ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: CRIM (J) P 677/13
DATE: 20150914
B E T W E E N:
SAMIR ABDEL-GADIR
W. Glenn Orr Q.C. and Michael Quigley, for the Applicant
Applicant
- and -
HER MAJESTY THE QUEEN
David Maylor and Paul Renwick, for the Respondent
Respondent
HEARD: March 9 and 10, 2015
RULING ON SECTION 11(b) CHARTER APPLICATION
Contents
INTRODUCTION
ALLOCATION OF TIME
Period One – June 10, 2011 (Arrest) to July 9, 2012, (When Preliminary Inquiry Date Set) 13 months.
Period Two – July 10, 2012 (On Which Date Set for Preliminary Inquiry) to October 23, 2013 (Committal for Trial) 15.5 months.
Period Three October 24, 2013 (Case in SCJ) to April 15, 2014 (Trial Date Set) 5.75 months
Period Four – April 15, 2014 (on which Trial Date Set) to March 9, 2015 (Scheduled Trial Date) 11 months.
Period Five – March 9, 2015 (originally scheduled Trial Date) to February 29, 2016 (Commencement of Trial) 12 months.
THE LAW
ANALYSIS
Length of Delay – Reasons for Delay
Prejudice to the Applicant
Introduction
Right to Liberty
Right to Security of the Person
The Right to a Fair Trial
Inaction by the Applicant
CONCLUSION
SPROAT J.
INTRODUCTION
[1] My reasons on the section 11(b) application are as follows. In referring to time, I will generally use approximations in terms of the number of months. As such the individual periods of delay identified will not add up exactly to the total number of months of delay.
[2] The Hamilton Police Service (“HPS”) investigated the Applicant and obtained search warrants for his residence in Hamilton, as well as his mother’s condominium and storage lockers in the same building in Mississauga. The Peel Regional Police (“PRP”) executed the search warrants at the condominium between 5-6 a.m. on June 9, 2011.
[3] At 7:00 a.m. on June 9, 2011, the HPS arrested the Applicant at his Hamilton residence. The HPS seized a key ring. The keys were transported to Mississauga and were able to open the locks on three storage lockers. The storage lockers were searched and the police seized 9 handguns, ammunition, marijuana and crack cocaine.
[4] In October, 2012, Det. Cst. Ruthowsky of the HPS, who was the affiant on the Informations to Obtain (“ITOs”), was charged with Criminal Code (and subsequently Police Services Act) charges alleging various acts of dishonesty in carrying out his duties. Similar charges were also laid against Det. Cst. Hansen of the HPS who was also involved in the investigation of the Applicant. None of the charges related to dealings with the Applicant.
[5] The position of the Applicant is that the locker keys seized at his Hamilton residence, and the guns and drugs seized from the Mississauga storage lockers, were planted there at the instigation of Det. Cst. Ruthowsky and/or Det. Cst. Hansen.
[6] The evidence consists of most but not all of the transcripts of the court appearances to date. While unavoidable, on many occasions the Crown Attorney speaking to the matter had little or no prior involvement. On many occasions the matter was spoken to by an agent for defence counsel or the defence position was communicated by letter and spoken to by duty counsel or the Crown. It is sometimes difficult to discern the disclosure issues that existed based solely on cryptic references by counsel speaking to the matter. As such there was undoubtedly much going on that I am not aware of. As such nothing I say in these reasons is intended to reflect poorly on any of the counsel involved.
[7] These reasons were prepared in April, 2015. Due to an oversight on my part they were not signed and released at that time. That the reasons may not have been released only came to my attention in early September. Counsel confirmed on September 8, 2015 that they had not received the reasons and I released them on September 14, 2015
ALLOCATION OF TIME
Period One – June 10, 2011 (Arrest) to July 9, 2012, (When Preliminary Inquiry Date Set) 13 months
[8] It is necessary to provide a detailed review of the many appearances over this period, as follows:
a) June 10, 2011 – Mr. Bloomenfeld appears for the Applicant
b) June 13, 14, 20 and 22, 2011 – Mr. Bloomenfeld does not attend. (June 14, 2011 transcript not filed.)
c) June 28, 2011 – An agent for Mr. Bloomenfeld attends. There is reference to adjourning the matter although the part of the transcript dealing with the remand was not filed.
d) July 13, 2011 – Agent for Mr. Bloomenfeld attends. Crown states “My friend provided disclosure at this time.” There is a reference to a special bail hearing scheduled for July 22, 2011.
e) July 22, 2011 – Agent for Mr. Bloomenfeld indicates he would not be ready for lengthy bail hearing and it is being put off “for further discussions, preparation and perhaps some more disclosure.” Remanded to August 11, 2011 for the purpose of scheduling a lengthy bail hearing.
f) August 11, 2011 – No transcript was filed for this date (the transcript filed is actually for August 8, 2011 when, due to a “clerical error”, the case was on the court list).
g) September 11, 2011 – Mr. Bloomenfeld asks that the matter be adjourned to September 9, 2011 as he is awaiting some disclosure.
h) September 9, 2011 – Mr. Bloomenfeld sends note asking for two week adjournment. The Applicant states that this is because counsel is waiting for information he had requested. At the request of the Applicant the remand is for one week.
i) September 16, 2011 – Agent for Mr. Bloomenfeld asks to adjourn to September 30, 2011 as there is still some outstanding disclosure.
j) September 30, 2011 – Letter from Mr. Bloomenfeld requests adjournment to October 7, 2011.
k) October 7, 2011 – Discussion of looking for a date for a lengthy bail hearing. (Transcript incomplete)
l) October 12, 2011 – Duty Counsel advises that Mr. Bloomenfeld wants a two week adjournment. Applicant states counsel is waiting for disclosure, such as the warrants. Crown states that Mr. Bloomenfeld is aware that documents he seeks will have to be the subject of a court application.
m) October 18, 2011 – Duty counsel advises Mr. Bloomenfeld wants to adjourn to November 11, 2011 as he is awaiting “further disclosure regarding the search warrant material.”
n) November 1, 2011 – Mr. Bloomenfeld by letter asks for a two week adjournment “to allow for receipt of search warrant materials.”
o) November 15, 2011 – Mr. Bloomenfeld states that the Crown has agreed to provide full disclosure forthwith and “As a result of that, I have agreed with them to conduct a judicial pretrial on December 12.”
p) December 6, 2011 – Crown counsel Ms. Anderson indicates her understanding that it has been made clear to Mr. Bloomenfeld since the original lengthy bail hearing that he would have to apply to the court to obtain the materials he was seeking and that she had been advised that Mr. Bloomenfeld said he was going to bring that application. Ms. Anderson stated her understanding that it was the sealed search warrant that was the outstanding disclosure. The agent for Mr. Bloomenfeld appeared to agree, stating it was sealed and “hence the formal process for releasing that.” The agent then requested a two week adjournment.
q) December 12, 2011 - Mr. Bloomenfeld stated that the police had told him they did not have to provide him with copies of the search warrants (not the related ITOs). The presiding judge thought this “strange” and the Crown undertook to address the issue promptly.
r) December 16, 2011- Mr. Bloomenfeld did not attend that day and it was further adjourned to December 20, 2011.
s) December 20 – March 7, 2012 – No transcripts were filed for this time period.
t) March 8, 2012 - a JPT was scheduled for April 10, 2012 (the earliest available date was April 8, 2012).
u) April 10, 2012 – Mr. Maylor advises that he has spoken to Mr. Bayliss who is replacing Mr. Bloomenfeld. Mr. Alawi, an agent for Mr. Bayliss, attended. Mr. Maylor indicates that he has been in contact with the Hamilton Crown office and provided them with an order to unseal the ITOs and that he is trying to obtain copies as soon as possible. Mr. Maylor also acknowledged that there were PRP police notes that should have been but had not yet been disclosed.
v) April 25, 2012 – Crown counsel states that unspecified additional disclosure was provided yesterday. Mr. Bayliss in attendance. Major case management conference scheduled for May 25, 2012.
w) May 25, 2012 – JPT scheduled for June 4, 2012.
x) June 4, 2012 – JPT held. Adjourned to June 14, 2012 to set date for preliminary inquiry.
y) June 14 – July 10, 2012 – The defence requested three adjournments to address retainer issues and to continue discussions with the Crown.
[9] In summary:
a) The Crown provided unspecified disclosure materials on July 13, 2011.
b) According to the Crown’s statements on October 12, 2011 and December 6, 2011, it had been made clear to Mr. Bloomenfeld as of the date for the original bail hearing [July 22] that he would have to apply to the court to obtain the materials he was seeking. Mr. Bloomenfeld’s agent on December 6, 2011 appears to agree that it is sealed search warrant material that is being sought.
c) Mr. Bloomenfeld from September 1 to December 12, 2011 (when a judicial pre-trial was held) made seven adjournment requests on the basis that he was waiting for search warrant materials.
d) On April 12, 2012 Mr. Maylor indicated he had provided an order to unseal the ITOs to the Hamilton Crown. (An application Record filed as an exhibit indicated that Mr. Bloomenfeld applied to unseal the ITOs on March 2, 2012). On April 24, 2012 additional Crown disclosure was provided which I infer are the unsealed redacted ITOs.
e) There is little evidence of institutional delay. The court initially provided a JPT date one month from the set date. When that was adjourned the court provided a JPT date two weeks from the set date.
[10] A reasonable intake period for a case of simple to moderate complexity is three months. This case had the added complexity of sealed ITOs, and the need to redact the material to respect informer privilege. On this basis I would increase the intake and inherent time requirement to five months. Scheduling and holding the JPT was also part of the inherent time requirement of the case to which I allocate one month.
[11] I have no transcripts for the period December 20, 2011 to March 7, 2012, a period of 2.5 months. This is the time period during which the Applicant switched counsel from Mr. Bloomenfeld to Mr. Bayliss. Mr. Maylor indicated on April 10, 2012 that disclosure remained outstanding. As such it does not appear the change in counsel caused delay. The defence did request adjournments from June 14 to July 10, 2012 which amounts to 27 days, or approximately one month of defence delay.
[12] That leaves six months to account for in Period One. Mr. Renwick acknowledged that the Crown disclosure obligation included obtaining an order to unseal the ITOs, redacting them and providing copies to the defence. The Crown was, therefore obviously responsible for most of the additional delay that occurred. Having said that, as I will discuss there have been conflicting cases on this point. (As I do not need to resolve which caselaw to follow I did not ask counsel for submissions in this regard.) Crown Attorneys took the position on the record in July and December, 2012 that Mr. Bloomenfeld should apply to unseal the ITOs and stated an understanding that he was doing so. Perhaps there was some misunderstanding or miscommunication. Given the Crown position communicated to Mr. Bloomenfeld he could have moved earlier to obtain the necessary order. In the face of legal uncertainty and given the Crown position I think there was some obligation on both parties to clarify any misunderstanding in order to move the matter forward. I would, therefore, allocate five months of this delay to the Crown and one month to the defence.
[13] In summary, I allocate the time in Period One as follows:
a) Intake – inherent time requirement – 6 months.
b) Crown delay – 5 months
c) Defence delay – 2 months
(Decision continues with Period Two through Conclusion exactly as in the source text.)
FILE NO.: CRIM (J) P 677/13
DATE: 20150914
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAMIR ABDEL-GADIR Applicant
- and –
HER MAJESTY THE QUEEN
Respondent
RULING ON SECTION 11(b) CHARTER APPLICATION
SPROAT J.
Released: September 14, 2015