Court File and Parties

COURT FILE NO.: 14-11556

DATE: 2014-08-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Floriano Daponte

BEFORE: Heeney J.

COUNSEL: Kimberley Johnson, Counsel, for the Crown (Respondent) Enzo Battigaglia, Counsel, for the Accused (Appellant)

HEARD: July 24, 2014 at London

ENDORSEMENT

[1] This is an application by the accused to stay the charges against him pursuant to s. 24(1) of the Charter, by reason of the alleged violation of his right to be tried within a reasonable time, as guaranteed by s. 11(b) thereof.

[2] The accused is facing a seven count indictment, which alleges that he committed the following offences on or about August 17, 2012:

• Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”);
• Possession of marihuana under 3 kgs. for the purpose of trafficking, contrary to the same section;
• Possession of Oxycodone for the purpose of trafficking, contrary to the same section;
• Possession of Hydromorphone for the purpose of trafficking, contrary to the same section;
• Possession of Morphine for the purpose of trafficking, contrary to the same section;
• Possession of Codeine for the purpose of trafficking, contrary to the same section; and,
• Possession of ammunition while prohibited by reason of an order made under s. 109 of the Criminal Code, contrary to s. 117.01(1) of the Code.

[3] The investigation was launched by the OPP in response to civilian complaints about the accused trafficking in prescription medication and other controlled substances from his rural property on Napier Road in Adelaide-Metcalfe Township in Middlesex County. It was dubbed “Project Stannum”. On July 12, 2012, Det. Const. Onslow obtained a General Warrant under s. 487.01 of the Code, for the purpose of establishing an observation point from which they could observe drug activity, verify confidential source information and develop a plan to execute a search warrant.

[4] On August 17, 2012, he obtained a warrant under s. 11 of the CDSA and a search warrant under s. 487 of the Code. The investigation that led up to obtaining the warrants, and execution of the warrants themselves, involved more than 120 OPP officers from various sections including the Drug Enforcement Unit, the Tactics and Rescue Unit, the Weapons Enforcement Unit, the Explosive Disposal Unit and the Emergency Response Unit, as well as uniform officers from detachments ranging from Windsor in Essex County all the way to Kingston in Frontenac County.

[5] The search took 3 days to complete. The information supporting the various ITOs came from up to 9 different sources, including confidential informants.

[6] During the search, large quantities of controlled substances were found, together with 6 sets of scales, $39,640 in cash, assorted ammunition and three firearms. The accused was arrested at the property, along with two co-accused Jonathan Dennis and Nelson Freitas. The accused was charged with the offences noted above, as well as firearms offences which were later dismissed at the preliminary inquiry. In total, he was facing 18 counts at that time.

[7] The accused was released on bail on consent on September 7, 2012. On March 14, 2014 he was committed to stand trial on the counts noted above by McKay J. of the Ontario Court of Justice. On May 13, 2014 his trial date was set in the Superior Court of Justice, with pre-trial motions to be heard February 2 to 6, 2015, and for the trial, with a jury, to be heard during week of February 9 to 13, 2015.

[8] The approach to be taken by the court on an application of this nature is succinctly set out by Gouge J.A. in R. v. Nadarajah, 2009 ONCA 118, [2009] O.J. No. 493 (C.A.) at para. 14:

The approach required to address an issue of this kind is well known. As this court said in R. v. Batte (2000), 2000 5750 (ON CA), 145 C.C.C. (3d) 498, at para. 55, it is not a mathematical exercise. Rather, the following factors must be considered and balanced in determining whether the appellant was tried within a reasonable time:

(1) the length of the delay;

(2) any waiver of time periods;

(3) the reasons for the delay including

(a) the inherent time requirements of the case;

(b) the conduct of the accused or delays attributable to the accused;

(c) the conduct of the Crown or delays attributable to the Crown;

(d) delays due to limits on institutional resources;

(e) any other reasons for delay

(4) prejudice to the accused.

Length of the Delay:

[9] The total period that will have elapsed from the time the accused was charged until his trial is completed will be approximately 30 months.

[10] The Crown concedes that this is a sufficient period of delay to warrant enquiry by the Court, thus meeting this threshold requirement.

Waiver:

[11] The Crown concedes that there has been no clear and unequivocal waiver of the s. 11(b) Charter rights of the accused at any time.

[12] From the material filed, it is clear that counsel for the accused made it clear at each step of the proceeding that he wished to have the earliest date available for each subsequent step. This does not, of course, enhance his s. 11(b) rights, or give him priority to other accused persons seeking dates from the court. It does, however, serve to answer any suggestion that the accused and his counsel were content with the pace at which matters were proceeding.

Reasons for the Delay:

[13] Before analysing and attributing the various segments of time to the relevant categories of delay, I will first outline the overall history of the case.

[14] The initial period ran from the date of the arrest, Aug. 17, 2012 to Sept. 7, 2012 when the accused was released on bail. At the latter court appearance, Crown counsel asked for one month to prepare disclosure in a hard drive format.

[15] The next court appearance was on October 12, 2012. The Crown had, by then, delivered the first wave of disclosure amounting to 1,057 pages by way of a CD. Search warrant authorizations had not, at that point, been unsealed, and the matter was adjourned for further disclosure.

[16] The second court appearance was on November 30, 2012. Prior to that, on Nov. 22, 2012 the second wave of disclosure was provided by the Crown, consisting of 404 pages, McNeil Reports and a copy of the OPP Confidential Informant Standard Operating Procedures.

[17] At the second appearance on Nov, 30, 2012, the co-accused Dennis had still not retained counsel. A date was set for a judicial pre-trial in any event, and he was advised that it would proceed with or without counsel.

[18] On January 17, 2013, the judicial pre-trial was conducted by Justice Pockele. Dennis had still not retained counsel. Counsel for the accused indicated that he wished to cross-examine the affiant on the search warrant, and the Crown put him on notice that they would require a Dawson application. Much later, by email dated October 10, 2013, defence counsel advised the Crown that they would not be proceeding with a Dawson hearing.

[19] On January 30, 2013 the third wave of disclosure was vetted by the Crown. This consisted of 43 pages of documents; DVDs; 973 photographs; scene, aerial and exit videos; vetted ITOs for the July 12, 2012 general warrant, the Aug. 17, 2012 search warrant and the Aug. 18, 2012 telewarrant; and McNeil reports.

[20] The third appearance in court occurred on February 1, 2013. Further disclosure was provided to defence counsel at that time. Counsel for the co-accused Freitas appeared as agent for Dennis, but did not have sufficient instructions to set a date. The Crown noted on the record that Justice Pockele had recommended at the judicial pre-trial that, given the complexity and size of the prosecution, the matter should be put before a Case Management Judge for the setting of the preliminary hearing. The matter was adjourned 2 weeks at the request of defence counsel.

[21] On February 13, 2013, further disclosure was provided relating to warrants and supporting ITOs.

[22] The fourth appearance in court occurred on February 15, 2013. A Case Management Hearing was held before Justice Skowronski, in accordance with the recommendation of Justice Pockele. The matter was then adjourned to April 3, 2013 for a Focus Hearing.

[23] Further disclosure was provided on February 19, 2013, consisting of a CD with transcripts of the accused’s interviews.

[24] The Focus Hearing took place on April 3, 2013 before Justice Pockele. The Crown indicated that there were as many as 18 or 19 witnesses that they were prepared to call at the preliminary inquiry. Discussions followed regarding making use of s. 540(7) to expedite the hearing, and Justice Pockele advised defence counsel that if that was done, it would be incumbent on them to make an application to the judge hearing the preliminary inquiry if they wished to hear from other witnesses. Counsel for the accused later indicated that there were 17 witnesses he wished to hear from.

[25] The preliminary inquiry was then scheduled for 6 days, commencing October 28, 2013. The first two days of the preliminary inquiry were to occur in October, with the balance to occur on specified dates in December.

[26] On July 2, 2013, additional disclosure was vetted and released.

[27] On July 9, 2013, defence counsel brought an application in Superior Court before Rady J. for bail review and for an order to compel disclosure. The disclosure request related to confidential informant information, and was dismissed by Rady J. in her written ruling of July 23, 2013. As defence counsel had raised the issue of delayed disclosure, Rady J. said the following, at paras. 35 - 37:

With respect to any remaining outstanding disclosure, I am satisfied that substantial disclosure has been provided in a reasonably timely way, particularly bearing in mind the size of the investigation and the number of officers involved. I expect the balance will be produced well before the preliminary hearing.

Given my conclusion that disclosure has proceeded in an acceptable fashion, it follows that there is no change in circumstance that justifies a modification to the terms of the accused’s release.

The applications are dismissed.

[28] The preliminary hearing commenced as scheduled on October 28, 2013 and continued the next day. It was then adjourned to December 2, 2013, and continued for the two days that followed. The final testimony and submissions were heard on December 16, 2013, and the presiding judge, McKay J., reserved his decision. The matter was adjourned to January 28, 2014, and the presiding judge indicated that he hoped to release a written decision in the interim.

[29] On January 28, 2014, the court was advised that Justice McKay was ill, and in any event he was not yet ready to release his decision.

[30] The matter was next before McKay J. on February 7, 2014. He indicated that he had unexpectedly been away for a period of time, and had not yet finished his decision. The matter was adjourned to March 14, 2014.

[31] On March 14, 2014 McKay J. delivered his decision on committal orally. He discharged both co-accused on all counts. He committed the accused on the CDSA counts, but discharged him from all firearms offences but for one count of possession of ammunition while prohibited from doing so.

[32] The first appearance before the Superior Court of Justice occurred on April 15, 2014 at Assignment Court. A judicial pre-trial was set for one week later, on April 22, 2014.

[33] The matter was spoken to next at Assignment Court on May 13, 2014. At that time, the date of February 2, 2015 was set for the commencement of pre-trial motions, and the date of February 9, 2015 was set for a one-week trial.

[34] That concludes my review of the history of the case.

[35] The first relevant time period to be considered begins on the date of the arrest, Aug. 17, 2012, and ends with the date that the preliminary inquiry was set, April 3, 2013. This amounts to a total of 7 ½ months. During this period of time, a vast amount of disclosure was delivered, a judicial pre-trial occurred, the file was case-managed, and a Focus Hearing was held to assist in defining the scope of the preliminary inquiry that was to come.

[36] I consider this entire period as neutral intake, which is part of the inherent time requirements of a case of this size and complexity.

[37] In R. v. Richards, 2010 ONSC 6202, [2010] O.J. No. 4958 (S.C.J.), Code J. described the nature of neutral intake periods in the following terms:

Neutral intake periods include the time needed to arrange bail, retain counsel, prepare disclosure, review disclosure, write follow-up requests and prepare for judicial pre-trials. Accordingly, they vary in length, depending on the complexity of the case. In Morin, supra at pp. 25-6, an extremely simple summary conviction case of drinking and driving, the Court held that the inherent time requirements of the case, in order to complete all normal intake procedures, was two months. In R. v. G(C.R.) (2005), 2005 32192 (ON CA), 206 C.C.C. (3d) 262 at pp. 265 and 270 (Ont. C.A.), a somewhat more complex indictable case of spousal assault and sexual assault, the Court held that "the neutral intake period" was seven and one-quarter months. Finally, in R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 77-80 (Ont. C.A.), a very complex multiple accused police corruption and conspiracy case, the Court held that "the intake period" extended for over eleven months.

[38] The case before this court is a complex one, given the size of the investigation and the number of officers involved. This gave rise to unavoidable delays in providing disclosure, since officer’s notes had to be collected from many officers working in a number of different jurisdictions. Much of the evidence relating to the search warrants came from confidential sources, which required vetting and redaction before it could be released.

[39] Given the complexity of the case, it demanded judicial case management, in order to focus the preliminary inquiry and maximize efficiencies. This included a judicial pre-trial, a case management hearing and a Focus Hearing in the Ontario Court of Justice. In this regard, I note the comments of Watt J.A. in R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) at paras. 54 and 74:

Pre-hearing conferences are an essential feature of our criminal procedure. Whether required by s. 625.1(2) or permitted by s. 625.1(1), pre-hearing conferences are and have proven to be an invaluable ally in the struggle to promote a fair and efficient criminal trial process. The conferences are of particular assistance in complex cases involving multiple accused and counts arising out of lengthy investigations where investigative procedures are likely to be tested for Charter compliance. Pre-hearing conferences, particularly where proceedings follow a lengthy investigation, sometimes add several weeks to the intake period in a case, but may well result in an earlier trial date, a shorter and more focused trial, or a reduction in the number of counts and accused going to trial. The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s.11(b) analysis: Khan, at para. 53; Tran, at paras. 36-37; and Cranston, at para. 46.

In “project” prosecutions it has become routine that the pre-hearing conference judge or another judge will be assigned to manage the case as it makes its way from early appearances to trial.

[40] The fact that the preliminary inquiry ultimately took 6 days to complete also attests to the complexity of the case.

[41] Counsel for the accused made much of the delay in providing disclosure. I have already referred to the decision of Rady J. on the bail review, where those same arguments were made and dismissed. I agree with the conclusion of Rady J. that disclosure proceeded in an acceptable fashion, bearing in mind the size of the investigation and the number of officers involved. I also accept the evidence of Det. Const. Onslow, who said at para. 27 of his affidavit:

Approximately seventy-five percent (75%) of the total disclosure was provided to the Crown within approximately two (2) months of the execution of the Search Warrants. Approximately ninety-five percent (95%) of the disclosure was provided to the Crown within 90 days of the execution of the Search Warrants.

[42] From the detailed timeline provided in the Crown’s application materials, it is clear that in each case disclosure to the defence was made shortly after materials were received and vetted by the Crown.

[43] In any event, it is incumbent on the accused to prove a causal connection between delayed disclosure and delay of the proceedings itself. In R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 (C.A.) at para. 2, the Court commented on the need to do exactly that:

In our view, the trial judge made two fundamental errors in finding that the s. 11(b) rights of the Schertzer respondents were infringed. First, he erred in finding that the delay was due to disclosure problems. Whatever the problems with disclosure, and there clearly were some, delay in making disclosure had no impact on the progress of the prosecution. There was no causal connection between problems with disclosure and the timing of the proceedings. To the contrary, the delay was a reflection of the inherent time required to prepare and prosecute this complex case.

[44] In this case, disclosure was received in waves, large and small, over a period of months. While that was transpiring, though, other events were occurring such as the judicial pre-trial, case management and the Focus Hearing. These events were necessary, and would have occurred anyway, at the pace that they did occur, even if disclosure had been completed early on. I am not persuaded on the evidence that any delay in moving this case forward from the date of arrest to the date the preliminary inquiry was set is attributable to delayed disclosure. While there were two adjournments in the early stages of the case ostensibly for disclosure purposes, they were an inherent part of a case of this complexity, with such a large volume of disclosure to be gathered, vetted and forwarded to defence counsel. In any event, counsel is not entitled to insist on receiving every last bit of disclosure before moving on to subsequent stages of the proceeding, such as attending pre-trials or setting dates: see Richards (supra) at para. 22.

[45] The next period to be considered is from April 3, 2013, when the date for the preliminary inquiry was set, to October 28, 2013, when the hearing began. This period amounts to approximately 6 ¾ months.

[46] Institutional delay was defined by Sopinka J. in R. v. Morin, 1992 89 (SCC), [1992] S.C.J. No. 25 at para. 47 as “the period that starts to run when the parties are ready for trial but the system cannot accommodate them.” The same comments would apply when the parties are ready for a preliminary inquiry but the system cannot accommodate them. In this case, the six days that were set aside for the preliminary inquiry appear to be the earliest dates that could be accommodated by the court.

[47] In argument before me, Ms. Johnson, for the Crown, submitted that one of the reasons for the delay was the difficulty on securing dates that fit with the schedules of the various officers who would be testifying. However, on reading the transcript it appears that Pockele J. set the dates without regard to the officers’ availability, in the hope that they could be accommodated or that their evidence could be tendered via s. 540(7).

[48] Accordingly, I attribute this period to institutional delay.

[49] The Crown suggested in its materials that part of this period could be attributed to inherent time requirements of dealing with the bail review application before the Superior Court of Justice. Once again, there is no causal connection between those proceedings and the delay in question. The dates for the preliminary inquiry had already been set, and the application by the defence fit within time that was not otherwise being used. The bail review application did not serve to delay the preliminary inquiry, nor did it otherwise affect that period of delay.

[50] The next period to be considered is the actual preliminary inquiry, which commenced October 28, 2013 and was completed December 16, 2013. This period is clearly part of the inherent time requirements of the case, save for the periods from October 29, 2013 to December 2, 2013, and from December 4, 2013 to December 16, 2013 when the case was adjourned. This amounts to approximately 1 ½ months.

[51] The next period runs from December 16, 2013 to March 14, 2014 when the decision on committal was delivered by McKay J.. On the evidence, Justice McKay was ill for part of that period of time, but in any event was not ready to deliver his decision until it was finally delivered.

[52] Justice McKay had 6 days of evidence to consider, as well as a large volume of documentary evidence that was filed on a CD. This was clearly not a simple case to decide, as evidenced by the fact that the two co-accused were discharged completely on all counts, and the accused was discharged on all of the firearms offences, save for the one relating to possession of ammunition.

[53] Given that a preliminary inquiry judge hears and assesses evidence prior to making a decision, a preliminary inquiry is akin to a trial. I am not prepared to conclude that the time spent on rendering a committal decision in this case was excessive or unreasonable. It is an inherent requirement of all cases that decisions be rendered by judges after thoughtful consideration of all of the evidence and the law. On some occasions, that takes more time than on others. Justice should not be seen to be rushed.

[54] I attribute this period of delay to either the inherent time requirements of the case, or to the “other” category in Morin. I am satisfied that it does not represent institutional delay.

[55] The next time period runs from the date of committal, March 14, 2014, to May 13, 2014 when the trial date was set at Assignment Court in the Superior Court of Justice. During that interval, a judicial pre-trial was held. This was a short and reasonable intake period, and is attributable to the inherent time requirements of the case.

[56] The final period runs from May 13, 2014 to the anticipated end of the trial, February 13, 2015. According to the transcript of proceedings before Goodman J. at Assignment Court on May 13, 2014, Mr. Kitto, agent for Mr. Battigaglia, counsel for the accused, advised the court that Mr. Battigaglia “was available for all October and November of 2014 for both motions and trial.” Since the period of institutional delay does not begin until the parties are ready for trial but the court cannot accommodate them, it is only the period from October 1, 2014 to February 13, 2015 that is attributable to institutional delay. This amounts to approximately 4 ½ months.

[57] As to the overall period of 9 months from Assignment Court to trial, it must be said that London is a very busy judicial centre with a large caseload of criminal cases committed for trial before the Superior Court of Justice. A nine-month delay in obtaining a trial date is well within the norm. Furthermore, given local conditions, I am of the view that the allowable period for systemic delay should be in the upper range of the guidelines in both courts.

[58] To summarize, I have attributed 8 ¼ months of the time spent before the Ontario Court of Justice to institutional delay, and 4 ½ months of the time spent and to be spent before the Superior Court of Justice to the same category. The balance of the 30 month period from the date of arrest to the conclusion of the trial is attributable to the inherent time requirements of the case and other factors not relevant to the delay issue. This falls within the guidelines suggested by Morin of 8 to 10 months before the Provincial Court and 6 to 8 months before the Superior Court. The two periods of delay combined amount to 12 ¾ months, which is much less than the upper range of 18 months suggested by Morin when the two periods are combined.

[59] The final consideration is prejudice to the accused.

[60] The delay in this case is not so lengthy that any significant prejudice to the accused can be presumed. The accused has, however, filed an affidavit attesting that he suffered actual prejudice.

[61] He was released on bail on consent, without a surety. The primary restriction on his liberty was that he was not permitted to be in the Township of Adelaide-Metcalfe, which effectively kept him away from the rural property on Napier Road where the drugs, scales, money and ammunition were found.

[62] His affidavit states that he has suffered from diabetes for the past 12 years, and as a result of the stress of these charges and being away from his home and the farm, he has had to increase his dosage, including taking it with needles. There is no medical evidence to support this allegation, and I find it difficult to accept. While I have no doubt that he is feeling stress as a result of the many serious charges he is facing, I am not persuaded that his medical condition has been adversely affected by the delay that has been identified above.

[63] He also alleges that he has been the main caretaker of a dog breeding business operated by Vivian Hamilton which operates on the farm, and which also produces chickens, sheep and ducks. Due to his bail conditions, he has been unable to help Ms. Hamilton care for the dogs and animals, so that significant money has been spent to hire additional help. He alleges that he has lost income from animal sales.

[64] However, Ms. Hamilton testified at the show cause hearing for the co-accused Jonathan Dennis. The business F & L Farms is operated by her as a sole proprietorship, and she testified “I raise and breed dogs, and I look after chickens, ducks, geese and livestock.” She said she hires help to assist her with the business. Her evidence is inconsistent with the accused’s assertion that it is he who lost business income.

[65] He also complains that there have been 4 break-ins at the property, which resulted in the theft of several dogs. However, from the material filed it appears that those events happened in March of 2013. Even had this case proceeded with no delay at all, he would have been on bail awaiting trial at that point in time, so these break-ins cannot be attributed to delay, even if one accepts the premise that they would not have happened had he been present on the farm.

[66] The terms of bail are reasonable given the circumstances. The terms of his release survived a bail review in July 2013, and no further review has been sought. All of the complaints that the accused raises would have been experienced by him anyway, due to the charges he was facing and the terms of bail he was released upon. I do not find that he suffered any significant prejudice from the fact that he has been inconvenienced by his terms of bail through the periods of delay outlined above.

[67] Finally, the court is to balance the right of the accused to a trial within a reasonable time against the societal interest in a trial on the merits. These are serious charges, and the drugs seized cause untold harm to society as a whole. Without doubt, society has a strong interest in having this case tried on its merits.

[68] The primary purpose of s. 11(b) is to protect the individual rights of the accused to security of the person, to liberty and to a fair trial. The court is to consider the overall lapse of time of 30 months in deciding whether there has been an infringement of the rights that s. 11(b) is intended to protect: see Nguyen, (supra) at para. 49. For a case of this magnitude and complexity, involving two co-accused and multiple counts under both the CDSA and the Code and, therefore, both a federal and a provincial Crown, with the number of officers involved in the investigation and the large volume of disclosure, I do not consider the delay that was experienced at both levels of court to be unreasonable.

[69] I am satisfied that the societal interest in having this case tried on its merits outweighs the minimal prejudice suffered by the accused. I conclude, therefore, that there has been no infringement of the s. 11(b) rights of the accused.

[70] The application is accordingly dismissed.

“T. A. Heeney R.S.J.”

T. A. Heeney R.S.J.

Date: August 6, 2014