COURT FILE NO.: CRIMJ (F) 09/3778

DATE: 2013-04-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Donovan Brown

Defendant

H. Aiken and J. Toews, for the Crown

D. Paradkar, for the Defendant

HEARD: April 15 and 16, 2013

ENDORSEMENT ON CROWN APPLICATION TO DISMISS THE DEFENCE CHARTER APPLICATION

Ricchetti, J:

THE CHARGE

[1] Mr. Brown is charged with possession of cocaine for the purpose of trafficking.

[2] The police received a tip from a Confidential Informant (CI). The police conducted surveillance on Mr. Brown resulting in his arrest on December 6, 2007. During the search following arrest, the police discovered that Mr. Brown had, in the vehicle he was driving, approximately 5.5 kilograms of cocaine and approximately $28,000 in cash.

THE APPLICATION

[3] On April 9, 2013, the Defence brought a Notice of Charter Application. The Defence sought:

a) the name of the confidential informant; and

b) exclusion of the drugs and money found in the vehicle Mr. Brown was driving when he was arrested.

[4] The Defence did not serve an Application Record or a Book of Authorities as required by the Criminal Proceedings Rules (the “Rules”).

[5] The Defence has abandoned the portion of the Charter Application seeking the name of the confidential informant.

[6] In response to the Defence Application, on April 12, 2013 the Crown brought an Application to Dismiss seeking an order under R. 34.03 dismissing the Defence Charter Application.

[7] Upon being appointed the trial judge, I heard submissions from counsel on the Crown’s Application to Dismiss. Given the lack of a Defence Application Record or any specificity regarding the basis upon which the Defence brought its Charter Application, the merits or lack of merits of the Defence Application could not be assessed. As a result, I provided the Defence an opportunity, short of conducting a voir dire, to make submissions, including references to the evidence expected to be relied on by the Defence in the Charter Application. This would assist the court in assessing the relative merits of the Charter Application before ruling on the Crown’s Application to Dismiss. The Defence was given the evening to prepare submissions.

[8] At the conclusion of the Defence submissions, I advised counsel I would grant the Crown Application to Dismiss. I further advised that I would provide written reasons for doing so. These are those reasons.

The History of the Proceedings

[9] The history of these proceedings is highly relevant to the court’s determination.

Arrest

[10] Mr. Brown was arrested on December 6, 2007.

Preliminary Inquiry and Discovery

[11] The Preliminary Inquiry was held on January 29, 2009. Mr. Paradkar appeared as Mr. Brown’s counsel at the Preliminary Inquiry. The police officers involved in the arrest and search of Mr. Brown were called as witnesses.

[12] Discovery was held on September 9, 2009. Mr. Paradkar appeared as Mr. Brown’s counsel at the discovery. The same police officers involved in the arrest and search of Mr. Brown were again cross-examined by Mr. Paradkar.

Committal for Trial

[13] Mr. Brown was committed for trial on October 6, 2009.

Indictment

[14] Court dates:

November 6, 2009 This is the first date this matter came before the Superior Court. Mr. Paradkar appeared as Mr. Brown's counsel.

December 7, 2009 Pre- trial held. The Defence raised the issue of Charter applications (regarding the arrest and seizure). The Defence was instructed to provide the application at least 30 days prior to trial – in other words – comply with the Rules.

Trial date was set for October 25, 2010.

January 7, March 19, April 09, April 30, May 28, and July 02, 2010:

Court appearances.

August 10, August 20, September 10, September 15, September 21, and September 25, 2010:

Court appearances.

October 1, 2010 Mr. Paradkar sought an adjournment of the trial scheduled for October 25, 2010.

October 5, 2010 Mr. Paradkar advised the court he was recently retained and required time to prepare for trial. There is no mention of a Charter application.

October 12, 2010 Trial date adjourned.

May 30, 2011 set for new trial date.

May 20, 2011 No one appeared for the Defence at the Trial Readiness Conference.

May 24, 2011 Defence advises that there are no pre-trial motions.

May 30, 2011 – June 7, 2011:

Trial held.

Mr. Paradkar appeared for Mr. Brown.

Mistrial declared.

June 24, 2011 New trial set for May 14, 2012. Mr. Paradkar appeared for Mr. Brown.

August 15, 2011 Court appearance.

August 18, 2011 Mr. Paradkar advised he was not retained.

October 21, 2011 Assignment Court.

November 18, 2011 Mr. Paradkar appeared for Mr. Brown.

January 16, 2012 Mr. Paradkar appeared for Mr. Brown. Again the issue of retainer is raised.

February 6, 2012 Mr. Paradkar appeared for Mr. Brown.

February 28 and March 2, 2012:

Court appearances.

March 5, 2012 Mr. Paradkar appeared for Mr. Brown and advises the court that he is "potentially retained."

March 13, 2012 Mr. Paradkar advised the court that he was retained.

March 16, 2012 Defence sought an adjournment of the trial.

Grounds were:

1. Mr. Brown's wife was pregnant due to deliver in April, 2012; and

2. "Mr. Paradkar would also like additional time to prepare for the trial as he will be away in March and has a busy trial schedule in April/May."

April 10, April 17, April 27, April 30, and May 2, 2012:

Court appearances. Mr. Paradkar appeared for Mr. Brown.

May 8, 2012 Further materials filed by the Defence on the adjournment application. Defence adjournment granted. Mr. Paradkar appeared for Mr. Brown.

May 25, 2012 New trial date was set for April 15, 2013.

Mr. Paradkar appeared for Mr. Brown.

February 23, 2013 Mr. Paradkar brought a motion to be removed from the record.

The Notice of Application stated that Mr. Brown "further understands that in all likelihood any adjournment application will not succeed."

February 26, 2013 Mr. Paradkar was removed as counsel.

March 15, March 22, 2013:

Mr. Brown advised that the trial date remains with or without counsel.

April 5, 2013 Trial Readiness Conference – the endorsement reads “ready to proceed.”

Mr. Paradkar is once again retained by Mr. Brown in connection with this prosecution.

Mr. Paradkar submitted he advised the trial readiness judge of the possible Charter Application.

April 9, 2013 This Defence Charter Application was brought.

Defence is seeking:

1. disclosure of the Confidential Informant; and

2. exclusion of the drugs and money seized after Mr. Brown's arrest.

Only the Notice of Charter Application is filed.

April 12, 2013 The Crown Application to Dismiss was brought.

April 15, 2013 Trial Judge appointed

[15] Mr. Paradkar was noted on the Indictment as appearing on at least 26 of the above court appearances and at the prior trial. From the submissions of Mr. Paradkar, it is clear that Mr. Paradkar also appeared at other court appearances on behalf of Mr. Brown. He was certainly aware of the issues involved in this prosecution including the existence of the Charter issue and that it had not been raised for at least 3 ½ years, when he decided to accept the retainer again on April 5, 2013 knowing the trial was scheduled for April 15, 2013.

ANALYSIS

[16] Rules 34.03 provides as follows:

34.03 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(a) the nature of the applicant’s non-compliance with these rules;

(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

(e) the history of the pre-trial applications and the proceedings;

(f) any notice given to other parties about the issues raised in the pre-trial applications;

(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

(h) any prejudice to any other party in the proceeding;

(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

(j) any explanation advanced for failure to comply with these rules; and,

(k) any other factors the judge considers relevant to his or her determination.

[17] I am satisfied that the Crown’s Application to Dismiss should be granted.

[18] The evidence upon which the Defence relies for its Charter Application is entirely evidence known to the Defence since January 2009. The Charter issues are not new, they have been known for over 4 years. The Defence cross-examined the police officers at length on the confidential informant’s tip, the basis for the police’s reasonable and probable grounds to arrest Mr. Brown and the subsequent search. Counsel for the Defence admitted there is no new evidence relevant to the Charter Application since the preliminary inquiry. None would be sought to be adduced at a voir dire.

[19] The Defence identified the Charter issues in its pre-trial brief in November 2009. The pre-trial judge’s Report to the Trial Judge indicates that this issue was identified and Defence counsel was advised to comply with the Rules in bringing the Charter Application.

[20] The Defence chose not to bring forward the Charter Application prior to the 2010 trial date. The Defence chose not to bring forward the Charter Application prior to the 2011 trial date and, in fact, proceeded to trial without the Defence having brought the Charter Application. The Defence chose not to bring forward the Charter Application before the 2012 trial date. The Defence chose not bring forward the Charter Application until 6 days prior to the 2013 trial date.

[21] There has been ample and numerous opportunities for the Defence to have proceeded with its Charter Application. No explanation was given why the Charter Application, identified in November 2009, has not been previously brought or why the Charter Application should now be permitted on short notice and without proper materials having been filed by the Defence.

[22] No valid reason was given why the Defence did not comply with the Rules in bringing the Charter Application. Mr. Paradkar submitted that the Notice of Charter Application was brought late because he was recently re-retained. This explanation is not acceptable given that the Charter Application was identified by the Defence at least 3 ½ years ago and was not brought in accordance with the Rules despite this being the fourth scheduled trial date. Mr. Paradkar has regularly and substantially for the entire period of time since January 2009 (at least), continued to represent Mr. Brown. This is not a situation where the Charter Application “fell between the cracks.”

[23] Mr. Paradkar advised Mr. Brown in February 2013 that he had to be ready to proceed to trial on April 15, 2013 and an adjournment was highly unlikely. Bringing the Charter Application on very short notice just days before this trial was expected to begin, while not a Defence application for an adjournment would necessarily result in an adjournment of the trial to allow the Crown to prepare and respond to the Defence Charter Application. This would have been known to the Defence.

[24] I agree with the comments of Justice Hill in R. v. Djevdet [1998] O. J. No. 3983 at paras. 8 -14:

8 The Rules Respecting Criminal Proceedings in the Ontario Court of Justice (General Division) serve a critical function in enhancing the quality of the administration of justice in criminal cases. The requirements of the rules serve to focus proceedings and to secure a minimally adequate record upon which to adjudicate.

9 Integral to the effective operation of the regulatory regime are time limits for serving and filing relevant materials. The court has a discretion to dispense with compliance with the rules only where, and as necessary, in the interests of justice (Rule 2.02). The rules are intended to provide for the just determination of every criminal proceeding and are to be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay (Rule 1.04(1)). It is in the spirit of these organizing principles that a court may exercise its discretion to abridge any time limit prescribed by the rules (Rule 3.02(1)).

10 Where an applicant's materials are filed on the eve of trial or of a hearing date, other than in compliance with established time limits, the responding party is generally disadvantaged. The Crown is inevitably unfairly pressed for time to investigate the applicant's affidavit evidence, to prepare its own responding affidavits, to decide whether to cross-examine on affidavit evidence before an examiner, if so advised to conduct the cross-examination, and, to prepare and serve and file a respondent's record and factum.

11 The extent of prejudice to the Crown is likely to be directly proportional to the degree of non-compliance with the temporal requirements of the rules. The less the preparation time afforded a respondent, the greater the danger that something akin to an ex parte proceeding will be conducted. This result diminishes the repute of the administration of justice. The adversary system requires the participation of two informed parties. As well, it miscasts the role of the court, and impairs the appearance of fairly administered justice, to require the presiding judicial officer to in effect, factually and legally "top up" one litigant's case.

12 Cory J. observed in R.(D.S.) v. The Queen (1997), 1997 CanLII 324 (SCC), 118 C.C.C. (3d) 353 (S.C.C.) at 385:

Even in the absence of explicit constitutional protection, it is an important principle of our legal system that a trial must be fair to all parties -- to the Crown as well as to the accused.

13 In Regina v. Loveman (1992), 1992 CanLII 2830 (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.) at 126-7 Doherty J.A. observed, in regard to untimely notice of a Charter argument:

In deciding how to proceed when faced with the Crown's objection, the trial judge had to balance various interests. He had to bear in mind an accused's right to raise constitutional objections to the admissibility of evidence and the Crown's right to have an adequate opportunity to meet Charter arguments made on behalf of an accused. In addition, the trial judge had to be concerned with the effective use of court resources and the expeditious determination of criminal matters.

14 I agree with the statement of McIsaac J. in Regina v. Emsley, [1993] O.J. No. 2765 (Gen. Div.) (affirmed on other bases [1996], O.J. No. 939 (C.A.)) at para. 5 and 6:

The considerations that the new Rules are intended to serve are the effective use of court resources, the expeditious determination of criminal matters and the avoidance of prejudice to the opposing party in the sense of providing an adequate opportunity to defend an allegation of Charter violation. Put in cruder terms, the Rules are there to prevent "litigation by ambush".

Any legal submissions would be spontaneous and ill-prepared. In a nutshell, the quality of justice would be greatly diminished because the Crown was forced to respond from a completely inadequate position. This is specifically the type of situation that the rules were intended to avoid.

[25] Justice Hill recently dealt with an analogous situation to this case in R. v. Bingham, 2012 ONSC 2944 at paras. 18 – 23:

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 CanLII 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 CanLII 12037 (ON CA), [2004] O.J. No. 320 (C.A.)(QL), at para. 35; R. v. Blom (2002), 2002 CanLII 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 CanLII 1541 (ON SC), 64 M.V.R. (5th) 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.

[26] Justice Hill in Bingham, supra, adjourned the trial. That is an option here but this prosecution has been outstanding since 2007. An adjournment would be necessary to require the Defence to file proper Application materials and permit the Crown to file responding materials before a voir dire could be held. This would no doubt result in a lengthy delay in scheduling a new trial date. A delay of dealing with this prosecution would not serve the public’s interest in seeing justice done. The administration of justice would not be well served be a further lengthy delay on a relatively straightforward prosecution.

[27] The Defence submits that the Crown has been aware of the possible Charter Application. I disagree. After 3 ½ years had passed since the Defence raised the possibility of a Charter Application and the failure to bring such an application despite a number of trial dates and a trial, there was no reason for the Crown to believe that the Defence would again raise the Charter issues until the Crown was served on April 9, 2013. The Crown could not possibly have been prepared to deal with such an application.

[28] I am satisfied the Defence’s non-compliance with the Rules is very serious and prejudicial to the Crown in this case. The history of this prosecution, and in particular the conduct of the Defence, weighs very heavily in favour of granting the Crown’s Application to Dismiss. Absent an adjournment and rescheduling the trial, there is no possibility of the Crown is able to respond in a meaningful way. The issue is too important for the Crown not to have a reasonable amount of time to deal with this issue as, without the admissibility of the cocaine and money, the Crown’s case would be gutted. If forced to proceed, the Crown would be seriously prejudiced.

[29] The Defence’s right to raise the Charter issue is unquestioned but is subject to compliance with the Rules. Failure to do so, means the Defence runs a risk that the application might be dismissed pursuant to Rule 34.03.

[30] Let me briefly deal with the merits of the Defence Charter Application as it is a consideration under Rule 34.03 (g).

[31] The police received a tip from a Confidential Informant. This was the first time this CI had provided a tip to the police regarding a person who was allegedly a “key level cocaine dealer.” The tip consisted of:

• identifying the physical description of the person (6’2”-4”, muscular build, 220 lbs);

• identifying generally the location where the person lived;

• the type of vehicle driven by the individual - either a dark Nissan or Honda;

• the person generally carries large amounts in a small black duffle bag or gym bag;

• the person would attend at various places like gas stations parking lots, strip plazas, restaurants and clubs to do his dealing; and

• the person traffics cocaine to various club owners in the “downtown club district.”

[32] The police determined:

• Mr. Brown matched the physical description of the person;

• Mr. Brown lived in the area;

• Mr. Brown drove a dark Nissan Maxima;

• Mr. Brown was seen carrying a black duffel bag or gym bag;

• During the surveillance, Mr. Brown was seen going to several gas stations where the police saw suspicious activity; and

• Mr. Brown was seen going to downtown Toronto, near Yonge and Dundas (arguably a club area).

[33] The police were very experienced officers. They based their decision to arrest Mr. Brown on the tip and the police surveillance of Mr. Brown.

[34] The police testified they continued their surveillance until they determined they had reasonable and probable grounds Mr. Brown had drugs in his possession for the purpose of trafficking. They arrested Mr. Brown. The money and cocaine were located in the vehicle Mr. Brown was driving.

[35] The Defence focused on the alleged lack of confirmation of the CI's tip. I do not see any error by the police. Much of the tip was in fact confirmed through the surveillance. It is the "totality of the circumstances" that must meet the standard of reasonableness.

[36] In any event, the police did not simply rely on the CI's tip. The police conducted surveillance. The surveillance of Mr. Brown was in many ways confirmatory of the details in the CI’s tip.

[37] The Defence submits that the police did not see any actual dealing in drugs. That is not required. The actions of Mr. Brown at the gas stations, where brief dealings with other persons were observed, were suspicious and consistent with dealing in drugs. This conduct added to the police officer’s reasonable and probable grounds.

[38] The observed actions of Mr. Brown were consistent and confirmatory of someone trafficking in drugs. Based on the evidence referred to by the Defence, the evidence is consistent with the police having reasonable and probable grounds to arrest Mr. Brown that evening. It appears, taking into account the police officers’ experience, that the police officers had an honest and subjective belief Mr. Brown was trafficking in drugs that evening and there was an objectively demonstrable basis for that subjective belief. See R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.).

[39] Given all the circumstances, including the experience of the police officers, the Defence’s submissions and proposed evidence, the Defence has failed to demonstrate a credible argument that the police did not have reasonable and probable ground to arrest Mr. Brown.

[40] If the police had reasonable and probable grounds to arrest Mr. Brown, then the Charter Application must fail. In other words, if the police had reasonable and probable grounds for the arrest, the arrest was lawful and the search incident to arrest was valid resulting in the drugs and money being admissible.

[41] The Defence has one other problem. Even if there was a Charter breach, the Defence would have to establish that the drugs and money evidence should be excluded under s. 24(2) of the Charter.

[42] If there had been a Charter breach, on an application of the Grant test, there are strong factors favouring the admission of the drugs and money. There is no suggestion the police acted in bad faith or there was a deliberate breach of Mr. Brown’s Charter rights. In fact the evidence establishes that the police, cognizant of the need for reasonable and probable grounds for arrest, waited until the cumulative effect of the tip and the surveillance satisfied them that they had reasonable and probable grounds to arrest. The drugs and money evidence is reliable. Its exclusion would gut the prosecution.

[43] On the other hand, a person’s right to be free from unreasonable arrest and search is a serious and important Charter right which ought to be vigorously protected. This factor would favour exclusion of the drugs and money.

[44] The only reference to s. 24(2) of the Charter in the Defence Charter Application is that the admission of the drugs and money would bring the administration of justice into disrepute. There are no further details. When asked to expand on this issue, the Defence's only submission was that the police officers were experienced and, as a result, there was a lack of good faith on their part. I am not persuaded that this logic necessarily follows. Further, despite extensive cross-examination of the police officers, there is no other evidence which the Defence pointed to support any bad faith or deliberate breach of Mr. Brown’s Charter rights.

[45] Balancing the factors, I am not persuaded that this would even be a close call on the application of the Grant test.

[46] As a result I conclude the Defence Charter Application has little or no merit. This factor also supports granting the Crown’s Application to Dismiss.

CONCLUSION

[47] The Crown Application to Dismiss is granted.

Ricchetti, J.

Released: April 19, 2013

COURT FILE NO.: CRIMJ (F) 09/3778

DATE: 2013-04-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

v.

Donovan Brown

BEFORE: Ricchetti J.

COUNSEL: H. Aiken and J. Toews, for the Crown

D. Paradkar, for the Defendant

ENDORSEMENT ON CROWN APPLICATION TO DISMISS THE DEFENCE CHARTER APPLICATION

Ricchetti J.

DATE: April 19, 2013