His Majesty the King v. Daveion Brown, 2022 ONCJ 596

ONTARIO COURT OF JUSTICE DATE: 2022 12 15 Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

DAVEION BROWN

Before: Justice Newton-Smith

Heard on: November 1 and 2, 2022 Reasons for Judgment released on: December 15, 2022

Counsel: C. Rhinelander and D. MacAdam, counsel for the Crown L. Metcalfe and M. Sciarra, counsel for the accused Daveion Brown

RULING ON CHARTER APPLICATION

Section 11(b)

NEWTON-SMITH J.:

I. OVERVIEW

[1] The Applicant, Daveion Brown, was charged with offences arising out of an investigation named Project Sunder. Project Sunder was a large multi-jurisdictional investigation which involved multiple Part VI wiretap authorisations. Mr. Brown was one of over 70 individuals charged as a result of this investigation. The first information charging Mr. Brown was sworn on September 18, 2020.

[2] During the course of the prosecution the charged individuals were divided into groups. In April of 2021 Mr. Brown was added to a prosecution group that was being case managed by Justice Porter. A group challenge to the Part VI authorisations, the Garofoli, was heard by Justice Porter and ultimately dismissed on June 29, 2022.

[3] Mr. Brown’s trial commenced before me on November 1, 2022 with the hearing of the s.11(b) Application. His trial was scheduled to conclude on November 24, 2022 [1].

[4] The total delay in this matter to the scheduled end of the trial is 797 days or 26 months and 6 days.

[5] Mr. Brown applies for a stay of proceedings pursuant to s.24(1) of the Charter on the basis of unreasonable delay in bringing his matter to trial contrary to s.11(b) of the Charter.

Positions of the Parties

[6] The parties agree that the net delay exceeds the Jordan ceiling. They differ as to by how much.

[7] It is the position of the Crown that 231 days can be attributed to defence delay, bringing the net delay to 566 days, or 18.6 months.

[8] It is the position of the Applicant that there are 92 days of defence delay, bringing the net delay to 705 days, or 23.2 months.

[9] The parties agree that the case is complex.

[10] It is the position of the Crown that when discrete events are deducted from the net delay the case falls under the Jordan ceiling. Additionally, the Crown argues that the case was particularly complex such that even if the case is not brought below the ceiling by the subtraction of delay caused by discrete events, the case was particularly complex so as to justify the time required to bring the case to its conclusion and the delay is therefore reasonable.

[11] It is the position of the Applicant that there are no discrete events to be deducted from the net delay. While the Applicant agrees that the case is complex, it is the position of the Applicant that the Crown failed to develop and follow a reasonable prosecution plan to minimize delay and therefore the delay is unreasonable.

II. HISTORY OF THE PROCEEDINGS

[12] The project Sunder investigation commenced in the spring of 2019.

[13] In February of 2020 the police provided Guns and Gangs counsel with a lengthy Information to Obtain [ITO] to review. On March 5, 2020 a Part VI authorisation was granted. The authorisation permitted the interception of hundreds of devices, including the Applicant’s.

[14] On July 14, 2020, as a result of intercepted communications, the Applicant was arrested and charged with drug related offences. He was released on an undertaking with a first court appearance of September 24, 2020 in Peel. The information for these charges was sworn on September 18, 2020. That is the day on which the parties agree that the Jordan clock begins.

[15] The Applicant began to make disclosure requests after his first arrest. Initial disclosure was received on October 2, 2020. The Applicant describes this disclosure as “minimal”. Following receipt of initial disclosure the Applicant requested further disclosure including the ITO and search warrant for his home.

[16] Meanwhile, in September of 2020 the police began the large scale Project Sunder arrests. The arrests were made on a rolling basis and concluded on October 15, 2020. October 15, 2020 was takedown day for Project Sunder.

[17] It was on October 15, 2020 that the Applicant was arrested for firearms offences arising out of the Project Sunder investigation. Those offences dated back to May 26, 2020.

[18] In total approximately 100 people were arrested as a result of the Project Sunder investigation.

[19] On November 26, 2020 the Crown directed that the Applicant’s original charges be transferred from Peel Region to the Metro West courthouse to join the other Project Sunder accused.

[20] On December 1, 2020 the Applicant received the first wave of disclosure in Project Sunder. The Part VI ITOs were disclosed but were missing appendices and supplemental affidavits. The Tracking Data ITOs that had formed the basis for the Part VI authorisations were not disclosed.

[21] The second wave of disclosure was received on March 3, 2021.

[22] Through March and early April of 2021 several judicial pre-trials were held to discuss outstanding disclosure issues and schedule a joint Garofoli application.

[23] The Crown broke the approximately 100 people arrested into 25 prosecution groups. In April of 2021 the Crown added the Applicant to the Group 2 prosecution group, which at that time was a group of 11 accused. This group was challenging the Part VI authorisations and were to have a group Garofoli case managed and heard by Justice Porter.

[24] On April 23, 2021 the third wave of disclosure was received by the Applicant. Among other things this disclosure wave contained the previously undisclosed Appendix to the ITO containing the CI information.

[25] On May 7, 2021, pursuant to a schedule directed by Justice Porter, the following dates for the Garofoli and the trial were put on record for Group 2/A:

• June 14, 15, 18, 2021: defence application for disclosure
• July 19-20, Sept 1-3, 2021: beginning of Step 2
• Oct.18-22, 2021: defence application for leave to cross-examine
• Nov.1-5, 2021: for any permitted cross-examination
• Nov.8-10, 2021: for any defence evidence called on the Application
• Nov.22, 23, 25, 26, 2021: Step 6
• Jan.17-21, Feb. 1-4, 2022: submissions on section 8
• May 2-6, 9-13, 2022: trial

[26] Along with the scheduled Garofoli and trial dates was a schedule for the filing of materials.

[27] At the time that these dates were put on the record, the defence collectively voiced concern with respect to the litigation schedule and ongoing disclosure issues:

We remain deeply concerned, Your Honour, that the schedule we are setting today is extremely vulnerable, not only to the incomplete disclosure, but also to what we regard as excessive, in fact, massive over-redaction, and also a lack of summary of those redactions…we do not even know, as of this date, May 7th, 2021, how many informants are supposed to have informed upon each of our accused…the Crown has not even confirmed whether everything we are seeking in further disclosure is first party or third party disclosure …we don’t even know if we have to make room in the existing schedule for an O’Connor application or more applications.

[28] On May 22, 2021 the defence filed a joint Application for a disclosure motion. Included in the items sought were intercepted communications, session histories and the “JSI Explorer Package”. The Crown took the position that some but not all of the intercepted communications could be disclosed, that the session histories were clearly irrelevant and that the “JSI Explorer Package” was protected by investigative privilege.

[29] The Disclosure Application, which had originally been scheduled for 3 days in June, ultimately took place over the course of the summer and morphed into a Basi hearing in which over 30 Confidential Informants [CI] testified in camera before Justice Porter. The Garofoli litigation continued on throughout the fall of 2021. As a result of the litigation disclosure continued to be ongoing.

[30] Ultimately most of the requested items were disclosed on consent and some by judicial order.

[31] On September 16, 2021 Ms. Savard, counsel to Mr. Hanson who was in the Applicant’s litigation group, was informed that one of the Crowns in the prosecution team, Mr. Robinson, had previously represented her client. Ms. Savard raised the issue of conflict and Mr. Robinson was then removed from the prosecution. However, the other two members of the team, Ms. Rhinelander and Mr. Crisp, remained.

[32] The Crown’s office, and the prosecution team, had been aware of the potential conflict issue since October of 2020. It had been the position of the Crown’s office that as long as Mr. Robinson was responsible only for the Garofoli litigation there was no conflict issue. The defence was not informed of the issue until September of 2021.

[33] In January of 2022, having further considered the issue, Ms. Savard again raised the conflict issue and took the position that it also impacted upon the other two members of the prosecution team.

[34] The following day, January 19, 2022, the Crown stayed the charges against Mr. Hanson. Ms. Savard, who had been a lead member of the defence team responsible for significant aspects of the Garofoli litigation, was now no longer involved.

[35] In February of 2022, as a result of the Garofoli and related litigation spanning well over the allotted schedule, the Regional Senior Justice invited counsel to file an adjournment application of the May trial dates. The adjournment was granted and new trial dates of August 15 through 26, 2022 were scheduled.

[36] The Garofoli litigation continued on through the winter and spring of 2022.

[37] On February 16, 2022 the defence application for leave to cross-examine with respect to the Garofoli was dismissed by Justice Porter with written reasons released on March 2, 2022.

[38] The defence then brought an application to call expert evidence on an issue that arose out of the previously argued application for leave to cross-examine. The Crown sought summary dismissal of the application.

[39] On March 15, 2022 submissions were made with respect to the defence’s expert evidence application.

[40] The expert issue raised in the defence application related to how the police gained entry to Instagram accounts, and whether there was a reasonable expectation of privacy in the Instagram accounts. In dismissing the earlier application for leave to cross-examine Justice Porter had found that the evidentiary record before him did not support a finding of a reasonable expectation of privacy in the Instagram accounts. It was as a result of this ruling that the defence then sought to call an expert to testify with respect to how Instagram accounts can be made private.

[41] The following day, March 16, 2022, after having heard a day of submissions, Justice Porter granted the Crown’s request for summary dismissal of the application.

[42] On April 5, 2022 the Applicant received Wave 10 of the Project Sunder disclosure.

[43] Ultimately the Garofoli was argued on May 4-6, 2022. On June 29, 2022 Justice Porter ruled on the Garofoli dismissing the Application.

[44] On July 6, 2022 the defence sought, and was granted an adjournment of the scheduled August trial dates. The delay between the scheduled completion date of August 24, 2022 and the new current completion date of November 24, 2022 was expressly waived by the defence.

III. LAW AND ANALYSIS

A. Section 11(b) – The *Jordan* Framework

[45] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the framework was established for determining applications for a stay of proceeding pursuant to section 11(b) of the Charter. A presumptive ceiling of 18 months was set for cases going to trial in the provincial court.

[46] Several steps were set out to determine whether a case has breached the presumptive ceiling. Those steps were summarised by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, at paras 34-41:

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, para. 47).
• Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, para. 66).
• Compare the Net Delay to the presumptive ceiling (Jordan, para. 66).
• If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
• Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
• If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, para.80).
• If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[47] Once the presumptive ceiling has been breached, and the Crown cannot rebut the presumption of unreasonableness, the delay is unreasonable and a stay must follow: Jordan, at para 47.

[48] Exceptional circumstances were defined in Jordan as follows:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. Jordan, at para. 70

[49] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

Discrete Events

[50] The discrete events calculation occurs within the calculation of delay:

If the Crown establishes a discrete event (such as an illness or unexpected event at trial), the delay that is reasonably attributable to that event is subtracted from the total delay that has occurred. The net delay figure is then assessed against the presumptive ceiling. In other words, the presumptive ceiling remains the reference point for the analysis. Ontario (Ministry of Labour) v Nugent, 2019 ONCA 999, at para 30.

[51] In elaborating on what might constitute a discrete event, the majority in Jordan stated, “Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change it’s case.”: Jordan, at paras 71-73.

[52] What is key to the discrete events category of exceptional circumstances is unpredictability and unavoidability. The example of a complainant recanting is qualified by the recantation being “unexpected”.

Particularly Complex Cases

[53] Particularly complex cases were defined in Jordan as, “cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time.”: Jordan, at para 77.

[54] The particularly complex case exception operates to justify delay beyond the presumptive ceiling:

The focus of the particularly complex case exception is on whether the delay that exceeds the presumptive ceiling is justified in light of the overall complexity of a case. The trial judge must consider whether the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity - not whether the Crown developed and followed a concrete plan to attempt to bring the trial to a conclusion within the presumptive ceiling. Nugent, at para 31.

[55] Where the case is complex, the test to be applied in assessing the reasonableness of the Crown’s plan is: did the Crown’s plan for dealing with this particularly complex case, considered as a whole, reasonably attempt to minimize delay occasioned by such complexity? The question to be asked is did the Crown act reasonably and consistently with its duties, not whether the Crown took any and all steps proposed by the defence to expedite matters: Nugent at paras 44-46.

B. Defence delay

[56] The parties agree that there is one period of delay during which the defence waived 11(b). It is the position of the Applicant that there is no further delay attributable to the defence.

[57] It is the position of the Crown that there are 4 additional periods of delay which are attributable to the defence. The Crown categorises those periods of delay as falling under “defence unavailability” and “delays caused by defence conduct”.

(i) Waiver

[58] The parties agree that there are 92 days which can properly be attributed to defence delay.

[59] The first scheduled trial dates of May 2 through 13, 2022 were subsumed by the ongoing Garofoli litigation. Ultimately the trial was rescheduled for August 15 through 24, 2022.

[60] On July 6, 2022 the defence brought an Application to adjourn those trial dates. The defence waiver s. 11(b) from the end of the scheduled August trial dates to the end of what were ultimately the trial dates of November 1-4 and 21-24, 2022. This amounts to a total of 92 days.

[61] When this 92 day period of waiver is subtracted from the total delay, the net delay is 705 days, or 23.2 months.

(ii) Defence Unavailability

[62] When Regional Senior Justice Bacchus invited counsel to file an adjournment application in February of 2022, as a result of the ongoing Garofoli litigation, the new dates set for trial were August 15 through 24, 2022.

[63] Earlier trial dates beginning on June 15 and ending on July 8, 2022 had been offered by the Court. The Crown takes the position that because the Crown was available to conduct the trial on those dates, but the Applicant was not, the time period from July 8 to August 24, 2022 should be considered defence delay due to defence unavailability. This amounts to a total of 47 days.

[64] When the adjournment application was granted on February 15, 2022 counsel began working with the trial coordinator to reschedule the trial dates. The Applicant’s counsel had other trial matters scheduled over the dates initially offered by the Court. As her schedule stood at the time she was not available for the dates that were offered by the Court until January of 2023.

[65] Over the course of the following weeks she made various attempts to reschedule or re-assign matters to increase her availability but was unable to do so for the earliest dates available to the Court and the Crown. Dates were offered by the Court in August and held by the trial coordinator while the Applicant’s counsel made efforts to re-organise her schedule so that she could accommodate them. Ultimately the Applicant’s counsel was able to make herself available for the August trial dates offered by reassigning a 3 month trial for another client to a colleague.

[66] The Supreme Court of Canada has recognised that, “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”: R. v. Godin, [2009] 2 R.C.S. at para 23.

[67] It was the inadequacies of the original time estimates which led to the need for scheduling further trial dates. Effectively what was being scheduled were continuation dates of an ongoing proceeding.

[68] I find that the Applicant made all reasonable efforts to make herself available for what were effectively continuation dates of the trial. She was legitimately unavailable for the earliest available dates and faced with “compromising one client’s interests for another”. Over the course of approximately 3 months counsel attempted to find ways to open up her schedule so as to accommodate the earlier trial dates offered by the Court. In the circumstances I am not prepared to find that defence counsel’s legitimate unavailability amounts to defence delay: R. v. Safdar, 2021 ONCA 207 at paras 49-51.

(iii) Delays Caused by Defence Conduct

[69] It is the position of the Crown that, “a significant amount of delay in this case stemmed from the protracted schedule and litigation of the disclosure and Garofoli applications.” The Crown divides this delay into 3 categories.

Scheduling of the *Garofoli*

[70] In April of 2020, when Group 2 was in the midst of judicial pre-trials with Justice Porter, scheduling discussions began. On April 6, 2020 the Court offered May 5, 2021 as the starting date for the litigation. Counsel for the defence collectively responded that they were not available until August 23, 2021. However the next day, April 7, 2020, the defence collectively provided a revised litigation schedule commencing June 14, 2021.

[71] It is the position of the Crown that the period from May 5 to June 14, 2021 should be characterised as defence delay for a total of 40 days.

[72] The defence position is that at this time, April of 2020, disclosure was substantially incomplete and that the issues relating to the disclosure application were unresolved. The defence takes the position that the litigation could not have occurred earlier than the scheduled date of June 14. In fact the disclosure litigation took place over the course of that summer.

[73] Given the comments put on the record by the defence on May 7, 2021, the state of the disclosure issues at that time, and the manner in which the litigation ultimately unfolded I agree that the earlier offered dates were not realistic and I am not prepared to apportion the time from May 5 to June 14 as delay caused by defence conduct.

Submissions on Leave to Cross

[74] The Crown takes the position that submissions on the defence application for leave to cross could have occurred on January 24 -28, 2022 but did not because the defence was not prepared. Submissions were heard on January 28 and February 1-3, 2022.

[75] It is the position of the Crown that the 4 days between January 24 and 28, 2022 should be characterised as defence delay.

[76] It is the defence position that the schedule at this point had become almost untenable. Everyone was working over the Christmas holidays and struggling to meet filing deadlines. Counsel for the Applicant got covid over the Christmas holidays and was unable to work over part of the holidays. Further, following the stay of Mr. Hanson’s charges on January 19, 2022, and the consequent loss of Ms. Savard, the defence was struggling to cover the work which had originally been divided between them.

[77] It is the position of the Applicant that had Ms. Savard’s client’s charges not suddenly been stayed this delay would not have occurred. In the circumstances, given that the conflict issue was known to the Crown from the outset, I am not prepared to attribute this 4 day period to defence delay.

The Defence Application to Call Expert Evidence

[78] The Crown takes the position that the defence application to call expert evidence was frivolous. It is the Crown’s position that rather than hearing this application on the scheduled court date of March 15, the time could have been used for final submissions on the Garofoli.

[79] It is the Crown’s position that had the defence abandoned this application the litigation schedule could have been moved forward and final submissions heard in March rather than on the scheduled dates of May 4-5, 2022. The dates set aside in March were March 15 – 18, 2022.

[80] The total delay the Crown seeks to characterise as defence delay here is 48 days from March 18 to May 4.

[81] It is the defence position that the application was not frivolous, and further that it is unrealistic to suggest that the litigation schedule could simply have been moved up. There were strict time lines and filing deadlines, and there was no expectation when the dates were set that the schedule could simply be moved up.

[82] The motion was argued on March 15 and Justice Porter’s summary dismissal ruling was made the following day. In dismissing the application Justice Porter found, “as the motion to admit Dr. McEwen’s evidence was clearly without merit, and stood no reasonable chance of success, I have concluded that it must be summarily dismissed”.

[83] The Applicant characterises the proposed expert evidence as raising a “novel” issue. The Crown characterises it is “frivolous”.

[84] As the Supreme Court affirmed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, the “not frivolous” test is widely recognised as being a very low bar:

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established. R v Manasseri, [2013] OJ No 6177, 2013 ONCA 647 at para 38

[85] If Justice Porter’s ruling was not a finding that the application was frivolous it comes very close. However, I need not decide this issue since I do not agree that if not for the day spent arguing the application the litigation schedule could simply have been moved up.

[86] The Crown’s submission that the litigation schedule could have been moved up had the defence not brought this application is speculative at best. I accept the Applicant’s submission that in the context of this litigation, given the number of players and issues involved, it is unrealistic to say that had the defence not brought this additional application the date for final submissions on the Garofoli could simply have been moved up. I note also that disclosure was ongoing and wave 10 was not disclosed until April, 2022.

C. Discrete Events

[87] The Crown takes the position that the litigation with respect to the defence disclosure application, including the Basi hearings, should be treated as a “discrete event”. This period of time is from June 14 through September 16, 2021 for a total of 97 days. Acknowledging that the Crown has already asked that half of that time, June 15 through July 8, 2021 be categorised as defence delay, the Crown submits that the remaining 47 days, should also be subtracted from the net delay as a discrete event.

[88] With respect to the disclosure application, the Crown submits that:

Based on the boiler plate application and the failure of the defence to set out its position clearly, the Respondent was unable to fully appreciate and understand in advance the evidence needed to be called. This was unforeseen and unavoidable based on the materials filed.

[89] Discrete events, as understood in the context of s.11(b), are events which are unavoidable and unexpected. An example given in Jordan was the unexpected recantation of a complainant.

[90] While the Garofoli litigation here was complex and time consuming, it cannot be characterised as unexpected. Challenges to warrants can involve many avenues of litigation. While Basi hearings may not routinely occur in warrant challenges, they are an established area of litigation.

[91] The nature of the Garofoli litigation in this case is significant to the characterisation of the case as complex. It is not a discrete event.

[92] Additionally, under the heading “discrete events”, the Crown submits:

Lastly, there were health issues that impacted the Defence team in preparing materials and meeting filing deadlines, which had a trickle effect of impacting the next steps in the process in 2022, and ultimately resulted in the first set of trial dates being adjourned.

[93] The first adjournment of the trial dates from May to August of 2022 was a result of the Garofoli and related litigation taking longer than originally scheduled. The adjournment of the trial dates was also linked to the departure of one of the lead counsel, Ms. Savard, from the proceedings. This resulted partly, if not entirely, from the conflict application and the failure of the Crowns to immediately disclose and rectify the conflict situation in October of 2020.

[94] Again, I am not prepared to categorise litigation and events arising out of the litigation as "discrete events”.

D. Complexity of the Case – The Prosecution Plan

[95] Both parties agree that this was a complex case. This is particularly evidenced by the extent and duration of the Garofoli and related litigation.

[96] The Crown submits that a reasonable plan was formed at the outset, and well prior to any of the arrests, to manage and deal with this voluminous and complex case.

[97] As an example of the reasoned planning the Crown points to the fact that well prior to the takedown date of October 15, 2020 a Crown was assigned, unsealing orders of the first two authorisations were sought and the ensuing months were spent drafting judicial summaries. Further, all of the warrants that the Crown was “aware of” were unsealed and vetted in anticipation of providing full disclosure shortly after the takedown.

[98] However, the appendices containing information with respect to the CIs were not disclosed until April or May of 2021. Similarly, the Crown did not prepare the tributary warrants for disclosure until they were formally requested by the defence in March of 2021. Those were eventually disclosed in the third disclosure wave of April 9, 2021.

[99] It was the Crown’s position that these items were not prepared for disclosure until the Crown became aware that the defence would be challenging the warrants.

[100] That preparatory steps were taken for a Garofoli prior to the global takedown day is evidence that challenges to the warrants and Garofoli litigation were no surprise to the Crown, nor should they have been. Clearly the Crown planned, at least in part, for the litigation. A better plan would have been to prepare all of the warrants for disclosure in their entirety.

[101] The Applicant points to 4 areas which he submits evidence a failure of the Crown to approach the litigation with a reasonable prosecution plan.

“Delaying the Applicant’s July 14, 2020 charges”

[102] It is the Applicant’s position that the Crown could have delayed charging Mr. Brown with the July drug trafficking offences until the October 15 takedown date.

[103] I do not find that the fact that circumstances occurred such that the police formed grounds to believe that a drug deal was occurring and arrested Mr. Brown prior to the conclusion of the Project Sunder investigation detracts from the reasonableness of the Crown’s prosecution plan.

“Delaying the Project Sunder takedown day”

[104] The Applicant further takes the position that the takedown should have been delayed by months in order to ensure that the “lions share” of disclosure would be available shortly after the arrests. The Applicant asserts that a reasoned plan would have delayed the arrests for 6 months to give the Crown time to prepare disclosure prior to the arrests

[105] The first substantive wave of disclosure came just a month after the takedown date of October 15, 2020. This was the date on which all of the intercepts ceased. In fact the Crown had begun the process of preparing the warrants for disclosure well in advance of the arrests.

[106] While it would have been a better plan to prepare all of the warrant materials for disclosure in advance of the arrests rather than waiting until Garofoli litigation was clearly on the table, this is not to say that there wasn’t a reasonable plan in place.

[107] The decision to arrest and charge is based on many factors including public safety and the prevention of further criminal acts. I am not prepared to find that the timing of the arrests in this case evidences poor planning on the part of the Crown.

“Crown could have used available technology to ensure the disclosure was organized and searchable”

[108] The Applicant concedes that the disclosure was provided in an organised and searchable format, but submits that better software was available and could have been used. For example, the Applicant submits that the disclosure did not contain hyperlinks which would have made it much faster and easier to review.

[109] Government resources are finite and it will likely always be the case that there is somewhere better and more advanced technology than what the government provides. Clearly it would have been preferable for the Crown to produce the disclosure with hyperlinks, but I am not prepared to find that the failure to do so is an example of an unreasonable approach to prosecution planning.

“Crown could have avoided months of litigation by consenting to the session history disclosure motion”

[110] The length and number of issues involved in the Garofoli and related litigation speaks to the complexity of the case. None of this can be characterised as unpredictable or unavoidable. The Crown should have anticipated and been prepared to deal with all manner of Garofoli litigation. On the other hand, the Crown is not required to accede to all defence applications in order to avoid litigation.

[111] While I do not accept the litigation in this circumstance should be characterised as unpredictable as the Crown asks, nor do I accept that it should be characterised as avoidable as the defence asks.

IV. CONCLUSION

[112] My task is not to assess whether the Crown developed and followed the best possible plan or course of action, rather it is to determine whether or not the Crown had a reasonable plan for dealing with this particularly complex case to minimize the delay.

[113] While it may not have contributed significantly to the delay in this case, and the issue is somewhat remote to Mr. Brown, the failure of the Crown to have in place a conflict check protocol, and to advise the defence at the earliest opportunity of any potential conflict issues is frankly shocking. In a case where members of the prosecution team are former defence counsel, and particularly defence counsel who practised for years in the same jurisdiction as the investigation, and where close to a hundred arrests were made, the failure to do a conflict check and advise the defence of the results is difficult to comprehend. It is not surprising that no explanation was offered by the Crown for the year that elapsed between the Crown’s awareness of the issue and the disclosure of it to the defence. It is hard to imagine what the explanation could be.

[114] Had the issue of the conflict been less remote to Mr. Brown, and the evidence before me been more clear with respect to what steps were or were not taken by the Crown with respect to the issue, this factor would have played a far more significant role in my assessment of the reasonableness of the Crown’s plan.

[115] That being said, with the exception of the conflict issue, I find that the Crown’s approach to executing the prosecution of this complex case was not unreasonable. This was a voluminous, heavily litigated complex case involving numerous parties. That it took just over 23 months to prosecute is not unreasonable in all of the circumstances.

[116] I do not find that Mr. Brown’s s. 11(b) rights were violated.

Released: December 15, 2022 Signed: Justice Newton-Smith

Footnotes

[1] At the direction of the RSJ, and on the agreement of the parties, the 11b Application was argued at the beginning of the scheduled trial dates. As was agreed by the parties, the trial commenced upon conclusion of the 11b argument without adjourning for a decision. The evidence and argument on the trial concluded on November 23, 2022, a day earlier than scheduled.