CITATION: R. v. Campbell, 2015 ONSC 3722
COURT FILE NO.: CR-13-0028
DATE: 2015-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Alex Hardiejowski, for the Crown
- and -
Steven Murray Campbell,
The Accused being self-represented
Accused
HEARD: May 11, 2015, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons For Judgment On Applications
For Stay Based On Alleged Violation Of Section 11(b) and
For Alleged Violation Of Section 8 Of The Canadian Charter Of Rights And Freedoms
[1] Steven Murray Campbell stands charged with four counts under the Controlled Drug and Substances Act S.C. 1996, c. 19 (“CDSA”), and two counts under the Criminal Code. The CDSA charges relate to producing, possession for the purpose of trafficking, and simple possession of marijuana. The Criminal Code charges are for being in possession of proceeds of crime less than five thousand dollars and for breach of probation.
Introduction
[2] I am the trial judge for these matters. Mr. Campbell has brought several pretrial applications seeking to have all of these charges stayed or dismissed for a variety of reasons.
[3] Mr. Campbell has chosen to represent himself at his trial. His application materials are not in accordance with the Criminal Rules of Practice. Also they are badly organized, incomplete, unfocused, and difficult to comprehend in some places. I conducted a trial management conference on January 26, 2015, and made a procedural order on that day with a view to better organizing this proceeding. Further to that order, we commenced hearing what I have identified as “Application #3” on May 11, 2015.
[4] At the outset of the hearing, Mr. Campbell raised an issue about wanting to call vive voce evidence in regard to certain remedies he is seeking in Application #3. He did not summons three witnesses and seemed to be under the mistaken impression that the Court would assist him in doing this. The fact he wished to call evidence came as a surprise to the Crown. It took about 30 minutes to sort out this aspect of the proceedings. In the interests of not losing the balance of the day, it was agreed that we would proceed to deal with Mr. Campbell’s s. 11(b) unreasonable delay argument and his argument that the search warrant obtained for his home was unlawfully obtained and therefore any evidence obtained by the search was contrary to his s. 8 Charter right to be free from unreasonable search and seizure. Issues relating to other aspects of Application #3 were adjourned to July 28, 2015. Procedure for that day will be addressed at the end of this endorsement.
The Alleged Violations of Mr. Campbell’s Section 11(b) Charter Rights
[5] Despite being advised previously on several occasions of the importance of having transcripts available to assess this specific aspect of his application, Mr. Campbell did not see fit to order the transcripts of his various appearances to date. Instead he sought to rely on the endorsements on the indictment and from the Ontario Court of Justice. He also provided an affidavit, unsworn, in which he recounted the alleged delay in bringing this matter to trial.
[6] The matters for which Mr. Campbell stands accused occurred on or about September 23, 2011.
[7] Mr. Campbell’s account of the proceeding is rambling, unfocused, and did not provide accurate dates for events in the proceeding. For example, he says that he thinks the pretrial occurred in December 2012 or January 2013. In fact, the discovery preliminary inquiry in the matter commenced on December 13, 2012. It concluded on March 19, 2013. The indictment is dated April 10, 2013.
[8] The Crown provided a chronology of the proceedings in its factum. Absent a transcript and anything further and better from Mr. Campbell, I accept it as the best factual outline of the events of the proceeding to date. I have also compared it to the endorsements from the Ontario Court of Justice and from the indictment filed in this matter and found it to be accurate. The Crown chronology is as follows:
September 23, 2011: The accused was arrested and charged. He was released on September 30, 2011 on Recognizance of Bail and ordered to appear on November 15, 2011, in Schreiber;
November 15, 2011: He was remanded to January 11, 2012;
January 11, 2012: Duty counsel appeared for Mr. Joseph, counsel for the accused. The accused was remanded to April 18, 2012;
April 18, 2012: Mr. Joseph appeared and requested that the information be transferred to Thunder Bay. Mr. Joseph filed Designation of Counsel. The return was May 18, 2012;
May 18, 2012: Mr. Joseph appeared and requested the matter be adjourned to June 19, 2012;
June 19, 2012: Mr. Joseph appeared and the matter was adjourned to July 11, 2012, with the notation that a trial date be set or the matter be disposed in Thunder Bay;
July 11, 2012: Mr. Joseph appeared and the endorsement of June 19, 2012, was repeated. The matter was adjourned to September 4, 2012;
September 4, 2012: Mr. Joseph appeared and the endorsement of June 19, 2012, was repeated. The matter was adjourned to September 17, 2012;
September 17, 2012: Mr. Joseph appeared and the matter was adjourned to October 24, 2012, with the same endorsement;
October 24, 2012: Counsel requested a discovery preliminary inquiry to be held on December 13, 2012;
December 13, 2012: The hearing commenced but did not conclude. It was to continue on December 21, 2012. The accused re-elected on consent to be tried by Judge and Jury;
December 21, 2012: The hearing continued and January 7, 2013, was selected for the continuation;
January 7, 2013: A further date of January 30, 2013, was selected;
January 30, 2013: Mr. Joseph did not appear Mr. Matthews spoke on his behalf. The matter was adjourned to February 27, 2013, for continuation of the hearing;
February 27, 2013: The continuation of the hearing was adjourned to March 19, 2013;
March 19, 2013: The accused was ordered to stand trial;
The indictment was filed on April 11, 2013;
May 27, 2013: The matter was in Assignment Court and July 10, 2013, was set for a pre-trial conference;
July 10, 2013: The matter was adjourned to Assignment Court on July 29, 2013, at 13:30 hours;
July 29, 2013: The matter was adjourned to August 26, 2013, at 13:30 hours to permit Mr. Joseph to file Application to be removed as counsel;
July 31, 2013: Application to be removed as counsel was heard this date. Mr. Joseph was removed as counsel;
August 26, 2013: The matter was in Assignment Court. The matter was adjourned to September 23, 2013, at 13:30 hours in Assignment Court. The Court ordered the Crown to provide within a two week period disclosure to the accused;
September 23, 2013: Nobody appeared for the defence. A bench warrant with discretion was issued, with a return date of October 21, 2013;
October 21, 2013: Nobody appeared. The bench warrant was released to the police;
October 24, 2013: At the request of the Crown, the bench warrant was rescinded. Mr. Woods appeared as counsel of record. The matter was adjourned to November 25, 2013, at 13:30 hours to set a trial date;
November 25, 2013: The matter was adjourned to December 16, 2013, at 13:30 hours to set a trial date. The defence was to peremptorily set the trial date;
December 16, 2013: The matter was adjourned to January 27, 2014: The Crown undertook to produce any photographs that may not have been disclosed and to advise the defence whether a video exists and if it does to disclose it. The trial dates of June 30, 2014, and July 2, 2014, were set;
June 30, 2014: The trial did not proceed. Mr. Hardiejowski appeared for the Crown. Mr. Woods did not appear. The accused appeared. At the request of the Crown, the matter was adjourned to July 2, 2014, at 14:00 hours. Mr. R.J. Poirier and Mr. Woods were ordered to appear to speak to the matter. The accused was not required to appear on July 2, 2014;
July 2, 2014: Both Mr. Poirier and Mr. Woods appeared. It was their understanding that the matter was not to proceed on June 30, 2014, but on July 2, 2014, for guilty pleas. The matter was adjourned to July 28, 2014, at 13:30 hours to set a trial date. Mr. Woods was ordered to communicate with the accused;
July 28, 2014: Mr. Woods advised that he will apply to be removed as counsel. The accused advised he intends to retain new counsel. The matter was adjourned to August 25, 2014, at 13:30 hours to set a new trial date;
August 25, 2014: The accused appeared and stated that he now represented himself. He consented that Mr. Woods be removed as counsel of record and the court ordered the removal. The matter was adjourned to October 14, 2014, at 12:00 hours for a pre-trial;
October 14, 2014: The Crown provided the accused the Crown’s complete brief together with photographs of the accused’s residence, together with Notice of Intent to introduce the Certificate of Analysis. The matter at the request of the accused was adjourned to November 24, 2014, at 13:30 hours to set a date for trial;
November 24, 2014: The accused represented himself. He was ordered to serve any remaining applications by December 12, 2013. The matter was adjourned to December 15, 2014;
December 15, 2014: The Crown was ordered to file the Factum on or before January 19, 2015. Trial management conference was to take place on January 26, 2015; and
January 26, 2015: Trial management conference was commenced. Application Number 3 is to be argued on May 11 at 13:30 hours. A further pre-trial to be held on March 31, 2015, at 10:00 hours before Shaw J.
The Law
[9] Very recently, A.J. Goodman J. in R v. Mehmeti (2015 ONSC 2754 (May 15, 2015)) wrote a succinct and useful summary of the jurisprudence involving s. 11(b). At paragraphs 95 through 99 he wrote:
95 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 designed to protect the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings.
96 In R. v. Morin, 1992 89 (SCC), [1992] 1 SCR 771, Sopinka J. held that the primary purpose of s. 11(b) of the Charter is to protect three rights:
the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings;
the right to liberty, which is protected by seeking to minimize exposure to restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
the right to a fair trial.
97 It is trite law that the burden of proof is on the defendant to establish that he or she has not been tried within a reasonable time: R. v. Conway, 1989 66 (SCC), [1989] S.C.J. No. 70 at para. 25.
98 In determining whether there has been a breach of s. 11(b) and whether the period of delay is unreasonable, the court must consider:
a) the length of the delay;
b) whether there has been any waiver of the time periods by the accused;
c) the reasons for the delay including:
i. the inherent time requirements of the case;
ii. the actions of the accused;
iii. the actions of the Crown;
iv. limits on institutional resources;
v. any other reasons for the delay; and
vi. prejudice to the accused: Morin at pp. 787-788; R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449; R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97.
99 Once the four factors have been assessed, a court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(b) seeks to protect, the explanation for the delay, and the prejudice to the accused.
[10] During argument in this matter, I was also referred by the Crown to the decision of Code J. in R v. Lahiry, 2011 ONSC 6780. Paragraphs 5 – 8 of this decision were also relied upon by A.J. Goodman J. in Mehmeti at para. 101. They are as follows:
5 The first factor, concerning the length of overall delay, is simply a mechanism for weeding out frivolous applications. It is referred to as "the triggering mechanism or threshold determination of the excessiveness of the delay". It is only necessary to go on and consider the other three factors if the overall period of delay "is of sufficient length to raise an issue as to its reasonableness". See: R. v. Askov, at p. 466, R. v. Morin, at p. 14.
6 The second factor, waiver of time periods, can be either express or implied but it "must be clear and unequivocal" and made with "full knowledge of the rights the procedure was enacted to protect". When counsel expressly states, on the record, that s. 11(b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where "a choice has been made between available options" and "the actions of the accused amounted to an agreement to the delay" rather than "mere acquiescence in the inevitable". Once a waiver has been found, that period of delay is simply removed from the s. 11(b) analysis and the overall delay is shortened: see R. v. Askov, at pp. 481-2 and 494-5; R. v. Morin, at pp. 13-15.
7 The third factor, reasons for delay, can be the most important and also the most difficult of the four factors in some cases. It does not involve findings of fault, as there can be good or necessary reasons for delay. This factor simply requires an objective analysis of each period of delay, in order to determine its cause. The five traditional causes are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period. Some delays are said to "weigh against the Crown", some delays are said to "weigh against the defence", and some delays are said to be "neutral". Needless to say, delays caused by the accused's own actions "will justify" an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings, or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources "cannot be relied upon ... to explain away delay that is otherwise unreasonable". Finally, delay due to the inherent requirements of the case "is neutral and does not count against the Crown or the accused". See: R. v. Askov, at pp. 477-481 and 483; R. v. Morin, at pp. 16-23; R. v. MacDougall (1998), 1998 763 (SCC), 128 C.C.C. (3d) 483 at p. 500 (S.C.C.).
8 The fourth factor is prejudice to those interests of the accused that s. 11(b) seeks to protect, namely, liberty, security of the person, and fair trial. Prejudice to one or more of these interests can be inferred, without extrinsic evidence, from "a very long and unreasonable delay", in other words, from delay that is "substantially longer than can be justified on any acceptable basis". In a case where the period of unjustified delay is "closer to the line", the accused may lead evidence of actual prejudice to one or more of the protected interests, in order to show "that there has been unusual prejudice by reason of special circumstances". See: R. v. Askov, at pp. 474 and 482-4; R. v. Morin, at 23-4; R. v. Smith, at p. 111.
[11] The Crown also relied on the comments of the Supreme Court of Canada in R v. Morin 1992 89 (SCC), [1992] 1 S.C.R. 771, cited in Lahiry above to the effect that a guide for acceptable institutional delay in the Ontario Court of Justice is a period of between 8 to 10 months. Also, Sopinka J. suggested that a period of institutional delay of 6 to 8 months from committal to trial is acceptable when the matter reaches the Superior Court.
Analysis.
[12] I will deal first with the issue of length of delay, the first of the three factors that the Court must consider in matters involving s. 11(b) Charter rights.
[13] Mr. Campbell argues the length of delay in this case is measured from the date of his arrest to the date he initially brought this application in December 2014, a period of 39 months. He also asserts that none of the 39 month delay is “his fault”. In my view, Mr. Campbell ignores several facts in calculating the alleged delay to be 39 months. Also his argument ignores several facts which go to the degree to which he alone can be found to have contributed to how long it has taken for this matter to have reached this stage.
[14] To begin, from the period immediately after his arrest, on September 23, 2011, to October 24, 2012, (Period 1), Mr. Campbell was represented by counsel. Following Mr. Campbell’s release on bail on September 30, 2011, his counsel appeared nine times in the Ontario Court of Justice. There is nothing in the record before me explaining why there were this many adjournments of the matter. The Crown argues these adjournments were requested by Mr. Campbell’s counsel. No transcript was filed so I have nothing to suggest this is not so. Also there is nothing to suggest either way if a waiver was requested during this time frame. Further, there is nothing to suggest that this delay was caused by institutional problems or difficulties with the Crown in providing disclosure.
[15] I agree with the Crown submission that up until October 24, 2012, the defence was not ready to proceed to trial. A preliminary inquiry was not requested until that time. This is the accused’s right and is the first step they must take in move the matter forward. It is Mr. Campbell’s onus to prove the facts of the alleged delay and the impact on his s. 11(b) Charter rights. For Period 1, he has failed to prove that this time was a delay caused either by the Crown or institutionally. At best, it can be described as neutral.
[16] Period 2 is the time from October 24, 2012, until the completion of the preliminary inquiry on March 19, 2013. The preliminary started on December 13, 2012. On that date, Mr. Campbell re-elected to trial by judge and jury. A transcript of the evidence given that date was provided to the Court. There is nothing in that transcript to indicate the defence had any issues about lack of disclosure at that point in the proceedings.
[17] The evidence was concluded on that day. At the end of the day, the following exchange occurred between counsel and the Court. It is important to note at the time there was a co- accused represented by Mr. McCartney. Mr. Joseph represented Mr. Campbell, Mr. Matthews represented the Crown.
Excerpt from Preliminary Inquiry (Page 76, line 23):
U P O N R E S U M I N G:
MR. JOSEPH: Your Honour the evidence portion of the preliminary inquiry is complete but we’re not gonna ask you to commit these individuals to stand trial today. My friend, the federal Crown is going to consider his position and I’m just gonna ask you to remand the matter for a week or so.
MR. MATTHEWS: Yes please. A couple of issues that I want talk to counsel and my investigator about so any …
THE COURT: Can you just, just, sorry Mr. Matthews. Does the court retain jurisdiction?
MR. JOSEPH: Yes it does. There hasn’t been a committal so it’s still your, it’s still your baby ‘till then.
THE COURT: Okay I see. I’m sorry.
MR. MATTHEWS: Yes don’t be sorry. Sorry for keeping you so long.
MR. JOSPEH: That’s my fault.
THE COURT: How much time do you need to do that then?
MR. MATTHEWS: About …
MR. JOSEPH: A week.
THE COURT: A week all right.
MR. MATTHEWS: We all have busy days.
THE COURT: Can you give me a date please.
MR. JOSEPH: Are you sitting on the …
THE COURT: I am sitting all next week.
MR. JOSEPH: … I’m before you, I’m before you on the 21st on a trial.
MR. MCCARTNEY: That’s fine with me.
MR. MATTHEWS: That’s fine with me. Appreciate the extra time.
THE COURT: Steven Murray Campbell and Shelly Dawn Smiles both appear pursuant to their respective designations both filed. They are remanded to December 21, 2012 10:00 a.m. at this court to be spoken to I suppose.
MR. MATTHEWS: I guess it’s sort of the preliminary is still open to …
MR. JOSEPH: You can say preliminary inquiry continuation quite frankly I …
MR. MATTHEWS: Yeah …
MR. JOSEPH: … I that’s probably more accurate.
THE COURT: Yes it should be recorded that way because I do not think if it is …
MR. MATTHEWS: Yeah I think that’s the best way.
THE COURT: … the jurisdiction is, becomes an issue. Okay.
MR. MATTHEWS: Thank you Your Honour.
THE COURT: Thank you. From my reading of this transcript, I find that counsel for the parties jointly requested the matter be adjourned and that a committal not be made on that day.
[18] Further dates were set and ultimately the matter was concluded on March 19, 2013, at which point Mr. Campbell was ordered to stand trial.
[19] Again, from the record before me, I am unable to conclude that there was either institutional delay or delay attributable directly to the Crown for Period 2. The Crown is prepared to concede that the five month delay from December 2012 to March 2013 is attributable both to the Crown and defence equally, and therefore there was a delay of two and a half months that could be considered as part of an assessment of the impact any delay had on Mr. Campbell’s s 11(b) Charter rights. Clearly there was no institutional aspect of delay during this period. However, I agree this is the only period of delay attributable to the portion of the proceeding that occurred when the matter was being dealt with within the Provincial Court system.
[20] In my view, this period of time is well within the 8 to 10 month guideline set out in Morin and does not give rise to a finding that Mr. Campbell’s s. 11(b) rights were violated during for the entire time frame of Period 1 and Period 2.
[21] Period 3 is the time from March 19, 2013, to June 30, 2014. A pretrial was scheduled for July 10, 2013. Following that pretrial on July 29, 2013, Mr. Campbell dismissed his counsel. A trial date could not be set. The endorsement of the assignment court attendance on August 26, 2013, on the indictment indicates Mr. Campbell raised the issue of disclosure. Notwithstanding his concerns, he was a no show for two court appearances in September and October 2013.
[22] Mr. Campbell retained a second counsel who went on record on October 24, 2013. Three further dates were set, apparently at the request of defence counsel until finally on January 27, 2014, a trial date of June 30, 2014, and July 2, 2014, was set.
[23] Again, there is nothing on the record to indicate if this was the first available date for trial, or if this date was mutually agreed upon by counsel because of witness dates, or that this was a date chosen specifically by the defence. Nothing on the indictment indicates the defence was pushing for earlier dates that could not be accommodated.
[24] In my view, at the very best, it could be said there was potentially an institutional delay of approximately five months from January 27, 2014, to June 30, 2014. However, I am not prepared to make that finding as in my view Mr. Campbell has failed to bring forward evidence that would entitle me to make such a finding. It is a neutral period of time.
[25] Interesting, the endorsements of June 30, 2014, and July 2, 2014, indicate the Court and the parties anticipated a disposition of this matter by way of plea. That did not happen. Of course, that was completely Mr. Campbell’s right to decide how he was going to deal with the matter. However, in my view, as the matter was anticipated to be disposed of by that date, any arguments that delay was occurring because of Crown actions during Period 3 ring hollow.
[26] Period 4 began on July 28, 2014, when again Mr. Campbell determined to dismiss his counsel and represent himself. He indicated to the Court that he intended to bring the within applications and they were ultimately scheduled to commence by way of a trial management conference on January 26, 2015, when the matter came before me for the first time.
[27] This is a time frame of six months. In my view, this period of time was occasioned by choices Mr. Campbell made and cannot be attributed to any delay on the part of the Crown or the Court system.
[28] I find Mr. Campbell has failed to prove that from the time he was arrested in September 2011, to the date the Court first set for his trial in June 2014, there was any delay that could be considered unreasonable for the purposes of assessing whether his s. 11(b) rights have been violated. Also, as I have found that any delay from July 2014 to date has not been the result of any Crown or institutional delay, I find that with respect to the first branch of the test, the period of time this matter has taken to get to this stage in the proceeding is not unreasonable. Even looking at all four Periods cumulatively, when the causes for the time taken is carefully scrutinized, I cannot find that the period is unreasonable.
[29] I will now deal with the issue of waiver, the second of the three major factors that the Court must consider.
[30] Again, the Court is at a disadvantage not having the benefit of the transcripts of the various appearances to determine if a waiver was requested or given. Nothing on any of the endorsements in the file or in the material filed by the parties is determinative of the matter either way.
[31] The third factor to consider is the reasons for the delay. As noted in the discussion of the actual period of the delay, I have found that neither the Crown nor the institution can be found to have contributed detrimentally to the progress of this case. In my view, this case is relatively straight forward and not particularly complex. It was set for a two day trial in late June 2014. At best, the actions of the Crown and the actions of the accused have both contributed, at times consensually, to the time this matter has taken. However, the actions of the Crown are not such that any particular period of delay can be specifically attributed to them. There is no evidence before the Court that lack of institutional resources has delayed this matter in any way.
[32] In terms of the final aspect of the third line of inquiry, prejudice to the accused, Mr. Campbell’s material, and argument focused on an allegation of a lack of disclosure during this entire process. He asserts that he did not receive a certificate of analysis of the substance seized until March 27, 2014. He referred to photographs and video taken by the Crown which he says he did not get until October 2014. Other than the allegation of lack of disclosure, Mr. Campbell did not raise any other evidence or allegation of prejudice occasioned by the length of time this matter has taken to get to trial.
[33] The Crown submits it has disclosed everything to Mr. Campbell and to his two prior lawyers on a timely basis. It is difficult to assess these positions and particularly Mr. Campbell’s, as both sides are requiring the other to prove a negative. Transcripts would have helped. Mr. Campbell says the Crown has photos and video, of what exactly he cannot say, other than they were of “his house” and the Crown is adamant that the photos have been disclosed and no video exists. Neither side put any of what actually has been disclosed in the material they presented to the Court on this application.
[34] Despite allegedly not having disclosure, Mr. Campbell has launched these various pretrial applications to have the matter stayed or dismissed.
[35] In my view, Mr. Campbell’s materials are not sufficiently particular to permit me to make a finding that this matter has been delayed over the issue of Crown disclosure. Clearly, on several occasions since the indictment was issued, the endorsements of the Court have directed the Crown to make disclosure. In terms of any connection to any prejudice occasioned by delay, the fact that an actual trial date was set for June 30, 2014, is key. There is no allegation by Mr. Campbell that his counsel was negligent or acted improperly in apparently being prepared to recommend entering into a plea arrangement at that time. I am familiar with counsel who was acting for Mr. Campbell at that time. He is relatively senior and appears frequently in our Court on criminal matters. In my view, it is difficult to conclude without specific evidence from Mr. Campbell that his counsel at the time would be prepared to recommend a plea to his client if he did not possess all the Crown disclosure necessary to enter into such arrangement.
[36] Without a transcript of what was actually said during the various appearances it is impossible to get any better appreciation of any nuances or arrangements that had been made which would assist in answering the question if, in fact, this issue of disclosure has been raised as an impediment to setting a trial date.
[37] Despite Mr. Campbell’s argument, I cannot conclude that Crown disclosure was lacking or was deficient such that this issue alone can be said to have contributed in any material way to the time this has taken for this matter to proceed. In my view, Mr. Campbell’s argument does not bear out when looking at the limited facts before the Court. It was his onus to prove prejudice. He has failed to do so.
[38] In my opinion, once Mr. Campbell decided to change course, in early July 2014, any consideration of delay was in effect “reset” at that point. He cannot rely on the time it took earlier to get to that point as the time was accounted for in a way that does not indicate that either the Crown or the Court system was acting unreasonably in pushing the matter to trial.
[39] The record is not sufficient to indicate that any delay in this case was not on consent, or that his express s. 11(b) rights were or were not waived by Mr. Campbell or that he has suffered any actual prejudice from this delay. In fact, a good deal of the time this matter has taken relates to choices made by Mr. Campbell. His matter has been allotted a good deal of judicial resources. These preliminary motions have been delayed in 2015 because of the poor organization of Mr. Campbell’s material. Even looking at the alleged delays in the Ontario Court of Justice and in the Superior Court, cumulatively these periods are not sufficient to constitute unreasonable delay in my view.
[40] In my view, Mr. Campbell has not proven that any periods of delay in this matter give rise to an inference of prejudice. His complaints about any prejudice due to lack of disclosure are not supported by any cogent or convincing evidence. I am not persuaded that he has suffered any prejudice to his liberty, security or fair trial interest in so far as concerns his right to be tried within a reasonable time as is provided in s. 11(b) of the Canadian Charter of Rights and Freedoms.
[41] The jurisprudence concerning section 11(b) also speaks of the necessity of balancing the interests of the accused with the societal interest in having a trial proceed on the merits. In this matter, Mr. Campbell has not managed to lead evidence that would cause me to consider his interests have been sufficiently impaired such that it is necessary to enter into the final inquiry of considering the societal interest of having the matter proceed on the merits.
[42] Mr. Campbell’s application for a stay of proceedings in so far as it relies on an alleged violation of his s. 11(b) Charter rights is dismissed.
The Alleged Violations of Mr. Campbell’s Section 8 Charter Rights
[43] Mr. Campbell’s home was searched by a number of Ontario Provincial Police (“OPP”) officers on September 23, 2011. Mr. Campbell relies on s. 8 of the Charter and seeks a remedy under s. 24(2) of the Charter as he asserts that evidence seized pursuant to a Warrant to Search should be excluded from the trial of this matter. He argues the affiant on the Information to Obtain a Search Warrant (“ITO”) failed to provide sufficient information in his affidavit to permit the issuing justice to make an independent assessment of the cogency, trustworthiness, and reliability of informant information. As such, the evidence was seized under an unlawful search in contravention of Mr. Campbell’s rights under s. 8 of the Charter.
[44] Mr. Campbell also asserts the manner in which the search was conducted was itself unlawful and in violation of his s. 8 rights. This is a second independent basis upon which Mr. Campbell argues the evidence seized should be excluded.
[45] Thirdly, Mr. Campbell asserts that the search was unlawful as persons other than the OPP may have gained access to his home relying on the search warrant. As part of this relief, Mr. Campbell seeks an order of the Court that the OPP pay for Ontario Hydro to reconnect power to his home and that the OPP pay Mr. Campbell damages for diminution of the value of his home as the result of the power being cut off. This, in my view, engages relief sought in paragraph 7 of Mr. Campbell’s notice of application, as well as paragraph 4 of that application. As noted in the introduction section of this judgment, these specific issues will be dealt with at the next appearance.
[46] The information to obtain relied upon two confidential informants. In the material filed, Mr. Campbell asserts he knows the identity of one of the informants. He asserts this person is a “compulsive liar and a very sick individual”. Other than that “factual” assertion, Mr. Campbell criticizes the ITO for the following broad reasons:
The ITO was “insufficient”;
The ITO was based on information obtained from confidential informants, which contained no information about the informers knowledge of existence in Mr. Campbell’s house;
There was nothing in the ITO that would compel a belief that drugs would be located in Mr. Campbell’s house;
While the ITO did indicate the informants had criminal records, it did not indicate if the record was for crimes of dishonesty including perjury or public mischief. Mr. Campbell also complains it did not state the informers’ proper motivation for providing information to the police;
The police investigation in relation to Mr. Campbell’s house was not sufficient to corroborate the information provided by the informant; and
The information from the informants was weak as they were interviewed together.
[47] Mr. Campbell asserts that there was no basis for the search and, in fact, it was simply a ploy by local police to force Mr. Campbell to leave town. He had only recently moved to Schreiber when the search was conducted.
[48] The Crown did not seek to amplify the grounds on this application and was content to rely on the ITO and the cross-examination of the affiant that was done at the preliminary inquiry.
The Law
[49] The Crown referred me to the leading case on the standard of review of the decision of an issuing justice as being that of the Supreme Court of Canada in R v. Araujo, 2000 SCC 65, 2 S.C.R. 992. This case stands for a number of principles applicable to this case, which I have applied in considering the evidence and the arguments of the parties. These principles are as follows:
It is trite law that the applicant for a search warrant has a duty to make full, frank, and fair disclosure of all material facts in the ITO supporting the request (para. 46);
The reviewing judge does not stand in the same place and function as the authorizing judge (para. 50);
The reviewing judge does not substitute his or her view for that of the authorizing judge and does not conduct a rehearing of the application for the search warrant (para. 50);
The reviewing judge must carefully consider the existence of sufficient reliable information that might have been reasonably been believed, such that the authorization could have been issued (para. 52); and,
A contextual analysis is important in any consideration of the validity of a search warrant (para. 54).
[50] The Crown and Mr. Campbell both relied on the decision of the Supreme Court of Canada in R v. Debrot, 1989 13 (SCC), [1989] 2 S.C.R. 1140. The parties drew me to different portions of that judgment. Mr. Campbell baldly asserted the ITO was insufficient to satisfy the test set out in that case. The Crown was more particular in actually outlining the three factors set out in that case, but stressed the totality of the circumstances must meet the standard of reasonableness.
Analysis
[51] In my view, a review of the ITO and the cross-examination of the officer does not bear out the complaints made by Mr. Campbell. He has simply taken issues that have arisen in other cases involving confidential informants and cited them without a factual basis from his case to make such assertions.
[52] For example, the assertion that the ITO was insufficient as the informants had no knowledge of drugs that would be found in Mr. Campbell’s home. The ITO clearly states on several occasions that Mr. Campbell had marihuana plants growing in his backyard. The informants indicated “you can see the plants from the street.” The ITO indicates Mr. Campbell himself admitted this to another OPP officer. Mr. Campbell denied making such an admission. Regardless, such information is clearly such that the issuing justice could reasonably believe an offence was occurring on Mr. Campbell’s property. Also, the informants indicated they saw the plants in the house but they were not sure if they had been moved.
[53] Perhaps Mr. Campbell differentiates his backyard from his house. This is a distinction without a difference in assessing whether or not the issuing justice could find reasonable and probable grounds to believe a crime was being committed sufficient to permit a search of Mr. Campbell’s home. It was a sufficient to issue a search warrant in my view.
[54] The complaint about the lack of a police investigation to corroborate the information obtained from the informants is also not persuasive. The officer indicates he did do a drive by of the property and did investigate whether or not Mr. Campbell did have a licence to possess medical marihuana. The informants advised that Mr. Campbell sells marihuana for a specific price per gram. This price was confirmed by the officer as being an accurate price based on his experience as an undercover officer.
[55] In my view, these were elements of an investigation which were designed to test the strength of the information obtained from the informants as it sought to cross-reference any possibility that Mr. Campbell was legally entitled to be growing marihuana plants. It was information sufficient for the issuing justice to be persuaded that a criminal offence was being committed on the property which justified the police searching the premises.
[56] The informants advised that a great number of people were seen coming and going from Mr. Campbell’s residence. Mr. Campbell expressly refutes this in his materials. I agree with Mr. Campbell that there was no independent verification by police investigation of this fact. However, this in and of itself, was not sufficient, in my view, to detract from the other basis upon which the Crown argues the issuing justice had reasonable and probable grounds to believe an offence had been committed justifying the issuing of a search warrant.
[57] I disagree with Mr. Campbell’s assertion that the information in the ITO was insufficient regarding the facts concerning the criminal records of the informants. I agree with the Crown submission that what is significant is that the record is disclosed. The fact of the record itself is an appropriate signal to the issuing justice of caution regarding reliability, but particulars of the record are not required, because the exercise is focused on the totality of the evidence presented and not just an analysis of some possible weaker links in the sum of the chain of the presentation.
[58] Taking the totality of the ITO, I find the search warrant was validly issued. There is no basis, relying on the Araujo factors enumerated above, to conclude that the search warrant was improperly or illegally obtained.
[59] There was another independent aspect of Mr. Campbell’s assertion that his s. 8 rights were violated. He alleges the search was conducted improperly. He deposes the police broke down his door. That is the extent of any evidence I had on that point. There was no cross-examination of the officer on the method of the search.
[60] Breaking down a door, in and of itself, is not sufficient to find the search unreasonable. More is required. It was not provided to the Court. I disagree with Mr. Campbell that the search was unreasonable at least in so far as he asserts it was done with excessive force.
[61] This aspect of Application No. 3 is dismissed. At this point in the proceeding, I find that any evidence obtained from the search was lawfully obtained.
[62] I have now dealt with the grounds for relief sought by Mr. Campbell in paragraph 2, and a significant portion of the relief sought in paragraph 4 of his notice of application. There remains the relief for the alleged improper persons being allowed in to Mr. Campbell’s home, as well as that set out in paragraphs 5, 6, 7, and 8 of the notice of application. I note that the relief in paragraph 6 is for “a stay” and that is all. The relief in paragraph 8 is the general “catch all” seeking such further and other grounds as the applicant may advise and this Court permit. To that end, I direct if Mr. Campbell is indeed seeking any further relief that he hasn’t otherwise asked for in his other materials before the Court, he shall advise the Crown in writing, of the nature of such further and other relief on or before June 30, 2015. He shall also serve any other material he seeks to rely upon at that time. If no material is served by that date, no additional relief will be entertained in addition to what is already sought.
[63] Mr. Campbell is reminded he has an obligation to serve both the Attorney General for Canada and the Attorney General for Ontario with his application materials for Application #1 and Application #2 as he seeks an order that the now repealed Marihuana Medical Access regulations were unconstitutional at the time of his arrest. If he continues to neglect to affect this service it will be a factor for the Court to consider in dealing with his application.
[64] If time permits on July 28, 2015, we will begin to deal with the issues on Application 1 and 2 as well.
_________”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: June 9, 2015
CITATION: R. v. Campbell, 2015 ONSC 3722
COURT FILE NO.: CR-13-0028
DATE: 2015-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
Steven Murray Campbell,
Accused
Reasons For Judgment On Applications
For Stay Based On Alleged Violation Of
Section 11(b) and For Alleged
Violation Of Section 8 Of The
Canadian Charter Of Rights And Freedoms
Fitzpatrick J.
Released: June 9, 2015
/mls