cst. Burns was not aware that his notes were handed over during the trial. He too was an officer within her detachment. However, either Det. Sgt. Hartwick or she sent an email to all members of their detachment notifying everyone that their notes, if they were involved in the investigation of the four co-accused, would have to be disclosed.

[103] Cst. Burns was not aware that her colleague, Cst. Brody, had only provided half of his duty book notes. She had "clicked" on some of the attachments he had emailed to her. There were three more she did not notice. Only later did she learn that three of those had not been disclosed.

[104] Further, not until October 2018 did Cst. Burns become aware that some of the complainants (property owners) had not been interviewed by police until a year or so after the break and enters occurred. At a minimum, Cst. Burns agreed, victims of break and enters should be interviewed, occurrence reports generated, and property lists compiled. She was not aware of anything that prevented those tasks from occurring. Nor was Cst. Burns aware of the letter sent by the Crown Attorney on October 29, 2018 assuring all defence counsel that the Crown and defence now had everything the police had. Cst. Burns however did qualify her lack of knowledge as to the Crown's letter of October 29, 2018 by indicating that she told Cst. Limlaw of the Renfrew OPP detachment that the Crown had everything relating to the police investigation of the four co-accused around this time (i.e. October 29, 2018).

[105] Cst. Burns conceded that, after her departure from the Renfrew Community Street Crime Unit in February 2018, no one was assigned to her knowledge to case manage the disclosure of evidence obtained in investigating the four co-accused. To her knowledge, she had no successor. Nor did she have any discussions with anyone purporting to take over her responsibilities.

[106] Cst. Burns confirmed as well that she had direct conversations with some of the complainants in person, some by text and some by email. She did not preserve the texts or emails. However, she asserted, the content of those discussions were disclosed. She agreed that there was no way to verify that her source material from the complainants was accurately recorded.

[107] In sum, Cst. Burns was confident that all of the material she was aware of having been compiled during the investigation of the four co-accused was disclosed.

[108] In re-examination, Cst. Burns explained that what individual officers perceived were routine break and enters would not usually be considered as major crimes. Nor were they big cases. However, as an ever increasing number of break and enters occurred, the situation became more dire. Normally, she explained, if the case is serious, a lead investigator, file manager and warrant writer would be assigned. However, in this case, no such roles were assumed by a member of her detachment in Renfrew. She assumed the role herself.

Issues

[109] The evidence and counsel submissions raise the following issues for resolution:

a) What is the total delay from the date charges were laid against the four co-accused until the actual or anticipated completion of trial?

b) What is the net delay (i.e. total delay minus waiver of delay and any defence caused delay)?

c) Am I satisfied, in considering (b) above, that the defence employed deliberate and calculated tactics to delay the trial?

d) Does the net delay exceed the presumptive Jordan ceiling – in this case – 18 months?

e) If the net delay exceeds the presumptive ceiling, can the Crown rebut the presumption by showing exceptional circumstances existed?

f) In considering exceptional circumstances, which fall into two main categories – discrete events and case complexity – am I satisfied that the Crown has demonstrated these factors existed and caused delays?

g) Is the resulting delay, after all deductions are made, below the presumptive ceiling (ie. 18 months)?

h) If so, the onus shifts to the defence, and I must be mindful that the remedy of a stay of charges is rare and only to be granted in clear cases where the ceiling has not been exceeded. Is this such a case?

Analysis

Total Delay

[110] At the end of the hearing of the Charter Application, I asked all counsel to meet with the OCJ Trial Co-ordinator with a view to extrapolating how much longer this trial would likely take to complete. The Crown's estimate was that five more days would be required. Ms. James, the Assistant Crown Attorney, indicated that she still had 19 to 20 witnesses to call comprised of 2 civilians and 17 police officers.

[111] Ms. James was exacting. She believed that one day would be utilized for finishing the identification evidence within the 'Berhe' voir dire currently underway, and the remaining two civilian witnesses could be called thereafter. One day would be dedicated to receiving the evidence from two to three identifications officers. One day would be spent on argument of the outstanding Garofoli and section 8 Charter Applications seeking to exclude the evidence found in the residence occupied by Brandon and Jacob Thomson, and another occupied by Alisha Thomson and Andrew MacDonald. One day would be reserved for adducing evidence from the search warrant officers and to deal with certain photographic evidence, depending on whether that evidence was ruled admissible or excluded. One day would be used for determining the admissibility of the cell phone and GPS data seizures, and accused's statements admissibility.

[112] While I have the greatest respect for Ms. James' ability as counsel and her integrity as an officer of the court, I find that her estimates are ambitious. Further, although I disagree with Mr. Nahum's estimate of 15 more days of required trial time, I find that the lower end of the range (i.e. 10 more days) provided by the rest of defence counsel, Mr. Giancaterino, Mr. Howard and Ms. Primeau, is a more accurate forecast. At a minimum, 10 further days is most likely needed to complete the trial.

[113] On the consent of all counsel, a Chart of offered dates for continuing this matter was made Exhibit 26 on the trial (see Appendix "A"). Finding ten days in the court calendar when I can preside, and when all counsel can be available to appear before me, as the trial judge seized of this matter, would take us to April 15, 2020.

[114] I acknowledge that I cancelled July 3 to 5, 2019 as days where I could have presided over the ongoing trial. I did so for two main reasons.

[115] Firstly, on its face, the Jordan ceiling appeared to have been exceeded. Twenty months and 15 days had already elapsed from the date the initial charges were laid – October 28, 2017 – to the date I halted the proceedings – July 2, 2019. No end to the trial was yet in sight.

[116] Secondly, I needed three days to consider:

a) the copious materials filed by counsel on the hearing of the s. 11(b) Charter Application,

b) the evidence adduced and the thorough submissions counsel made over the course of the two days utilized for hearing the Application, and

c) the scope of the issues required to be resolved in order to be able to render a decision on the Application.

[117] Simply put, I needed three 'non preside' days to properly weigh the able arguments made by counsel, to do my own review of the evidence, and to write this decision.

[118] In any event, if I had not cancelled July 3 to 5, 2019 as trial days for this matter, Exhibit 26 makes plain that seven more days of continuing this matter before me would have taken us to April 9, 2020 in any event.

[119] I acknowledge that other matters I have scheduled could have been bumped, and Crown and defence counsel could have been offered potentially earlier dates to continue this trial, but that would come at a significant cost to other accused awaiting the hearing of their matters. There are never any easy answers in allocating and administering the precious resources of our criminal justice system.

[120] In my view, total delay runs from October 18, 2017 (the date the initial charges were laid) to April 15, 2020 (the day upon which 10 further available days could be found to complete the trial). This span of time equates to 30 months.

Waiver

[121] For what it is worth, Mr. Nahum waived one day, when he caused the loss of a trial day on February 12, 2019. Mr. Nahum anticipated the Court would grant an adjournment to accommodate Mr. Giancateriano's personal circumstances. Mr. Nahum was wrong to make the assumption. Mr. Giancaterino was able to find another member of his firm to stand in his stead. Mr. Nahum, in the meantime, committed himself to attending at another proceeding in Ottawa.

Defence Caused Delay

[122] The Crown argued in its factum that there were three examples to which it could point to demonstrate occasions when Mr. Nahum's conduct disregarded any effort to "streamline the process," one of the clear duties Jordan places on all counsel as officers of the court. While I agree that the examples show some inattention and lack of co-operation to the date setting procedures of the OCJ in Renfrew County, I cannot see how any delay was caused as a result.

[123] However, defence counsel unavailability did cause delay between October 9, 2018 (the date the Court and Crown were ready, but at least one defence counsel, Mr. Nahum, was not) and January 14, 2019 (the first day of trial). I calculate three months and five days of delay as a result.

[124] The second period of defence caused delay arose between March 1, 2019 and May 13, 2019, when the Crown and Court were available, but one or more of defence counsel were not. That interval equates to two months and 14 days.

[125] Calculation of the third period of defence delay, in my view, requires some consideration of the legitimacy of defence action. The Chart of counsel and court availability (Exhibit 26/Appendix "A") makes clear that only two dates, July 11 and October 24, 2019, could have been offered by the Court for the five month period spanning July to November 2019. However, if all four defence counsel were truly concerned about their respective clients' s. 11(b) Charter rights, greater efforts could have been made to free themselves from their other commitments, not arising until December 2019. I find therefore that the third period of defence caused delay runs from December 4, 2018 to February 10, 2019. All four defence counsel involved ought to have made, at a minimum, attempts to reassign their obligations in order to continue this trial some five months into the future. The delay they caused by their failure to indicate even a willingness to do so equates to 2 months and 6 days.

[126] In sum, adding the three periods of defence counsel unavailability together, I arrive at 7 months and 25 days of defence caused delay.

[127] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paragraphs 64 and 65, Moldaver J. addressed squarely the consequences of defence counsel unavailability. He wrote:

64. As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R.(2d) 1 (Ont. C.A.), at paras. 175-82).

65. To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

Does Net Delay Exceed the 18 Month Jordan Ceiling

[128] By my calculation, net delay exceeds the 18 month Jordan ceiling. Total delay equates to 30 months. Subtracting waiver (1 day) and defence caused delay (7 months and 25 days), net delay stands at 22 months and 5 days. It exceeds the Jordan ceiling by 4 months and 5 days.

Exceptional Circumstances

[129] I must now turn my mind to whether exceptional circumstances exist by examining the two categories under which they may arise – discrete events and case complexity.

Discrete Events

[130] The Crown submits that the medical emergency, which arose for the Crown Attorney assigned to the case when his daughter required emergency surgery, was a discrete event. It is. However, it is a non-factor because no delay resulted. Trial dates had already been set. Not one second was lost arising from this event to postpone the trial. It led to the cancellation of the April 17, 2018 judicial pre-trial, but that was all. It did not delay commencement of the trial.

[131] The Crown raises as well the re-election by the accused, Mr. MacDonald, as a discrete event. The Crown argues that the conversion of a preliminary inquiry into a trial resulted in an inaccurate estimation of how much time was needed to complete this matter. I agree that the length of time set aside for the trial was grossly underestimated. However, between April 2018 and January 2019, (when the trial commenced on January 14), no counsel took steps to address the inadequacy. An application seeking direction from the assigned trial judge/local administrative judge was not brought. Crown and defence share equally in the inaction. I find consequently that the Crown's failure to do anything, when the Crown knew the time set aside for this trial was too short, was not an occurrence which was "reasonably unavoidable" and "could not reasonably have been remedied". As a result, it does not qualify as a discrete event.

[132] The Crown argued that Mr. MacDonald's decision to abscond and his counsel's choice, Ms. Primeau, to remain on record for him uninstructed during his absence was a discrete event. Ms. Primeau had indicated that she wished to bring a disclosure application. She was, of course, without instructions from Mr. MacDonald and could not do so during his absence.

[133] I disagree that this is a discrete event. The Crown has an obligation to disclose all relevant disclosure. Jordan did not change that duty upon the Crown. The threat of disclosure applications being launched by the defence ought to have been the Crown's cue for examining what was happening with disclosure on its end. It seems the police efforts at collecting, organizing and making relevant disclosure fell into an abyss with the departure of Cst. Burns from the Renfrew Community Street Crime Unit of the OPP on February 23, 2018. Someone within police ranks needed to step up and take charge of a case that meant so much to the community the detachment serves. That did not happen.

[134] The Crown submits that 'out of town' defence counsel contributed to delays. It did, but only to a very marginal degree. The amount of delay caused thereby accounted for hours – not days. It is near negligible.

[135] Lastly, in the way of discrete events, the Crown points to a day lost when Ms. James, as the Crown, and I, as the presiding judge, were required to attend in a neighbouring jurisdiction. This was indeed a circumstance that caused delay, but it was one day's worth.

[136] In conflict situations, Crowns and judges are commonly brought in to assist from outside the local region. Where a Crown, a judge, a police officer or a defence counsel known to the justice system in the jurisdiction where a criminal offence is alleged to have been committed by them, or someone closely connected to them, typically external, impartial justice system participants are brought in to avoid any apprehension of bias. That was the reason for Perth's request for assistance here. However, the delay in this case again was negligible.

[137] On a considered assessment of what the Crown argues are discrete events, I agree that they did materialize, but the delays they caused were insignificant to the point of warranting a minimal deduction to net delay. Generously, I would attribute to them five days. The resulting delay therefore remains at 22 months.

Case Complexity

[138] The trial of the four co-accused in this case is complex to a certain degree. There was voluminous disclosure. There were a large number of witnesses. There was some expert evidence still to be led (e.g. cell phone and GPS analysis); however, I do not anticipate it would have been particularly intricate.

[139] The nature of the issues on the trial are not at all complex. As Cst. Burns conceded, break and enters are routine. There are no novel or complicated legal issues for resolution. The co-ordination of the calendars of four defence counsel, the Crown, and the Court adds a layer of complexity, but I have already accounted for delay caused by this fact of life. As aptly stated by Gillesse J.A. in R. v. Gopie, [2017] ONCA 728 at para. 169:

"Delays arising from complexity may justify an otherwise unreasonable delay that exceeds the ceiling (Jordan, at paras. 80-81, 105). The nature of the issues and the evidence drive the complexity analysis under Jordan. Complexity may also arise from proceedings that involve more than one accused. As noted in Jordan, at para. 77, "[p]roceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case." The Supreme Court underlined this point at para. 6 of Vassell, stating that "[i]n many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial."

This case was complex by reason of the volume of disclosure, the number of witnesses to be called by the Crown and the fact it proceeded, quite properly I would add, against four co-accused – but very little else.

[140] Only Ms. Primeau, counsel for Mr. MacDonald, was critical of the Crown's decision to proceed jointly against the four co-accused. Her criticism was ill placed. By far, a joint prosecution of the four co-accused was the most expeditious, efficient and economical use of Crown and Court resources. It was duly considerate of the convenience it offered to civilian witnesses – a person should only have to testify in one proceeding as opposed to several. It avoided the possibility for disparate results in differing forums.

[141] With respect to the Applications intended to be brought by the defence – a Garofoli type and a section 8 Charter unreasonable search type seeking exclusion of evidence seized from the homes of the co-accused – I would venture that they would not have been particularly nuanced or unusual either. Indeed, the decision to abandon those applications discretely, and to pursue them in a blended manner at the appropriate time during the trial, likely would have spared court time more than squandered it.

[142] The Crown was correct to point out a lack of admissions as a cause for delay. Indeed, I was astonished at some of the conduct exhibited by the defence. The effect of not making admissions of readily provable facts was a lengthier trial. Defence conduct can certainly be considered as contributing to delay where the fact of an event having occurred – in this case that break and enters having been committed – was not conceded until the eleventh hour by three defence counsel for the four co-accused.

[143] It is trite to point out, on the other hand, that the defence is under no obligation to make admissions. However, where the defence chooses not to, in circumstances where clearly they should have, delay is inevitably engendered.

[144] Mr. Nahum's strategy ought to have been clear to the Crown from April of 2018. He was not going to volunteer anything. He was going to put the Crown to the strictest proof of making out the case against his client, Brandon Thomson.

[145] To counter this tactic, the Crown could have supplied to all defence counsel a list of specific admissions it was seeking. The Crown could have drawn up an Agreed Statement of Facts for consideration by the defence. The Crown could have articulated exactly what readily provable facts in relation to the 11 different properties in question it was asking the defence to concede. That did not occur.

Good Faith Trial Estimates

[146] The more complex a case is, the more difficult too it will be to accurately estimate the length of time it will take to try. All counsel were agreed two weeks was insufficient. Mr. Nahum was particularly critical of the judicial pre-trial judge's unwillingness to allocate more than 10 or 12 days to this matter.

[147] I do not see that the judicial pre-trial judge is at fault for not assigning more days for the trial when the January 14 and February 11, 2019 weeks were set on April 3, 2018. By that point, the charges against the four co-accused were already six months old. I can safely infer that the judicial pre-trial judge was anxious to see the matter started. He was also aware that trials collapse. Often resolutions are worked out on the eve or morning of the first day of trial. Finding matters to deal with, so a court does not sit idle for days or weeks, is a legitimate concern of every judge.

[148] I have no evidence before me that the judicial pre-trial judge was made aware of the number of witnesses to be called. The record does not establish that he knew there was no prospect for admissions to shorten the proceedings. The impossibility of a resolution in the 9 month lead up to the commencement of trial in this case was hardly made clear to the Court.

[149] Furthermore, the judicial pre-trial judge was continuing to case manage the file well beyond April 3, 2018. I do not know if the inadequacy of trial time allotted was raised with him again. In any event, an application for directions ought to have been brought in late October or early November 2018 to bring the concerns about inadequate allocation of trial time to my attention as the local administration judge (see Rules 2.4(2)(a) and 4.1 of the Rules of the Ontario Court of Justice). This could have been done at least two to three months prior to the scheduled start for the proceeding in an effort to reserve more trial time. This did not occur.

Lack of Disclosure Preventing Defence Admissions from being Made

[150] It is true that the defence was receiving disclosure late and in substantial quantities. In October 2018, the Crown Attorney sent a USB memory stick to the defence with copious materials. Legitimately, Mr. Nahum asked if any of it was new.

[151] While the Crown is correct to state it does not have to "spoon feed" its case to the defence, disclosure still has to be made in a timely and meaningful way. Disclosure cannot be made in an overwhelming, disorganized manner to confuse and befuddle. It cannot be made in a haphazard and slapdash fashion. It cannot be used as a weapon against the accused.

[152] However, to be clear, my criticism is not levelled nearly so much at the Crown as it is at the failure of police to re-assign a case manager to their sizeable investigation of the four co-accused. Cst. Burns assumed that role in September 2017. Unfortunately, she left in February 2018. With her departure from the Renfrew Community Street Crime Unit, no one took over the reins to ensure the fruits of the police investigation were passed along to the Crown in a coherent fashion. This could have enormously assisted the Crown in reviewing the copious materials to determine what was disclosable. It could have assisted in the prosecution of the case against the four co-accused. It could have avoided delay.

[153] The Crown Attorney had an assurance from police in October 2018 that the defence and the prosecution had everything the police had. Clearly, the Crown and defence relied on this assurance. However, the cell phone records, a critical component of the case against the four co-accused, were not disclosed until December 2018, a month before the trial was scheduled to start. This is wholly unacceptable.

[154] Furthermore, the Crown cannot attempt to turn the tables completely and lay blame at the feet of the defence for not bringing disclosure applications. If full disclosure had been made by the end of October 2018, the defence likely had sufficient time to prepare for a trial commencing in mid-January 2019. Disclosure on the scale it was produced in this case may have been hard to manage. It may have proven unwieldy at times. It may have presented a bother to police, and the Crown in turn. However, it is the constitutional right of every accused in Canada to have it made to him or her. I would add that it ought to be made as a matter of course in a timely and meaningful manner.

[155] In R. v. Gubbins, 2018 SCC 44, Rowe J., speaking for an eight member majority of a full panel of the Supreme Court of Canada, reaffirmed the principles governing the Crown's disclosure obligations as follows:

[18] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown's duty to disclose corresponds to the accused's constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. Dixon, [1998] 1 S.C.R. 244, at para 22. The purpose of disclosure is to protect the accused's Charter right to full answer and defence, which will be impaired where there is a "reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence": ibid.

[19] The Crown's duty to disclose is triggered upon request and does not require an application to court: Stinchcombe, at pp. 342-43. The duty is ongoing; new information must be disclosed when it is received: ibid. The Crown's duty to disclose is not absolute. The Crown considers relevance and the rules of privilege. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review; in such an instance, the burden is on the Crown to justify its refusal to disclose by showing that the information is "clearly irrelevant" or privileged: Stinchcombe, at pp. 339-40.

Further at paras. 21 to 23, Rowe J. went on to explain:

[21] In McNeil, this Court clarified that "the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown": para. 24. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: McNeil, at para. 49. As well, the police have a corresponding duty to disclose "all material pertaining to its investigation of the accused": McNeil, at paras. 23 and 52. Such material is often referred to as "the fruits of the investigation": McNeil, at paras. 14, 22-23. As well, the police may be required to hand over information beyond the fruits of the investigation where such information is "obviously relevant to the accused's case": McNeil, at para. 59.

[22] The "fruits of the investigation" refers to the police's investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet. In its normal, natural everyday sense, the phrase "fruits of the investigation" posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. (R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93)

[23] In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is "obviously relevant" to the accused's case. The phrase "obviously relevant" should not be taken as indicating a new standard or degree of relevance: Jackson, at para. 125, per Watt. J.A. Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown.

[156] Of course, Gubbins dealt with the Crown's obligation to disclose maintenance records for breathalyzer machines, but the broader duties of the Crown and police in terms of disclosure apply no less so to relevant material in the possession of both the Crown, and the police, especially where the gathered material constitutes the fruits of the police investigation into an accused. Those duties have existed since Stinchcombe. If Jordan, decided two years earlier by the Supreme Court of Canada, and although not cited in the majority's judgment, purported to lessen the disclosure obligations on Crown and police, I would have expected Rowe J. to say so.

[157] When I speak of the Crown and police obligations to disclose, I am very mindful of the corresponding duty on the defence to be duly diligent in pursuing outstanding items of disclosure. In R. v Miller, 2019 BCSC 27, Saunders J. set out the obligations imposed upon the defence as follows:

[67] Under the Jordan framework, defence delay can include both action and inaction on the part of defence counsel (Jordan, paras. 113, 121).

[68] The Jordan framework was refined in Cody. The Court emphasized that it is only illegitimate defence conduct which is deductible. Illegitimate conduct may include inaction:

[33] … Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently" (Jordan, at para. 138).

The Court emphasized that illegitimacy in this context is not a matter of professional conduct or ethics, but rather that which runs contrary to the culture change demanded by Jordan.

[69] The Court's reference in Cody to its decision in Dixon is apposite, as the latter discussed at length the impact of Crown and defence counsel's conduct in relation to disclosure issues, on an accused's right to make full answer and defence. In the passage from Dixon referenced in Cody, the Court, referring specifically to the obligations of defence counsel, said:

[37] In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non‑disclosure affected the fairness of the trial process. In R. v. Stinchcombe [, [1991] 3 S.C.R. 326] p. 341, defence counsel's duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (aff'd, [1996] 3 S.C.R. 1126), at p. 374:

… the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made.

[Emphasis added.]

[158] I do not see the failure of the defence to bring disclosure applications, in other words 'defence inaction', as deserving of any great deduction from the net delay in this case. I say this for two reasons. Firstly, I repeat – all four defence counsel received an assurance from the Crown on October 29, 2018 that they had, and the Crown had, everything in the way of disclosure. At that point, the start of the trial was still two and half months off into the future (i.e. January 14, 2019). Yet substantial amounts of key disclosure continued to be made post October 29, 2018, for example, copies of the data analyses seized from the cell phones of one or more co-accused and handed over to the defence not until December 2018, and later still, investigating officers' notes handed over in the midst of trial.

[159] Secondly, the police clearly were in the best position to organize the information they had (i.e the fruits of the investigation). A Renfrew OPP officer, Cst. Burns, took upon herself the task of creating some coherence to it all. Yet, for some unknown reason, she was reassigned. No one took her place. I am still left to ponder why this happened.

[160] Under these circumstances, I cannot regard the conduct of the defence in not pursuing disclosure as strategic or tactical. It did not amount to defence inaction. It does not warrant therefore a substantial deduction against net delay for a failure on the part of the defence to act collaboratively and co-operatively, where appropriately it must, in having matters efficiently tried and completed in the spirit of the Jordan era.

[161] This case was complex as a result of its sheer size and the number of affected property owners, but it was far from complicated on its issues. The police and the Crown needed each a captain for their respective ships. Their vessels could have run much tidier and in unison, if they each had one.

[162] Upon consideration of this case's complexity, I will make one further, quite generous deduction of three months from net delay based solely on the large scale of the investigation.

Resulting Delay

[163] Deducting five days for discrete events and three months for complexity, the resulting delay stands at 19 months. It exceeds the Jordan ceiling of 18 months.

Onus Shift

[164] There is no shift in the onus. The resulting delay after all deductions exceeds the presumptive limit of 18 months for completion of a trial in the OCJ.

Conclusion

[165] The Charter is the supreme law of Canada. Reasonable minded members of the community understand that the Charter serves to protect everyone – even the most undeserving of individuals within our society in many instances. Any person charged with an offence may lay claim to the guaranteed right to trial within a reasonable time – the four co-accused here, no less so.

[166] The delay encountered in trying them has been demonstrated to infringe their rights under s. 11(b) of the Charter. The only remedy, in such circumstances, and rare as it may be that this remedy be granted, is to stay the prosecution of the charges for these four co-accused. I must and will do so.

DATED: August 12, 2019

_________________________________

March, M.G., J.

Endnotes

1 R. v. Berhe, (2012) ONCA 716, is a case where the Court of Appeal for Ontario held that non-expert recognition evidence based on a photograph or videotape is admissible if the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. The test for the admission of such evidence does not require the witness to have sufficient familiarity with the accused's unique features to identify the accused's idiosyncrasies as portrayed in the photo or videotape. In the unfinished voir dire in this case, evidence was being adduced by the Crown to provide details about police officers' prior encounters with the four co-accused. Had the voir dire been completed, as the trial judge, I would then have been able to decide if a sufficient prior acquaintance existed to place the police witnesses in a better position than I, as the trier of fact, to conclude that the accused were the persons captured on the videotapes.