ONTARIO COURT OF JUSTICE
CITATION: R. v. Bohnsack, 2022 ONCJ 603
DATE: 2022 08 02
COURT FILE No.: London 20-6048
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
— AND —
JOHN BOHNSACK, FRANK STRAUSS
Applicants
Before Justice M. B. Carnegie
Heard on January 21, 2022, March 8, 2022, May 3rd, 2022
Reasons for Judgment released on August 2, 2022
Tremblay, Robert........................... counsel for the respondent, Federal Crown, PPSC
Prevost, Aaron.............................................. counsel for the applicant, John Bohnsack
Lockyer, James; Zeeh, Craig....................... counsel for the applicant, Frank Strauss
Sections 11(b) and 24(1) Charter Application Ruling
CARNEGIE J.:
[1] The Applicants apply for a stay of proceedings, under section 24(1) of the Charter of Rights and Freedoms,^1 asserting that their right to be tried within a reasonable time, as enshrined in s. 11(b) of the Charter, has been infringed.
[2] On February 20, 2020, as part of a multi-jurisdictional investigation involving the multiple police services, nine accused were charged with eleven various offences under the Controlled Drugs and Substances Act,^2 the Cannabis Act^3 and the Criminal Code of Canada.^4 On February 21, 2020, an Information was sworn for which the Applicants were, independent of each other, charged alongside co-accused with the following offences:[^5]
(1) John Bohnsack:
(i) Count 1: Conspiracy to traffic in a controlled substance, contrary to s. 465(1)(c) of the CCC;
(ii) Count 2: Possession of a Schedule I substance, namely Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
(iii) Count 3: Possession of Cannabis for the purpose of distribution, contrary to s. 9(5) of the CA;
(iv) Count 4: Possession of a prohibited weapon, a Conductive Energy Weapon, not being licenced, contrary to s. 92(3) of the CCC;
(v) Count 5: Possession of a prohibited weapon, a Conductive Energy Weapon, not being licenced, contrary to s. 92(3) of the CCC;
(vi) Count 9: Possession of a Schedule I substance, namely Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
(vii) Count 10: Possession of Cannabis for the purpose of distribution, contrary to s. 9(5) of the CA;
(viii) Count 11: Possession of a Schedule I substance, namely Oxycodone, for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
(2) Frank Strauss:
(i) Count 6: Possession of a Schedule I substance, namely Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
(ii) Count 7: Possession of a Schedule I substance, namely Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and
(iii) Count 8: Possession of Cannabis for the purpose of distribution, contrary to s. 9(5) of the CA.
[3] On October 7th, 2021, five days were set for pre-trial Charter applications (Garofoli applications) on March 31st, April 1st, May 2nd, 3rd and 5th, 2022, as well as seven days set for trial on August 8th – 12th, and August 22nd – 23rd, 2022. From the date the Information was sworn to the anticipated completion of the trial, 915 days will have elapsed, some 30 months and 3 days.
[4] The Applicants claim that substantial disclosure delays frustrated the progress of this matter such that they were effectively prevented from setting trial dates until October of 2021. The Crown counters that while substantive disclosure delays occurred, the COVID-19 pandemic largely prevented the scheduling of trial matters throughout this intervening timeframe. These COVID-19 disruptions should be deducted, in their totality, from any calculus of the attributed delay as demonstrative exceptional circumstances.
[5] Specifically, having not waived any delay, Applicant Strauss identifies three “distinct drivers of delay” for which he claims he could not reasonably remediate:
(1) there was considerable disclosure delay by the Crown (in particular, the disclosure of redacted warrant related materials);
(2) some delay was occasioned by the conduct of the Applicant, Mr. Bohnsack; and
(3) the court offered pre-trial and trial dates some five and ten months out from dating setting in October of 2021.
[6] Equally, having not waived any delay, Mr. Bohnsack shares Mr. Strauss’ delay concerns yet justifies any attributed delay to him as occasioned by a continuing lack of timely disclosure from the Crown.
[7] For the reasons that follow, I cannot agree with the Crown’s submission that exceptional circumstances justify a reduction of delay below the constitutionally acceptable threshold. On this evidentiary record, I find that the Crown cannot shield its lack of disclosure diligence behind a cloak of pandemic legitimacy. Delayed disclosure, not pandemic disruptions, caused the vast majority of delay in this matter. Therefore, I am compelled to find that the Applicants right to be tried within a reasonable time has been breached.
Factual Background
[8] In late 2018, members of the Nova Scotia RCMP commenced an investigation into the trafficking of cocaine from Ontario to Nova Scotia. The targets of the investigation were members of various chapters of the Hell’s Angels, including the Applicants. The RCMP, OPP and the London Police Service conducted the investigation which included confidential sources and both physical and electronic surveillance. Over the course of a year, these investigative efforts were supported by over 100 judicial authorizations.
[9] The Applicants were arrested on February 20, 2020, for a variety of drug trafficking and related charges. They were two of nine accused persons charged. Upon the arrest of Mr. Bohnsack, police searched three associated residences and a vehicle, seizing 533 grams of cocaine, 1,825 grams of opium, 847 grams of cannabis marijuana, 42 Oxycodone pills, 26 Codeine pills, $39,235 in cash (with an additional $4,065.55 on his person) and a variety of drug paraphernalia. Upon the arrest of Mr. Strauss, police searched and seized 991 grams of cocaine, 328 grams of cannabis marijuana, $2,270 in cash (with an additional $5,800 on his person) and various cutting agents and a hydraulic shop press from his vehicle as well as his residence.
Application History
[10] This application has had a turbulent history. Over the course of four judicial pre-trials between March and August 2021, no reference to an intended s. 11(b) application was made. Instead, it was scheduled after the Charter (Garofoli) applications and trial dates were set. Not having been flagged and initially scheduled, this application became bifurcated. Applicant Strauss filed and then argued his s. 11(b) application on January 21, 2022. Weeks later, Applicant Bohnsack sought leave to join the already argued s. 11(b) application having missed out on the earlier efforts. Instead, I instructed Mr. Bohnsack to bring his own s. 11(b) application which was subsequently filed and argued on March 8, 2022. As a result, these reasons will deal with both applications collectively, having considered them independently.
[11] These reasons were delayed by intention. This matter was pre-tried on four occasions between March and August 2021. While the remaining defendants were discussed and ultimately dispensed with, these applicants first identified pre-trial applications and estimates for a preliminary inquiry. During the March 29th, 2021 judicial pre-trial, Applicant Strauss made it known that he was intending to challenge the two wiretap authorizations as well as a distinct issue respecting the misrepresentation of Mr. Strauss’ criminal history on the pivotal ‘takedown’ search warrant Informations to Obtain. As a result, five days were targeted to address the various Charter (Garofoli) issues, inclusive of a leave application to cross-examine multiple affiants.
[12] With respect to these identified pre-trial applications, the pre-trial justice, relying upon the parties’ representations, reasonably scheduled a gap between the anticipated multi-affiant leave to cross-examine application as part of the Garofoli process and the evidentiary and submissions phase. Further, anticipating some complexity, the pre-trial justice suggested a 120 day gap between the completion of the Garofoli applications and the commencement of trial to the trial judge sufficient time to make evidentiary rulings. Unfortunately, those reasonable steps were made moot by a late alteration to the scope Mr. Strauss’ Garofoli application. In the end, parts of only three days became necessary to complete the identified Garofoli applications – in total, less than a day and a half of court time was needed from March 31, 2022, and May 2nd – 3rd, 2022, instead of the scheduled five days as planned. This was because, upon filing the Garofoli application in March 2022, Applicant Strauss restricted his challenge to the misrepresentation issue alone, not the more involved wiretap challenge previously highlighted.[^6]
[13] As a result of this late change in course, the Crown conceded the leave for cross-examination application and provided the single affiant for cross-examination, followed by focused argument the next day. And, upon this more restricted pre-trial application process, I was now, as I anticipated, in a better position to more fulsomely assess the merits of this application. I requested and received supplementary oral and written submissions respecting the implications of the Garofoli application upon this application.
Summary of the litigation history
[14] A comprehensive summary of the court appearances and judicial pre-trial conferences, relied upon for these reasons, is found in Appendix A to these reasons. Here, I will merely highlight and take note of certain periods and their respective progress. In total, the Applicants made 17 appearances in a remand or appearance court before a Justice of the Peace between February 2020 and October 2021. On top of that, four judicial pre-trials were conducted. At no point during the history of this proceeding was the matter referred by the Court, or any of the parties, to a Case Management Court before a justice of this court. As will be noted, matters proceeded along within the administrative court setting until trial and pre-trial dates were finally confirmed on October 15, 2021, almost 20 months from the first appearance dates.
(1) The administrative and disclosure phase
[15] The Applicants appeared repetitively before a remand court for a substantial period of time. Principally, this was as a result of delayed disclosure. The Respondent has acknowledged that first party Stinchcombe disclosure was not completed until June 3, 2021, some fifteen and a half months after the Applicants’ arrest. Indeed, a first disclosure package was not provided until September 22, 2020 – over seven months after arrest. Thereafter, “substantial disclosure” remained outstanding, inclusive of Part VI authorization and ‘takedown’ warrant materials and their associated investigative notes. A significant disclosure package was sent out on October 8, 2020 (including an ITO for ten executed search warrants at the time of takedown). The most comprehensive disclosure package (a hard drive containing some 6,000 pages) eventually became available in December of 2020, purportedly from the Nova Scotia RCMP once it was redacted through the Halifax PPSC office and then sent to the London PPSC for review and disclosure. Only after this package was disclosed were the Applicants prepared, or even able, to move the matter along towards a judicial pre-trial process which ultimately resulted in substantive resolution for most of the defendants and the discussion of the nature of proceedings for these two Applicants. It is noteworthy that this pre-trial process commenced before full Stinchcombe disclosure was provided to the Applicants.
[16] This administrative and disclosure phase endured for almost a year until the Applicants’ February 12, 2021, appearance. Then, the Court was advised that a judicial pre-trial conference was being sought. Over the course of this time period, the court’s record is littered with repetitive references to the Applicants’ “eagerness” to receive disclosure and move this matter forward. Further, in response the record is equally littered with Crown references to the interjurisdictional nature of this investigation and the lack of control that the local PPSC office had over receipt of requested disclosure from the Nova Scotia RCMP authorities.
(2) The judicial pre-trial phase
[17] Once sufficient disclosure was in hand, the parties progressed to the judicial pre-trial phase. Ultimately, four pre-trials were required. The first two, held on March 29th and May 10th, 2021, settled the respective positions of many of the parties. Clearly, the Crown was managing nine different parties and were, according to the JPT Reports generated, considering a variety of litigation options. These options, to the Crown’s credit, cumulated in the resolution of all but two defendants, the Applicants.
[18] During the first two pre-trials, the Applicants diverged in approach. Applicant Strauss was intent upon proceeding directly to trial in the Ontario Court of Justice. However, Applicant Bohnsack was intent upon proceeding before the Superior Court of Justice with a preliminary inquiry in the Ontario Court of Justice. As such, Applicant Strauss was compelled to follow along but, notably, opted not to actively participate in the contemplated preliminary inquiry by refusing to contest committal and merely attending passively by Zoom. To the Crown’s credit, they actively considered severing both Applicants given the disparity of their trial intentions and the disparity in their respective anticipated Charter challenges to the judicial authorizations. However, no severance application was brought nor administrative affected by the Crown.
[19] After two apparently productive judicial pre-trials, a preliminary hearing date (only 4 hours deemed required in addition to substantive s. 540(7) materials) could have been set by the May 21st, 2021 return date. Unfortunately, ongoing Covid-19 practice restrictions limited date setting until after June 2nd, 2021. And, despite the “eagerness” of Applicant Strauss to have a preliminary hearing date set, Applicant Bohnsack was affectively not as eager. Counsel for Applicant Bohnsack had not submitted a post judicial pre-trial Trial Readiness Certificate,^7 locally mandated to permit the scheduling of the inquiry. In part, this may have been affected by further outstanding disclosure (which turned out to be finger print evidence apparently implicating Applicant Bohnsack) which the Crown believed may change Applicant Bohnsack’s intentions on setting a preliminary hearing date.
[20] By the time of the June 11, 2022 appearance, Applicant Bohnsack had still not submitted his date setting documentation. But, he then advised through counsel that a “discovery prelim” was now preferred, as opposed to the more fulsome and contested preliminary inquiry. By July 16th, 2021, this discovery prelim intention had evolved into a potential change in his mode of trial election after the Applicants’ counsel had further discussions. Applicant Bohnsack’s instructions had to be confirmed but a further judicial pre-trial was now required to plan for a joint Ontario Court of Justice trial. All the while, Applicant Strauss impatiently waited.
[21] On July 29th, 2021, a third judicial pre-trial was conducted. The scope of the intended Charter challenges to the judicial authorizations (Part VI and ‘takedown’ warrants) was still broad (inclusive of a potential Step 6 Garofoli process). Five days were contemplated for pre-trial applications with a 2-3 week trial estimate. The Crown still needed to consult with RCMP affiants to resolve some identified disclosure issues. A final pre-trial would be required in a couple of weeks.
[22] On August 16, 2021, the fourth and final judicial pre-trial was conducted. At that point, five days were settled upon for the Charter related pre-trial applications with an interval of 120 days allotted (to permit judicial ruling on the admissibility of evidence) before a seven day trial was scheduled.
(3) The date setting phase
[23] On August 20, 2021, the Applicants were back before the remand court to update their progress post judicial pre-trial discussions. It was one day shy of the case’s 18 month court anniversary. Applicant Strauss maintained his eagerness to set dates. However, Applicant Bohnsack still did not have his date setting documentation complete and/or submitted. Further, the Crown was still awaiting officer availability dates from the required Halifax RCMP officers.
[24] On September 3rd, 2021, Applicant Bohnsack had finally submitted his date setting documentation. However, now the Crown had not submitted their own. The Court cautioned the parties that these matters had now eclipsed the 18 month mark and that unless dates were confirmed on the following date the matter would be referred to Case Management Court before a judge of the Ontario Court of Justice. That caution had little effect, as on September 24, 2021, dates were still not set because the Crown had not submitted their TRC because they were still awaiting availability dates from “out of jurisdiction officers”.
[25] On October 7th, 2021, the parties finally attended date setting court. The first offered dates for pre-trial applications was March 31st and April 1st, 2022. All were available. Applicant Bohnsack’s counsel was unavailable for the offered April 5th and 25th dates but all were available for the following dates offered: May 2nd, 3rd and 5th, 2022. As for the trial, the Trial Coordinator shortened the 120 days recommended from the judicial pre-trial and offered dates three months out. All were available on August 8th – 12th and 22nd – 23rd, 2022. These dates were subsequently confirmed at the Applicant’s October 15, 2022 appearance.
[26] As mentioned, it is noteworthy that no dates were pre-selected for this application. The reason is plain and born out by the JPT Reports. The s.11(b) application was not identified as anticipated or forthcoming before the judicial pre-trial justice. As noted above, this led to a bifurcated and repetitive application process and is the likely cause of no reference being made at the October 7th, 2021 date setting court appearance.
[27] It is also noteworthy that at no time did the Crown or Applicants seek to refer this matter to Case Management Court (to address disclosure delays or other issues) during either the initial disclosure or judicial pre-trial phases. It was not until after these matters eclipsed the 18 month mark did the Court suggest that a Case Management Court referral may be necessary.
COVID-19 pandemic impacts on London courthouse scheduling
[28] On March 11, 2021, the World Health Organization declared that COVID-19 had become a global pandemic. In response, the London courthouse, as part of a province-wide response, closed to the public and most staff on March 17, 2020 and only reopened more broadly on July 26, 2020. In this intervening timeframe, access to the Federal Crown office was restricted which had an unclear impact upon the day-to-day processing of ongoing cases.
[29] To manage out-of-custody criminal matter and continue to mitigate pandemic health concerns, a number of presumptive adjournment intervals were instituted respecting local court processing of ongoing matters by videoconference, inclusive of the Applicant’s case, including:
(1) between April 9, 2020 to June 18, 2020;
(2) between June 8, 2020 to August 27, 2020; and
(3) between August 27, 2020 to October 1, 2020.
[30] Also, the scheduling of out-of-custody trials that had not been adjourned due to pandemic court closures, as here, was suspended over two time periods:
(1) from March 17, 2020 to September 28, 2020; and
(2) from April 13, 2021 to May 17, 2021.[^8]
Legal Framework and Analysis
[31] The Applicants’ right to a trial within a reasonable time is guaranteed by s. 11(b) of the Charter. The Supreme Court modernized the framework for dealing with unreasonable delay in its seminal decision, R v Jordan.[^9] There, the court established ceilings for delay – namely 18 months for provincial court matters, 30 months for federal court matters. Ultimately, if the total delay from the date the Information was sworn to the actual or anticipated end of the trial, minus any defence delay, exceeds the ceiling, then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish that exceptional circumstances exist barring which the delay is unreasonable and the matter is stayed. Conversely, if the total delay, minus the defence delay or any period attributable to exceptional circumstances falls below the presumptive ceiling, the onus falls to the applicant to establish that the delay is nevertheless unreasonable. Such cases, however, will rarely result in a stay of proceedings.
[32] The following analytical steps, summarized by our Court of Appeal in R v Coulter, are to be taken in applying the Jordan framework:
(1) calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument;
(2) subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
(3) compare the Net Delay to the presumptive ceiling;
(4) if the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(5) subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);
(6) 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; and
(7) if the Remaining Delay falls below the presumptive ceiling, the onus is on the applicant to show that the delay is unreasonable.[^10]
[33] Delay that may be subtracted at the outset from the total delay consists of two components:
(1) periods that are waived, implicit or explicitly – but it must be clear and unequivocal; and
(2) periods of defence caused delay.[^11]
[34] Where, after deducting defence caused delay, the total delay still exceeds the Jordan ceiling, it falls to the Crown to show that the delay is reasonable due to the presence of exceptional circumstances. These circumstances “lie outside the Crown’s control” in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.[^12] To rely upon exceptional circumstances, the Crown must show that it took reasonable steps to avoid and address the problem where possible – in particular, it took these steps before the total delay exceeded the ceiling. Reasonable steps can include accessing case management processes, streamlining evidence or trial issues with the assistance of the defence, coordinating pre-trial applications or resorting to any other procedural means.[^13]
[35] The Supreme Court’s comments in Jordan respecting discrete exceptional events are crucial to my analysis:
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).[^14] [emphasis added]
Therefore, a lesson from Jordan is the obligations for all parties to take active steps to prevent unnecessary delay. Those steps can include the failure of parties and the court to engage case management practices to assist in procuring outstanding disclosure. But, in discrete exceptional circumstances, the Crown must mitigate the resulting delay where possible.
Defence Caused Delay
[36] The Supreme Court of Canada clarified what constitutes defence delay in R v. Cody:
Defence delay arises from a defence waiver or is caused solely by the conduct of defence. The only deductible defence delay under this component is, therefore, that which: 1. Is solely or directly caused by the accused person; and 2. Flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “deliberate and calculated defence tactics aimed at causing delay which include frivolous applications and requests (Jordan, at para 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para 64). These examples were, however, just that – examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as we made clear in Jordan, it remains “open to trial judges to find that their other defence actions or conduct have caused delay” warranting a deduction (para 64).
The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.[^15]
[37] This “illegitimate” defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Illegitimate in the Jordan context is not tantamount to a finding of professional misconduct. Indeed, defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is engage in illegitimate conduct and then have it count towards the Jordan ceiling.[^16] Here, both Applicants noted no expressed or implicit waivers of delay were present.
(1) Changing mode of trial ‘elections’ and counsel unavailability
[38] The Crown attributes considerable delay to the conduct of Applicant Bohnsack. This conduct communes to or was acquiesced by Applicant Strauss. It submits that Applicant Bohnsack’s mode of trial “re-election” (or, at least his change of notice of intention respecting election) as well as his failure to file scheduling forms contributed to significant delay between May 21st and September 24th, 2021, some 127 days of resulting “communal delay”. I disagree. Both these issues are interconnected. On May 21st, 2021, it was noted in court that Applicant Bohnsack had clearly not filed his necessary scheduling documentation after the completion of two judicial pre-trials. However, also on record was curious and telling commentary from the Crown respecting the recent disclosure of information (apparently fingerprint evidence) which “may or may not change the nature of the preliminary hearing that we’re setting.” By the next appearance on June 11th, 2021, Applicant Bohnsack was representing an altered intention for a “discovery prelim” which then evolved into a probable intention for an Ontario Court of Justice trial by the next appearance on July 16th, 2021. On this evidentiary record, I cannot determine to what extent this new inculpatory fingerprint evidence, disclosed before the May 21st, 2021 appearance, played into Applicant Bohnsack’s decision making process but it is clear, as was outwardly suspected by the Crown, that it played some role. Having contributed to the issue as part of an ongoing failure to make timely disclosure, I find that the Crown cannot profit by categorizing this delay as defence caused.
[39] However, once further judicial pre-trials were held and matters where otherwise ready to be set down for trial, Applicant Bohnsack continued to be tardy in filing his scheduling documentation. This tardiness manifested itself between August 20th, 2021 and September 24th, 2021, some 36 days. Unfortunately for the Crown, this timeframe coincided with their inability to secure “out of jurisdiction” availability dates for relevant police officers. Simply put, the Crown was not then in a position to set dates until the October 7th, 2021 dating setting court appearance. So, while 36 days of defence delay may have been communally available, the Crown’s own unpreparedness to set trial dates negates any credit for associated defence delay.
[40] Second, Applicant Strauss has conceded some brief defence delay respecting their unavailability for the conduct of the first offered judicial pre-trial. However, the Crown attributes two periods of time where communal defence delay applies to Applicant Srauss. The first relates to the conduct of Crown pre-trial discussions. Local administrative practice required all counsel to have conducted CPTs before a date for a judicial pre-trial could be set. While the Applicant conducted his CPT with the Crown on January 27, 2021, the remaining defendants’ CPTs were not completed until February 17, 2021. As a result, communal delay attributable to the Applicant is 22 days because regardless of Applicant Strauss’ efforts, the Crown had to await the completion of CPT discussions with the other defendants. Second, when global judicial pre-trial dates were canvassed, the earliest date offered by the Trial Coordinator was March 11, 2021. The Crown was available but not all defendants were available. As such, it is argued that a further communal delay between March 11th and March 29th, 2021 (the date of the first JPT) was accrued amounting to a further 19 days. This later delay is also communal in nature for the same reasons, and it equally applies to both Applicants.
[41] Where an applicant’s counsel is unavailable for a court process or substantive date offered by the court, and its effect delays proceedings due to Crown availability, that quantum of time can be classified as defence caused delay.[^17] Given the nature of the multi-accused proceedings, not subject to a severance application, the unavailability of one co-accused’s counsel practically delays proceedings for them all. Parsing out relative availabilities between defendants would unfairly advantage some over others and, practically, disadvantage the Crown who cannot mitigate the delaying effect. Therefore, I have no difficulty attributing these identified delays as communal in nature regardless of the potentially conflicting availability between applicants. A total of 22 days pending the completion of Crown pre-trial conferences and 19 days pending the global availability for a judicial pre-trial conference will be assessed as defence delay, totalling 41 days.
(2) Pre-trial application changes
[42] As already highlighted, also relevant within this court schedule-imposed time to trial timeframe is the conduct of the pre-trial applications. Five days for pre-trial applications were set, in good faith, in October of 2021 on the basis of representations made during the judicial pre-trial process. However, less than half of that time proved necessary. I find that this was exclusively because Applicant Strauss significantly reduced the scope of his Garofoli application at the 11th hour. Indeed, in argument his counsel conceded that it was not until March of 2022 that the issue was fully assessed and a determination was made to reduce the application to misrepresentations made to the issuing justice respecting the “takedown” search warrants alone. Predictably, the Crown conceded leave to cross-examine the involved affiant, a focused cross-examination ensued followed by equally focused argument which took, collectively, less than two days. This is not by way of punishing an applicant for discovered efficiencies. Had the upfront work been completed earlier by Applicant Strauss’ counsel, it is entirely possible that pre-trial applications could have been completed by April 1st, 2022 saving more than a month of worked in deliberation time and allowing for the canvassing of available July 2022 trial dates.
[43] However, this reasoning proved moot in application. Despite representations on October 7th, 2021 that the involved affiants would be available on April 1st, 2022 for cross-examination, when the time came the Crown advised that the involved affiant was not available until the May 2nd, 2022 date – a month later. An adjournment was reluctantly granted making any time savings, practically speaking, no more than 3 days.
[44] This three-day defence caused delay must be assessed communally as the Crown could not mitigate the effect of the resulting delay against Applicant Bohnsack. As a result, both Applicants will have three additional days of delay attributed to them.
(3) Calculating Defence Delay
[45] As a result of these findings, both Applicants have attributable defence caused delay, derived in a communal sense based upon the nature and context of these proceedings, amounting to 44 days.
Deliberation time deduction?
[46] The Crown argues that the time budgeted for court deliberation between the pre-trial motions and the trial, as directed by the judicial pre-trial justice, should be deducted from the remaining delay quantum. Here, while 120 days were directed by the court, in effect the deliberative timeframe was from May 3rd and August 8th, 2022, some 98 days.
[47] Support for this proposition is drawn by analogy from the deliberative timeframe that may occur after the evidentiary and submissions phase of a trial proceeding. In R v KGK, the Supreme Court concluded that the time for a court’s deliberation should be excluded from the presumptive ceiling quantum, if in itself that period of time is otherwise reasonable. As a result, the court narrowed the application of Jordan’s presumptive ceilings to the end of the evidence and argument at trial. This is also because the time it takes a court to deliberate on a verdict is outside Crown’s control.[^18] Can this post trial submissions scenario be applied to pre-trial applications? I find that it can. As the judicial pre-trial justice recognized and Applicant Strauss’ counsel’s comments during the October 7th, 2021 date setting appearance reflect, the trial judge reasonably requires time to assess the evidence and rule on its admissibility, particularly in the context of distinct Garofoli applications. The trial cannot meaningfully progress without time for those rulings to be made. Further, evolving common law support in the context of pre-trial applications is developing outside of Ontario which I find persuasive.[^19]
[48] Satisfied that this deliberative timeframe should properly be excluded from the remaining delay quantum, where in the established Jordan framework does this best fit? In R v Chang, the Alberta Court of Appeal resolved that deliberation time should be exempt from Jordan ceilings and be deducted from the gross timeline when calculating net delay.[^20] I find that reasoning, coupled with the reasoning in KGK, persuasive.
[49] Therefore, the deliberative timeframe between pre-trial applications and the commencement of trial, 98 days, will be deducted from the total net delay.
Total Net Delay
[50] Having considered the communal defence caused delay (44 days) and the judicial directed pre-trial deliberation delay (98 days), I find that a total of 142 days must be deducted from the accrued total gross delay of 915 days (or 30 months and 3 days). The resulting net delay is 773 days, or approximately 25 months and 23 days.
Exceptional Circumstances: Covid-19 as a Discrete Event
[51] As the net delay exceeds the presumptive ceiling, the remaining analysis shifts to a consideration of whether any exceptional circumstances exist which could operate to reduce and make reasonable the remaining delay. When assessing exceptional circumstances, the seriousness of the charges is not part of the analysis.[^21]
[52] In Ontario, numerous courts have held that the COVID-19 pandemic amounts to an exceptional circumstance under the Jordan framework.[^22] This was not contested before me and for good reason. Instead, the Applicants succinctly reframed the issue. Here, they claim, the pandemic is not the cause of the delay. Instead, the delay is a result of the Crown’s failure to comply with its Stinchcombe obligations in a timely manner.
[53] However, when disclosure delays run concurrent to a discrete event, what takes priority? The proposition that delay in providing disclosure may encumber, even extinguish, the Crown’s attempt to rely on the pandemic as an exceptional circumstance, at least for the period of time that disclosure was outstanding, is now well founded in common law.[^23] The reasoning behind most of these decisions stem from two unreported decisions: R v Silva, a decision of Kenkel J., released on May 19, 2021 in Newmarket and R v Ravikumaran, a decision of Pringle J., released on June 29, 2021 in Toronto.
[54] In Silva, the applicant faced impaired operation and other associated charges. Core disclosure was provided in the fall of 2019 but an accident report was outstanding. The court found that the matter was ready to be set for trial and that judicial case management should have been engaged to resolve the outstanding disclosure issue. This was not done. Instead, multiple adjournments for this additional disclosure blead into the COVID-19 pandemic presumptive adjournments in 2020. Disclosure of this report was not forthcoming until January 2021 which, thereafter, led to a relatively efficient judicial pre-trial and trial scheduling for March 2021. The total delay amounted to 25 months. Accepting that COVID-19 was a discrete event in accordance with Jordan, the court nevertheless declined to subtract the delay occasioned by COVID-19 administrative delays as the Crown had not remedied the disclosure issue during the COVID delay period.
[55] In Ravikumaran, the applicant was also charged with impaired driving related offences. After core disclosure was made, video interactions between the police and the applicant at the detachment remained outstanding. Despite this outstanding disclosure, the defence set a trial date agreeing to follow-up on disclosure in the interim. The resulting trial dates set fell into a COVID-19 court cancellation period. Through a variety of “misadventure[s]”, this video disclosure was eventually sent to the Crown but not disclosed for 16 months, five months before the newly scheduled trial dates. The court found that the outstanding disclosure was the primary reason for the delay. Pringle J. commented: “I am not satisfied that the Crown can rely on the pandemic as an exceptional event while this essential disclosure was outstanding.”
[56] Indeed, I find the circumstances here quite similar to those faced by Block J. in R v Bui where the court faced disclosure delays during pandemic imposed administrative delays.[^24] The applicant was charged with trafficking under the Controlled Drugs and Substances Act. The litigation period spanned COVID-19 pandemic administrative delays. The gross delay to trial completion was 20 ½ months. The pandemic delayed the scheduling of the first trial. When it eventual came, significant disclosure (largely relating to warrants, warrant source materials and the analysis of electronic devices) remained outstanding for over a year and was only provided on the eve of the first trial which necessitated an adjournment. The defence made it plain throughout that their focus was associated s. 8 Charter issues. From the beginning of the case, the court noted that the defence was “highly energetic and pro-active” in its disclosure approach.[^25] As here, judicial pre-trial conduct noted the continuing absence of substantial disclosure. In contrast, during the time when trials were on hold due to the pandemic, there was no evidence to explain the Crown’s failure to provide significant disclosure, no evidence outlining any impediments to the Crown’s disclosure obligation, and no evidence respecting the efforts made by the Crown to fulfil their disclosure obligation. The court found that the Crown could have used the court’s pandemic related slowdown to deal with its disclosure obligation. Its failure to do so “doomed” their attempt to rely on the pandemic as an exceptional circumstance.[^26] A stay of proceedings was granted based upon a breach of the Applicant’s s. 11(b) rights.
[57] Persuaded by existing common law, I conclude that the Crown cannot shelter behind a global pandemic when it has not satisfied its constitutional disclosure obligations. Concurrency in those timeframes will, without a nexus being shown that the discrete event caused the disclosure delay, inhibit the application of exceptional circumstance delay deductions.
(1) The scope of Covid-19 impact
[58] The Crown has broadly cast much of the delay associated with this matter as engulfed within the paralyzing effect of the Covid-19 pandemic. Reduced court operations imposed by this pandemic shifted the court’s focus to a prioritization of in-custody matters. The local PPSC was left, reactively, to follow suit. Reoccurring presumptive adjournments for out-of-custody accused, from March 2020 through the late fall of 2020, were enforced. In addition, new out-of-custody trials (for which this matter qualified) could not be set until June 2nd, 2021. As such, and by simple implication, until June 2nd, 2021, it is argued that this Covid-19 discrete event, in essence, froze time. For disclosure delays to have a meaningful impact upon a s. 11(b) analysis they must have actually caused delay in the case.[^27] Here, it is argued, they largely could not have delayed the setting of substantive dates because the local administrative Covid-19 protocols prohibited the setting of dates until June 2nd, 2021. On June 3rd, 2021, full Stinchcombe disclosure was complete and the initial judicial pre-trial process had already occurred. At that point, but for other defence conduct, substantive dates could have been set.
[59] Support for this proposition, of sorts, was offered by reference to R v Simmons where Nakatsuru J. commented that “[i]t would not be wrong to attribute the whole period of delay to the Covid-19 public health crisis without parsing out the periods of delay.”[^28] Nakatsuru J. was acting in Simmons as a trial court and, therefore, his determination and reasoning is not binding upon me contrary to the Crown’s suggestion – it is, however, to be seriously considered. Its reasoning represents the Crown best argument to have the remaining delay fall below the presumptive Jordan ceiling.
[60] Having carefully considered the reasoning in Simmons, I find, on the strength of existing authority and based upon the circumstances of this case, that I am not persuaded to follow suit. First, unlike here, the Simmons court faced an entirely different context involving an adjourned trial due in March 2020 due to the pandemic. The live issue there was whether all or merely some of the Covid-19 caused delay qualified as a discrete event. Should the discrete event end when courts, shut down by Covid-19, first started setting trial dates again? The Simmons allegations stemmed from July of 2017 and were now before the Superior Court of Justice for trial. Unfortunately, the trial was set in March 2020 shortly after the pandemic struck. The Court considered the period of March 16, 2020 through January 11, 2021 (the rescheduled trial date) as attributable completely to that discrete event, the Crown having satisfied the Court that it had made proactive efforts to reasonably mitigate delay despite the pandemic. There were no other alleged contributing causes for delay. However, I agree with Agro J.’s finding in R v Vorontosov that Simmons reflects considerations specific to the Superior Court of Justice and the challenge of scheduling jury trials throughout the pandemic.[^29] Here, a blanket approach devoid of contextual analysis would be contrary to the approach mandated in Jordan. Before me, much of the attributed delay came before trial dates were even set – the resulting direct impact of the Covid-19 shutdowns having passed.
[61] Somewhat akin to arguments made before me, the Crown in R v Schardt argued that while no adjournments were caused directly by COVID-19, the pandemic “has had an enormous impact on the operation of the justice system and its participants, which has undoubtedly had an impact on the scheduling of matters in this case.”[^30] In that case, Niecharz J. considered how to quantity the indirect impact of COVID-19 on delay for purposes of s. 11(b) of the Charter. Of course, he found that the pandemic represented a public health crisis amounting to a discrete event. It has caused a disruption to court services beyond anyone’s control. However, the court noted that it is not sufficient for the Crown to simply point to the pandemic as a discrete event to justify delay. Instead, the court cast the analysis as follows:
As stated in R. v. Greenridge, 2021 ONCJ 57, at paras. 26 and 30, it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay).
A finding that the pandemic and consequent impact on the court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period: R. v. Ali, 2021 ONSC 1230, at paras. 40 and 41.[^31] [emphasis added]
In applying these principles, the Schardt court concluded that the COVID-19 pandemic was “merely ongoing at the same time as the delay”[^32] was manifesting in that case. It refused to account for Crown disclosure delays as part of any discrete event COVID-19 allowance. I must undertake a similar analysis to determine the cause of any discrete event delay here.
[62] Further, here, the Crown’s proffered scheduling narrative bears closer scrutiny. The Crown argues that, effectively, trial and pre-trial dates could not have been scheduled until, at the earliest, June 2nd, 2021 – one day before complete Stinchcombe disclosure was completed and judicial pre-trials had occurred. This is inaccurate. Over the course of 2020 – 2021, and in keeping with the evolving local Practice Directions relating to Covid-19 scheduling impacts from the Ontario Court of Justice Local Administrative Justice, out-of-custody matters could not be scheduled for trial during the following windows: (1) from March 17th, 2020 – September 28th, 2020; and (2) from April 13, 2021 to June 2nd, 2021. As a result, there was a window between September 28th, 2020 and April 12, 2021 for out-of-custody matters to be set. This scheduling window was missed not simply because the first two judicial pre-trials were not completed until May 10th, 2021, but because protracted disclosure delays prevented judicial pre-trial engagement until March of 2021. This reality substantially rebuts the global effect of the Crown’s argument.
(2) Was disclosure delay impacted by Covid-19
[63] The Crown contends that the Covid-19 pandemic had “wide-ranging detrimental impacts” upon the Respondent’s ability to conduct prosecutions, and specifically, it adversely impacted on the Crown’s ability to provide timely disclosure. Unfortunately, little relevant evidence has been provided to support this claim. In Ms. Lazenby’s affidavit[^33] of January 11, 2022 (a paralegal working for the London PPSC office who managed the disclosure process), she summarizes what and when disclosure was made. As noted above, she verifies that three substantial “waves” of disclosure that were couriered to the applicants on December 10th and 30th, 2020, June 3rd, 2021 (when the Crown asserts Stinchcombe disclosure had been satisfied), and, finally, December 1st, 2021 (responding to additional disclosure requests). She also confirms that disclosure for this project investigation was vetted by the PPSC office in Halifax, Nova Scotia. She would courier disclosure materials once received to the defendants. What is not in evidence is the cause of the delay respecting the provision of disclosure. In paragraph 20 of Ms. Lazenby’s affidavit, generalized London PPSC office stressors caused by Covid-19 are raised but none of them are connected to this case. Indeed, there is a complete absence of evidence respecting how, if at all, Covid-19 impacted either the London PPSC or the Halifax PPSC offices and their processing of disclosure for eventual distribution. As a result, I am left with no evidentiary context to assess the Respondent’s Covid-19 disclosure delay rebuttal.
[64] This lack of evidence explaining the particular cause(s) for the delayed disclosure is problematic. Unlike in Lawson[^34] where the Crown presented an affidavit from their Case Management Coordinator outlining the specific impacts that the pandemic had upon disclosure processing, here the Crown has led no particularized evidence that relates to the case. Furthermore, a July 2nd, 2020 Notice to the Profession and Public from the Chief Justice of the Ontario Court of Justice outlined a series of steps to move cases forward despite the necessity of presumptive court appearance adjournments. Therein, it is noted that the Crown is expected to “actively screen and monitor cases and to move cases forward by doing the following,” including:
• screening files and providing initial disclosure, either directly to the accused
person (if self-represented) or to defence counsel; and
• promptly responding to disclosure requests, whether from the accused person (if self-represented) or defence counsel.
[65] It is on this evidentiary record that the Crown requests that I infer that Crown disclosure processing was substantially impeded by the Covid-19 pandemic. While I am sympathetic to the disruption that the pandemic wrought upon all justice participants, the local PPSC office included, I simply do not have a reasonable evidentiary foundation to make such an inference nor am I able to take judicial notice of same.
(3) Crown efforts to mitigate resulting delay
[66] When delay is accumulating and the defence’s eagerness to proceed is being noted time and again, it is incumbent upon the Crown to implement a plan to mitigate the effects of resulting delay. On this evidentiary record, I see little evidence of any efforts to expedite the proceedings – perhaps because a part of the disclosure related delay was caused by a third party disclosure process outside the London PPSC’s apparent control. On this evidentiary record, I am left to conclude that the London PPSC office, at least in part, fell victim to another office’s timeline for disclosure production. Beyond disclosure delays, however, there is little evidence that denotes any plan on the part of the local Crown to mitigate delay, particularly when it was clear to all that the Jordan timelines were approaching. No one, not the Crown or the applicants, suggested case management options before or even after the 18 month ceiling was breached. While the Court noted in September of 2021 that the Jordan ceiling had already passed and that future trial date setting delays would result in Case Management Court referral, that was not even followed through. There is no evidence even during the date setting court process on October 7th, 2021 that this matter was identified as Jordan sensitive and merited dates before those first offered by the OCJ trial coordinator. In totality, I simply have no evidence before me that outlines any plan on the part of the Crown to mitigate the effects of the resulting delay. This substantively countermands any credit that can be attributed to the Crown for the effects of an exceptional circumstance like the Covid-19 pandemic.
[67] In contrast, there is some evidence that the Applicants were prepared to move the matter forward when appropriate. Despite complete Stinchcombe disclosure not being produced until June 3rd, 2021, the Applicants, after receiving Wave 2 of disclosure in December 2020 were prepared to engage in the judicial pre-trial process to permit the setting of dates. Of course, Applicant Bohnsack struggled after multiple JPTs to have his date setting documentation completed and filed. As noted, some latitude is owed due to further and late disclosure during the JPT process (fingerprint information which, somehow and inexplicably, took well over a year to be disclosed) which, from the point of view of the Crown (as expressed on the record) was significant enough to potentially effect the Applicant’s intentions vis-à-vis a preliminary inquiry. Their hunch proved correct, although perhaps not as anticipated. Instead of waiving a preliminary inquiry or simply transferring to a discovery preliminary hearing as briefly contemplated, Applicant Bohnsack changed his mode of trial intentions and gave notice that he would join Applicant Strauss in electing a trial in the Ontario Court of Justice. If the Crown had relied upon a Superior Court of Justice proceeding to lengthen the Jordan timelines they should not have. The continuing late flow of relevant and important disclosure could reasonably have changed either Applicants’ mode of trial intentions, particularly when neither had made formal elections as to mode of trial – elections that were only made once dates for trial were confirmed.
(4) Covid-19 related backlog
[68] Instead of using a blanket approach, I nevertheless must consider the time offered to the parties for pre-trial applications and trial and whether that intervening timeframe was indirectly impacted by the Covid-19 pandemic. It would defy common sense to conclude that the substantive blackout periods for setting trial dates did not, particularly for out-of-custody matters, create a substantial backlog of matters that resulted in significant pressure and resulting longer delays in scheduling trials. Whether or not I have statistical evidence before me to verify this reality, which I do not, it remains an unquestionable reality to consider. However, I am left with little context to assess the scope of this indirect discrete event backlog impact. I have been provided with no statistical information respecting how the Covid-19 resulting backlog impacted trial scheduling in London in general, or the scheduling of this case in particular. Even if I arbitrarily attributed half of the time between October 7th, 2021 (when the dates were set) and August 23rd, 2022 (the estimated time of trial completion), some 160 days, which is undoubted too high, the resulting remaining delay would still exceed the 18 month Jordan ceiling.
(5) Calculating the discrete event deduction
[69] Having rejected any attribution of discrete event delay due to its conflict with the Crown’s disclosure obligations, and short of an arbitrary determination of the Covid-19 caused trial scheduling backlog, which I am not prepared to do on this evidentiary record,[^35] I can find no attributable exceptional circumstance credit to deduct from the established net delay of 773 days.
Exceptional Circumstances: Complex Case
[70] Despite the extent of disclosure and its nature (Part VI authorizations amongst over 100 judicial authorizations), the Crown does not claim that this matter qualifies as a complex case. Complex cases require “an inordinate amount of trial or preparation time” due to the nature of the evidence or the issues. As Moldaver J. noted in Jordan,
As for the nature of the evidence, hallmarks or particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding 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.[^36]
[71] I accept the Crown’s concession. Without more evidence, they are in the best position to determine whether this case meets complex case threshold. Further, even had the Crown advanced a complex case justification for excessive delay, they would also have to satisfy me that despite the complexity present, they had nonetheless developed and executed a plan to minimize the delay occasioned by this complexity. And, the Crown would have to link this complexity to the delay that ensued and demonstrate that, despite developing a plan to address the complexity and minimize the delay it was unable to do.[^37] As already noted, there is insufficient evidence suggestive that this burden could be met.
Total Remaining Delay
[72] Without deduction for exceptional circumstances, the outstanding delay amounts to 773 days, or approximately 25 months and 23 days, for each Applicant. This remains more than 7 ½ months above the Jordan presumptive ceiling of 18 months. Therefore, based upon the Jordan framework, both Applicants’ s. 11(b) rights have been breached.
Remedy
[73] As commented upon by Lamer C.J. in R v Rahey, a stay of proceedings is the “minimum” remedy for an infringement of the right to be tried within a reasonable period of time: “After the passage of an unreasonable period of time, no trial, not even the fairest possible trial, is permissible. To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter.”[^38] The Supreme Court has not revisited this position, inclusive of its footnote in Jordan wherein the majority refrained from doing so.[^39]
[74] As a result, having found that the Applicants’ s.11(b) rights were breached, I must stay these proceedings.
[75] There is an obvious societal interest is determining charges on their merits. This is particularly so when, as here, the charges are serious and allegedly involve elements of organized crime. However, the cost of undue delay impacts not only the justice system’s capacity to adjudicate matters, but it unfairly burdens the Applicants and, in the long-term, can have the effect of undermining public confidence in the administration of justice. All constitutional rights must have meaningful application and remedies. To proceed in the face of this unreasonable delay would be to perpetuate a breach of everyone’s right to be tried within a reasonable period of time, should that scenario ever emerge.
Conclusion
[76] In Lawson, Chapman J. poignantly observed that the Crown cannot have a “carte blanche immunity” from its constitutional obligations simply because they coincide with a pandemic. Principally, the Crown’s failure to remediate identified delayed disclosure, and thereby meet its constitutional obligation in a timely manner, even during the COVID-19 pandemic, doomed its capacity to use that discrete event as a relevant exceptional circumstance to justify the resulting delay. The Covid-19 pandemic did not cause the delay in this case, a lack of timely disclosure did. Therefore, this delay is not only presumptively unreasonable, but its demonstrably so. The Applicant’s right to be tried within a reasonable time has been infringed.
[77] As a result, all of the Applicants’ charges, both for Mr. Bohnsack and Mr. Strauss, will be stayed pursuant to s. 24(1) of the Charter.
[78] I thank counsel for their helpful materials and repeated submissions.
Released: August 2, 2022
Signed: Justice M. B. Carnegie
Appendix A
DATE
EVENT
February 21, 2020
The Applicant Strauss conducted his bail hearing and was released; the matter remanded to April 17th, 2020 for Crown disclosure. The Applicant Bohnsack was also released and adjourned to April 17th, 2020.
April 17, 2020
The Applicants appeared through counsel in remand court and the matter was adjourned to June 26th, 2020 for Crown disclosure
June 26, 2020
The Applicants appeared through counsel in remand court. Disclosure was still outstanding – only a charge and screening sheet had been disclosed. Federal Crown explained that this was an interjurisdictional investigation beginning out of Halifax involving a number of warrants and Part VI authorizations. Voluminous materials were involved, including over 100 judicial authorizations. The Crown expected further disclosure would be available before the next date – a presumptive Covid-19 adjournment date. Matter adjourned to September 4, 2020.
September 4, 2020
The Applicants appeared through counsel in remand court and still had not received initial disclosure. Defence counsel indicated that they were “anxious to move the matter along” as “expeditiously as possible” once disclosure was in hand. The Federal Crown explained that this was a complicated project case. Her office was vetting disclosure and some would be available next week. Further, they expected that warrant materials (“ITOs”) would be “coming within the next three weeks” and that it “should start moving fairly quickly” afterwards. Matter adjourned to October 9, 2020 – the next presumptive Covid-19 adjournment date.
October 9, 2020
The Applicants appeared through counsel in remand court. Some disclosure had apparently been received prior to this appearance. Agent for Applicant Strauss advised that the evening prior they were sent part of Part VI authorizations along with the “takedown warrants”. She advised that “substantial disclosure was still outstanding, including a lengthy list of other authorization and surveillance notes.” The Federal Crown could not give any further disclosure turn-around status noting that “there’s a lot coming still…this is an interjurisdictional investigation and we are waiting for disclosure from the Crown Attorney in Halifax.” Matter adjourned to Nov 6th, 2020 for further disclosure.
November 6, 2020
The Applicants appeared through counsel in remand court. Articling student for Strauss’ counsel advised that “counsel is still awaiting substantial disclosure” and confirmed with the Crown that it included Part VI materials. The Federal Crown advised that counsel were in receipt of all that they presented had, that the disclosure is coming from the Halifax RCMP and being “streamed through the Halifax PPSC office.” The Federal Crown could not say how long it would take to receive the remaining disclosure. Matter adjourned to December 11th, 2020 for further disclosure.
December 11, 2020
The Applicants appeared through counsel in remand court. Articling student for Strauss’ counsel indicated that counsel is still awaiting “a hard drive of disclosure” which the Federal Crown advised had now been couriered out. Agent for Bohnsack acknowledged the receipt of “quite a lot of disclosure” with more understood to be forthcoming. The Federal Crown confirmed that a “voluminous” hard drive of further disclosure was now available (“approximately 6000 pages) for counsel once undertakings were signed. Matter adjourned to February 12, 2021 for disclosure review (the time required given the volume of materials now disclosed) and apparently for further disclosure.
January 27, 2021
Crown Pre-Trial discussions conducted between counsel for Strauss and the Federal Crown. Counsel for Bohnsack had discussions as well, at an unspecified time.
February 12, 2021
The Applicants appeared through counsel in remand court. Articling student for Strauss’ counsel indicated that they were ready to set a JPT date but other counsel had not filed their necessary paperwork (Trial Readiness Certificate). Agent for Bohnsack’s counsel advised also ready to set JPT date post CPT but was advised to submit their TRC. Other counsel had not yet had CPT discussions delaying scheduling of JPT. Matter adjourned to March 5, 2021 to set JPT and for co-accused status updates.
March 5, 2021
The Applicants appeared through counsel in remand court. Agents for both Applicants confirmed that a JPT had been scheduled for March 29, 2021. Matter adjourned to April 9, 2021 for JPT conduct.
March 29, 2021
JPT was conducted involving all parties. Applicant Strauss intended to elect trial before OCJ (no formal election yet made). Applicant Bohnsack intended to elect trial before SCJ with PH. Federal Crown will consider possible severance in light of different anticipated warrant challenges discussed. Further JPT ordered to resolve mode of trial and severance issues and allow the prosecution to determine the status of the other defendants.
April 9, 2021
The Applicants appeared through counsel in remand court. The matter was adjourned to May 21st, 2021 for the conduct of a second JPT scheduled for May 10, 2021
May 10, 2021
Second JPT was conducted involving both Applicants – the other defendants’ resolutions were noted, some parties not attending as a result. Given Applicant Bohnsack’s intended SCJ election (still not formally made), preliminary hearing issues discussed with s. 540(7) concessions and 4 hours deemed necessary. Applicant Strauss not contesting committal nor participating – will attend only by Zoom. Matter to be set for PH.
May 21 ,2021
The Applicants appeared through counsel in remand court. Counsel for Strauss confirmed conduct of second JPT and that they were “eager to schedule” PH date. However, dates were not able to be set until June 2nd at the direction of LAJ McHugh in furtherance of the Covid-19 protocols. Further, the Federal Crown advised that Applicant Bohnsack had not yet filed his post JPT PH scheduling documentation to permit the setting of a PH date. In addition, she advised that there was some “outstanding disclosure that may or may not change the nature of the preliminary hearing that we’re setting” which required follow-up with Bohnsack’s counsel. Matter adjourned to June 11th, 2021 to set date for PH.
June 11, 2021
The Applicants appeared through counsel in remand court. Counsel for Strauss was still waiting to set PH date – wanting to do so “as soon as possible”. The Federal Crown advised that they were still awaiting counsel for Bohnsack’s response respecting recent disclosure (fingerprint evidence that may impact counsel’s determination re setting a PH). Agent for Bohnsack advised that now they intended to have a “discovery prelim” as opposed to that previously contemplated. Also, the Federal Crown still had not yet received the post JPT TRC from Bohnsack’s counsel to enable scheduling. Matter was adjourned to July 16th, 2021 to set date for PH.
July 16, 2021
The Applicants appeared through counsel in remand court. Agent for
Bohnsack advised that the matter was in date setting court that morning
But “discussions with counsel for Mr. Strauss” determined that rather
than setting a PH “it may be that … this is heading towards a trial.”
Applicant Bohnsack’s instructions had to be confirmed regarding “election”
(still not formally done) and a further JPT was now necessary to set dates
for an OCJ trial. Counsel were offered July 29th, 2021 for JPT. Matter
adjourned to August 20th, 2021 for third JPT.
July 29, 2021
Third JPT was conducted with both Applicants. According to the JPT Report, the Crown required time to meet with the RCMP officers/affiants respecting some remaining disclosure issues which are hampering the present time estimate re trial scheduling. Applicant Strauss confirmed that a Garofoli application (possibly with Step 6) and further Charter application is contemplated whose outcome will determine the length of the trial. At this point, a four day Garofoli and a further day for a further Charter application is contemplate with a 2-3 week trial to follow 120 days after the pre-trial applications. Further JPT required to finalize schedule.
August 16, 2021
Fourth JPT was conducted. Pre-trial application trial estimates agreed upon – 5 days for Garofoli applications and 7 days for trial.
August 20, 2021
The Applicants appeared through counsel in remand court. Agent for Applicant Bohnsack updated the court on the further JPT status. They are “very eager to set dates for trial.” A TRC had been received for Strauss, but still not from Bohnsack. Further, the Federal Crown advised that they are “waiting to get some availability from officers from Halifax”. The Federal Crown will be ready to set the matter for trial in next 2 weeks once Bohnsack TRC is received. Matter was adjourned to September 3rd, 2021.
September 3, 2021
The Applicant’s appeared through counsel in remand court. At this point, both Applicants were ready to set dates – the Bohnsack TRC was sent out on August 24, 2021. However, counsel was advised by the Federal Crown that they “still needed to finish their TRC and that they would submit the paperwork to the trial coordinator so we could set this matter for trial.” The Federal Crown had no update on its status. The Court cautioned that “given the dated nature of the matters…it’s going to be past the 18 month mark, in all likelihood beginning September 7th, 18 months and older unless they’re being set for trial on that next adjournment date would end up going into a judge’s case management straight from there.” Matter was adjourned to September 24th, 2021.
September 24, 2021
The Applicants appeared through counsel in remand court. Agent for the Applicants were ready to set trial dates but that the Crown had not completed their TRC because they did not have availability dates from the “out of jurisdiction police officers”. Matter was adjourned to October 15th, 2021 to set dates.
October 7, 2021
The Applicants appeared through counsel in date setting court. The first court dates offered were March 31st and April 1st, 2022 – all counsel available for a leave application to cross-examine affiants and cross-examination if granted. April 5th and 25th were offered by counsel for Bohnsack was unavailable. All counsel were available for May 2nd, 3rd and 5th to complete 5 day pre-trial applications. With roughly 120 days in between as directed by JPT jurist, the trial coordinator started 3 months out with August dates – offering 7 days August 8th-12th, 22nd and 23rd. Trial dates agreed upon by all parties with three police services scheduled confirmed.
October 15, 2021
The Applicants appeared through counsel in remand court. Pre-trial motion and trial dates from the October 7th dating setting court appearance were confirmed on record.
[^5]: Once trial dates were set in October 2021, the Applicants were the only remaining defendants as the others had resolved their matters.
[^6]: Indeed, in Mr. Strauss’ s. 11(b) application factum, at paragraph 6, he identifies that the Garofoli motion was intended to “challenge the Part VI authorizations and the search warrants for the Applicant’s truck and home.” He goes on to emphasis the centrality of these authorizations to the Crown’s case and highlights the tracking authorization for the Applicant’s phone. However, between January and March of 2022, this intended Garofoli focus was abandoned and shifted to a narrowed challenge to the ‘takedown’ search warrants and a misrepresentation made therein respecting the Applicant’s criminal history which substantively lessened the time required to hear this application.
[^8]: London Practice Directions from the Ontario Court of Justice Local Administrative Justice
[^9]: R v Jordan, 2016 SCC 27
[^10]: R v Coulter, 2016 ONCA 704 at paras 34-41
[^11]: Pursuant to Jordan, supra, at paras 60-66, and R v Cody, 2017 SCC 31 at paras 28-31, defence delay comprises “those situations where the accused’s acts either directly caused the delay…or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.”
[^12]: Jordan, supra, at para 51
[^13]: Ibid, at paras 69-71; Cody, supra, at paras 44-46, 48, 54
[^14]: Jordan, supra, at para 75
[^15]: R v Cody, 2017 SCC 31 at paras 30-31
[^16]: Cody, supra, at paras 34-35; R v Boulanger, 2022 SCC 2 at paras 5-6
[^17]: Jordan, supra, para 64
[^18]: R v KGK, 2020 SCC 7 at para 3, 47
[^19]: See: R v Chang, 2019 ABCA 315 at paras 57-71; R v Storgin, 2021 BCPC 313 at paras 82-87; R v Brown, 2018 NSCA 62 at paras 73-75; R v McKenzie-Fletcher, 2020 QCCQ 8889 at paras 123-128
[^20]: R v Chang, supra, at para 71
[^21]: R v Williamson, 2016, SCC 28; R v Stanley, 2016 ONCJ 730
[^22]: See some examples: R v Drummond, 2020 ONSC 5495, [2020] OJ No 3908 (SCJ); R v Stack, [2020] OJ No 5151 (OCJ); R v Walker, [2020] OJ No 5777 (SCJ); R v G.R., [2020] OJ No 5413 (OCJ); R v Khattra, [2020] OJ No 5996 (SCJ); R v Simmons, 2020 ONSC 7209 (SCJ); R v Truong, 2020 ONCJ 613; R v G.R., 2020 ONCJ 578; R v Pinkowski, [2021] OJ No 258 (OCJ); R v Koustov, [2021] OJ No 191 (OCJ); R v Olmstead, 2021 ONCJ 327 (OCJ); R v Henry, 2021 ONSC 3303 (SCJ);R v Zappone, 2021 ONCJ 332 (OCJ); R v Lieu, 2021 ONCJ 402 (OCJ)
[^23]: See: R v Delaney, 2021 ONCJ 467; R v ASL, 2021 ONCJ 269; R v Lawson, 2021 ONCJ 389; R v Malhi, 2021 ONCJ 565; R v Bui, 2021 ONCJ 379; R v Mohamed, 2021 ONCJ 325
[^24]: Bui, supra
[^25]: Ibid, para 37
[^26]: Ibid, para 44
[^27]: R v Murphy, 2013 ONSC 6272 at para 34
[^28]: R v Simmons, 2020 ONSC 7209 at para 75; See also R v Smith, 2021 ONSC 3322 at para 56
[^29]: R v Vorontosov, 2021 ONCJ 169 at para 43
[^30]: R v Schardt, 2021 ONSC 3143 (SCJ) at para 55
[^31]: Ibid, at paras 68-69
[^32]: Ibid, at para 70
[^33]: Tab 1 of the Respondent’s Application Record
[^34]: Lawson, supra
[^35]: But, as commented, if I did attribute ‘Covid-19 backlog’ delay as high as 160 days (though likely much less is more appropriate), 613 days of remaining delay would be left, or more than 20 months which is still beyond the Jordan presumptive ceiling.
[^36]: Jordan, supra, at para 84
[^37]: R v Wookey, 2021 ONCA 68 at para 83
[^38]: R v Rahey, [1986] 1 SCR 588 at para 48; see also R v Charity, 2022 ONCA 266
[^39]: Jordan, supra, para 35, n 1