COURT FILE NO.: CR-11-1586

DATE: 20130925

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Sean Doyle, for the Crown

Respondent

• and -

CHRISTOPHER SIDORO and JONATHAN SIDORO

Aswani Datt, for Christopher Sidoro

Robert Jagielski, for Jonathan Sidoro

Applicants

HEARD: August 16, 2013 at Brampton

RULING ON s. 11(b) CHARTER APPLICATION

F. Dawson J.

[1] Christopher and Jonathan Sidoro are charged with a number of offences in relation to the robbery of an armoured car. They apply pursuant to s. 24(1) of the Charter for a stay of proceedings on the basis of an alleged violation of their s. 11(b) rights to be tried within a reasonable time.

Overview of the Case

[2] The robbery occurred on the afternoon of December 31, 2009. Christopher Sidoro was working as a guard stationed in the rear of a Securicor armoured car. It is alleged he was part of an “inside job” that resulted in the theft of approximately $80,000.

[3] It is the Crown’s theory that, by prearrangement, Christopher Sidoro’s brother Jonathan and a former co-accused, Matthew Manalo, were waiting in a van at the location where the largest cash delivery of the day was to be made to a bank. When Christopher Sidoro got out of the back of the armoured car with the money the Crown contends that Jonathan Sidoro, who was masked and armed with a gun, pretended to rob Christopher. Jonathan Sidoro is then said to have fled in a van operated by Matthew Manalo.

[4] The police quickly obtained security video of the getaway van. They learned that 4,000 similar vans were registered in the Greater Toronto Area. They noticed that one such van was registered to a person named Manalo who lived in Mississauga. The police had already noticed that Christopher Sidoro had placed a call on his cell phone to Matthew Manalo not long before the robbery.

[5] The police executed search warrants on the Manalo and Sidoro residences within a few days of the robbery. Large sums of cash wrapped in the fashion used by the armoured car company were found in each residence in such a way that all three of the men were implicated.

The History of the Proceedings

[6] I will not refer to each and every court date. However, they have been charted in the filed material and I have read the transcripts of the various appearances.

[7] The accused first appeared in court on January 4, 2009. Special lengthy bail hearings were scheduled and bail was granted in January 2009. The first post-bail court appearance was on February 2, 2009. A series of appearances took place in March, April and May. On May 25, 2009 a judicial pretrial was scheduled for July 9, 2009 in the Ontario Court of Justice. At the pretrial on July 9, 2009 the case was scheduled for a three day preliminary inquiry to be held March 5, 8 and 9, 2010.

[8] The preliminary inquiry commenced as scheduled but it could not be completed. It was set to continue on July 23 and August 13, 2010. When it still could not be completed it was scheduled to continue on October 4, 26 and 28, 2010.

[9] On October 4 it turned out that Manalo’s counsel had a trial commitment in the Superior Court and all three of the October dates were lost. On October 21, 2010, after a series of appearances to arrange dates, the preliminary inquiry was scheduled to continue January 18 and 19 and February 16, 2011. When it was still not completed on those dates it was scheduled to continue on September 13, 14 and 15, 2011. Arguments were made on October 21, 2011. When the preliminary inquiry judge determined he needed more time to deal with the matter the case was adjourned from October 21 to November 23, 2011 when the judge ordered all three accused to stand trial.

[10] As I will explain below, in my view an analysis of why it took over 20 months and approximately 10 court days to complete a preliminary inquiry that was originally scheduled for three days is critical to the s. 11(b) analysis in this case.

[11] The applicants’ first appearance in the Superior Court was on December 16, 2011, at which point a judicial pretrial was set for January 19, 2012. The pretrial commenced on that day and was adjourned to continue on April 11, 2012. When the pretrial was concluded on April 11 the matter was adjourned to April 25, 2012 to set a trial date.

[12] On April 25, 2012 the applicants were not ready to set a trial date. Counsel for one of the applicants waived s. 11(b) to the next date, which was May 18, 2012.

[13] On May 18, 2012 Baltman J. was presiding. Her Honour read aloud a direction that if anyone appearing that day had s. 11(b) concerns they should bring them to her attention so that the court could make special arrangements to address those concerns. Although this case was the first one called after that direction was read no mention was made of s. 11(b) concerns by the applicants.

[14] This case was then set for a six week trial commencing March 18, 2013. The court had offered February 11, 2013. Significantly, counsel for the applicants then stated that they were not available for a continuous six week period until March 2013.

[15] The applicants agree that the s. 11(b) clock was stopped on February 8, 2013 when they vacated the March 18, 2013 trial date and waived s. 11(b) to bring this application.

[16] For the reasons which I will now develop I conclude that, despite the delay of just over four years alleged by the applicants, on a careful analysis the total of Crown delay and institutional delay falls within the guidelines in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. When I apply the appropriate balancing after a consideration of all of the factors discussed in Morin and an analysis of the reasons for the delay, I conclude the delay in this case is not unreasonable.

The Applicable Legal Principles

[17] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is primarily directed to the protection of the individual rights of the accused. This protection encompasses security of the person, liberty and fair trial interests. However, there is also an important societal interest protected by s. 11(b) of the Charter, as the public has an interest in ensuring that accused persons are tried promptly and fairly on the merits. These principles are described in Morin and in R. v. Qureshi et al. (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C. A.), at pp. 458-9.

[18] In Morin the Supreme Court of Canada summarized the method by which the time elapsed from the laying of the charge to the completion of the trial should be analyzed to determine whether s. 11(b) of the Charter has been contravened. Before balancing the interests that s. 11(b) is designed to protect, Morin mandates (at pp. 787-88) an examination of the delay under the following categories:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources;

(e) other reasons for delay;

4. prejudice to the accused.

[19] While the delay is to be analyzed under these categories, the resolution of the issue does not come down to a mathematical formula. Rather, a balancing must take place in order to determine whether or not the delay is unreasonable. The nature of that balancing process is described in R. v. Kporwodu, 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 (C.A.), at paras. 184-197. Reasonableness 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: Morin, at p.13; R. v. Allen (1997), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.) at p.345, aff'd. 1997 CanLII 331 (SCC), 1997, 119 C.C.C. (3d) 1 (S.C.C.); R. v. MacDougall (1998), 1998 CanLII 763 (SCC), 128 C.C.C. (3d) 483 (S.C.C.); R. v. Smith (1989), 1989 CanLII 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.) at p. 105; R. v. Pusic 1996 CanLII 8215 (ON SC), [1996] O.J. No. 3329 (Ont. Gen. Div.).

[20] In R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.), the court made the following observation at p. 355:

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.

[21] As with all Charter motions, the burden of proof is on the applicants to establish on a balance of probabilities that their rights have been violated.

Analysis

[22] I will follow the Morin framework of analysis.

1. The Length of the Delay

[23] The Crown concedes that the overall delay of just under 49 months is substantial. On its face and unexplained it appears to be unreasonable. A delay of this magnitude calls for a further examination of the facts which led to the delay.

2. Waiver of Time Limits

[24] The only period of waiver I have identified is in the Superior Court and is in relation to the period from April 25 to May 18, 2012. On April 25, 2012 the Crown and the court were in a position to set a trial date but counsel for the applicants preferred to wait until May 18, 2012 to set a date for trial. Counsel for Jonathan Sidoro expressly stated he waived s. 11(b) for this period. Consequently, I will deduct approximately three weeks from the overall delay for this reason.

3. The Reasons for the Delay

(a) Inherent Time Requirements of the Case

[25] Some amount of time will always be required to process a criminal case. The amount will vary with the nature and complexity of the case. Inherent time includes a reasonable intake period in both the Ontario Court of Justice and the Superior Court of Justice. Time is required for an accused to obtain bail, retain counsel, and obtain and review disclosure.

[26] The time to schedule and conduct a pretrial will also involve some inherent time. It appears on the basis of the authorities that whether the time to conduct a pretrial will be inherent time, institutional delay or some combination of both will depend on the facts of a particular case and the length of time it takes to schedule and conclude the pretrial process: R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.), at para. 54; R. v. Tran (2012), 288 C.C.C. (3d) 117 (Ont. C.A.), at paras. 36-37; R. v. Khan (2012), 2011 ONCA 173, 270 C.C.C. (3d) 1 (Ont. C.A.), at para. 53; R. v. Cranston, 2008 ONCA 751, [2008] O.J. no. 4414 (C.A.), at para. 46.

[27] Inherent time also includes the time it will take for the accused to prepare the case for the preliminary inquiry and the trial. The record will often not reveal the amount of time required, but as noted in Morin, at p. 792, trial judges are well able to assess the amount of time that is required.

[28] The point was also made by Sopinka J. in Morin, at pp. 794-95, and referred to more recently in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at para. 26, that systemic or institutional delay is “the period that starts to run when the parties are ready for trial but the system cannot accommodate them”. In Morin, Sopinka J. stated that counsel need time not only to prepare but to “clear their schedules”.

[29] I will deal with intake periods first. The actual intake period in this case stretched from the first appearance on January 4, 2009 to May 25, 2009 when the parties were ready to schedule a pretrial. A review of the transcripts in the intervening time reveals that there was some delay in getting disclosure to the applicants. I will deal with that below when I deal with the “Actions of the Crown”.

[30] It seems to me that an intake period of approximately three months is appropriate for a case of this complexity in this busy jurisdiction. This case is not overly complex in the sense of involving many documents or wiretaps, but it cannot be considered to be a simple or routine case. Routine drinking and driving cases in this jurisdiction are often assessed an intake period of two months: R. v. Misner, [2003] O.J. No. 1984 (S.C.J.). The jurisprudence recognizes that a longer period becomes appropriate as the complexity of the case increases. See for example, R. v. G.(C.R.) (2005, 2005 CanLII 32192 (ON CA), 77 O.R. (3d) 308 (C.A.); R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270.

[31] The three month intake period is about one and a half months short of getting the case to the May 25, 2009 date where the parties were ready to set a judicial pretrial date. I would assess that period against the Crown for failing to produce full disclosure on as timely a basis as it should have.

[32] On May 25, 2009 the parties scheduled the pretrial for July 9, 2009. This 44 day period to schedule an important part of the proceeding seems to me to be a relatively short and entirely appropriate period of time in which to obtain a pretrial in this very busy jurisdiction. Given the relatively brief period involved to schedule such an important step I see this as part of the inherent time requirements of the case: Nguyen. Had it taken appreciably longer to obtain a pretrial date I would have assessed at least a portion of the time as institutional delay. However, it seems to me to be entirely reasonable that it would take 44 days to have a judge available to conduct a pretrial.

[33] I will leave the preliminary inquiry aside for the time being. I propose to analyse what happened at the preliminary inquiry separately, due to the very different interpretations of what occurred at the preliminary inquiry that are advanced by opposing counsel.

[34] Turning to the Superior Court, the period from committal for trial on November 23, 2011 to the first appearance in Superior Court on December 16, 2011 represents a reasonable intake period of just less than one month. This is neutral time.

[35] On December 16, 2011 a judicial pretrial was set for January 19, 2012. This period of approximately 33 days is again a very reasonable period of time within which to arrange such an important step in the proceeding. I do not see any reason to consider such a reasonably short period as institutional delay. Rather, as is in the case of the pretrial in the Ontario Court of Justice, I see it as part of the inherent time requirements of the case. In reaching this conclusion I apply the principles in the cases I referred to earlier concerning the scheduling of pretrials.

[36] The pretrial which commenced on January 19, 2012 before Durno J. was adjourned to continue on April 11, 2012. That is a considerable period of time. However, I have no evidence to suggest that this was not without the genuine consent and agreement of the applicants. The transcript for January 19, 2012 is brief and simply says all accused are remanded to continue the pretrial. Knowing how accommodating Justice Durno is in managing the criminal trial list in this jurisdiction I can only conclude in the absence of evidence to the contrary that the adjournment of the pretrial to April 11, 2013 was part of the inherent time requirements of the case. I note that the applicants describe this period as intake time. Either way it is neutral time and must be deducted from the overall delay for s. 11(b) purposes.

[37] On April 11, 2012 the case was adjourned to April 25, 2012 to set a date. The applicants characterize this brief period as intake time. I agree.

[38] I have already explained that the time period from April 25 to May 18, 2012 was the subject of a waiver by the applicants.

[39] On May 18, 2012 the March 18, 2013 trial date was set. As already mentioned, when the applicants were offered a February 11, 2013 trial date their counsel advised the court that they would not be able to do a continuous six week trial until March 2013. This necessarily means, to use the words of Sopinka J. in Morin, that the applicants’ counsel could not “clear their schedules” in order to do this trial until March 2013, assuming for the moment that the trial required six weeks.

[40] The applicants submit that because the Crown ultimately stayed proceedings against Matthew Manalo a six week trial was not required. The applicants contend that the Crown ought to have alerted them to that possibility before a trial date was set and submit that they may have been able to schedule an earlier trial date if it was to be a shorter trial.

[41] I will deal with this aspect of the matter further when I deal with the conduct of the Crown. For now I will simply say that if something approximating a six week trial was required there was no institutional delay associated with the time period from May 18, 2012 when the trial date was set until the March 18, 2013 start date because the applicants’ counsel could not clear their schedules to accommodate this trial until March 2013. As soon as counsel were available for trial the court was able to accommodate them. Based on how trial dates are fixed in the Superior Court in this jurisdiction it would not have made a difference to scheduling if the trial was somewhat shorter. I note that counsel for the accused have produced no evidence that they would have been available significantly earlier for a slightly shorter trial.

(b) Actions of the Accused

[42] During the first appearance in the Ontario Court of Justice the applicants were diligent about pursing disclosure, which was delayed. Based on my review of the entire record nothing can be said about the actions of the accused which impacts negatively on the s. 11(b) analysis until it comes to the preliminary inquiry where, as I will explain when I deal with the preliminary inquiry under a separate heading, the applicants were largely responsible for the gross underestimation of the time that would be required to conduct that hearing.

[43] Moving past the preliminary inquiry stage, I draw attention to what occurred before Baltman J. on May 18, 2012. Despite the court’s request that any s. 11(b) concerns to that point in the proceedings be brought to the court’s attention so they could be addressed, the applicants remained silent.

[44] While I am not able to see this as a waiver of s. 11(b) it stands as evidence that the applicants did not see the delays that had occurred to that point, which were almost all during the preliminary inquiry, as troubling.

[45] By remaining silent in these circumstances they also passed up any opportunity to have an exceptionally early date set by the court. Based on my experience in this jurisdiction I am aware that earlier dates can sometimes be arranged for Superior Court trials that require priority for one reason or another. This approach by the applicants tends to support the conclusion that a speedy trial was not part of their litigation strategy. It is also consistent with the statements of counsel that they were not available for a continuous six week trial until March 2013.

[46] The applicants now say that if they had been made aware in advance that the Crown would not be proceeding against Matthew Manalo they may have been able to schedule a shorter trial to start on an earlier date. I am unable to accept this submission for a number of reasons.

[47] First, I observe that after vacating the original March 18, 2013 start date for the trial, and bringing this application, the applicants rescheduled the trial for a period of four weeks. In addition, I understand they have asked Crown counsel to have available many of the police witnesses who have evidence to give concerning the taking of an inculpatory statement from Matthew Manalo. It seems that the rescheduled trial is not likely to be markedly shorter than the trial that was originally scheduled.

[48] Second, there is no evidence before me that the court could have provided a four week trial any earlier than the February 11, 2013 start date that was offered and rejected. Nor is there any evidence that counsel for the applicants were available to conduct a four week trial appreciably sooner than they were available to conduct a six week trial.

[49] The net result is that I am completely unpersuaded that a two week difference in the estimated length of the trial is any answer to the statements made on the record by the applicants’ counsel on May 18, 2012 that they were not available for trial on a continuous basis until March 2013.

(c) Actions of the Crown

[50] As I have already mentioned, a review of the transcripts for court appearances prior to the judicial pretrial in the Ontario Court of Justice reveals that counsel for the applicants were having some difficulty in getting all of the disclosure they were entitled to. On more than one occasion the case had to be adjourned because the Crown brief was not available for disclosure. Defence counsel wrote to Crown counsel about this problem.

[51] Crown counsel acknowledges that there were some delays and agrees that it would be appropriate to attribute 1.5 months of the overall delay to the Crown for failure to complete disclosure in a timely fashion. Based on my review of the transcripts I conclude this is an appropriate concession.

[52] As I will explain later when I deal with the delay at the preliminary inquiry, the conduct of the Crown contributed to the circumstances that led to the delay at the first stage of the preliminary inquiry and the Crown must share some responsibility for that part of the delay. For the time being I will simply say that there is some merit in the applicants’ submission that the vacillation in the Crown’s position, which was related to attempts by the Crown to somehow use Matthew Manalo’s police statement and/or Matthew Manalo as a witness against Jonathan Sidoro, contributed to the delays that occurred during the first three days of the preliminary inquiry.

[53] I turn now to focus on the actions of the Crown following the preliminary inquiry.

[54] When this s. 11(b) application was originally brought the applicants contended that in the post-preliminary inquiry period the Crown was, in essence, conducting a sham prosecution against Matthew Manalo without any intention of actually proceeding against Manalo at the end of the day. The applicants tied this allegation into a submission that this misled them into concluding that a six week trial would be required because there would be a repeat of the contentious voir dire held at the preliminary inquiry relating to the voluntariness of Matthew Manalo’s statement to the police. The applicants submitted that although they were not advised until January 25, 2013 that the Crown had stayed the charges against Matthew Manalo, the Crown knew all along that it would eventually stay Manalo’s charges.

[55] Counsel for the applicants abandoned all submissions of Crown misconduct or oblique motives on the part of the Crown before the s. 11(b) application was argued. This was addressed in some detail on the record at the commencement of the application as Crown counsel who was appearing was rightly concerned that he should not appear on the application if there was to be any allegation he had acted improperly. Consequently, there is no submission that the Crown acted in bad faith in relation to the decisions made or the actions taken by the Crown in the period subsequent to the preliminary inquiry.

[56] As already mentioned, the applicants were committed for trial on November 23, 2011. They finally set a trial date on May 18, 2012. In the intervening time, and unknown to the applicants until after the charges against Matthew Manalo were stayed on January 25, 2012, the Crown was trying to work out a plea bargain with Matthew Manalo. An offer was put to Manalo’s counsel in writing. The offer, which was not accepted, expired on May 1, 2012 prior to May 18, 2012 when the six week trial was scheduled.

[57] The applicants submit that these negotiations ought to have been disclosed to them. I make no comment on this point from the perspective of the general duty of disclosure, but from the s. 11(b) perspective the failure to disclose those negotiations did not impact on the delay in this case. The offer to Matthew Manalo expired well before the trial date was set. Given the applicants’ withdrawal of the bad faith submission there is no question about whether the Crown was intending on proceeding against Manalo as well as the applicants at the time the trial date was set.

[58] Generally, I would observe that the evidence suggested that Manalo was less involved than the two Sidoro brothers were. Difficulties in the Crown’s case against Manalo came to light at the preliminary inquiry. They involved allegations of abusive conduct by the police which had some support in a recording of comments made by Officer Pollock who arrested and interviewed Manalo, and a finding by the preliminary inquiry judge that the police lied during Manalo’s statement voir dire. It would be apparent to all that these problems might spill over to infect that Crown’s case against the applicants. These facts were known to all and I agree with the Crown’s submission that counsel for the applicants might have anticipated that the Crown would attempt to resolve the case against Manalo. Be that as it may, I do not see these events as impacting the overall delay as plea negotiations were off the table when the trial date was set. There is no challenge to the Crown’s submission that it was not until shortly before the charges against Manalo were stayed that the Crown decided to do so.

[59] When the Crown was unable to obtain a plea from Matthew Manalo the Crown had to eventually confront the problems that continuing to prosecute Manalo posed for the prosecution of the applicants. The decision was made to enter a stay of proceedings against Manalo. That was communicated to Manalo’s counsel on January 18, 2013 and the stay was entered on January 25.The applicants were advised that day.

[60] I am told there is no plan by the Crown to attempt to call Matthew Manalo as a witness against the applicants. The Crown has agreed it will not do so and any attempt to do so would undoubtedly open up the tactical problems the Crown wishes to avoid.

[61] The determination of whether or not to proceed against an accused is a matter of core prosecutorial discretion that is reviewable only for abuse of process: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. Given the abandonment by the applicants of any allegation of bad faith on the part of the Crown there is no suggestion of abuse of process here. In any event, I do not see how these developments impacted the overall length of the delay in this case. I have already explained why I reject the submission that if the applicants had known Manalo’s charges would be stayed the estimate for trial would have been shorter leading to an earlier trial date. Based on the findings I have made the Crown did not decide to stay against Manalo until shortly before the applicants were told of it.

[62] In addition, in all the circumstances I do not think the Crown can be faulted for not making its decision to stay the charges against Manalo until after the trial date was set. The surrounding circumstances were complex from the perspective of the decision the Crown eventually decided to make. In this context it is difficult to characterize what was occurring as other than something arising from the inherent nature of the case.

[63] On the positive side, I would note that Crown counsel went to great lengths to work with the trial coordinator and the preliminary inquiry judge to find early dates for the continuation of the preliminary inquiry. The transcripts which record this process show that the Crown did everything possible to free up extra time in the judge’s schedule by moving other cases to different courts.

(d) Limitations on Institutional Resources

[64] The record before me shows that there were challenges in scheduling the preliminary inquiry and its continuations. It took almost eight months to get from the pretrial to the first preliminary inquiry date, four months to get to the first continuation dates, two months to get to the second continuation dates which were lost because Matthew Manalo’s counsel was double booked, three months to get to the third continuation dates and seven months to get to the final set of dates, not including the time the preliminary inquiry judge needed to complete his reasons. There is clearly some institutional delay involved in this process. I will make findings in respect of these periods of delay when I analyse what occurred at the preliminary inquiry.

[65] Aside from what occurred at the preliminary inquiry, however, nothing in this case stands out in relation to a lack of institutional resources, given what I have already said about counsel for the applicants not being able to clear their schedules until March 2013. Pretrials and other matters were scheduled expeditiously.

4. Prejudice to the Accused

[66] Neither of the applicants has filed any material nor produced any evidence of specific prejudice. The applicants state that due to the length of the delay they rely solely on inferred prejudice. In their submission, the relevant delay substantially exceeds the Morin guidelines.

[67] The extent to which I am permitted or able to infer prejudice is affected by my ultimate findings on the cumulative amount of Crown and institutional delay. Where the guidelines for such delay described in Morin are exceeded prejudice may be inferred, depending upon the length and nature of that delay. However, given my conclusion that the total of Crown and institutional delay falls within the Morin guidelines, it is difficult to infer meaningful prejudice on the record before me.

[68] I also note my earlier observation that the applicants did not respond to Justice Baltman’s direction that any s.11 (b) concerns be brought to her attention in assignment court so she could address them. This is inconsistent with a claim of prejudice to that point.

[69] I keep in mind that the focus is on prejudice which arises by virtue of the delay in processing the charges and not prejudice arising from the fact the accused have been charged: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, 33 C.C.C. (3d) 289, at pp. 312, 321 C.C.C. (3d).

[70] I observe that the record demonstrates that Crown counsel was open and responsive to reducing the stringency of bail and bail conditions as the case progressed, thus lessening the prejudice flowing from prolonged bail supervision.

5. Other Reasons for Delay

(a) The Preliminary Inquiry

[71] As is apparent from the foregoing, if there is an unreasonable delay in this case it must emerge from the preliminary inquiry. Before dealing with specifics I would make the following general comments.

[72] First, I would observe that all counsel involved in the case initially underestimated the amount of time that it would take to complete the preliminary inquiry. Second, each time the preliminary was not completed in the time scheduled it resulted in a substantial delay due to the difficulty in obtaining continuation time when the schedules of three defence counsel, the Crown and Justice Cowan, who was obviously seized of the matter, had to be taken into account. Third, a number of unexpected things occurred that contributed further to the delay. Fourth, for tactical reasons the defence held back certain information and, more significantly, the impact that information would have on scheduling.

[73] The dates of March 5, 8 and 9, 2010 that were agreed to following the pretrial on July 19, 2009 appear to be the first available dates that were offered. Subject to deducting a period of time that would be required for the applicants’ counsel to prepare, that period represents institutional delay. The time that would be required to prepare to conduct the preliminary inquiry falls within the inherent time requirements of the case and is neutral time.

[74] The applicants have not led any evidence as to the preparation time that was required. It therefore falls to the court to assess a period of preparation time. I conclude that one month of this eight month period would be required for preparation for the first phase of the preliminary inquiry. The preparation time required would not consume an entire month but would have to be worked into counsels’ schedule. It is on that basis that I conclude one month of this time period should be earmarked as inherent time required to prepare. It follows that the balance of seven months must be regarded as institutional delay.

[75] The first day of the preliminary inquiry got off to a slow start. It appears that the Crown needed some time to consider whether it was going to proceed on a joint information against all three accused or on some other basis. The preliminary inquiry started late on a joint information. The Crown should have had this issue sorted out well before that day.

[76] Defence counsel had prepared Statements of Issues that they wished to raise at the preliminary inquiry. Those statements indicate that almost everything that could matter was in issue, including committal. At this point Christopher Sidoro’s Statement of Issues cannot be located. The statements filed on behalf of Jonathan Sidoro and Matthew Manalo indicate that between them they wanted 17 witnesses called in the three days. That proved to be overly ambitious.

[77] The Crown was relying on a statement to the police made by Manalo to assist in obtaining Manalo’s committal. Manalo’s counsel was insisting on a voluntariness voir dire. It seems to me this may have been in addition to the other witnesses requested. Whether it was or was not it appears that defence counsel and Crown counsel underestimated the time required. Everyone involved in the preliminary inquiry except the judge seemed to have an incorrect understanding of the co-conspirators exception to the hearsay rule. This led to some confusion about how the preliminary inquiry should proceed.

[78] At this point I wish to add that the applicants and Manalo were aware that the recording device that was turned on in the police interview room where Manalo was later interviewed by police had been sensitive enough to record some conversation between a police officer named Pollock and another officer that took place just outside the interview room before Matthew Manalo was brought to that room. Counsel could make out that Officer Pollock was saying that he struck Matthew Manalo when he was arresting Manalo at Manalo’s home. It does not appear that this overheard conversation was transcribed as part of Manalo’s statement.

[79] Defence counsel chose not to discuss this with Crown counsel but to hold it back in the hope they could trap Officer Pollock in a lie during the voluntariness voir dire related to Manalo’s statement. It must have been anticipated by all defence counsel that this would have a pronounced effect on the duration of the preliminary inquiry. It does not appear to me that this was factored into the defence time estimates at all.

[80] The applicants submit that Crown counsel should have been aware of this problem because Pollock’s comments were recorded on a disclosed DVD. I note that when this evidence was sprung on Officer Pollock when he testified on January 18, 2011 during the third phase of the preliminary inquiry, the police technical services unit had to be called upon to enhance the audio. It is difficult to fault Crown counsel for not having picked up on this issue. The point at the moment is that defence counsel were keeping something close to their vests that they should have known would impact the length of the preliminary inquiry and that the three days originally set as well as the dates in the later phases would not be enough to accommodate what was likely to flow from their planned approach. I note that during the second phase of the inquiry lengthy cross-examination started in relation to the arrest and interview of Manalo. The defence plan was being executed before Pollock came to court in January to testify during the third phase of the inquiry.

[81] While I do not criticize counsel for maintaining a tactical silence, a considerable degree of responsibility for consistently underestimating the time required relates to the ongoing implications of this decision. This tactical plan by the defence did not become apparent to the Crown or the court until the third phase of the preliminary inquiry on January 18, 2011, but was clearly part of the plan all along. It had an impact on the scheduling of the preliminary inquiry going forward.

[82] Returning to the first three days of the preliminary inquiry, Crown counsel indicated that he wanted to tender Matthew Manalo’s police statement as evidence against Jonathan Sidoro. Crown counsel said he was relying on the co-conspirators exception to the hearsay rule. Only the preliminary inquiry judge picked up on the fact that that exception had no application because Manalo’s statement was a post arrest narrative account and not in furtherance of the conspiracy. After overnight research all counsel seemed to understand this point. Crown counsel then sought to sever Jonathan Sidoro from the joint information thinking that this would somehow assist what the Crown wanted to do.

[83] Once everyone realized that severance could not be effected at the preliminary inquiry the inquiry continued on the joint information with the suggestion of proceeding jointly on separate informations being left for consideration on another day. Later, the defence agreed to that approach.

[84] It also became apparent that some part of the first three days would be lost as police officers involved in the case were attending a funeral for a fellow officer killed in the line of duty. That was understandable and unavoidable. All counsel did their best to work around this potential delay by calling civilian witnesses out of order.

[85] During the discussions about these various issues that took place over the first three days of the preliminary inquiry all counsel began to acknowledge that they would not finish in the three days scheduled.

[86] In addition to what I have mentioned so far, it then turned out that a civilian witness to be called by the Crown claimed that he had lost all relevant memory for the events he witnessed. This led to an unexpected application to use his prior statement as past recollection recorded. This, in my view, constituted part of the inherent time requirements of the case.

[87] After the first three days of the preliminary inquiry concluded Crown and defence counsel worked out an arrangement to proceed simultaneously on two informations. It was agreed that Jonathan Sidoro would be placed on a separate information. His counsel agreed that if Manalo’s statement was proven voluntary Jonathan Sidoro would consent to the consideration of that statement as evidence on the issue of his committal.

[88] When time estimates were being determined for the second stage of the preliminary inquiry defence counsel did not include sufficient time in connection with the trap they hoped to spring on Officer Pollock. As mentioned, the ground work for that trap was being developed prior to the third phase of the preliminary inquiry.

[89] Once Pollock was cross-examined on his statements captured on the DVD recording the focus of the preliminary inquiry became the credibility of the police and the admissibility of Manalo’s statement. Although that statement would normally only be admissible against Manalo, Jonathan Sidoro had consented to its use on committal against him. As the preliminary inquiry proceeded the plan evolved into one where Manalo would be called by the Crown to give evidence against Jonathan Sidoro, with the thought in mind that if he did not testify in accordance with his statement an application would be made pursuant to R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.

[90] Counsel for Christopher Sidoro then sought standing to participate in the Manalo voir dire although Crown counsel did not propose to call Manalo against his client at the preliminary hearing. Consequently, the focus on the admissibility of that statement assumed an ever greater significance in the conduct of the preliminary inquiry.

[91] When I look at the preliminary inquiry overall I find I am not persuaded by the applicants’ submission that substantial delay was caused by Crown counsel “flip flopping” on the severance and statement issues. When I look through the first three days of preliminary inquiry evidence and track how the issues raised were handled I am of the view that this caused relatively little delay. The delay it caused can be measured in hours. More significant delay during the first three days could be attributed to other factors I have mentioned.

[92] By far the most significant cause for delay was the underestimation of the time required to deal with the preliminary inquiry issues. The Crown must bear some responsibility for this with respect to the first continuation that was required. However, it seems to me the defence plan to spring a trap on Pollock was the primary contributor to the delay on the first occasion, and virtually the sole reason for the delay on other occasions.

[93] Defence counsel ended up conducting a full voir dire at the preliminary inquiry. This included the calling of Matthew Manalo and his father to give defence evidence on the voir dire. Once it was suggested to Pollock that he was lying about his encounter with Matthew Manalo at the time of his arrest and he was confronted with the recording other police witnesses were called on the voir dire. The voir dire grew in importance to consume an amount of time that defence counsel should reasonably have anticipated it would, given their tactical plan. What was planned was particularly within the knowledge of counsel for the three accused. Consequently, to the extent responsibility can be assigned for underestimation of the time required, particularly after the conclusion of the first three days of the preliminary inquiry, I would attribute it either to the conduct of the defence or to the inherent time requirements of the case. On the facts here these are related concepts. Counsel were entitled to litigate these issues as part of their clients’ rights to make full answer and defence. It would take time to do so and they were in the best position to anticipate what was coming and how much time would be required.

[94] Approximately 20.5 months passed from the time the preliminary inquiry was started on March 5, 2010 until it concluded with the applicants’ committal on November 23, 2011. Certain portions of this time can be accounted for more easily than others. I will deal with the less contentious issues first.

[95] Justice Cowan reserved judgment for one month from October 21 to November 23, 2011. This is a period inherent in the disposition of the case and must be deducted from the overall delay for s. 11(b) purposes: R v. Amyotte, [2009] O.J. No. 5122 (S.C.J.), at para. 35.

[96] The first phase of the inquiry ended on August 13, 2010. It was scheduled to continue October 4, 2010. It is commendable that time could be found in a month and a half. There is no institutional delay here. I have said, however, that the Crown must bear some responsibility for underestimating the time required for the first phase where the Crown knew the plan was to hear 17 witnesses. I would split the one and a half month delay at this point equally between the Crown and the defence. Therefore three weeks are attributed to the Crown and three weeks to the defence.

[97] I agree with the Crown’s submission that 4.5 months from October 4, 2010 to February 16, 2011 is defence delay caused by Manalo’s counsel being double booked. As a result the dates set in October 2010 were lost and the matter was rescheduled to January and February 2011.

[98] When the third instalment of the preliminary inquiry ended on February 16, 2011 further dates could not be scheduled until September 13, 2011, a period of almost seven months. The defence must bear some responsibility due to the time estimate issue I have previously mentioned, which was particularly within their knowledge. Three more days were said to be needed and the schedules of four counsel and the judge had to be accommodated. It is clear the Crown was trying to move other cases off the judge’s docket to expedite the rescheduling of this matter. I would say that the case should have been able to be rescheduled within four months. I would attribute four months of delay to the defence. The balance of three months in this seven month period should be attributed to institutional delay.

[99] I would attribute the balance of the time consumed by the preliminary inquiry to the inherent time requirements of the case. As noted by Code J. in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at para. 67:

There is now a substantial a body of case law dealing with this issue of rescheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from rescheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. See R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32, [2010] O.J. No. 4474, 261 C.C.C. (3d) 455 (C.A.), at paras. 14-16; R. v. Allen, supra, at pp. 347-51 C.C.C.; R. v. Satkunananthan, 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019, 152 C.C.C. (3d) 321 (C.A.), at paras. 43-45 and 54-55; R. v. M.(R.), 2003 CanLII 50092 (ON CA), [2003] O.J. No. 4240, 180 C.C.C. (3d) 49 (C.A.), at paras. 6-9; R. v. W. (A.J.), 2009 ONCA 661, [2009] O.J. No. 3814, 257 O.A.C. 11 (C.A.), at paras. 29-43; R. v. Khan, supra, at paras. 58-71.

This passage from Lahiry was cited with approval by the Ontario Court of Appeal in R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 55.

[100] Concerted efforts were made by the court and the Crown to give this case priority when rescheduling the preliminary inquiry.

[101] I consider that this inherent time would include preparation time for each day of continuation. I would also emphasize that counsel took an approach in this case which resulted in an uncharacteristic preliminary inquiry where defence evidence was called on an unusual statement voir dire which consumed considerable time and energy by all involved.

Summary of the Reasons for the Delay

[102] Based on all of the foregoing I have found that there was a total of 10 months of institutional delay to the conclusion of the preliminary inquiry: seven months prior to the first preliminary inquiry dates and three months to schedule the hearing’s continuation.

[103] I have also found approximately two and a half months of Crown delay: one and a half months due to delayed disclosure and three weeks for faulty time estimates in relation to the first preliminary inquiry dates.

[104] I have found that there was no institutional or Crown delay after the conclusion of the preliminary inquiry.

[105] Only the Crown and institutional delay count on the s. 11(b) clock. The balance of the total delay is inherent time or defence delay, all of which must be removed from consideration for the purpose of the s. 11(b) analysis.

[106] In the end result the total Crown and institutional delay is just under 13 months. This is well within the Morin guidelines which range from 14 to 18 months for a case that proceeds in the Superior Court: Morin, at p. 799.

Final Balancing Pursuant to s. 11(b)

[107] Given that I have found that the total of Crown and institutional delay falls within the Morin guidelines for tolerable delay it is difficult to infer any prejudice from the delay alone on the record before me. The absence of any evidence of actual prejudice is significant in the final balancing having regard to the interests which s. 11(b) of the Charter is designed to protect.

[108] I also refer again to my earlier comment that a speedy trial did not seem to be a part of the applicants’ litigation strategy.

[109] This case is serious and has its factual complexities. During the course of the preliminary inquiry Cowan J. found that the police lied during the statement voir dire when they denied that Officer Pollock struck the accused. Nonetheless, after hearing considerable defence evidence on the voir dire, Cowan J. also disbelieved the defence witnesses and ruled Manalo’s statement admissible.

[110] Given the unusual nature and factual and tactical complexities presented by this case I am unable to find that a total Crown and institutional delay of less than 13 months is unreasonable. Even if I were to have found the delay to be close to the top of the Morin guideline, or even just beyond, I would reach the same conclusion based on the absence of evidence of prejudice and the fact that the defence tactics contributed significantly to the delays at the preliminary inquiry.

[111] The applicants did not raise the delay at the preliminary inquiry when Baltman J. directed them to raise any s. 11(b) concerns on May 18, 2012 when the trial date was set. It was only when the Crown stayed the charges against Manalo, something which was bound to have an impact on the tactical approach taken by the applicants, that attention shifted to s. 11(b).

[112] The application is for these reasons dismissed.

F. Dawson J.

Released: September 25, 2013