ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 1997/12
DATE: 2014 12 19
B E T W E E N:
DAVID MUNRO
AND
Mr. P. Thorning, for the Applicant
MICHAEL ANNIS
Ms. E. Jamshidi, for the Applicant
- and -
HER MAJESTY THE QUEEN
Mr. M. Dykstra, for the Crown
HEARD: September 29, 2014
S. 11(b) CCR APPLICATION
REASONS
MacKenzie, J.
Nature of the Application
[1] The accused David Munro and Michael Annis (the Applicants) apply for a stay of the proceedings against them pursuant to s. 24(1) of the Charter (CCR). The grounds for the application are that the applicants have been denied their right to trial within a reasonable time under s. 11(b) of the CCR.
[2] The charges the applicants face are trafficking offences under the Controlled Drugs and Substances Act, (CDSA) laid on January 11, 2011. The charges relate to two transactions, one for the sale of one kilogram and the second for purchase of four kilograms, each of cocaine; the applicant Munro is charged in relation to the first transaction while the applicant Annis is charged in relation to both transactions.
[3] The current trial schedule has a commencement date of March 2, 2015, and an estimated termination date of March 16, 2015. The term of delay from the laying of the charges to the estimated end of the trial is just over 50 months.
[4] The applicants contend that this period of delay arises essentially as the result of breach of the Crown’s disclosure obligations. The evidence in support of the application consists of transcripts of approximately 36 court appearances, commencing in the Ontario Court of Justice, proceeding through the steps in that court and then to proceedings in this court. The various court appearances include, among other things, trial readiness and supervision hearings, judicial pretrials and numerous adjourned hearing dates throughout the 50 month period.
Background Facts
[5] The pre-arrest chronology in the case is set out in the Factum of the applicants in a summary fashion, with which the respondent takes no issue except as set out below.
[6] Briefly, the pre-arrest facts giving rise to the charges are as follows:
The RCMP investigated several individuals, including the applicants, as potential members of a drug trafficking ring. In this regard, the RCMP engaged or employed a drug dealer, S.E. , in order to investigate the drug trafficking ring.
In the course of the investigation, an RCMP officer (S. Hayes) prepared an Information to Obtain:
a. an authorization to intercept communications (s. 184.2, the Criminal Code C.C.)
b. a Number Recorder Warrant (s. 492.2(1) C.C.);
c. an Associated General Warrant (s.487.01 C.C.)
d. a Production of Telephone Records Order (s. 492.2(2) C.C.);
e. a related Assistance Order (s. 487.02 C.C.); and
f. a Sealing Order.
An order dealing with the above was granted on or about November 8, 2010.
[7] The police agent (S.E.) was deeply involved in the investigation of the ring: he met and had regular discussions with the applicants. He surreptitiously recorded conversations and provided Annis with a BlackBerry cellphone which was used for emails regarding drugs. All of this information was provided by him to the RCMP. (In this regard, the Crown takes issue with the statement that the police agent, S.E. provided Annis with the BlackBerry cellphone: the Crown’s position is that the BlackBerry cellphone was provided by Annis to the police agent, S.E. and not the reverse).
[8] The charges against Annis are centered on two transactions, both at hotels and both involving cocaine. As noted above, the charges against the applicant Munro involve the first transaction but not the second.
[9] On November 25, 2010, Munro, S.E. and a third party transacted for cocaine at a hotel, allegedly pursuant to discussions involving Munro, S.E. and Annis over the preceding two weeks.
[10] On January 11, 2011, S.E. and another individual named Morales transacted for cocaine. This transaction was a purchase and was allegedly brokered by Annis on the BlackBerry cellphone allegedly provided by S.E. Morales was arrested immediately after the transaction, whereas Munro and Annis were arrested the same day.
[11] On January 11, 2011, Munro, Annis, and several other individuals were charged with trafficking in cocaine.
[12] Following their arrest, Munro was released on January 12, 2011 on strict bail conditions which included house arrest. Annis was released after a contested bail hearing on January 24, 2011.
[13] Annis’ release order contains strict conditions, including house arrest and non-communication with any of the co-accused, one of whom was his then wife (The charges against Annis’ wife were subsequently withdrawn).
Analysis
[14] The significant factors relating to disclosure issues in the application began at the bail hearing for Annis on January 24, 2011.
[15] At that hearing, the Crown sought and obtained an adjournment to February 11, 2011 for purposes of providing disclosure.
[16] On the return dated February 11, 2011, the Crown sought a further adjournment on the basis that it was vetting disclosure and unsealing warrants. The matter was further adjourned to March 11, 2011.
[17] On March 11, 2011, the Crown provided some disclosure, including video surveillance, audio recordings, officers’ notes, and the Crown’s synopsis. However, the Information to Obtain for the warrants issued on November 8, 2010, was not then provided. In the result, the matter was further adjourned to April 1, 2011, for a judicial pretrial.
[18] On April 1, 2011, the judicial pretrial was commenced in the Ontario Court of Justice, but could not be completed because of the lack of disclosure material being available to the defence. The case was adjourned for a further two-week period to allow additional disclosure to be made.
[19] On April 15, 2011, the judicial pretrial continued, but there remained outstanding disclosure issues; a designated Crown attorney was assigned to handle the prosecution. In the result, the case was further adjourned to May 6, 2011 for case management and disclosure to be made in the interval.
[20] On May 6, 2011, further disclosure was provided to the defence, but the defence requested and obtained some time to review and digest the newest disclosure items before continuing with the judicial pretrial. At this hearing, the Crown informed that it was eager to move the matter along and set preliminary inquiry dates: the defence did not object to this but again indicated that there were still outstanding disclosure items.
[21] On June 3, 2011, the continuing judicial pretrial resumed but the assigned Crown attorney was not present. The Crown attorney in the place of the assigned Crown nonetheless indicated a desire to set preliminary inquiry dates. The pretrial judge observed that this step was not viable without the involvement of the assigned Crown attorney or without providing outstanding disclosure. The case was further adjourned to June 15, 2011.
[22] On June 15, 2011, the assigned Crown attorney again failed to attend; there remained outstanding disclosure items. The case was further adjourned to July 6, 2011.
[23] On July 6, 2011, a dispute ensued between defence counsel and the Crown attorney with respect to the outstanding disclosure items. In this regard, the Crown disputed the quantum and the seriousness of the disclosure items still outstanding as submitted by defence counsel. In this regard, both the applicants had fully retained their respective counsel and were ready to proceed notwithstanding some of the then co-accused had yet to retain counsel. The case was adjourned to July 22, 2011.
[24] On July 22, 2011, all accused were represented by counsel. It was acknowledged that the case would require more than the allotted judicial pretrial time and the matter was agreed to be put over to September 14, 2011 on a speak-to appearance basis, with a view to ensuring that all parties through counsel could be represented at the proposed case management conference.
[25] On September 14, 2011, counsel for the applicants were prepared to set a preliminary inquiry date. However, as the case management rules had not been adhered to, the trial co-ordinator could not set a date for the preliminary inquiry. A further case management date was arranged for October 12, 2011.
[26] On October 12, 2011, a preliminary inquiry date was set commencing June 19 through June 25, 2012, with a proviso that these dates were to be confirmed on or before May 11, 2012.
[27] On May 11, 2012, Crown sought an adjournment of the preliminary inquiry, because of difficulties in locating the police agent, S.E. Notice of the proposed adjournment came to the accused only a few days before the court dates of June 19 to June 25, 2012. Counsel for Annis nonetheless indicated she was prepared to proceed with the inquiry on the scheduled dates. In this regard, counsel for the applicants wished to adjourn the Crown’s adjournment application so that counsel could cross-examine the involved police personnel on what had been their efforts to locate the police agent, S.E. As well, counsel expressed concern that there remained outstanding significant disclosure items, which included the authorization for the warrant and the Information to Obtain. In the result, the matter was put over to June 4, 2012, for hearing the application of the Crown for an adjournment of the preliminary inquiry.
[28] Prior to the date of June 4, 2012, the Crown on May 28, 2012, provided some outstanding disclosure items to the defence, including the police officer’s notes and the authorization and consent issued by Blacklock J. of the Ontario Court of Justice.
[29] On June 4, 2012, the Crown gave notice it was abandoning its adjournment application, having located police agent, S.E. Counsel for all accused were unaware that the June 4, 2012 court date was going ahead in all the circumstances and failed to attend the June 4, 2012 hearing. The matter was briefly adjourned to June 8, 2012, to permit counsel to set out their positions as to their readiness for the preliminary inquiry.
[30] On June 8, 2012, counsel obtained a certificate of readiness for the preliminary inquiry, which began on the scheduled date of June 19, 2012.
[31] The preliminary inquiry was held on the scheduled dates of June 19 through June 25, 2012, with a single witness being called by the Crown; namely, the police agent, S.E. Although the applicants were committed for trial and put to an assignment court hearing for July 6, 2012, there developed at the preliminary inquiry concerns by counsel for the applicants pertaining to the evidence supplied by the police agent, S.E. relative to the information contained in the Information to Obtain. In this regard, on the final day of the preliminary inquiry, defence counsel made further requests for disclosure as it related to the Information to Obtain.
[32] In response to this request, the Crown informed that it would forward the requested materials when they were received from the case officer.
[33] On July 6, 2012, the date for a judicial pretrial was fixed for September 13, 2012. Although defence counsel had suggested an earlier date of July 30, 2012, the Crown was unable to accede to that earlier date.
[34] On September 13, 2012, a judicial pretrial was convened. However, the outstanding disclosure had not been produced or delivered and it was decided to adjourn the judicial pretrial. In any event, a target trial date was set for June 3, 2013, although counsel for the applicants indicated availability for trial dates in January 2013 and May 2013. In the result, the judicial pretrial was returned October 29, 2012, on the basis that disclosure items from the Crown were to be provided by that date.
[35] On October 29, 2012, the Crown informed that the requested disclosure was not available, the volume of the disclosure was extensive, and she wished to review or vet it with an officer before disclosing it. In the result, the Crown requested a further adjournment to December 10, 2012 for purposes of reviewing the disclosure and providing it to defence counsel.
[36] On the return date of December 10, 2012, the Crown did not have the outstanding disclosure items. Some of the outstanding disclosure was made available to the defence on December 21, 2012.
[37] On January 8, 2013, defence counsel requested an adjournment to review the substantial and fresh disclosure that had been made by the Crown. This request was granted and the judicial pretrial was fixed to continue on February 15, 2013.
[38] On February 15, 2013, the existing trial dates were confirmed and the defence informed the Crown on the record that there were serious Charter issues arising.
[39] On April 23, 2013, counsel for Munro applied to vacate the June 3, 2013 trial date in order to permit him to complete a trial in England. Counsel for Annis took no position on the adjournment application made on behalf of Munro, but did not waive s. 11(b) rights of Annis. The Crown did not oppose the application and the target date was vacated.
[40] On May 10, 2013, a new trial date was set for November 12, 2013, and a trial readiness date was fixed for October 25, 2013.
[41] On the trial readiness hearing date of October 25, 2013, the defence had filed a Charter application seeking the exclusion of evidence or a stay of proceedings in relation to allegedly inconsistent evidence relating to the statements of the police agent, S.E. at the preliminary inquiry vis-a-vis the contents of the Information to Obtain a s. 184.2 C.C. authorization.
[42] In this context, the Crown requested an adjournment to deal with the Charter application before confirming its readiness to proceed to trial. In the result, the matter was adjourned to November 4, 2013.
[43] On November 4, 2013, the assigned Crown attorney did not attend and a representative of the Crown on that date requested a further adjournment of the trial readiness date to November 6, 2013 in order to enable the assigned Crown to attend.
[44] On November 6, 2013, the Crown informed that it was not in a position to confirm its readiness for trial and that it required further time to speak to the police officers respecting the applicants’ Charter motion. In this regard, the Crown sought a postponement of the commencement date of the trial from November 12, 2013 to November 18, 2013. This issue was adjourned for a one-day period to permit the defence to respond to the Crown’s trial date postponement proposal.
[45] On November 7, 2013, the Court noted on the indictment that the case was to proceed and to remain on the trial list for the November 12, 2013 sittings.
[46] On November 12, 2013, being the first day of trial, the Crown provided new disclosure, comprising of a further videotaped statement of the police agent, S.E. A one-day adjournment was granted to permit the defence to digest this newest disclosure item.
[47] The new disclosure item raised further disclosure questions inasmuch the police agent, S.E. had told the RCMP that he had lied at the preliminary inquiry because he believed his truthful answers would tend to reveal his identity as a confidential informant.
[48] The defence, in light of this disclosure, requested further information on the issues raised by that disclosure, essentially for material that might assist in testing the veracity and reliability of the police agent’s testimony. The request for further disclosure was made in a letter by counsel for Annis dated November 12, 2013.
[49] On the next day, November 13, 2013, the trial date was vacated and a one-week adjournment was granted at the insistence of the Crown for it to consider the further disclosure request of the defence. The matter was then put over to be spoken to on November 20, 2013. Counsel for the defence registered on the record their concerns about the delay in commencing the trial.
[50] On the return date of November 20, 2013, the Crown indicated it was unwilling to accede to the disclosure request of the defence as set out in the letter of Annis’ counsel dated November 12, 2013. In this regard, the Crown took the position that the extremely late disclosure had been caused by the defence’s Charter application.
[51] It thus became evident that there were serious s. 11(b) issues engaging not only a Charter motion in relation to s. 11(b), but also a disclosure motion. In the result, a new trial date had to be scheduled.
[52] Discussions ensued as to the availability of counsel for a new trial date. Counsel for both applicants concurred in seeking a trial date in January 2015. However, the Crown was unable to accommodate this request until March 2015.
[53] The return dates for the disclosure motion and the s. 11(b) application were respectively set for August 5 and 6, 2014 and September 29 and 30, 2014. A further hearing was scheduled to confirm these dates on February 7, 2014.
[54] On February 7, 2014, both the Crown and defence confirmed that the disclosure motion and s. 11(b) application would go ahead as scheduled. In relation to the disclosure motion, notwithstanding the Crown had disclosed some of the requested materials to the defence, the Crown indicated it was not agreeable to all these requests and it would then be necessary for the disclosure motion to proceed.
[55] On August 5, 2014, being the first scheduled day for the disclosure motion, the Crown informed that it would accede to the defence disclosure request and accordingly, the hearing of the disclosure motion was vacated.
[56] As previously noted, the s. 11(b) motion proceeded on the scheduled time, commencing September 29, 2014.
[57] Both the applicants’ counsel and Crown counsel in aid of their respective positions have filed delay or timeline charts in a spreadsheet format. These charts are appended to these Reasons for the purpose of giving context to the issues herein. The charts prepared for Munro and Annis are designated as Appendix A.1 and A.2 respectively; the chart prepared for the Crown is designated as Appendix B.
The Applicable Law
S. 11(b), C.C.R.
[58] The right of an accused to trial within a reasonable time is simply stated in s. 11(b) of the Charter as follows:
- Any person charged with an offence has the right …
(b) to be tried within a reasonable time.
[59] In R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.), Sopinka, J., speaking for the court, outlined the purpose of s. 11(b) as follows (p.12):
The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this court.
The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial.
The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 1873 (ON CA), 7 C.C.C. (3d) 20 … : Trials held within a reasonable time have an intrinsic value. The constitutional guarantee ensures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused…”
There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, [(1989) at 289], a majority of this court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov, [(1990), 1990 45 (SCC), 59 C.C.C. (3d) 449] in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (p.474). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.
[60] In Morin, the court (per Sopinka, J.) has set out the factors to be utilized in analyzing whether trial delay in any particular cases unreasonable for purposes of s. 11(b). These factors are as follows:
(a) The length of the delay;
(b) Waiver of time periods;
(c) The reasons for the delay, including:
i. inherent time requirements of the case;
ii. actions of the accused;
iii. actions of the Crown;
iv. limits on institutional resources; and
v. other reasons for delay.
(d) Prejudice to the accused.
[61] The court indicated that the approach to be taken in determining whether the s. 11(b) right has been denied is not by application of a mathematical or administrative formula, but rather by judicial determination balancing the interest which the sections designed to protect against the factors which would either deliberately lead to delay or otherwise the cause of delay. The balancing of interests referred to requires an examination of the length of the delay and the evaluation of that length of delay in light of the other factors. At that point, the court must determine whether the period of delay is unreasonable.
Length of Delay
[62] As previously indicated, the period of delay requires the court to examine the elapsed time between the date of the laying of the charges, January 11, 2011, and the date of commencement of trial.
[63] The inquiry into unreasonable delay can only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. It is not in issue between the Crown and the defence that the delay of just over 50 months from the laying of the charges (January 11, 2011) to the date of commencement of the trial (March 2, 2015), let alone the delay to the estimated completion of the trial (March 16, 2015), is of sufficient duration to raise an issue as to unreasonableness.
Waiver of Time Periods
[64] The court must then address the question of whether there has been any waiver by the applicants of s. 11(b) rights and if it is determined that there has been any such waiver, that waiver will affect the period of delay.
[65] In Morin, the court has reiterated the statement as to the nature of waiver in this context from such cases as R. v. Clarkson (1986), 1986 61 (SCC), 25 C.C.C. (3d) 207 (S.C.C.) and Askov [R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.)]. In Morin, Sopinka, J. stated at p.15:
Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver…
[66] The acts relied upon to establish waiver “must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect that the waiver will have on those rights”. At p. 15, Sopinka, J. distinguishes between different types of conduct by a defendant to establish waiver in this context:
Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor “actions of the accused” but it is not waiver.
Consent to a trial date can give rise to an inference of waiver. This will not be so if consent to the date amounts to mere acquiescence in the inevitable.
[67] The question of waiver by the applicants in relation to delay must be addressed from the position of each applicant.
[68] For Munro, his counsel sought and obtained an adjournment of a trial date in this case arising from another trial in which counsel was involved, which other trial went beyond its anticipated duration. The delay in question from the vacated trial date herein (June 3, 2013) to the next scheduled trial date (November 12, 2013) was waived by Munro. In the result, the period of five months and nine days would be debited against the overall delay of just over 50 months, leaving a net delay of 44.9 months.
[69] For Annis, his counsel did not waive his s. 11(b) rights when Munro’s adjournment request was made. In the result, the delay period in relation to Annis is unchanged at just over 50 months.
[70] The request of Munro for the above adjournment does not constitute waiver since, in the circumstances in which the request was made, I do not find any conduct by Munro or his counsel which could properly be construed as releasing rights under s. 11(b). The conduct by Munro or his counsel in this regard may properly be considered under the heading “Actions of the Accused”.
Reasons for the Delay
Inherent Time Requirements
[71] Comprised under this heading are:
(a) Trial preparation, taking into account the complexity of the issues that must be dealt with at the trial;
(b) Intake requirements, including retention of counsel, bail hearings, necessary and appropriate paperwork by the investigators in the case and the preparation and delivery of disclosure of the Crown.
[72] The nature of the time properly attributable to these inherent time requirements will vary as the particular case; more complex cases will require corresponding more time for such requirements than less complex or more straightforward cases and, in addition, regard must be had to the longer time that is necessitated for cases wherein an accused elects to have a preliminary inquiry.
Actions of the Accused
[73] These may be described as actions voluntarily undertaken by an accused and which require time to be expended such as defence attacks on search warrants and Charter motions. Notwithstanding that such actions are bona fide on the part of an accused in asserting his rightful answer and defence under s. 7, there is nonetheless a time element attributable to the defence under this heading.
Actions of the Crown
[74] These are actions which are undertaken by the Crown which require time such as adjournments being sought and any failure or delay by the Crown though its counsel and disparaging its disclosure obligations. In a similar fashion to the actions of the accused, there is a time element attributable to the Crown notwithstanding its actions or activities may be engaged in a bona fide manner.
Limits on Institutional Resources
[75] The delay referable to this factor relates to the period that begins to run when the parties are ready for trial but the system cannot accommodate them: Morin p. 18, para. (f).
[76] In dealing with the availability of resources, the court in Morin made the following observations:
The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from any others that compete for funds with the administration of justice. There is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay.
[77] The court in Morin referred to the Askov case wherein the permissible guideline for delay from committal to trial was in the range of 6 to 8 months (per Cory J., at p.490). In Morin, the court suggested the permissible guideline for delay in Provincial Courts from the date of the charge (i.e. the date of the swearing of the information, to the committal date was a range of 8 to 10 months).
[78] In dealing with the objective of stipulating guidelines, the court stipulated that the administrative guidelines for both the Provincial and Superior court systems were not to be construed as having the force of limitation periods. The guidelines were to be applied and interpreted in any particular case having regard to the other factors and particularly the issue of the presence or absence of prejudice to the accused.
Other Reasons for Delay
[79] This category by definition comprises reasons for delay other than those which can be subsumed by the above categories. By way of example of one such reason, the court in Morin refers to R. v. Rahey (1987), 1987 52 (SCC), 33 C.C.C. (3d) 289 (S.C.C.), in which the trial judge granted 19 adjournments over a course of 11 months during the course of the trial. Although the court in Morin said that such type of delay was not institutional in the strict sense, it also stated that such a delay could not be relied upon by the Crown to justify the delay period in question.
Prejudice to the Accused
[80] In Morin, the court stipulated that prejudice may be inferred from the length of the delay and the longer the delay in question, the more likely that such an inference will be drawn. The accused may adduce evidence tending to show prejudice to the accused’s s. 11(b) interests, whether liberty interests, security interests or fair trial interests in order to support a finding of prejudice. In a similar manner, the Crown can adduce evidence of actions or conduct by the accused which, though falling short of waiver, can mitigate against a finding of prejudice.
[81] The position of the defence is that the total elapsed time as of the commencement date of the trial is about 50 months and that the administrative guideline times for intake requirements and neutral activity of 8 to 10 months in the Provincial Court (the latter time being the high end of the range) should be accepted here as a starting point. Even if issues relating to the availability of the police agent, S.E. are attributed to intake requirements, the time should not be extended more than 2 months, for a total of 12 months at the highest. This leaves a balance of time up to the trial commencement date of approximately 38 months, to which period the factors arising from the Askov and Morin cases must be applied in dealing with the question of whether the delay is unreasonable.
[82] If this remaining 38 month period is attributable to the actions of the accused, the stay application must fail. If, however, the remaining 38 month period is not attributable to the actions of the accused, that is, attributable either to the conduct of the Crown or institutional delays, then such a period is unreasonable and constitutes a breach of the s. 11(b) rights of the applicants, with the appropriate remedy being a stay of proceedings under s. 24(1) of the Charter.
Actions of the Applicants
[83] The actions of both applicants must be considered separately in the context of determining their respective positions on the postponement of the trial commencement date. As previously noted, Munro waived his s. 11(b) rights arising from the delay occasioned by Munro’s counsel seeking an adjournment of the trial commencement date of June 3, 2013 so that counsel could complete a trial in the United Kingdom. In the result, an adjournment was granted and the new trial date was set for November 12, 2013, a delay period of approximately five months.
[84] There were no actions on the part of Annis which contributed in any meaningful way to delay.
Actions of the Crown
[85] The position of the defence in relation to the actions of the Crown is quite simply that the Crown has failed to discharge its disclosure obligations under Stinchcombe 1991 45 (SCC), [1991] 3 S.C.R. 326, fully and on a continuing, timely basis. The defence contends that a significant piece of disclosure, being the Information to Obtain, was not provided until May 28, 2012, being 14.5 months after the charges were laid and that the post-preliminary inquiry statement of S.E. was provided on the morning of trial, namely, November 12, 2013. The statement disclosed by the Crown on the morning of trial revealed that S.E. had informed the police he had lied at the preliminary inquiry because the police agent believed his answers would tend to reveal his identity as a confidential informant.
[86] As previously noted, the defence in response to this disclosure made a written demand on the day the statement of the police agent was provided, seeking further material with a view to testing the veracity and reliability of the police agent’s evidence disclosed in his statement. The defence request for further disclosure was comprehensive and related to all notes of any officers who had any dealings with the police agent during the course of the preliminary inquiry and thereafter, all of which was intended to assist the defence in assessing the veracity and reliability of the police agent’s evidence in the statement.
[87] About one week following the Crown’s disclosure of the statement of S.E., and the resulting defence request for disclosure as outlined above, the Crown on or about November 20, 2013 indicated that it was not willing to accede to the disclosure request of the defence at that time and took the position that the late disclosure had been caused by the defence’s s. 11(b) Charter application. In the result, a s. 11(b) application (i.e., the present matter) and a disclosure motion had to be mounted by the defence and a new trial date had to be set.
[88] Both defence counsel agreed on a new trial date for January of 2015, but the Crown was not able to accommodate this trial date and stipulated a trial date of March 2, 2015. In the result, the disclosure motion was fixed for hearing on August 5 and 6, 2014 and the s. 11(b) application hearing was fixed for September 29 and 30, 2014. At a confirmation hearing date of February 7, 2014, the Crown and defence counsel acknowledged the disclosure motion and the s. 11(b) application would proceed as scheduled. While there was at that time some disclosure of material to the defence, the Crown took the position it was not agreeable to all of the disclosure request by the defence and that the disclosure motion would then have to proceed.
[89] On or about August 5, 2014, being the first scheduled date for the disclosure motion, the Crown informed defence that it would accede to the defence’s disclosure request.
[90] As stated above, the Crown’s disclosure obligations require it to disclose material to the defence if such material was not subject to a form of privilege nor clearly irrelevant to the issues. As well, the Crown’s disclosure obligations are ongoing in nature and must be made on a timely basis. If the Crown has not discharged its disclosure obligations, particularly on a timely basis, an adequate explanation for the failure to provide such disclosure on a timely basis must be advanced. (see R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26)
[91] There is another aspect in the Crown’s conduct that appears from the undisputed facts set out above, namely, the failure of Crown counsel and particularly the assigned Crown to attend at some of the court appearances in the course of the lengthy case management in the case. In this regard, the following observations of Dambrot, J. in this court in R. v. Chrostowski 2006 10211 (ON SC), [2006] O.J. No. 1306 are pertinent.
But, if the Crown does not take the management of serious cases seriously, they will then inevitably be delays of the sort that took place in this case, and the outcome of applications under s. 11(b) will not necessarily favour the Crown despite the seriousness of the offences. (emphasis added); paragraph 42.
Limits on Institutional Resources
[92] Defence counsel contend that some institutional systemic delay must be tolerated in light of limited resources of the justice system, but that that toleration cannot and should not effectively undermine an accused right to be tried within a reasonable time: see R. v. Pusic (1996) 1996 8215 (ON SC), 30 O.R. (3d) 692 (Gen.Div.). The defence submits that institutional resources cannot be used as a shield for a cavalier attitude of the Crown towards its disclosure obligations.
Prejudice to the Accused
[93] In addition to the initial restrictive conditions on the release order for the applicant Annis, defence counsel contends there is prejudice arising from the delay that does not necessarily arise from the mere fact of the negative effects of being charged with a criminal offence.
[94] Counsel for the defence contend the delay in this matter, after making allowances for intake requirements, neutral delay inherent in the case, there is in the case of the applicant Munro over 38 months of delay attributable to the Crown and institutional delay and in the case of the applicant, Annis over 43 months of delay attributable to the Crown and to institutional delay.
[95] The Crown in its submissions properly contends that all of the above factors must be examined and balanced in light of the seriousness of the offence.
[96] The Crown in its factum cites the social and societal impact of trafficking in cocaine and the costs to society as a whole, all in aid of stating that the nature of the offences of drug trafficking, particularly in cocaine, is a determinative factor in the balancing of prejudice with the seriousness of the charge.
[97] This argument would be more compelling in the overall balancing process if the Crown’s management of its prosecution of the serious offences of trafficking in cocaine had been characterized by a less cavalier manner or attitude.
[98] The delay arising out of the Crown’s failure to adequately and on a timely basis discharge its disclosure obligations is exacerbated by the Crown’s failure to manage in a serious and businesslike manner the prosecution of the serious offences of trafficking in cocaine.
Conclusion
[99] Applying the above analysis to the time-line charts (a) of the applicants (Appendices A.1 and A.2) and (b) of the Crown (Appendix B), I accept the calculations of the delay expounded by the applicants in their charts and reject the calculations of the delay expounded by the Crown in its charts.
[100] In the result, I conclude the total delay of approximately 50 months can be allocated as follows:
Total Crown: 21.4 months
Total Institutional: 16.9 months
Total Defence: 0 months
Total Neutral: 6.4 months
Total Waiver: 0 months (for applicant Annis)
5.3 months (for applicant Munro)
[101] The applicants contend that their calculations establish over 43 months of Crown and institutional delay against Annis and over 38 months of Crown and institutional delay against Munro, after allowing for intake requirements and neutral delay inherent in the case.
[102] I am unable to appreciate the 43 month figure, on the basis of my calculations:
Crown 21.4 months
Institutional 16.9 months
Total: 38.3 months
[103] On the basis of these calculations, the allowance for intake requirements and neutral delay inherent in the case becomes 11.8 months (50.1 less 38.3).
[104] Even if 11.8 months for this factor in this case is demonstrably less than the guideline amount of 18 months, thereby reducing the 38.3 months, such adjustment does not alter the delay arising out of the Crown’s default in adequately discharging its disclosure obligations and in managing a case involving serious offences in a serious and businesslike manner, as outlined above.
[105] For the above reasons I conclude the applicants’ s. 11(b) rights have been breached.
Disposition
[106] The applicants’ application is granted.
[107] A stay of the proceedings is the appropriate remedy in these circumstances. An order shall issue accordingly.
MacKenzie, J.
Released: December 19, 2014
COURT FILE NO.: CRIMJ(F) 1997/12
DATE: 2014 12 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID MUNRO AND MICHAEL ANNIS
- and –
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT
MacKenzie, J.
Released: December 19, 2014