Court File and Parties

COURT FILE NO.: CR-11-2253 Delivered Orally: August 31, 2012

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER JAMES BORONKA Defendant

Counsel: Jennifer Simpson Rooke, for the Crown Ravin Pillay, for the Defendant

HEARD: June 4 and June 5, 2012

REASONS ON SECTION 11(b) APPLICATION

Pomerance J.:

Introduction

[1] On September 14, 2009, Christopher Boronka ("the applicant") and Goran Maslic ("the co-accused") were arrested at the Windsor/Detroit port of entry via the Ambassador Bridge when customs officials discovered approximately 45 kilograms of cocaine in the transport truck that they were driving. On September 15, 2009, the two were charged with importing cocaine and possession of cocaine for the purpose of trafficking. The trial of these charges is scheduled to commence on September 10, 2012. Close to three years will have passed since the time the charges were laid. I must determine whether this delay has infringed Mr. Boronka's right to be tried in a reasonable time. It is the position of the accused that his rights under s.11(b) have been infringed and that the proceedings should be stayed under s.24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The Crown resists the application, arguing that there has been no infringement of the accused's rights under s.11(b).

[2] The delay in this case is sufficiently lengthy to warrant close scrutiny. Having analyzed the relevant time periods, I am satisfied that the delay attributable to the state – institutional delay and delay attributable to the Crown – is not so excessive as to result in an infringement of s.11(b) of the Charter.

The Analytical Framework

[3] The analytical framework governing s.11(b) claims was succinctly described by Simmons J.A., in R. v. Tran, 2012 ONCA 18, 251 C.R.R. (2d) 201, at paras. 20 – 24:

The framework for analyzing an application for a stay under s. 11(b) of the Charter is well-established. The court must consider: i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused.

The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay.

Five considerations come into play when considering the reasons for the delay: a) the inherent time requirements of the case; b) actions of the accused; c) actions of the Crown; d) limits on institutional resources; and e) other reasons for the delay.

One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice may be inferred where the delay between arrest and trial is simply too long.

Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused. See Morin at pp. 786-803.

[4] Since the decision of the Supreme Court of Canada in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, it is generally accepted that the courts should apply guidelines of eight to ten months delay in the Ontario Court of Justice and six to eight in the Superior Court of Justice. These are just guidelines, and are not to be treated as limitation periods.

The Central Issues in this Case

[5] In this case, there are three points of controversy at the heart of the s.11(b) analysis:

1. What is an appropriate period of time for neutral intake in the Ontario Court of Justice?

2. To what extent was delay attributable to late disclosure or non-disclosure by the Crown? and

3. Did the Crown underestimate the time required for the preliminary inquiry?

The General Chronology

[6] This matter was in the Ontario Court of Justice for a total of 19 months. On the date of trial, it will have been in the Superior Court of Justice for a total of 15 months. For purposes of the s.11(b) analysis, it is not necessary to detail each and every appearance. Rather, it will suffice to set out a general chronology, followed by a more detailed discussion of the controversial aspects of the case.

[7] The applicant was arrested on September 14, 2009 and charged on September 15, 2009. There followed several appearances in the Ontario Court of Justice.

[8] The preliminary inquiry date was not set until June 21, 2010, approximately nine months after the charge was laid. The defence insisted that it could not set a date for the preliminary inquiry until it received certain disclosure from the Crown. The Crown insisted that the disclosure sought by the defence was not relevant to the preliminary inquiry and that a date should be set. The issue of non-disclosure and late disclosure will be analyzed in more detail below.

[9] On June 21, 2010, the defence advised that it was prepared to set a date for the preliminary inquiry. The court offered February 9, 2011, March 2, 2011, and April 13, 2011. The defence was not available on the February or March dates, and therefore, the preliminary inquiry was set for April 13, 2011.

[10] The parties disagreed on how much time was required for the preliminary inquiry. The Crown estimated that only four hours were needed; the defence insisted that the hearing would take two days, as it wished to hear from various witnesses. The April 13, 2011 date was scheduled for only four hours, but a focus hearing was set to take place on January 17, 2011.

[11] Thereafter, the Crown and defence exchanged correspondence about various matters, including the possibility of canvassing an earlier date for the preliminary hearing. The matter was brought before DeMarco J. on October 4, 2010, at which time the defence expressed its desire to have both a longer preliminary hearing and an earlier date. Following a few short adjournments, the parties attended before Dean J. on October 12, 2010. On that occasion, the preliminary hearing was moved up to be heard on January 25, 2011. The focus hearing was scheduled for November 22, 2010.

[12] On November 22, 2010, the matter came back before Dean J. to address the time estimate for the preliminary inquiry. The Crown maintained that only four hours were required for the preliminary inquiry, while the defence maintained its desire to examine additional witnesses. The focus hearing was adjourned to December 20, 2010, so that it could be brought before DeMarco J., the judge assigned to conduct the preliminary hearing.

[13] On December 20, 2010, the parties made submissions. Defence counsel was granted leave to file written submissions setting out the evidence that it sought to call at the preliminary inquiry, and why it was necessary to do so. On December 31, 2010, having considered this material, DeMarco J. ruled that the defence was entitled to hear from the designated witnesses. DeMarco J. proposed that the Crown make those witnesses available to the defence for examination before an official examiner. The parties agreed to this procedure.

[14] On January 25, 2011, the preliminary inquiry commenced, with certain witnesses being called by the Crown. On February 10, 2011, the Crown produced certain witnesses that had been identified by the defence. The examinations were not done at a special examiner's office, but rather in a courtroom at the Ontario Court of Justice, absent a judge. The Crown refused to produce two other civilian witnesses who were residents of Toronto, claiming that it had no authority or jurisdiction to do so. The defence responded by indicating that the issue of the outstanding witnesses would have to be addressed before DeMarco J. Ultimately, the defence abandoned this position in the interests of avoiding further delay. In a letter to the Crown dated April 4, 2011, Mr. Pillay, counsel for the applicant, wrote the following:

After considerable consideration, my client has elected not to proceed with the examination of the two remaining witnesses at the preliminary hearing. As Justice DeMarco has ruled that the defence is entitled to examine these witnesses, given your opposition to producing these witnesses at a discovery hearing, the only alternative is to have these witnesses testify before His Honour. I understand that securing such a date would cause considerable delay. My client is concerned about the delay and for that reason is declining to pursue the matter. Similarly, my client is not seeking any ruling from His Honour on the Crown objection during the examination of Kristin Fiddler as this too would occasion delay.

[15] On April 13, 2011, the matter came back before DeMarco J. for committal. Counsel for the applicant reiterated that, in order to avoid any further delay, he would not seek to examine the two civilian witnesses from Toronto and would, instead, waive committal and seek to "move forward". Counsel confirmed that the applicant and his co-accused are "wanting to get on with a speedy trial".

[16] The applicant first appeared in the Superior Court of Justice on May 31, 2011. Counsel for the applicant was prepared to set a date for the judicial pre-trial; however his co-accused, Mr. Maslic, was without counsel and was seeking an adjournment. The matter was adjourned initially to June 17, 2011, to permit the co-accused to secure representation. On June 17, 2011, it was determined that Mr. Maslic had applied for legal aid and some additional time was required. The matter was adjourned to July 8, 2011. On that date, there was still uncertainty over whether the co-accused qualified for legal aid. However, counsel for the applicant stated that the applicant was anxious to proceed and wished to schedule dates for a pre-trial and trial.

[17] The court offered judicial pre-trial dates on October 6 and October 7, 2011. Counsel for the applicant was not available on those dates. Counsel for the applicant reiterated that the applicant wished to proceed as quickly as possible. The court offered dates in August 2011, and the judicial pre-trial was scheduled for August 10, 2011, with an assignment court appearance to follow on September 9, 2011.

[18] On August 10, 2011, Mr. Maslic, the applicant's co-accused, was still without counsel and the judicial pre-trial needed to be adjourned. A new date of September 8, 2011, was set on August 12, 2011. On September 8, 2011, counsel for the applicant was ill and unable to attend the judicial pre-trial. Counsel for the applicant could not attend in Windsor for a judicial pre-trial in October, and a new judicial pre-trial date was therefore set for November 8, 2011. The judicial pre-trial was held on that date, and on November 10, 2011, the matter was in the assignment court to set a date for trial.

[19] The court was able to offer May dates for trial. However, counsel for the applicant was not available. The court was able to offer June dates. Counsel for the applicant was available, but counsel for the applicant's co-accused was not. In the result, the matter was set for pre-trial motions the week of June 4, 2012, with a four week trial scheduled to commence on September 10, 2012.

What is an appropriate time for neutral intake?

[20] It is settled law that following the laying of a criminal charge, a certain period of time will be deemed neutral for purposes of s.11(b) of the Charter. This reflects the inherent time requirements of intake procedures, Crown disclosure and other preliminary matters. It is a recognized reality that these procedures take some time and that it would be unfair to count them as against one party or the other.

[21] The amount of time allocated to intake procedures will vary from case to case. Some cases have elements of complexity that increase the inherent time requirements, such as expert evidence, wiretap communications, conspiracy allegations, forensic accounting, or other matters that are difficult and time consuming: see R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270.

[22] The Crown submits that this case is complex. As a result, it was argued that six months should be allocated as intake for preliminary procedures and completion of Crown disclosure. The defence takes issue with that assertion, arguing that this is a straightforward case and that the intake period should end on November 30, 2009, some two and a half months after the charge.

[23] I find that a reasonable intake period falls somewhere in between the estimates of counsel. This case does present some complexity, if only because multiple agencies were involved in the investigation, including U.S. authorities. But beyond that, it is a relatively straightforward case involving transporting of contraband across the Canada/U.S. border in a truck.

[24] At various times in the proceedings, the Crown itself characterized the case as one that was "simple" and "straightforward". For example, a letter sent by a Crown representative to counsel for the applicant on August 27, 2010 stated:

Over the past 3 years we have conducted about 15 preliminary inquiries involving cocaine located and hidden in the trailer of a commercial truck. They are straightforward hearings. Of course, the trial is another matter.

[25] During an assignment court appearance on July 8, 2011, in the Superior Court of Justice, the Crown representative asserted that:

[C]onsiderable procedural issues that are before the Ontario Court of Justice and delay was not based (sic) on the record by the accused as a live issue and it took I thought too long to get to committal stage and (sic) relatively simple case of drugs being seized from a trunk at the border.

[26] By way of contrast, the Crown before me on the s.11(b) application (a different counsel) asserted that the case was complex. This was said to be owing to the fact that the case involved videotaped statements, Canadian Border Service Agency ("CBSA") reports, an expert report regarding refrigeration, driver logs and disclosure requests.

[27] It is not clear to me that any of these factors add significant complexity. The videotapes had to be copied and certain evidence, such as CBSA reports and drivers' logs had to be gathered. This is not unusual evidence; nor did it require unusual efforts to secure it. The CBSA reports were generated on the day of the arrest and photocopied. The drivers' logs were seized on the date of arrest and photocopied. While experts can sometimes add complexity, the expert report in this case was not of a complex nature. It reported the readings on a temperature recorder from the produce load in the truck. A one and a half page report was prepared on the same day that the request was made. This is not the type of expert opinion that tends to increase the inherent time requirements of a case. Finally, the case was not made more complex by defence disclosure requests. The defence was requesting disclosure that they were constitutionally entitled to pursuant to the Crown's obligation: see R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326.

[28] The investigation conducted by American authorities at the request of Canadian officials added some complexity because material had to be gathered from outside of Canada. Beyond that, the case is as the Crown initially stated it to be – a relatively straightforward case involving concealment and importation of contraband in a truck.

[29] One final point should be made. In resisting the s.11(b) application, the Crown before me argued that there was no inconsistency between her position and the position advanced by the Crown during earlier court appearances. She argued that while the trial is complex, the preliminary hearing was simple and straightforward. She based this on the fact that the Crown intended to call only a small amount of evidence at the preliminary inquiry. To that extent, she submitted, the preliminary inquiry was simple. I have difficulty with this approach as it fails to account for the multiple purposes to be served by the preliminary inquiry. The primary function of the preliminary inquiry is to screen cases by determining whether there is sufficient evidence to allow the case to go to trial. This is a low threshold and will often be met by the Crown calling a minimal amount of evidence. However, there is another important, albeit incidental, function of the preliminary inquiry, namely the discovery of the Crown's case by the defence. The amendments to the Criminal Code that allow for streamlining of preliminary inquiries have not done away with this function. Parliament did not intend to eliminate the secondary discovery function of preliminary inquiries or to convert preliminary inquiries into paper hearings: see R. v. Sonier, 2005 ONCJ 75, 201 C.C.C. (3d) 572; R. v. P.M., 2007 QCCA 414, 222 C.C.C. (3d) 393; R. v. Francis (2005), 202 C.C.C. (3d) 147 (S.C.). For example, a decision refusing to allow the defence to call witnesses may well constitute jurisdictional error, or a denial of natural justice. This is so even if the Crown has established a basis for committal on a paper record: see R. v. Rao, 2012 BCCA 275, [2012] B.C.J. No. 1247.

[30] There is no constitutional right to a preliminary inquiry: see R. v. Arviv, [1985] O.J. No. 2602 (C.A), and the disclosure obligation in Stinchcombe will in some cases suffice to provide discovery of the Crown's case. However, where a preliminary inquiry does take place, an accused is entitled to benefit from the ancillary function. A justice may place reasonable limits on evidence to be called, and may restrict that evidence to what is relevant to the case. However, the preliminary inquiry is where the defence will often lay critical groundwork for motions at trial. To suggest that a case is simple at the preliminary inquiry stage and complex at the trial stage misses the necessary connection between the two procedures and the legitimate use of the preliminary inquiry as a tool for discovery and preparation of the trial.

[31] In all of the circumstances, I have determined that, in this case, a proper intake period would extend for a period of four months from the date of arrest, until January 14, 2010. I find that preliminary appearances and Crown disclosure ought to have been completed within a period of approximately four months. This did not happen. Nor, as it turns out, was disclosure completed within six months of the charge, the neutral intake period proposed by the Crown.

[32] I will now turn to the analysis of delay caused by late disclosure or non-disclosure.

Non Disclosure/Late Disclosure

[33] The record of the proceedings in this case reveals significant problems with the disclosure process. First, many important items of evidence were not disclosed for several months, even though they existed at the time of, or shortly after, the arrest. No explanation has been offered to account for the length of time that it took for this disclosure to be made. A second area of concern involves what has been termed the "pre-arrest investigation". During the early stages of the case, the defence requested disclosure of police investigations into the activities of the applicant prior to his arrest. The defence insisted that it required this material before it could reasonably estimate the time required for the preliminary inquiry. The Crown refused to make this disclosure, asserting alternately that there was no "pre-arrest investigation", that it was not relevant, and that the Crown had no duty to disclose it. A central issue in this case is whether the defence was entitled to insist on receiving this material prior to setting a preliminary inquiry date.

Late Disclosure

[34] Throughout the proceedings, disclosure took place on a piecemeal basis. Some initial disclosure was provided on September 30, 2009, October 23, 2009, and on November 30, 2009. However, many important items of evidence were still outstanding. On January 3, 2010, counsel for the applicant wrote to the Crown requesting disclosure of several items including the following:

i. The applicant's video statement to the Milton RCMP;

ii. Goran Maslic's video statement to the Milton RCMP;

iii. The results of the production order for cellular phones (226) 808-2097 and (519) 496-3352;

iv. The notes and/or will states of eleven CBSA officers;

v. All CBSA and/or RCMP intelligence reports related to the applicant, Goran Maslic or JBT Transport or other material generated during any investigation related to the applicant, Goran Maslic or JBT Transport;

vi. All material related to Lookout # 1314-09-1143 including all electronic material on ICES or any other computer database, all intelligence reports, officers notes and civilian statements;

vii. The statements of David Simone, Dennis Paul and Steven Allan, all of whom were involved in the inspection of the trailer;

viii. All electronic images and reports generated during the course of this investigation including VACIS images and reports;

ix. All certificates of analysis of the seized substances including a qualitative analysis of the substance;

x. All data retrieved from the reefer unit of the trailer;

xi. The statements of any and all employees of JBT Transport regarding this investigation;

xii. The results of all fingerprint analysis conducted during the course of this investigation;

xiii. The complete notes of Sgt. Koersvelt and Constable Lloyd;

xiv. Copies of the lease agreements for trailers provided by Duncan Firth to Constable Lloyd on September 17, 2009; and

xv. All electronic material seized from JBT Transport during this investigation including all material regarding the GPS tracking of the truck operated by the applicant and Mr. Maslic during the trip that ended in their arrest on September 14, 2009. JBT Transport was able to monitor the truck's movement at all times via GPS.

[35] These items were all clearly relevant to the prosecution, falling within the disclosure obligation defined in Stinchcombe.

[36] A large chunk of disclosure was provided to the defence on February 3, 2010, approximately four and one half months after the charge. Much of the material disclosed at this time was in existence shortly after the applicant's arrest, including the applicant's and his co-accused's video statements given to the police on September 15, 2009, the statement of James Stokes completed on September 17, 2009, a GPS report for the truck dated October 1, 2009, statements of Candace Shaw and Mark Vona completed on October 1, 2009, notes from Sgt. Peter Koersvelt's notebook completed on October 1, 2009, and the report from the refrigerator expert, Steve Buskard, completed on October 2, 2009.

[37] A sixth instalment of disclosure was provided on February 22, 2010. Many of the items disclosed at this time had been requested by counsel for the applicant in his January 3, 2010 letter. Again, all of the material disclosed at this time was in existence and available within days of the applicant's arrest. On March 8, 2010, the defence received a seventh instalment of disclosure, including a CBSA control sheet and six VACIS photos taken by the CBSA on the date of the applicant's arrest.

[38] On May 18, 2010, some eight months after the charge, the applicant received disclosure of the fact that an investigation had been carried out by the U.S. Drug Enforcement Agency ("DEA") at the request of Canadian officials. Prior to this date, the defence had received no notification of an American investigation. The report prepared by the DEA was dated October 7, 2009. Thereafter, sometime after June 7, 2010, close to nine months after the charge, counsel for the applicant received disclosure of correspondence between the RCMP and the DEA, in which the RCMP requested the American agency's assistance. The correspondence was dated September 21, 2009 and September 22, 2009. The final instalment of disclosure came on February 9, 2011, almost 17 months after the charge was laid. It consisted of 63 pages of material including a CBSA timeline plotting the position of the subject truck on a map with dates and times included, text messages from Goran Maslic's cell phone and various reports regarding data extracted from phones. Some of this material was undated and it was unclear when it was generated, though most of the cell phone data bore a date of April 28, 2010.

[39] As is evident, many items of disclosure existed at the time of or shortly after the arrest of the applicant. Yet, most of these items were not disclosed until several months later. It was not until May 2010, that the defence was even made aware of the fact that an American investigation had been carried out. The right to disclosure does not require that it be forwarded immediately. However, it is difficult to understand why it took so long for the disclosure to make its way to the defence in this case. There may be good reason why certain material was not disclosed earlier. For example, there is no indication of when Canadian authorities received the report prepared by the DEA. However, the Crown failed to proffer any evidence on this point, or to offer an explanation for any other aspects of the dilatory disclosure. In the result, the late disclosure is neither explained nor justified. This is a factor to be considered in the s.11(b) analysis: see R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at paras. 11, 16. There is no indication of bad faith on the part of the Crown or police, but, absent explanation, the process suggests, at minimum, an overly casual approach to the duty of disclosure. This is unsatisfactory, all the more so given that counsel for the applicant persistently asked for disclosure and expressed dissatisfaction with the time it was taking to receive it.

The Pre-arrest Investigation

[40] One of the items requested by counsel for the applicant in his January 3, 2010 letter was the September 15, 2009 video statement given by the applicant to members of the Milton RCMP. This video statement was disclosed on February 3, 2010. The officer who conducted the interview, Constable Palmquist, told the applicant that he had been tracking his movements for some time. The officer alleged that the applicant had been involved in a delivery of cocaine made back in December 2008. During the interview, the officer told the applicant that:

• He and his partner Constable Pakham had been investigating the applicant since December 2008;

• He started a lookout with the CBSA to have the applicant and his co-driver checked whenever they came through the border; and

• He was not surprised that the applicant had been arrested because he was waiting for that to happen.

[41] At one point, Constable Palmquist told the applicant:

I am not an investigator that just learned your name less than 12 hours ago…it's not that I just have knowledge of what happened across the border, I have knowledge of the last year tracking your trips. Where you pick up in California, where you pick up in Yuma Arizona, whether or not you go up to the Bakersfield area or down into Salina's California picking up berries or lettuce.

Even though you've only met me ten minutes ago for the first time, it feels like I've known you forever because I've been tracking your movements for the last while.

[42] This interview led counsel for the applicant to believe that there had been surveillance and investigation of the applicant's activities for some time prior to his arrest on September 14, 2009. Counsel requested disclosure of material relating to the earlier investigation.

[43] On March 2, 2010, the applicant's counsel advised the court that he was still awaiting disclosure, "in particular the material spanning a yearlong investigation of his client prior to his arrest". At a subsequent appearance on March 15, 2010, the applicant's counsel reiterated his concern over this outstanding material. The Crown who appeared on that date stated that she would follow up on the matter.

[44] The matter was next in court on March 24, 2010. On that occasion, counsel for the applicant again expressed his reticence to set a preliminary inquiry date without disclosure of the pre-arrest investigation. The Crown took the position that a date should be set, asserting that the disclosure already provided was sufficient to schedule a preliminary hearing date.

[45] In a letter dated March 24, 2010, Mr. Pillay, counsel for the applicant wrote the following to the Crown:

While I have made a general request in my January 3rd 2010 correspondence for material generated during any investigation related to my client or Mr. Maslic (items 7 & 8), my review of the video interview of my client by Milton RCMP officers Chris Palmquist and Steve Pakham indicates that there was lengthy pre-arrest investigation involving my client that commenced in the fall of 2008. Apparently, my client became the subject of an RCMP investigation headed by Constable Palmquist following the seizure of a quantity of cocaine from the Food Terminal in Toronto in the fall of 2008 which was alleged to have entered Canada in a truck operated by my client. This triggered the lookout on my client which resulted in his September 14th 2009 arrest.

In addition to the material requested in my January 3rd 2010 correspondence that remains outstanding, please provide me with complete disclosure regarding the pre-arrest investigation. While I am completely unaware of the nature and scope of the pre-arrest investigation, I require at the very least the following material:

1. The notes of Constable Chris Palmquist regarding any investigation of my client and in particular the investigation of my client since the Food Terminal seizure in the fall of 2008;

2. The notes of Constable Steve Pakham;

3. The notes of all other police officers regarding the pre-arrest investigation;

4. All reports generated during the pre-arrest investigation;

5. Particulars of any arrests made during the pre-arrest investigation and the status of outstanding charges and/or convictions or acquittals; and

6. The statements of all civilian witnesses obtained during the pre-arrest investigation.

It is imperative to my client's right to full answer and defence that I receive complete disclosure in a timely manner. Much of this material would have been complete some time ago. Please advise if there is any difficulty in disclosing the outstanding material in a timely fashion.

[46] Thereafter, in a letter dated April 10, 2010, Mr. Pillay reiterated his request for outstanding material relating to the pre-arrest investigation. This letter included the following:

I remind out that you are obligated to provide me with complete and timely disclosure of all material in your possession that is not clearly irrelevant. On Constable Palmquist's account, the September 14th 2009 border seizure is part of a larger extensive investigation that commenced sometime in late 2008. My client was specifically targeted. My client's movements were traced. Constable Palmquist asserts that he has put a lot of work into this investigation and has a body of material specifically related to my client. Constable Palmquist mentions numerous individuals and companies that are related to this investigation.

He states that his job for the past year has been to exclusively investigate this "group". He refers to individuals that he believes are "responsible" for putting my client in the position he is in. In the second interview on September 15th 2009, Constable Palmquist specifically states that the December 2008 12 kilogram seizure will be used as 'similar fact' evidence at my client's trial.

As I indicated to you yesterday, I am reluctant to schedule a preliminary hearing given the potential magnitude of the outstanding material. In my view, in the absence of the outstanding material, it is impossible to determine an accurate time estimate for the preliminary hearing. Scheduling a preliminary hearing that is too short will necessarily result in greater delay than if we are to straighten out the disclosure issues now and make a reasonable time estimate of the time needed.

[47] On April 30, 2010, the Crown wrote the following to counsel for the applicant:

• There was no pre-arrest investigation concerning your client.

• In 2008, there was a miscellaneous occurrence that resulted in a seizure of narcotics. Your client was not a target in that investigation and was not arrested.

• In 2008, your client's name was queried.

• Generally, we take the position that the 2008 occurrence is not relevant to the current case before the Court.

• However, given that your client's name was queried in 2008, we will be forwarding some additional documents from the RCMP, which covers anything that might be relevant to your client, generally.

• I anticipate that this material will include a suspicious incident report, surveillance report, property report, correspondence, bill of lading, and ICES traveler history for your client (Approximately 30 pages in total).

[48] Thereafter, throughout the spring, summer and fall of 2010, the Crown reiterated its position that there was no pre-arrest investigation, that the 2008 incident was irrelevant, and that the Crown was under no obligation to disclose it. For example, in a letter dated August 17, 2010, the Crown wrote the following to the applicant:

In my review of the file I've come across many requests for additional disclosure relating to matters not connected to the case before the Court. Several of the requests relate to the Crown being compelled to embark upon collecting bad character evidence which preceded this particular investigation. These requests have unnecessarily prolonged the setting of a preliminary hearing date...

[49] On August 19, 2010, counsel for the applicant sought clarification of the Crown's position by asking:

Given your assertion that the pre-arrest investigation is not connected to this case and that the request for its disclosure unnecessarily delayed matters, is it your position that the Crown will not attempt to use the prior alleged importing and the pre-arrest investigation that followed in any manner whatsoever at my client's trial?

[50] The Crown responded in a letter dated August 27, 2010 with the following:

The Crown will tender evidence which is relevant and admissible. Much of what was requested by the accused was not relevant for disclosure purposes and not admissible.

[51] On October 4, 2010, during the focus hearing before DeMarco J., the Crown submitted the following to the court:

The crown has made efforts along the way to move this matter along. There have been several disclosure requests from counsel that are not connected at all to the case before the court, this case in particular and in our respectful submission has unnecessarily prolonged the setting of the preliminary hearing date.

[52] Finally, on October 12, 2010, the Crown again asserted that the delay in scheduling the preliminary inquiry was occasioned by "defence counsel insisting that the disclosure of material not relevant to this was needed prior to setting a date".

[53] On the s.11(b) application before me, the Crown similarly argued that it was unreasonable for the defence to insist on disclosure of the pre-arrest investigation before setting a date for the preliminary inquiry. It is said, therefore, that the delay in setting the preliminary inquiry date is attributable to the conduct of the defence.

[54] I do not accept the Crown's argument on this point. In light of the assertions made by Constable Palmquist during his interview of the applicant, it was reasonable for the defence to believe that there had been police scrutiny of the applicant's activities for several months before his arrest. It was reasonable for the defence to request disclosure of this evidence. Constable Palmquist drew an explicit connection between the earlier investigation and the arrest of the applicant for the current offence. He suggested that the December 2008 delivery might be tendered as similar fact evidence at the applicant's trial. In the circumstances, counsel for the applicant had a duty to seek disclosure and, to the extent that the evidence existed, the Crown had a duty to disclose it. Finally, it was reasonable for applicant's counsel to insist on having this disclosure before setting a date for the preliminary inquiry. This is the very sort of matter that the defence might usefully explore at a preliminary inquiry, to determine whether there is a foundation for Charter motions or other defences at trial. It would affect the conduct of the preliminary hearing, and the amount of time required for it.

[55] The Crown never did provide full disclosure of material concerning a prior investigation of the applicant. Thirty pages of peripherally related and heavily redacted material was provided to the defence on May 18, 2010. The applicant was willing to set the date for the preliminary hearing upon receiving the 30 pages, no doubt expecting that further discovery could be had by calling the police witness for examination. Constable Palmquist was, in fact, one of the witnesses examined by the defence during the preliminary inquiry. It may well be that Constable Palmquist was exaggerating the nature of the pre-arrest investigation as a tactical strategy during his interview of the applicant. However, the applicant had no way of knowing that until such time as Constable Palmquist was examined by the defence.

[56] In a curious development, the Crown changed its position when the matter reached the Superior Court of Justice. At the judicial pre-trial in August 2011, the Crown submitted a pre-trial conference report in which it stated its intention to introduce prior discreditable conduct evidence against the applicant, namely, "previous delivery of cocaine to company in Canada by Boronka". This presumably refers to the December 2008 delivery, which was the subject of the pre-arrest investigation. The Crown acknowledged that additional disclosure pertaining to that incident would have to be made, including:

Anticipate follow up statement from Loblaws representative. Statements from investigative file re: prior delivery of 12 kilos of cocaine by Boronka to Ontario Food Terminal. Disclosure would also include statement from previous employer concerning this seizure of cocaine…

[57] On March 23, 2011, counsel for the applicant sought to follow upon the outstanding disclosure relating to the alleged prior importing. On April 5, 2012, the Crown responded by indicating that it had changed its position yet again:

The Crown is not seeking to introduce any evidence of alleged prior importing, therefore disclosure of anything beyond the previously provided information is unnecessary.

[58] In all of the circumstances, it was reasonable for the defence to wait until June 21, 2010, before setting a preliminary hearing date, given the status of Crown disclosure. The period of time between January 15, 2010 (when neutral intake ended) and June 21, 2010 (when the defence was able to schedule the preliminary inquiry ) – a little over five months – is delay attributable to non-disclosure and/or late disclosure by the Crown.

The Time Estimate for the Preliminary Inquiry

[59] The final area of controversy concerns the time estimate for the preliminary inquiry. Again this was the subject of heated debate between the Crown and defence. The Crown was of the view that only four hours were needed to make out a case for committal. The defence was of the view that more time was needed to allow for discovery of the Crown's case. As events unfolded, this disagreement did not meaningfully add to the delay.

[60] The first preliminary inquiry date set was in April 13, 2011, given that counsel for the applicant was unavailable for the dates offered in February and March. Ultimately, however, on the agreement of counsel, the date was moved forward to January 25, 2011, for a four hour hearing. On the suggestion of DeMarco J., it was agreed that, after that date, the Crown would make other witnesses available to the defence for examination. The matter would then come back before the court on April 13, 2011, for a decision on committal. Therefore, while the preliminary hearing had been moved up to January, it ultimately concluded at the same time as originally scheduled, on April 13, 2011. This was because of the need to accommodate the defence request to examine certain witnesses, a reasonable request that was granted by the court.

[61] The estimation of time required for the preliminary inquiry is somewhat academic for purposes of s.11(b). Even if the Crown did underestimate the time required for the hearing, as is alleged by the applicant, it did not add to the delay. The court could not accommodate a longer preliminary hearing on January 25, 2011, and there is no indication that more than four hours were available on April 13, 2011. By using both dates, and allowing for out of court examinations of witnesses, the preliminary inquiry was completed in less time than was originally contemplated. Were it not for this truncated procedure, the preliminary inquiry would not have been completed by April 13, 2011.

[62] I find that the seven months between June 21, 2010 and January 25, 2011, is systemic or institutional delay. January 25, 2011, is the first date that the court could offer for the preliminary hearing. Thereafter, the court could have offered February 9, 2011 or March 2, 2011, for the second court appearance. While the examination of witnesses took place on February 10, 2011, I presume that those examinations would have been conducted earlier if the return date had been February 9, 2011. Counsel for the applicant could not attend in Windsor on February 9, 2011 or March 2, 2011. Therefore the second appearance for the preliminary inquiry was set for April 13, 2011. I find that the two weeks between January 25, 2011 and February 9, 2011, is institutional delay. The two month period between February 9, 2011 and April 13, 2011, is delay attributable to the defence.

Conclusions on Timelines/Reasons for the Delay

[63] On the basis of the foregoing discussion, the time periods may be allocated as follows:

September 14, 2009 – January 14, 2010 – 4 months – neutral intake

January 14, 2010 – June 21, 2010 – 5 months – delay attributable to non/late disclosure by the Crown

June 21, 2010 – January 25, 2011 - 7 months – institutional delay – first date offered by court.

January 25, 2011 – February 9, 2011 – 2 weeks – institutional delay – first date for continuation offered by court.

February 9, 2011 – April 13, 2011 – 2 months – defence delay – defence not available for earlier dates.

April 13, 2011 – May 31, 2011 – 1 and a half months – intake period Superior Court of Justice

May 31, 2011 – September 8, 2011 – 3 months – delay attributable to co-accused seeking counsel

September 8, 2011 – November 10, 2011 – 2 months – delay neutral. Counsel for the applicant could not attend judicial pre-trial due to illness.

November 10, 2011 – May 2012 – 6 months – institutional delay. First dates offered by court were in May.

May 2012 – June 2012 – one month – delay attributable to counsel for the applicant. Not available for May dates.

June 2012 – September 2012 – 3 months – delay attributable to counsel for co-accused – not available in June dates for trial.

[64] Therefore, of the 19 months in the Ontario Court of Justice, there were four months neutral delay, five months delay attributable to Crown, seven and a half months institutional delay, and two months defence delay. Of the 15 months in the Superior Court of Justice, there were three and a half months neutral delay, six months institutional delay, one month defence delay, and six months delay attributable to co-accused.

[65] In the result, the delay attributable to the state (institutional delay and Crown delay) is 12 and a half months in the Ontario Court of Justice and six months in the Superior Court of Justice – a total of 18 and a half months.

Prejudice

[66] The interests protected by s.11(b) were succinctly summarized in Godin, at para. 30:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

[67] The focus under s.11(b) is not the prejudice flowing from the fact of having been charged with a criminal offence. Section 11(b) is concerned with prejudice flowing from a situation prolonged by delay. Prejudice such as anxiety about the outcome of the pending charges and shame or embarrassment about the existence of those charges will typically be seen to be caused by the fact of the charges themselves, rather than attributable to delay. However, even this type of prejudice may be relevant to a s.11(b) analysis where there is prolonged delay resulting in those difficulties being exacerbated: see R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.) at para. 33; R. v. Silveira (1988), 60 O.T.C. 102 (C.J. (Gen.Div.)). Again, the longer the delay, the more likely this will become a factor.

[68] In this case, it is appropriate to infer prejudice to the applicant. The time period is close to three years. Over the time leading up to trial, the applicant consistently pressed to have his matter brought to trial in a reasonable time. This is not a case in which the defence sought to extend or benefit from delay.

[69] The question remains as to whether the applicant has proved any specific prejudice, beyond that to be inferred. There is no indication of prejudice to the applicant's right to full answer and defence. I am, however, prepared to find some prejudice based on the terms of the accused's bail. The conditions that he obey a curfew unless in the company of a surety, that he refrain from attending at his home in La Salle, that he report once a week, and that he abstain from communicating with certain individuals imposed some restriction on his liberty. These were not particularly onerous restrictions, but must be factored into the overall equation. The evidence establishes that the applicant has experienced significant stress, depression, and anxiety as a result of the pending charges and the time it has taken to get to trial. I also accept that the delay has impeded the applicant's employment prospects, given that certain jobs are not available to him while these charges are pending.

[70] This is not a case of serious prejudice flowing from delay, but I do accept that there is some actual prejudice above and beyond that to be inferred. Much of this prejudice is of the variety that is linked to the charge rather than delay per se. But given the protraction of the proceedings, and the exacerbation of the prejudice over time, it is appropriately considered in the s.11(b) analysis.

The Balancing

[71] After analyzing the factors that are critical to the assessment of unreasonable delay, a balancing is required to determine whether or not the delay is in fact unreasonable. The nature of that balancing process has been described in R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 64, at para. 26, as follows:

The determination of what constitutes a "reasonable" time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the "reasonableness" of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pretrial delay will constitute unreasonable delay for constitutional purposes.

[72] In R. v. Kporwodu (2005), 75 O.R. (3d) 190, the Ontario Court of Appeal stressed, in connection with this balancing exercise, that reasonableness in the context of the protections afforded by s.11(b) of the Charter is not a precise concept, and its determination requires an assessment of the entire time period in light of the explanations for the constituent parts of the delay.

[73] Here, there are various factors that weigh in favour of the applicant. First, the applicant took steps throughout the proceedings to expedite the trial. He brought matters forward to secure an earlier preliminary hearing date. He agreed to examine witnesses in the absence of a judge in order to avoid delay, and he elected not to examine two civilian witnesses that the Crown failed to produce, for fear that it would prolong the proceedings. The applicant's counsel, on various occasions, asserted the applicant's desire to have a speedy trial. This is not a case in which the applicant was acquiescing, actively seeking, or tacitly complicit in delay.

[74] Second, the five months delay attributable to non-disclosure by the Crown must be viewed differently than pure institutional delay. It has been recognized in various cases that, while institutional delay must be tolerated as an inherent part of the system, delay attributable to non-disclosure should be treated more strictly. As it was put by Hill J. in R. v. McNeilly, [2005] O.T.C. 266, [2005] O.J. No. 1438 (S.C.) [McNeilly cited to O.J.] at para. 72:

Recognizing that institutional delay is an inevitable reality of processing criminal cases, we "tolerate" such delay. It is not self-evident logic that we are prepared to tolerate crown-occasioned delay in the same manner as institutional delay. Although some prosecutorial delay, in the context of the overall delay, may not compel a finding of unreasonableness, where the total delay demands review, no actions of the accused contributed to the delay, the crown delay is manifestly and unreasonably excessive, and prejudice is established, this court is obliged to protect the delay to trial rights.

[75] Similar sentiments have been endorsed in other cases: see R. v. Yun, [2005] O.T.C. 283 (S.C.); R. v. Chrostowski, [2006] O.T.C. 324 (S.C.); R. v. Stephens, 2007 ONSC 38125.

[76] Finally, the applicant has experienced some prejudice in the period of time since the charge was laid, though the restrictions on his liberty have been relatively minor, and there is no prejudice to his right to make full answer and defence.

[77] On the other side of the ledger, it is important to note that the delay in this case does not stray far beyond tolerable limits. While I have found that certain delay is attributable to non-disclosure by the Crown, this amounted to a period of five months. It should not have taken as long as it did for disclosure to be provided in this case. However, even accepting that a more stringent standard should be applied to Crown delay than institutional delay, the period of five months is not so excessive as to warrant a finding of constitutional infringement.

[78] Beyond that, the institutional delay in this case amounts to 13 and a half months (on the basis of a relatively conservative intake period). Therefore, the total period attributable to the state (Crown and institutional resources) is 18 and a half months. This period does not meaningfully offend the guidelines in Morin, which readily accommodates eight to ten months in the Provincial Court and six to eight months in the Superior Court of Justice. While it has taken close to three years to bring the matter to trial, there are various factors other than Crown and institutional delay that have contributed to the delay.

[79] Finally, and importantly, the seriousness of the offence must be weighed in the balance. The applicant is charged with serious crimes involving the importing and trafficking of a substance that destroys lives. The offence is all the more serious given the large quantity of cocaine alleged to have been imported by the applicant. In Morin, Sopinka J. acknowledged that "As the seriousness of the crime increases so does the societal demand that the accused be brought to trial". Here, the public has a substantial and compelling interest in seeing that the matter be tried on the merits. Of course, there is also a public interest in ensuring that trials are conducted fairly and within a reasonable period of time. It could be said that, where the offence is serious, a timely trial is all the more important. I find that it took longer to bring this case to trial than it should have. But I cannot find that the delay was so excessive or intolerable as to outweigh the strong public interest in a trial. It is not, in the ultimate balance, offensive to the constitutional interests protected by s.11(b). It does not reach the point of infringing s.11(b) and cannot justify a stay of the proceedings.

[80] For all of these reasons, the application for a stay of the proceedings based on an alleged infringement of s.11(b) is dismissed.

Renee M. Pomerance Justice

Delivered Orally: August 31, 2012