Court and Parties

ONTARIO COURT OF JUSTICE DATE: March 26, 2024 Central West – Peel Region

BETWEEN:

HIS MAJESTY THE KING

- and -

ROLAND NUGENT

S. 11(b) Charter Application

Heard before: Justice L. Daviau on February 14, 2024 Written Reasons for Judgment released on: March 26, 2024

Counsel: Ms. J. Vlacic ............................................................................. counsel for the Respondent Mr. C. Angelini........................................................ counsel for the Applicant, Mr. Nugent

Judge: L. Daviau J:

Introduction

[1] Roland Nugent stands charged on an Information alleging possession of two firearms, being in contravention of a firearms prohibition, and conspiracy to commit an indictable offence (robbery). He is co-accused with Ainsley Robinson.

[2] Mr. Nugent, Mr. Robinson and three others, Mr. Henderson, Mr. Spooner and Mr. Smart, were arrested on June 1, 2022, as a result of a live monitored probe inside of a motor vehicle associated to Mr. Robinson. As a result of the intercepted conversation, police stopped the vehicle and arrested all five men. A search of the motor vehicle revealed 2 firearms.

[3] The probe in the car associated to Mr. Robinson was the result of an Authorization dated May 12, 2022, that named six known persons, including Mr. Robinson, in relation to an unrelated homicide investigation. That homicide investigation remains unresolved.

[4] On December 4, 2023, Mr. Smart, Mr. Spooner and Mr. Henderson were arraigned, the Crown called no evidence and the charges against them were dismissed.

[5] Mr. Nugent and Mr. Robinson’s trial is scheduled for June 18, 19 and July 17, 2024 with the pretrial motions to take place on May 27, 30 and 31, 2024.

[6] The resulting delay to the projected end of the trial is 25 months and 16 days (777 days in total).

[7] The parties agree that Mr. Nugent is not responsible for any of the delay. The issue is whether exceptional circumstances can account for the delay.

Brief Summary of the Facts

[8] Mr. Nugent was arrested on June 1, 2022, the Information was sworn on June 2, 2022. Mr. Nugent appeared in court on June 2, 2022. On June 7, 2022 after a bail hearing he was ordered detained. He has remained in custody since that time.

[9] After bail, Mr. Nugent’s matter was remanded several times for disclosure to be provided. While initial disclosure was provided on July 7, 2022, it was not meaningful disclosure. Some wiretaps from the takedown were provided on September 28, 2022, however, much remained outstanding.

[10] A Judicial Pre-Trial did not take place until December 20, 2022. By that date significant disclosure, including the Information to Obtain (‘ITO’) underlying the motor vehicle probe, remained outstanding and a further Judicial Pre-Trial was arranged for January 27, 2023.

[11] On January 25, 2023, two days prior to the Judicial Pre-Trial the Crown provided the largely unredacted ITO in relation to the motor vehicle associated to Mr. Robinson. In an email dated January 25, 2023, the Crown explained that a decision had been made to provide the largely unredacted ITO despite the ongoing unrelated homicide investigation. A third Judicial Pre-Trial was scheduled for February 16, 2023, for counsel to review the newly disclosed ITO.

[12] At the February 16, 2023, Judicial Pre-Trial, trial dates were arranged, and the matter was adjourned for scheduling. Despite reaching out to the trial coordinator’s office on February 17, 2023, and a sustained effort to schedule trial dates, due to the number of parties involved, trial scheduling was not complete until May 12, 2023. The trial was scheduled to take place December 4 to December 8, 2023. A disclosure motion was scheduled for June 27, 2023, and a Garofoli application for August 15, 17, September 6 and 7, 2023.

[13] The disclosure motion was argued before me on June 27, 2023. Judgement was released on July 14, 2023. Prior to the motion being argued, the Crown consented to disclosure of several of the items being sought. By way of written reasons released on July 14, 2023, I ordered disclosure of some, but not all, of the items that remained including, disclosure of all the intercepts that relate directly to Mr. Robinson and/or the motor vehicle he was driving at the time of his arrest.

[14] The bulk of the disclosure in response to the motion was not provided to counsel until after the dates set for the Garofoli and Section 8 application. In result, all 4 days set aside for the pre-trial motions were lost.

[15] To accommodate counsel’s various schedules and in an attempt not to lose all the dates set for trial, on October 3, 2023, the Crown advised the Court of their intention to severe the accused into two groups. While the Garofoli and Section 8 application were to remain joint and be argued on December 4, 5, 6 and 7, the trial dates were divided with trial for Mr. Nugent and Mr. Robinson to take place on December 8 and 21 of 2023 and May 30, 31, 2024.

[16] Delay remained an issue for all accused with Mr. Nugent and many of the others filing an 11(b) application in November 2023. However, before that application could be argued, and prior to the commencement of the motions, Mr. Robinson discharged his counsel and sought an adjournment of the trial. On November 28, 2023, I granted that adjournment. Counsel for Mr. Nugent opposed the adjournment request.

[17] On December 4, 2023, which should have been the first day of the motions including the 11(b) application, the charges against Mr. Henderson, Mr. Spooner and Mr. Smart were dismissed. Mr. Nugent opted to wait until a new trial date was scheduled for him and Mr. Robinson, to argue his 11(b) Application.

[18] New trial dates for Mr. Nugent and Mr. Robinson were scheduled for June 18, 19 and July 17, 2024, with May 27, 30 and 31 set for the Garofoli and Section 8 application. An additional day for the 11(b) application was scheduled for February 14, 2024.

Issues

[19] The delay of 777 days or 25 months and 16 days is presumptively unreasonable.

[20] The sole issue to be decided is whether the Crown can rebut the presumption that the delay is unreasonable by demonstrating exceptional circumstances.

The Jordan Framework and Related Principles

[21] The applicable framework is set out in R. v. Jordan, 2016 SCC 27. The total delay is 25 months and 16 days. In respect of Mr. Nugent, there is no defence delay to be subtracted. The net delay is the same as the total delay, which is above the 18-month ceiling for matters tried in the provincial court. The Crown bears the burden of rebutting this presumption but only if they can demonstrate exceptional circumstances. R. v. Jordan at para 68.

[22] Exceptional circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown. In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases. R. v. Jordan at paras 47, 69 and 71; also see R. v. Zahor 2022 ONCA 449 at para 67.

[23] Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling. Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case. R. v. Jordan at para 75 and R. v. Zahor at para 70.

[24] Some examples of discrete events include, medical emergencies, illnesses of participants, recanting witnesses and elongated trials despite good faith estimates. R. v. Zahor at para 71.

[25] The remaining delay may be justified by the Crown where the case is “particularly complex”. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex. Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis. It demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case. For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered. R. v. Zahor 2022 ONCA 449

Analysis

[26] The Crown seeks to rebut the presumption by relying on both discrete circumstances and that this was a particularly complex case.

Discrete Circumstances

[27] The Crown asserts that a 4-month period should be deducted to account for decisions that had to be made due to the ongoing and unresolved homicide investigation.

[28] Specifically, the Crown refers to the suddenness of the arrest on June 1, 2022, and that it was in response a particular threat in the context of an ongoing homicide investigation. Disclosure meant compromising that still unresolved investigation.

[29] The defence countered that the connection of the unresolved homicide does not justify any time as a discrete event. At all times, how and whether to proceed, was directly in the Crown’s control which exempts the decision-making time from being a discrete circumstance. Further, from the outset the Crown would have had to have known there was a decision to make, certainly not one that they required 4 months to do.

[30] Mr. Nugent was arrested on June 1, 2022. At that time, his arrest can fairly be characterized as unexpected but necessary in all the circumstances. Further, the circumstances that the arrest created in relation to the homicide investigation were unexpected and unavoidable. However, the decisions that were required as a result of that arrest were at all times within the Crown’s control.

[31] Very quickly after the arrest the Crown would have been aware of the issue and the decisions that needed to be made. Further, the Crown could have reasonably remedied the delay, by providing disclosure, asserting a privilege (that can be litigated) or halting the prosecution.

[32] In this case, by the time of Mr. Nugent’s bail hearing on June 7, the Crown had already made decisions about what information could be disclosed and what should be held back. I’m not suggesting that the Crown should have been ready to make the decision to disclose the ITO so quickly, however, decisions on what information to release and to hold back is indicative of the case being firmly within the Crown’s control. Because the Crown had a difficult decision to make, does not mean that the time it takes to make the decision is a discrete exceptional circumstance.

[33] The Crown is often called upon to make difficult decisions in respect of disclosure and privileges that apply in any case. However, to be an exceptional circumstance the precursors identified in Jordan must be present (reasonably unforeseen and unavoidable, outside of the control of the Crown and the Crown could not reasonably remedy the delay). The timing of when the issue arose in Mr. Nugent’s case is what makes this distinguishable from the case in R. v. McManus, 2017 ONCA 188 paras 40 to 46. In McManus, the issue with the Confidential Informant privilege was only discovered moments before the preliminary inquiry was set to begin. If in McManus the Crown was aware of the need to assert or at least investigate a privilege at the outset of the matter any delay arising would not have been characterized as a discrete event.

[34] No delay will be apportioned as a discrete circumstance.

Particular Complexity

[35] The Crown asserts that the remaining delay can be justified by the particular complexity of this case.

[36] The Crown pointed to the number of parties involved in the litigation, the amount of disclosure because of the disclosure motion, as well as the complexity of the matter as justifying the remaining delay as an exceptional circumstance.

[37] The defence countered by arguing that the heart of the issue is not particularly complex, in fact, only 3 days are set aside for trial. The defence further argued that the Jordan timeframe already accounts for particularly complex matters, which in this case would include the fact that there were multiple accused persons and that pretrial applications had to be argued.

[38] The Court of Appeal in R. v. Tran, 2023 ONCA 569 at paragraph 40 provided guidance as to when multiple accused persons might contribute to a matter being labelled an exceptional circumstance. In respect of Mr. Nugent’s matter, I find that it was entirely in the interest of justice to prosecute all five men in one trial. While there are no civilian witnesses, the charges all arise from the exact same circumstance at the exact same time. To have separate trials, the Crown would call the exact same evidence for each accused each time. That the Crown later severed to accommodate a speedier trial for Mr. Nugent, does not detract from the reasonableness of a joint prosecution.

[39] Further, there are periods of delay that are directly the result of the joint trial. Specifically, I am referring to the delay in getting the matter scheduled for trial, choosing the trial date and the delay occasioned when one accused fired their counsel. I further find that the delays occasioned were reasonably unavoidable and not something the Crown could have reasonably ameliorated. As evidenced in the emails provided and the transcripts, once the Crown made the decision to provide the ITO, they did everything they could to keep this matter moving forward. That included directly communicating with the trial coordinator, continually following up with all parties, making reasonable concessions to narrow the issues (both in respect of the standing issue and some of the disclosure being sought by way of the disclosure motion), making the decision to first severe the in custody persons from the out of custody group and ultimately halting the prosecution against three persons so that the time and resources could be focused on Mr. Nugent and Mr. Robinson. Also see R. v. Gopie, 2017 ONCA 728 at paras 169 to 176.

[40] I also find that the various and necessary pre-trial motions, that included: A disclosure motion that related to an unresolved homicide and that necessitated further and significant disclosure; and a multi-day Garofoli and Section 8 application, in the context of a multi-accused matter, added to the complexity. R. v. Gopie at para 172.

[41] I further find that while the overlap between the unresolved homicide and the arrest of Mr. Nugent did not qualify as an exceptional circumstance, the fact of the unresolved homicide and the decisions that flowed from the arrest of the five accused, did add to the complexity of this matter.

[42] The issue then becomes whether the remaining 7 months and 16 days can be justified considering the particular complexity identified above.

[43] Here I find that it can. While the assessment of particular complexity is meant to be a qualitative assessment, I note the following:

(1) It took the Crown roughly 7 months and 25 days to disclose the ITO. While the ITO was first party disclosure that should have been provided in a timelier fashion, the reason for the delay was directly connected to the unresolved homicide. While I am not prepared to find that the entire time was necessary, I am prepared to find that a significant amount of time, perhaps half of the delay in providing the disclosure, just shy of 4 months, was due to the complexity added by the connection to the unresolved homicide.

(2) Once the disclosure was provided and trial date estimate arrived at, it took nearly 3 months to find mutually agreed up on trial date. This was a direct result of the number of litigants, which added to the complexity of the matter; and

(3) I further note that while I do not find there to be defence delay in this matter, due to the number of litigants, the trial form reflects that multiple dates were offered for trial. None of the parties, including Mr. Nugent were available for all dates offered. Nor am I suggesting that they should be, only that it is something that needs to be considered when looking at the matter qualitatively. It is not surprising, given the number of parties involved, that it would take longer than usual to find a mutually agreed upon date. However, even when it was just Mr. Nugent and Mr. Robinson that required trial dates, prior to the adjournment application, several were offered prior to the May 30 and 31st, 2024 dates, however, counsel for Mr. Nugent was not available.

[44] Considering the entirety of the particular complexities involved in this case and the efforts the Crown undertook to attempt to ameliorate the delay caused by the complexity, I find that the remaining delay is justified, and the application is dismissed.

Released: March 26, 2024

Justice L. Daviau