SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CRIMJ(F) 1351/11
DATE: 20120517

RE: HER MAJESTY THE QUEEN

v.

MICHAEL BINGHAM

BEFORE: HILL J.

COUNSEL:
H. Akin, for the Crown
A. Kwan, agent for T. MacDonald, for the Defence

HEARD: May 17, 2012

E N D O R S E M E N T

[ 1 ] Michael Bingham was arrested on February 27, 2010 for a number of C.D.S.A . crimes. A co-accused, Brasil, was also arrested but, on December 15, 2011, an Attorney General Stay of Proceedings was entered against her pursuant to s.579(1) of the Criminal Code .

[ 2 ] After 16 appearances in the Ontario Court of Justice between February 28, 2010 and August 31, 2011, Mr. Bingham was committed for trial.

[ 3 ] At the Superior Court of Justice (Ontario) Assignment Court of October 7, 2011, with H. Dudding (agent for J. Wilton) appearing for the accused, a judicial pre-trial was set for November 21, 2011.

[ 4 ] On November 21, 2011, with Mr. E. Ghebrai appearing for the accused, a new indictment was filed and a pre-trial held by Durno J. Following the pre-trial, Mr. Bingham was remanded to the trial sittings of May 22, 2012 with a scheduled Trial Readiness Court appearance of May 4, 2012. The Form 18-A Report to Trial Judge prepared by Durno J. noted an outstanding disclosure issue relating to a defence assertion that the police may not have kept certain text messages in their possession and to be potentially relevant. Durno J. noted in his Report that no s.24(1) application to stay proceedings and no s.24(2) Charter application to exclude evidence was being advanced by the defence.

[ 5 ] On April 26, 2012, T. MacDonald, acting on behalf of the accused, served and filed a Notice of Application seeking to exclude evidence at trial submitted to have been unconstitutionally obtained contrary to ss. 8 and 9 of the Charter . The notice sought to abridge the time requirements for filing and service of the notice.

[ 6 ] On Monday, April 30, 2012, only days before the Friday, May 4 Trial Readiness Court appearance, Mr. MacDonald filed an Application Record with two enclosures:

(1) a Notice of Application seeking a s.24(1) Charter remedy in the form of a stay of proceedings for alleged violations of ss. 7 and 11(d) of the Charter on account of the failure of the police to preserve text messages relevant to the basis for the accused’s arrest, and seeking an order to abridge the time for bringing the application, and

(2) an unsigned factum relating to this issue.

[ 7 ] At the May 4, 2012 Trial Readiness Court appearance an agent again appeared for Mr. MacDonald, Mr. F. Laciende. Durno J. endorsed the indictment to read:

TRC [Trial Readiness Court]: Adj. to May 15/12 at 11 a.m. for Crown to review material filed late. Def. notice of appl. re s.8, 9 and 24(2) is deficient re: basis of evidence and no application record filed.

[ 8 ] It was objectively obvious that it had become critical that during the week of May 7 the defence move expeditiously to perfect is applications. Regrettably, that did not happen. By Tuesday, May 15, not only had no application record been filed relating to the s.24(2) Charter application to exclude evidence, but also no application for directions was before the court. On May 15, no counsel appeared at the outset of the 11:00 criminal motions court on behalf of the accused nor when the Bingham matter was called at 11:00 and 11:29 a.m. At 11:30 a.m., Ms. Kwan appeared as agent for Mr. MacDonald.

[ 9 ] Ms. Kwan indicated that the defence was prepared to receive the Crown’s Charter materials and to confirm the May 22 nd trial date. According to Ms. Kwan, she understood that Mr. MacDonald would be speaking further with the assigned Crown and addressing the issues raised in Durno J.’s May 4 th endorsement. Ms. Kwan expressed the belief that there may have been a miscommunication between Mr. MacDonald and the agent who attended on May 4. At counsel’s request, the matter was held down until 2:00 p.m. so she could investigate the circumstances further.

[ 10 ] At 2:00 p.m., Ms. Kwan informed the court that she had spoken to Mr. MacDonald and to the agent who had appeared on May 4. As a result, she confirmed that there had been a misunderstanding on defence counsel’s part. Mr. MacDonald was of the view that he could work out any deficiencies with the Crown. According to Ms. Kwan, the Notice of Application respecting ss. 8, 9 and 24(2) of the Charter complied with the rules of the court. Counsel requested two further days for Mr. MacDonald to comply with Durno J.’s direction. Counsel further requested that the court not quash the application but to leave the matter to the trial judge. In error, Ms. Kwan suggested that the Crown’s materials were to have been filed. In any event, counsel suggested that because the grounds raised by the defence were “not novel claims” the prosecution should be able to respond and the trial to proceed on May 22 nd .

[ 11 ] On May 15, I made the following endorsement:

The judicial pre-trial judge was not informed of the s. 8, 9 and 10 Charter breaches now alleged. There is no compliance with Rule 31 respecting an appropriate appl’n record relating to a Notice filed in late April. The trial is scheduled for May 22. It would appear that there has been non-compliance with the direction of Durno J. of May 4 relating to perfection of the appl’n. The Crown is entitled to adequate time to prepare. The case will be spoken to on May 17/12 at 9:30 a.m. before Hill J. The issue of the continued validity of the trial date will be addressed at that time.

[ 12 ] On May 16, the defence served and filed:

(1) an Application Record (identical to the one filed on April 26/12) relating to ss. 8, 9 and 24(2) of the Charter containing (1) a Notice of Application, (2) a List of Potentially Relevant Transcripts, and (3) a Statement of Anticipated Evidence

(2) a Book of Authorities relating to the ss. 8, 9 and 24(2) Charter application

(3) an Applicant’s Application Record including (1) a factum (a signed copy of the factum first filed April 30/12), and (2) 6 caselaw authorities.

[ 13 ] On the Thursday, May 17 court appearance, Ms. Kwan again appeared for the accused. She submitted that the defence applications were properly perfected. Ms. Akin informed the court that she had communicated with Mr. MacDonald’s office to indicate that the alleged “lost” texts were in fact available. The Crown was unprepared to proceed on Tuesday, May 22 nd , which is the first court day next week, not having had sufficient time to prepare to respond to the defence applications. In the circumstances, the trial date was ordered vacated for the following reasons.

[ 14 ] Nowhere in the materials filed is there an explanation as to why there was over a 5-month delay after the judicial pre-trial before any Charter materials were filed by the defence. By the occasion of the initial filings in late April 2012, the time limits of 30 days in advance of trial for perfecting the s.24(1) and s.24(2) Charter applications had expired (see respectively, Rule 27.04(1) and Rule 31.04(3) of the Criminal Proceedings Rules for the Superior Court of Justice ( Ontario )).

[ 15 ] The applications in the notices of application for abridgement of time-to- file advanced no pleading as to the reason for the late filings. Nor has any evidence or submissions in the court record before me addressed this issue. Whether it is necessary in the interests of justice pursuant to Rules 2.01 and 3.02 to grant leave for dispensation from times prescribed by rules cannot be determined in a vacuum. There are no notices of application for abridgement of the mandated filing times for the respective application materials, which materials were due to have been filed on or before April 23, 2012 (Rule 27.05(1), Rule 31.04(3)).

[ 16 ] As to the s.24(1) Charter stay application pursuant to Rule 27.01, it is unclear whether notice has been given to the A.G. Ontario as required by Rule 27.04(3)(a). The alleged loss of the relevant text messages remains in dispute. The application record fails to comply with the requirements of Rules 27.05(1) and 6.05(2) in terms of content. Required items are missing and a factum does not belong in an application record. The Book of Authorities is not highlighted or sidebarred as required by Rule 32.01(4).

[ 17 ] Turning to the s.24(2) Charter application, Rule 28.04(11), in force at the time of the November 21, 2011 judicial pre-trial, and maintained following revision of the Rules effective March 1, 2012, read as follows:

Changes of Position

(11) If either party changes any position taken and recorded on the pre-trial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these Rules.

(12) Failure to comply with Rule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.

There was, according to the court file, a change of position after the pre-trial respecting the bringing of an application for a stay of proceedings and an application to exclude evidence pursuant to s.24(2) of the Charter . There was then non-compliance with the full requirements of Rule 28.04(11), including the failure to schedule a further judicial pre-trial.

[ 18 ] The Notice of Application relating to the exclusion of evidence, filed late as already described, is wanting in full content-compliance with Rule 31.03(2). The missing and late Application Record was not filed within the time contemplated by Durno J. on May 4. Filed only three (3) court days before trial, the Application Record fails to fully comply with the content requirements of Rule 31.05(1). Apart from the absence of a Notice of Application fully complying with Rule 31.03(2), there is no copy of the indictment and no reference to specific pages within the testimony of the officers who testified at the preliminary inquiry which might point the Crown and the court to the anticipated evidence relevant to the points in issue. The meaning to be assigned to the notice’s reference to adducing the evidence of the accused “if necessary” is altogether unclear.

[ 19 ] The Crown is entitled to prepare by reviewing an accused’s Charter materials and, if so advised, to prepare and file its own Respondent’s Application Records (Rules 27.05(2) and 31.05(2)). This is especially important where the defence applications cannot be said to relate to peripheral or cumulative evidence. Here, if the defence were to succeed on either the s.24(1) or the s.24(2) Charter application, the prosecution would be at an end. The stakes are high for the prosecution and in turn for society as a whole.

[ 20 ] Rules of court do not exist simply for the purpose of having rules. The rules promote fair and efficient proceedings. This is apparent from the text of Rule 1.04(1):

These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

[ 21 ] The court requires a real and substantial sense ahead of time as to the focused nature of pre-trial motions. Trial judges read and prepare for a hearing and of course are entitled to conduct their own legal research on issues in the litigation: International Woodworkers of America, Local 269 v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC) , [1990] 1 S.C.R. 282 , at p. 308 per Sopinka J. dissenting in the result. Further, a presiding judge must have a sufficiently adequate record in order to make a Rule 34.02 determination whether to conduct a preliminary assessment on the merits of an application prior to any hearing or inquiry. The court has an obligation to ensure fair proceedings for an accused and for the prosecution. If the Crown is forced on unprepared, it is akin to conducting an ex parte proceeding with only the defence participating. The administration of justice then suffers as does the appearance of justice.

[ 22 ] In any jurisdiction, and in particular in Brampton, a notoriously busy judicial centre, the system can only function effectively when there are genuine efforts “to ensure the ongoing operation of the trial lists”: Khimji v. Dhanani Estate , 2004 12037 (ON CA) , [2004] O.J. No. 320 (C.A.) (QL), at para. 35 ; R. v. Blom (2002), 2002 45026 (ON CA) , 167 C.C.C. (3d) 332 (Ont. C.A.) , at p. 343 : R. v. Assoun (2006), 2006 NSCA 47 () , 207 C.C.C. (3d) 372 (N.S.C.A.) , at p. 462 (leave to appeal refused, [2006] S.C.C.A. No. 233). With respect to the precursor to Rule 31, it has been observed that “disregard of Rule 30 does not serve the interests of justice”: R. v. Gundy (2008), 2008 ONCA 284 () , 231 C.C.C. (3d) 26 (Ont. C.A.) , at para. 24 ; see also, R. v. Tash (2008), 2008 1541 (ON SC) , 64 M.V.R. (5 th ) 86 (Ont. S.C.J.) , at para. 15 . And as noted in R. v. Musone , [2007] EWCA Crim 1237, at paras. 36-7, the rules of court relating to the filing of materials are “not a matter of procedural nicety” – such rules are meant “to prevent ambush at trial and the proper progress of proceedings being diverted by late applications”. Non-compliance with the rules of court is a prescription for confusion, inefficiency and unfairness.

[ 23 ] The defence materials have been filed late without explanation. They remain deficient in several respects. Ms. Akin, as an officer of the court and an experienced prosecutor, has assessed the position in which this places the Crown. It is not for the defence to suggest that, despite its delinquencies, the Crown can simply get prepared in the compressed time remaining to trial. The prosecution cannot reasonably be prepared to respond in the short time remaining.

[ 24 ] This case is not “trial ready”. Rotating agents on court appearances without attendance of the counsel of record, inattention to compliance with the rules of court, late and deficient filings, and disadvantaging the prosecution all favour an exercise of discretion to adjourn this trial. As a result of the actions of the defence, the trial date must be vacated. The consequential delay to trial is the responsibility of the defence.

[ 25 ] Mr. Bingham has already been remanded to appear before the court on May 22 nd . His case will be spoken to on that date and, subject to any other direction of the judge presiding on that date, adjourned to the Assignment Court of June 8, 2012 at 9:00 a.m. This will allow the defence to file proper materials. On June 8, a new trial date can then be scheduled.

HILL J.

DATE: May 17, 2012

COURT FILE NO.: CRIMJ(F) 1351/11
DATE: 20120517

SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN v. MICHAEL BINGHAM BEFORE: HILL J. COUNSEL: H. Akin, for the Crown A. Kwan, agent for T. MacDonald ENDORSEMENT Hill J.

DATE: May 17, 2012