ONTARIO COURT OF JUSTICE

CITATION: R. v. Gerges, 2021 ONCJ 620

DATE: 2021 11 25

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN GERGES AND SAHIR SHEMUN

Before Justice A. A. Ghosh

Heard on September 21, 22, 24, October 6, 7, November 25, 2021

Reasons for Judgment released on November 25, 2021

F. Alibhai ............................. Counsel for the Public Prosecution Service of Canada (PPSC)

M. Lacy and A. Robbins ............... Counsel for the Applicants, Mr. Gerges and Mr. Shemun

GHOSH J.:

Overview:

[1] John Gerges and Sahir Shemun were charged with drug trafficking related offences out of a police investigation dubbed “Project Lift”. They had applied pursuant to s.11(b) of the Charter that their right to a trial within a reasonable time has been violated. I granted the application and ordered a stay of proceedings with summary reasons. I then summarily dismissed the Crown application for forfeiture of seized funds.

[2] The COVID-19 health crisis and an untimely disclosure development informed the assessment of reasonable delay. During the early period of the crisis, intake processes, including disclosure, were attended to. The total delay was over 26 months. At the 18-month mark, weeks before a s.8 Garofoli Charter application was to be heard, the Crown informed the defence that radio communications capturing police surveillance of the defendants existed and would not be disclosed. When the disclosure application was predictably granted by another jurist, the proceedings had to be adjourned.

[3] By the time the delay application was perfected, several steps of the Garofoli application had been argued and determined. These are my final reasons granting the delay application and ordering a stay of proceedings, pursuant to s.24(1) of the Charter.

Summary of the Procedural History:

[4] The key events in the procedural history can be summarized as follows:

Date	Particulars
Dec. 17, ‘19	Arrest / information sworn
Mar. 11, ‘20	“Waves” 1-3 of disclosure (ITO’s, etc.)
Mar. 16, ‘20	COVID-19 – relevant operations paused
May 20, ‘20	JPT #1
May 21, ‘20	“Waves” 4-7 of disclosure provided
June 24, ‘20	JPT #2
Aug. 7, ‘20	JPT #3
Aug. 12, ‘20	Notice: Trial scheduling resumes for such matters;
Sept. 28, ‘20	Eligibility to set trial dates for this matter
Nov. 25, ‘20	Dates set: joint 2-week s.8 Charter for weeks starting July 5 and July 19, ‘21; Applicants’ trial: Sept. 20, ’21 (3 weeks)
Dec. 14, ‘20	YRPS Command Team and Senior PPSC Crown on unrelated project learn that surveillance radio channels are recorded;
June 7, ‘21	Assignment court: s.8 and trial confirmed
Jun 15, ‘21	Assigned officer / Crown learn surveillance radio channels recorded
June 17, ‘21	Defence notified that radio recordings of police surveillance exist but would not be disclosed;
June 21, ‘21	Case Management appearance; Disclosure application to be heard
July 5 & 6, ‘21	Disclosure application heard and granted by Halikowski J.
July 19, ‘21	Crown advised disclosure could be provided by middle of August
July 20, ‘21	Trial to be adjourned; Case Management appearance – motion and trial dates of the Applicants to be vacated due to disclosure order
July 26, ‘21	New dates confirmed; Sept. 20th – Oct. 8 for s.8 Charter; multi-week trial starting Jan. 25, ending Feb. 25, 2022 (over 26 months total)

Analysis:

The Jordan Framework for S.11(b) Unreasonable Delay

[5] In R. v. Jordan,[^1] the Supreme Court set out the contemporary framework for determining the reasonableness of delay to trial pursuant to s.11(b) of the Charter. As the Court summarized at paragraph 105:

“There is a ceiling beyond which delay becomes presumptively unreason­able. The presumptive ceiling is 18 months for cases tried in the provincial court…” “Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.”

[6] Firstly, the “net delay” must be calculated by subtracting defence delay from total delay (charge to trial’s end). If the net delay exceeds the ceiling, it is presumptively unreasonable unless the Crown establishes that exceptional circumstances (case-complexity or a discrete event) caused the delay to be under the ceiling. The time left after the deduction due to any exceptional circumstances is the “remaining delay” to be compared against the presumptive ceiling: R. v. Coulter.[^2]

Defence Delay Deducted from Total Delay – Net Delay

[7] Any delay caused by the defence must first be subtracted from the total delay. The total delay in this case was 802 days (over 26 months), spanning the swearing of the information to the end of the anticipated trial. “Defence delay” involves either a waiver of the s.11(b) right or delay solely caused by the conduct of the defence. There were no waivers of delay by either applicant.

[8] This case involved multiple defendants and the availability for each counsel necessarily impacted the trial and application dates ultimately agreed to. Attributing to either applicant any delay arising out of the conduct of co-accused is “inconsistent with the approach and language in Jordan”.[^3] However, in certain cases scheduling issues involving multiple co-accused could constitute an exceptional circumstance warranting deductions from the net delay. This is not one of those cases.

[9] I would not deduct any defence delay for the months it took for the trial scheduling process itself. There was some back and forth between counsel and the trial coordinator in September of 2020 and by October 1st, all counsel waited to hear back from the trial coordinator. I will later explain that the overlapping delay until September 28th, 2020 will be deducted for the pandemic in any event.

[10] There was also some trial scheduling delay in October and November. As this crisis-driven scheduling process was new, there was justifiable confusion about presenting and consolidating the availability of all counsel in writing. The trial coordinator eventually directed that the long email-chain capturing the availability of various counsel would not be acted upon until consolidated into a single scheduling form by the Crown. Some delay resulted from this. While this request was perfectly proper, it was not an explicit requirement of the documented scheduling procedure. Any of the scheduling delay cannot be solely attributed to the defence, as there were proximate delays from the trial coordinator in responding generally.

[11] As for counsel availability for trial, several factors support that little to no delay should be afforded either applicant. Firstly, it was not disputed that the decision to split the prosecution into two groups was in the public interest and mitigated any scheduling issues involving multiple counsel. Secondly, counsel for all defendants in this group were reasonably available throughout. No counsel’s schedule held the others “hostage”, scheduling-wise.[^4] Finally, had the initial application dates been set any earlier, the Garofoli hearing would have improperly proceeded without the defence knowing that the police surveillance of their clients had been audio recorded.

[12] Any delay after the trial adjournment informed by Justice Halikowski’s disclosure ruling cannot reasonably be attributed to the defence. The existence of the audio recordings of radio surveillance communications was only brought to counsel’s attention by the Crown less than three weeks before the Garofoli hearing. Once discovered, the defence promptly requested disclosure. Once the Crown refused to disclose the recordings, the defence quickly pursued and obtained an order for their disclosure.

[13] The audio recordings silently loomed over the proceedings for almost two years and threatened to do so potentially for another year after their existence became known to the defence. At the disclosure hearing, a senior YRPS officer testified that if the radio communications were ordered to be disclosed, it would take the police approximately a year to vet, transcribe and disclose them. While it ultimately took a matter of weeks to produce the recordings, this evidence nonetheless supports that it would be unreasonable to attribute any delay to the defence after the trial was adjourned due to material non-disclosure. The disclosure timeline gave the defence little preparation time to digest the recordings for the Charter application.

[14] As I will explain, the recordings were central in this case to the defence ability to make full answer and defence. Specifically, they were highly relevant to the grounds supporting the warrants that would be subject to Charter challenge. l will also find there was no basis in law to oppose their disclosure or to claim that any of the recordings were third-party records.

[15] Given the absence of any defence waivers and the apparent assertion of the right to a timely trial, it would be unreasonable in these circumstances to deduct precise calculations of counsel unavailability in selecting dates for trial. Taking a contextual approach to defence delay, I would only attribute 30 days to each applicant for defence unavailability in setting the first trial dates. The net delay after accounting for defence delay is 772 days (or about 25 months).

Disclosure Discovery and Related Delay – Not an Exceptional Circumstance

i. Police Radio Communications: Generally and Specifically Disclosable

[16] The discovery that police surveillance of the defendants was audio recorded and disclosable caused the adjournment of the trial. This was not a discrete event that would excuse the related delay. I find the disclosure issue was foreseeable and the resultant delay was avoidable. The disclosure issue had a systemic component.

[17] Police radio communications are routinely disclosed upon request.[^5] The recordings are disclosable because they generally satisfy the disclosure threshold of relevance.[^6] They are primary source recordings of officer communications about the investigation into a defendant. They are not created merely for administrative purposes.

[18] In this case, the recordings were particularly relevant. They captured police surveillance of the applicants and their co-accused. This surveillance directly informed the grounds for the judicial authorizations that were being challenged, and they provided the Crown with available inferences of drug trafficking. The surveillance also at times provided facial corroboration for the confidential informant information, which became subject to the step-six Garofoli procedure we had embarked upon.[^7] This all heightened the relevance of the police radio transmissions.

ii. No legal basis for Crown to oppose disclosure

[19] While I do not accept the police reasons for resisting disclosure, I understand it. The officers did not know they were being recorded. Their radio communications during surveillance likely at times engaged both informant and investigatory privilege and those aspects of the recordings must be protected from disclosure. However, when such privilege fails to attach to some or all of a radio communication of relevance, the non-privileged aspects of the recording must be disclosed. The overall approach presumes disclosure of relevant police communications, subject to vetting for privilege. The vetting in this case was incredibly time-consuming and costly for the police.

[20] Police officers are not Charter-bound to audio-record their communications with each other – but when they do so, they must disclose the relevant communications. It would have been proper for the police service to equip surveillance officers with a secure channel for unrecorded radio communications during covert operations. Their investigation would be recorded in the traditional format of the notes of the individual officers and further amalgamated into the central notetaker’s report. This likely would have satisfied their disclosure obligations and more easily protected any privilege engaged. This did not happen.

[21] The substantial expenditure of police time and resources to vet and transcribe the recordings formed a significant component of the evidentiary record at both the disclosure hearing and this delay application. Over 100 hours of recordings were in issue. Disclosure was resisted partly on this basis. Echoes of such flawed justifications for non-disclosure were considered and rejected three decades ago by the Supreme Court in Stinchcombe.[^8] I am persuaded that this was onerous on the police on multiple levels. I am not persuaded that this constituted a legal basis to oppose disclosure in this case.

[22] The Crown also opposed the disclosure of the police radio communications by claiming they were third-party records. This argument was also not based in law. The specific Crown position was to agree that approximately a quarter of the recordings were disclosable first-party records in the possession of the police. The Crown claimed that the rest of the recordings capturing surveillance of the targets were third-party records and not subject to disclosure by the Crown.

[23] I am mindful of the Supreme Court’s clarification in McNeil that records in possession of one Crown entity should not be deemed to be in possession of another and that Crown entities other than the prosecuting Crown are third parties for disclosure purposes. [^9] Those principles do not apply here.

[24] These recordings cannot be equated to police disciplinary records or maintenance records of breathalyzer devices.[^10] Again, these were “primary source” audio recordings of police surveillance regarding the applicants and their co-accused. They comprised the fruits of the investigation and were in the possession of the investigating police service.

[25] I have considered the Crown’s submission that this was a novel issue and that while the Crown’s opposition may have been rejected, it was a reasonable position to take in the absence of guiding authority. The lack of dispositive jurisprudence may signal that the duty to disclose was obvious. This was supported by Justice Halikowski’s disclosure ruling. I find the radio communications were obviously relevant and should have been provided as first-party disclosure without prompting.[^11]

[26] The disclosure issue was not a discrete event. The adjournment of the trial, at the very least, must be borne by the justice system. The defence, upon notification of the recordings, took prompt steps to obtain a disclosure ruling. The applicants cannot be held responsible for any of the ensuing delay that they had diligently tried to avoid.

iii. Systemic non-disclosure – the related delay was avoidable

[27] The systemic component of the non-disclosure needs to be addressed, as it impacts the assessment of reasonable delay. The police service as an institution knew that these communications were recorded. It cannot be disputed that the police service had been properly disclosing radio communications upon request for years.

[28] The application record confirms that at least as early as December of 2020, the relevant investigatory unit at YRPS knew that surveillance communications between covert officers were recorded. Senior Counsel from the PPSC assigned to an unrelated project had engaged the same police service about this issue. They had agreed that targeted communications would be disclosed, clearly to preserve that prosecution.

[29] I accept that neither the assigned PPSC Crown team nor the lead investigator for Project Lift personally knew about the existence of these recordings until weeks before the Garofoli hearing in June of 2021. However, there was institutional awareness in the PPSC and the YRPS by December of 2020 that these covert operations were recorded and potentially a disclosure issue. There was no evidence that the police service sought legal advice from the PPSC or its own counsel at that time.

[30] Once YRPS learned of the existence of these recordings, certain steps should have been taken to mitigate the delay that followed. An audit of outstanding impacted investigations should have been conducted. YRPS should have obtained legal advice regarding its disclosure obligations. The prosecuting counsel for each impacted file needed to be promptly advised of the existence of these recordings, regardless of the police position on disclosure. In turn, impacted defendants needed to be notified of their existence in contemplation of disclosure applications. None of this was apparently done, at least not in a timely manner that may have insulated the delay here.

[31] The Crown has an obligation to mitigate delay arising from late-breaking disclosure issues. Instead, the state caused the delay by resisting its clear disclosure obligations in this case. The gross delay was already up against the presumptive ceiling when the Crown chose to oppose disclosure. Had the defence received these recordings soon after their discovery in December of 2020, the trial dates almost certainly would have been preserved.

Exceptional Circumstances – COVID-19 Crisis as a Discrete Event

[32] As the net delay has exceeded the presumptive ceiling, the Crown must establish that either case complexity or the delay caused by a discrete event rebutted the presumption of unreasonableness. This case was not unduly complex to be characterized as an exceptional circumstance. The Crown conceded as much.

[33] It is agreed that the COVID-19 public health crisis is a discrete event and thus an exceptional circumstance. Counsel disagree that any consequent deduction is warranted on the facts and timeline of this proceeding. There is some merit to both positions.

[34] The applicants were charged on December 17th, 2019. Three months later, on March 16, 2020, the COVID-19 public health crisis resulted in the temporary cessation of non-urgent, out of custody hearings for our court. This meant that this matter could not yet be set down for trial.

[35] This matter was not ready to be set for trial for months into the crisis in any event. The intake processes of disclosure “waves” and judicial pre-trials would continue significantly into August of 2020. Despite the partial court shutdown, these processes would continue out-of-court and virtually for months. I appreciate the pandemic adversely affected Crown, police, and court operations on multiple fronts. However, disclosure and pretrials for this matter continued to be properly attended to over the summer of 2020.

[36] A fair reading of the court and correspondence record reflects that the Crown could not reasonably insist that elections and hearings dates be set until August of 2020. This happened to be when the pandemic court protocols first permitted such matters to be set down for trial and when Mr. Gerges entered his election for a trial in this court.

[37] The trial ultimately would not be set until November 25th, 2020. This delay from August until then was informed by pandemic pressures on the trial coordinator and continuing pre-trials and disclosure. There is some appeal to the position of the applicants that the timing of the court closure did not meaningfully impede the pre-trial processes and that little to no deduction should ensue in favour of the state.

[38] However, the reality is that even if all parties were ready to set this matter down for trial before August 12th, 2020, the pandemic protocols did not permit it. This marked the date our court directed that scheduling for such matters could begin. The notice to the profession specifically directed that scheduling for this matter “will begin no later than” September 28th, 2020. It would be unreasonable on these facts to deduct the delay until November 25th, given the state’s subsequent approach to key disclosure.

[39] The early pandemic delay overlapped with intake processes and the state later caused further unnecessary delay by its oppositional approach to its obvious duty to disclose the radio communications. It may be reasonable in the circumstances to decline to deduct any time for the public health crisis. However, I will err in the system’s favour given that the pandemic restrictions did not support setting this matter down for trial until September 28th. The 196 days (over 6 months) between March 16th to September 28th, 2020 will be deducted due to the discrete event of the public health crisis.

Calculation

[40] The net delay subtracting defence delay from total delay was 772 days (over 25 months). The delay deducted due to the discrete event of the COVID-19 public health crisis is 196 days (over 6 months). This is generous to the Crown. I have determined that no deduction should accrue for the disclosure issue and that the ensuing delay should be applied towards the ceiling. The remaining delay is 576 days (over 19 months).

[41] The remaining delay is above the 18-month ceiling and unreasonable in the circumstances. Should the calculations have favoured the Crown further, I would observe that these facts likely warranted a below-ceiling violation. Counsel took meaningful steps to show a sustained effort to expedite the matter. Given the state’s approach to the police radio communications, the trial was adjourned and the case took markedly longer than it reasonably should have.

[42] I find a violation of the right of the applicants to be tried within a reasonable time. A stay of the charges against Mr. Gerges and Mr. Shemun is ordered.

Crown Forfeiture Application after the Stay of Proceedings – Summary Dismissal

[43] After my summary ruling staying the prosecution for unreasonable delay, the Crown applied to forfeit seized funds as unlawfully possessed, pursuant to s.490(9) of the Criminal Code. The Crown estimated that the hearing would require five days of court time. Given the retention periods had expired once the judicial stay was imposed, the defendants cross-applied for the return of the funds, pursuant to s.490(7). The subjects of the cross-applications were the defendants, Mr. Gerges and his wife, Ms. Youssef.

[44] I was persuaded by counsel to the defendants to summarily dismiss the Crown forfeiture application and to order the funds returned to them. The authority to summarily dismiss motions is grounded in the court’s case management function to weed out frivolous or improper applications.[^12] This authority must be exercised cautiously, and the broader interests of justice must remain at the forefront of the analysis.

[45] The Crown had no reasonable prospect of success. The funds, while relatively substantial, are obviously legal in character. The defendants had the presumptive and compelling claim of lawful possession of the funds.[^13] Accepting the Crown affidavit material at its highest, there is no direct evidence the funds were obtained through illegal means.

[46] The Crown must prove the money was illegally obtained beyond a reasonable doubt. Proof here requires inferences to be drawn from circumstantial evidence, and some of the available inferences were exculpatory.[^14] Mr. Gerges and Ms. Youssef were not the primary targets of police surveillance. Mr. Gerges was seen on three occasions in the company of a more significant police target. On at least one of these occasions, Mr. Gerges was carrying a weighted gift bag with unknown contents. No transaction was identified. Over $16,000 was found in a vehicle he drove. In the room of an apartment occupied by Mr. Gerges and Ms. Youssef, vials of unprescribed hydromorphone were seized as well as over $10,000. While not exhaustive, that is the thrust of the evidence.

[47] The application record supported that the defendants were both pharmacists. The apparent Crown theory was that they exploited their vocation to illegally traffic in prescription drugs. However, it was not disputed that they had substantial means of legitimate income that would have served to obscure the provenance of the cash.

[48] Even if the Crown establishes that the money was unlawfully possessed, I have the discretion in this case to refuse forfeiture.[^15] That leads to my finding that it would be unjust to permit the Crown to seek forfeiture here. It is agreed that a judicial stay is tantamount to an acquittal. I have specifically found that the prosecution must end, given a violation of the Charter right to trial within a reasonable time.

[49] The stay of proceedings following a violation of the s.11(b) right is an illustration of the abuse of process doctrine.[^16] I find it would be contrary to the interests of justice to permit the Crown in such circumstances to attempt to establish the very unlawful acts that the judicial stay was imposed to prevent the Crown from pursuing.

[50] The delay application is granted, and a stay of proceedings is entered. The Crown forfeiture application is summarily dismissed. My thanks to counsel.

Released: November 25, 2021

Signed: Justice A. A. Ghosh

[^1]: R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 [^2]: R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 [^3]: R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963, para. 136. [^4]: Gopie, para. 171; R. v. Albinowski, [2018] O.J. No. para. 38 [^5]: R. v. Turner, [2010] OJ No. 1751 (Ont.C.A.), para. 15; R. v. Bolé, [2019] O.J. No. 1465, para. 16; [^6]: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, (S.C.C.) para. 29 [^7]: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 (S.C.C.), para. 53 [^8]: R. v. Stinchcombe, para. 13 [^9]: R. v. McNeil 2009 SCC 3, [2009] S.C.J. No. 3 (S.C.C.), paragraph 13 [^10]: McNeil, para. 25; R. v. Gubbin, 2018 SCC 44, [2018] 3 S.C.R. 35 (S.C.C.) [^11]: McNeil, para. 59 [^12]: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 (S.C.C.), para. 38; R. v. Greer, [2020] O.J. No. 5452 (Ont.C.A.) [^13]: R. v. Mac, 1995 CanLII 2071 (ON CA), [1995] O.J. No. 604 (Ont.C.A.) [^14]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 (S.C.C.), paras. 30 and 35 [^15]: S.490(9)(d) of the Criminal Code; R. v. Trac, 2013 ONCA 246, [2013] O.J. No. 1788 (Ont.C.A.) [^16]: Xanthoudakis v. R., [2020] QCCA 446 (Q.C.A.), para. 47