INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BY ORDER OF THE HONOURABLE JUSTICE J. R. HENDERSON ON NOVEMBER 25, 2016 UNTIL FURTHER ORDER
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Prosecution/Respondent
- and -
Raul Bulhosen, Borja Vilalta-Castellanos, Vito Buffone, Jeffrey Kompon, Marco Cipollone, John Edward Oliver and Dean Brennan
Accused/Applicants
L. Mathews / I. Bell, for the Prosecution
R. Rusonik, for Bulhosen, C. Bottomley, for Vilalta-Castellanos D. Brown, for Buffone F. Addario/W. Thompson, for Kompon D. Smith, for Cipollone S. Reid/T. Kent, for Oliver G. Zoppi, for Brennan
HEARD: November 7, 8, 9, & 10, 2016
Justice J.R. Henderson
PRETRIAL MOTION
DELAY APPLICATION
INTRODUCTION
1The accused bring this application for a stay of the proceedings based upon the alleged breach of their rights to be tried within a reasonable time, pursuant to s.11(b) of the Canadian Charter of Rights and Freedoms ("the Charter"). The accused rely upon the recent Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27.
2After a large scale investigation these accused were arrested and charged on September 22, 2014, with criminal offences that include conspiracy to traffic in cocaine, money laundering, and committing offences in association with a criminal organization. The trial of the charges is scheduled to commence on February 27, 2017, and is anticipated to end on August 27, 2017. Therefore, the time period between the date of arrest and the anticipated end of the trial will be approximately 35 months.
3In Jordan at para. 49 the Court set a ceiling beyond which the delay to the end of the trial is presumptively unreasonable. The parties in this case disagree as to the presumptive ceiling that applies. Because the Crown preferred the Indictment, a preliminary hearing in the Ontario Court of Justice (“OCJ”) was not conducted. Accordingly, the accused submit that this case is a one-stage proceeding that engages the 18-month presumptive ceiling, but the Crown submits that the applicable ceiling is the 30-month presumptive ceiling for all cases that go to trial in the Superior Court of Justice (“SCJ”).
4The parties agree that, whatever presumptive ceiling applies, the delay in this case exceeds that ceiling, and that the onus is on the Crown to prove that the delay is reasonable because of the presence of exceptional circumstances. The accused submit that the Crown is unable to show that the delay is reasonable, whereas the Crown submits that this is a particularly complex case such that a 35-month delay to the end of the trial is justified.
5The charges in this proceeding arise out of a police investigation, known as "Project Roadmaster", into the suspected importation into Ontario of thousands of kilograms of cocaine by a criminal organization. It is alleged that between 2011 and 2014 the accused imported cocaine from Mexico by concealing the cocaine in granite boulders and then extracting the cocaine from the boulders at a warehouse in Port Colborne, Ontario. It is alleged that once the cocaine was extracted, the accused distributed the cocaine and laundered the proceeds of sale. Moreover, it is alleged that in 2014 the accused set up two more warehouses, in Innisfil and Rockwood, to receive and process the granite boulders that contained cocaine.
6Project Roadmaster was a three-year investigation that involved eight different police agencies. During the course of the investigation police officers engaged in approximately 1,000 days of covert surveillance, and obtained more than 100 judicial authorizations, including wiretap authorizations, tracking orders, and production orders.
7On takedown date, September 22, 2014, police officers executed search warrants at approximately 30 locations, and seized quantities of cocaine, a large number of documentary records, and approximately 100 electronic devices, including laptop computers and cell phones, some of which were encrypted devices.
8On September 22, 2014, fourteen accused persons, including the seven remaining accused in this proceeding, were arrested and charged. The accused in the present case stand charged on a 10-count Indictment that includes charges of possession of cocaine for the purpose of trafficking, trafficking in cocaine, conspiracy to import and possess cocaine for the purpose of trafficking, money laundering, and possession of proceeds of crime. All of these accused are also charged with committing indictable offences in association with a criminal organization.
9After their arrest, all accused appeared in bail court and were remanded to September 25, 2014. Between October 2, 2014, and February 19, 2015, bail hearings were held for six of the present accused persons. As a result of the bail hearings, Buffone, Kompon, and Brennan were released on bail with sureties, and Bulhosen, Vilalta-Castellanos, and Cipollone were detained in custody. Later, Oliver was also detained in custody after his bail hearing in the fall of 2015.
10On takedown date the Crown provided individualized Substantive Events Summaries that summarized the Crown’s case against each of the accused. Within one month the Crown disclosed approximately 600 documents that were referenced in these Summaries. In early December 2014 the Crown produced the “first wave” of disclosure by providing a hard drive that contained copies of over 240,000 documents, stored on 150 gigabytes of data. It is agreed that the Crown disclosed 93% of the relevant documents in this first wave.
11In mid-December 2014 the Crown wrote to the OCJ trial coordinator to request the appointment of a case management judge. This led to a series of case management meetings in OCJ before Nadel J.
12At the first case management meeting in OCJ on February 24, 2015 (“CMC#1”), there were three self-represented accused, all of whom were seeking to retain counsel. After dealing with some outstanding bail issues, with the assistance of Nadel J., the parties discussed a plan for handling the case.
13Because at least one accused, Ortiz-Sieiro, was requesting a preliminary hearing, pursuant to s.536(4.2), a preliminary hearing for all accused was mandated. The Crown stated that it intended to conduct the preliminary hearing by using s.540(7), which permitted the Crown to submit its evidence at the preliminary hearing by way of written witness statements. Defence counsel were asked to provide a statement of witnesses and issues to the Crown so that the Crown could make those witnesses available for cross-examination at the s.540(7) hearing.
14There was also some discussion about the possibility of the Crown severing the charges against some accused, including Ortiz-Sieiro, but the Crown took the position that there would be no severances until after committal.
15The most pressing issue at CMC#1 was that the Crown had not yet disclosed redacted copies of the Informations to Obtain (“ITOs”) that had been filed in support of the judicial authorizations. Most of the defence counsel correctly took the position that they could not assess the Crown’s case without reviewing the ITOs.
16Toward the end of CMC#1 the Crown estimated that the preliminary hearing would take approximately 6 weeks, and the Crown agreed to canvass dates with defence counsel and the court for the preliminary hearing.
17The matter was adjourned and most accused were remanded to the next case management meeting. The self-represented accused were remanded to March 16, 2015, for an update with respect to their representation by counsel.
18Prior to CMC#1, on January 15, 2015, the Crown had applied for orders to unseal the judicial packets that had been filed in support of the judicial authorizations. On March 30, 2015, in the second wave of disclosure, the Crown disclosed the redacted ITOs that had been filed.
19After CMC#1the Crown canvassed available dates with defence counsel and corresponded with the OCJ trial coordinator for the purpose of scheduling the preliminary hearing. The Crown also reiterated its request for statements of witnesses and issues from counsel. There was significant correspondence in the next few months between the trial coordinator, the Crown, and defence counsel about a proposed schedule for the preliminary hearing. The trial coordinator offered some non-consecutive dates, but there were difficulties accommodating the schedules of counsel and the court.
20The second case management meeting in OCJ took place on April 21, 2015 (“CMC#2”). The Crown informed Nadel J. that most of the disclosure had been completed, with the exception of some disclosure with respect to the investigation of some of the encrypted electronic devices, which was ongoing. Both Oliver and Cipollone remained unrepresented by counsel. The Crown discussed the difficulties in scheduling dates for the preliminary hearing, describing the task as “excruciating”. The matter was adjourned to June 18, 2015, for the purpose of finalizing the preliminary hearing dates.
21On May 4, 2015, the OCJ trial coordinator informed the Crown that some of the dates originally targeted for the preliminary hearing were no longer available. Accordingly, the Crown again canvassed the availability of defence counsel in an effort to schedule other dates.
22The third case management meeting in OCJ occurred on June 18, 2015 (“CMC#3”). Oliver and Cipollone were still unrepresented, although both indicated that they were attempting to retain counsel through Legal Aid. The dates for the preliminary hearing were finalized at this meeting. Some of the defence counsel had provided statements of witnesses and issues, but others had not yet done so. Nadel J. requested that the remaining counsel deliver their statements by the next court date, July 7, 2015.
23On July 7, 2015, at a court appearance, the preliminary hearing was formally scheduled for the dates that had been arranged. A total of 21 court days were scheduled, including December 15, 2015 (one day for the s.540(7) application and/or a Dawson application) and a few days in each of February, April, May, and June, ending on June 9, 2016. Oliver and Cipollone remained unrepresented, but Nadel J. made it clear that the preliminary hearing was to proceed with or without counsel.
24The next significant event occurred on October 16, 2015, when the Crown preferred an Indictment against all accused. November 23, 2015 was set as the first date for the appearance of the accused in SCJ. Thereafter, the Crown wrote to the Regional Senior Justice of the SCJ and requested the appointment of a case manager in SCJ. This resulted in the appointment of myself, Henderson J., as the case management judge.
25Then, Rowbotham application dates were set for Cipollone and Oliver on February 1 and 2, 2016. These Rowbotham applications eventually resulted in the appointment of counsel for both Cipollone and Oliver.
26On February 9, 2016 the first case management meeting in SCJ was held. The Crown indicated that substantially all disclosure had been made, except in respect of a few of the encrypted electronic devices. The Crown estimated that the trial of these charges would take up to 6 months, depending upon concessions that might be made by the accused. The court and counsel targeted trial dates for a trial to start in April 2017. Pretrial motions, including a Garofoli application, were targeted for two weeks in December 2016 and two weeks in early 2017. Again, the court made it clear that trial dates and pretrial motions dates would be set to proceed with or without counsel.
27The next case management meeting in SCJ was held on April 8, 2016. By that time, earlier dates had become available because of the resolution of the charges against an alleged co-actor, Aiello, who had been charged separately. Therefore, at the April 8, 2016 case management meeting the pretrial motions in this proceeding were scheduled for three weeks in November 2016, and the trial proper was scheduled to commence on February 27, 2017. The matter was adjourned to a further case management meeting on May 27, 2016.
28At the case management meeting of May 27, 2016, the parties focused almost entirely on the issue of resolution. Also, Cipollone's Rowbotham application was finalized and granted on that date.
29After this meeting the Crown attempted to obtain agreement from defence counsel as to the dates for filing pretrial motions, as requested by the court. As the parties could not agree on the filing dates, the Crown arranged a conference call with me on July 19, 2016, at which time I made orders for filing dates for the pretrial motions.
30All counsel have now delivered their material with respect to the pretrial motions. The Garofoli application has been abandoned. This application pursuant to s. 11(b) of the Charter is the first of the pretrial motions.
31In summary, the trial proper is scheduled to commence on February 27, 2017 and last for approximately 6 months to August 27, 2017. The Crown's case is based primarily on a large number of authorized intercepts and the observations by many surveillance officers. The Crown proposes to call approximately 220 witnesses at the trial. Among those witnesses will be approximately 22 expert witnesses, including witnesses with expertise in drug trafficking, coded language, American-Mexican cartels, money laundering, and the forensic investigation of electronic devices. Moreover, the Crown estimates that there are approximately 100,000 authorized intercepts, some of which are in the Spanish language, and that approximately 400 of these intercepts will be tendered at trial.
32In total the disclosure that has been made by the Crown comprises approximately two terabytes of data, most of which relates to the data contained on the 100 seized electronic devices. I accept that 93% of the documentary disclosure was made in the first wave of disclosure in December 2014, and that disclosure of the redacted ITOs occurred in the second wave in March 2015.
THE LAW
33In the Jordan decision, the Supreme Court of Canada created a new framework for the determination of an application in which a breach of s.11(b) is alleged. That framework has been recently considered in two cases from the Ontario Court of Appeal, upon which I rely, namely R. v. Manasseri, 2016 ONCA 703, and R. v. J. C., 2016 ONCA 704.
34At the heart of the new framework lies a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court. See the Jordan decision at para. 46 and the J.C. decision at para. 32.
35The first step in the new framework is to calculate the total delay, which is the time from the date of the charge to the anticipated end of the trial. From the total delay, the court should calculate the net delay by subtracting any delay waived by the defence and any delay caused by the conduct of the defence. See the Jordan decision at paras. 47, 60, and 66, Manasseri at paras. 302-306, and J.C. at paras. 35-36.
36In the present case the Crown does not seek to have the court attribute any of the total delay to the conduct of the defence, and it is agreed that the defence has not waived any delay. Thus, it is agreed that in this case the net delay amounts to approximately 35 months.
37If the net delay exceeds the presumptive ceiling, as it does in this case, it is presumptively unreasonable. The Crown may rebut the presumption by showing that the net delay is reasonable because of the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. See the Jordan decision at para. 47 and 68, and Manasseri at para. 306.
38In the majority decision in Jordan, at para. 69, the Court wrote the following about exceptional circumstances,
“Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.”
39Further, the Court in Jordan, at para. 71, identified two categories of exceptional circumstances that may justify delay beyond the presumptive ceiling, namely “discrete events” and "particularly complex cases".
40In the present case the Crown does not submit that there are discrete events that would justify the delay. Therefore, in order to rebut the presumption the Crown relies solely upon its submission that this is a particularly complex case that justifies the net delay from the date of the charge to the end of the trial.
41At para. 77 of Jordan, the Court explained the concept of particularly complex cases, as follows,
“…. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.”
42At para. 80, the Court wrote,
“Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required.”
43Further, in assessing complexity, the Court wrote at para. 79,
"…the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity."
44The Jordan decision also provides for consideration of transitional exceptional circumstances where the proceeding is one that was commenced prior to the Jordan decision. However, the Crown in the present case does not rely on those transitional rules.
ANALYSIS
45The first issue is the determination of the applicable presumptive ceiling. There are two presumptive ceilings discussed in the Jordan decision, an 18-month ceiling for cases going to trial in provincial court and a 30-month ceiling for cases going to trial in superior court.
46Defence counsel urge me to find that there is an 18-month presumptive ceiling in the present case, even though the trial will be in SCJ. Defence counsel submit that because of the preferred Indictment this is a “one-stage” proceeding, and therefore the lower ceiling applies. In support of their submissions, defence counsel note that the court in Jordan used the Supreme Court of Canada decision in R. v. Morin, [1992] S.C.J. No. 25, as a starting point and that the Court in Morin at para. 43 made a distinction between a one-stage and a two-stage proceeding.
47I do not accept the defence submission on this point. The Jordan decision, in the words of the Court at para. 46, establishes a “new framework”. It represents a paradigm shift with respect to s.11(b) applications. At para. 108 of Jordan the Court wrote that the decision “represents a significant shift from past practice”. Accordingly, I find that I should not apply pre-Jordan principles to this post-Jordan decision.
48It is important to recognize that the Court in Jordan never makes a distinction between a one-stage and two-stage proceeding. Rather, in all meaningful statements about the ceiling, the Court makes a distinction between cases going to trial in provincial court and cases going to trial in superior court. Certainly there are differences in the general nature and complexity of trials as between OCJ and SCJ. I must accept that, in creating the new framework in Jordan, the Supreme Court of Canada considered those differences and meant to draw the distinction as it did so clearly. I have to assume that the Court meant what it wrote at para. 49 of Jordan.
49For these reasons, I find that, even though there has been no preliminary hearing, the presumptive ceiling in this case is 30 months because this case will be tried in SCJ.
50I will add that, logically, a one-stage proceeding should take less time than a two-stage proceeding. In my view, I can consider that factor when I consider the reasonableness of the Crown’s plan to manage this case.
51The next issue is whether this case can be characterized as a particularly complex case. The Court gives us some guidance as to the hallmarks of a particularly complex case at para. 77. Then, at para. 78 the Court wrote the following:
“A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.”
52The Crown submits, and I accept, that this case has many of the hallmarks of a particularly complex case as discussed in Jordan. In particular, I accept that there was a large volume of disclosure. In total, documentary disclosure was in excess of 250,000 documents stored in 220 gigabytes of data, plus approximately one-and-a-half terabytes of data that represents the contents of 100 seized electronic devices. In addition, there are approximately 100,000 audio intercepts, 400 of which the Crown intends to use at trial.
53Further, the evidence at trial will likely be extensive. In addition to the documentary evidence and the intercepts, the Crown intends to call 220 witnesses to testify, including approximately 85 surveillance witnesses and 22 expert witnesses. This will be a long trial.
54The position of the accused with respect to complexity is that there may be a great deal of evidence, but the evidence is relatively straightforward. The defence submits that this will be a simple trial in which the Crown will introduce approximately 400 intercepts, and then counsel will debate what they mean. They submit that there is no Jordan exception for a typical large-scale narcotics case based on intercepts and surveillance.
55While I accept that the surveillance evidence and the evidence of the intercepts may, when considered alone, seem relatively straight forward, I reject the submission that this is a simple, or typical, case. In my view, the complexity of the evidence is increased by the fact that the different types of evidence are intertwined. I find that in order to prove its case, the Crown will need to weave together surveillance evidence, evidence of the intercepts, coded language opinion evidence, and forensic evidence for many of the brief interactions between two or more people. This combination of evidence will be developed over and over again by the Crown in an effort to prove the activities of the parties and the relationships between them. That interplay between the different types of evidence, combined with the volume of the evidence, in my view substantially increases the complexity of this case.
56Further, the nature and the extent of the charges make this case more complex than a typical narcotics case. These accused are charged with respect to events that occurred between January 2011 and September 2014, a period in excess of three and a half years. Therefore, the amount of evidence will be significant. Further, the charges of conspiracy and criminal organization are by their nature more complex charges than typical criminal charges.
57I also note that there is an international component to the charges as there is an importing charge, the involvement of international police agencies, and at least one expert witness who will testify as to American-Mexican drug organizations.
58I reject the Crown’s submission that this case is a particularly complex one because of the large number of charges. There are 10 counts in the present Indictment and, in my view, that is a fairly typical number for a large narcotics case. I also reject the Crown’s submission that this case involves novel legal issues.
59I do, however, accept the Crown’s submission that the complexity of this case is increased because the case involves multiple accused, initially fourteen accused and currently seven accused. Paragraph 77 of Jordan specifically acknowledges that joint proceedings against multiple accused may impact on the complexity of a case. In the present case there will certainly be issues with respect to the co-actors exception to the hearsay rule, and the use that can be made of evidence as between different accused, as well as the potential for antagonistic defences. All of these issues increase the complexity.
60I agree that there is no routine exception in the Jordan analysis for a typical large-scale narcotics case based on intercepts and surveillance; however, I find that the present case is well beyond a typical narcotics case. This is not a case involving a few months of intercepts accompanied by some surveillance. This case involves more than three years of events, 100 judicial authorizations, approximately 1,000 days of surveillance, 100 seized electronic devices, multiple accused, international police agencies, and more than 250,000 documents.
61The sheer volume of that evidence, combined with the difficult task of weaving it together to form a coherent narrative, takes this case beyond a typical large-scale narcotics case. This case will take an inordinate amount of trial time and preparation time. The fact that the trial proper is estimated to take six months is supportive of that view.
62For all of these reasons, I find that the Crown has proved that this case is a particularly complex case within the meaning set out in Jordan. Thus, I find that exceptional circumstances exist.
63Next, the Crown submits that, having found that the case is a particularly complex case, I should find without any further analysis that the delay is reasonable and no stay should issue. The Crown relies on para. 80 of Jordan in support of that submission. I disagree.
64In my view, para. 80 implies that not only must the Crown prove that the case was a particularly complex case, but that the Crown must also prove that “the time the case has taken is justified.” That view is also expressed in para. 68 where the Court wrote:
“The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.” [Emphasis added.]
65Therefore, having found that this case is a particularly complex case, and thus that there are exceptional circumstances, I must next consider whether the delay to the end of the trial, 35 months in this case, is reasonable in light of those exceptional circumstances. In determining that issue, I must consider whether the Crown had a plan to manage the case, whether the Crown’s plan was reasonable, and whether it was implemented in a reasonable manner. I also accept that my analysis of this issue must be in the context of the 30-month presumptive ceiling.
66In my view, the Crown clearly had a plan to manage the case from early in the proceedings. I reject the defence submission that the Crown did not have any plan.
67The Crown enunciated the Crown’s plan to Nadel J. at CMC#1. In summary, the Crown’s plan was to deal with bail issues and then possible guilty pleas, and then proceed to a preliminary hearing using the s.540(7) procedure. As part of the s.540(7) procedure, the Crown would make available those witnesses that defence counsel wished to cross-examine. The Crown also had a plan for disclosure as I discussed earlier. Further, the Crown had delivered the seized electronic devices to five separate agencies for analysis. The Crown did not wish to consider severance prior to committal for trial, except with respect to possible guilty pleas or other resolution.
68All of the above can be deduced from the Crown’s comments at CMC#1. Moreover, on the day after CMC#1, by email directed to all defence counsel, the Crown summarized the discussions from CMC#1 and confirmed the Crown’s plan. In particular, the Crown in the email reiterated that it would keep all accused together until the preliminary hearing; that it would proceed under s.540(7); that it requested statements of issues and witnesses from defence counsel; that it would make witnesses available for cross-examination; and that it would coordinate the scheduling of the preliminary hearing.
69The Crown’s plan obviously changed by October 2015 when the Crown preferred the Indictment. The Crown has not provided an explanation for that change in plans, and it is not required to do so. Therefore, I can only infer that the Crown management plan changed at some point between February 2015 and October 2015.
70The next issue, and the real crux of this application, is whether the Crown’s plan was reasonable and whether it was implemented in a reasonable manner such that the delay to trial is justified.
71On this issue, I will start by considering the defence criticisms of the Crown’s management of this case. Defence counsel submit that the Crown was unreasonable in its management of this case in four significant ways as follows:
(i) that the Crown was slow to disclose the redacted ITOs that were filed in support of the judicial authorizations;
(ii) that the Crown refused to engage with defence counsel’s proposals to shorten the proceedings;
(iii) that the Crown chose not to sever the charges against some of the accused; and
(iv) that the Crown chose to prefer an Indictment at a late stage in the proceedings.
72Regarding the Crown’s slow disclosure of the redacted ITOs, I accept that disclosure should have been made earlier. I accept that any competent defence counsel could not give proper legal advice to his/her client in a narcotics case without reviewing the redacted ITOs.
73I do not wish to be unduly critical of the Crown on this point. There was a massive amount of disclosure to be made and the Crown had a plan in place for the release of that disclosure in waves. That being said, in my view, greater priority should have been given to providing disclosure of the ITOs at an earlier stage.
74Despite that finding, in the present case there was no lost time because of the late disclosure of the ITOs as the parties were still able to engage in meaningful discussions at CMC#1, and all of the charges had to be adjourned to CMC#2 in any event. By CMC#2, all of the redacted ITOs had been disclosed.
75The second criticism raised by the defence is that the Crown did not engage with proposals that were made to the Crown by counsel for some of the accused. The defence alleges that those proposals, if accepted, could have shortened the process. The flaw in the defence argument is that it fails to recognize that the Crown was dealing with multiple accused, many of whom were not involved in, or apparently not interested in, negotiating a shorter process.
76As of February 24, 2015 at CMC#1 the Crown knew that they had to conduct a preliminary hearing because at least one accused, Ortiz-Sieiro, had requested a preliminary hearing. The Crown had a plan to manage the preliminary hearing by using s.540(7). The Crown would still have to produce some of the witnesses for cross-examination, but overall this procedure would shorten the time required for the preliminary hearing.
77After CMC#1, I accept that counsel for Bulhosen and counsel for Brennan both made suggestions to the Crown in efforts to streamline the process. In particular, in an email dated February 25, 2015, counsel for Brennan suggested that the Crown should consider severing the charges against Ortiz-Sieiro, and "if all other counsel were amenable…" the Crown should proceed to try the case in OCJ. I find that no other counsel ever indicated that they were amenable to a trial in OCJ, and therefore the proposal by Brennan, albeit a reasonable attempt to negotiate a process, would not work. Therefore, I cannot fault the Crown for not pursuing Brennan’s suggestion.
78Further, I find that on April 20, 2015, counsel for Bulhosen informed the Crown that Bulhosen would concede committal on certain counts so as to avoid the necessity of a s.540(7) proceeding, and that Bulhosen would cross-examine only some of the surveillance officers on a Dawson application. This proposal was conditional on the Crown withdrawing the other charges against Bulhosen.
79The Crown did not accept Bulhosen’s suggestion in part because the Crown did not wish to withdraw certain charges against Bulhosen, whom the Crown believed was one of the major players. Also, I accept that Bulhosen’s proposal would still require the Crown to produce several witnesses for cross-examination. Therefore, any timesaving would be negligible for the case against Bulhosen, and the Crown would still have to conduct a preliminary hearing for the other accused persons.
80Therefore, despite these helpful suggestions by Bulhosen and Brennan, it was very obvious that the Crown would be required to proceed to a preliminary hearing that would involve charges against multiple accused.
81Further, I find that the Crown attempted to deal with the one accused, Ortiz-Sieiro, who had requested a preliminary hearing. In my view the Crown reasonably negotiated a resolution whereby the Crown withdrew the criminal charges against Ortiz-Sieiro in exchange for this accused pleading guilty to Immigration Act charges in May 2015.
82However, by the time the charges had been resolved against Ortiz-Sieiro, another co-accused, Lucero, had specifically requested a preliminary hearing. Therefore, the resolution of the charges against Ortiz-Sieiro did not eliminate the need for a preliminary hearing.
83Moreover, other accused had indicated their intentions to contest the Crown’s plan. At CMC#1, counsel for the accused Garcia and the accused Pinkerton said that they would oppose the s.540(7) application. I assume this meant that these accused wished to contest the use of witness statements by the Crown.
84Further, at a July 31, 2015 court appearance, counsel appeared for the accused Oliver and announced that he would require the Crown to produce every witness for every statement the Crown intended to tender at the s.540(7) hearing so that he could cross-examine the witnesses.
85Therefore, by the end of July 2015, I find that the Crown had had some negotiations with counsel for Bulhosen and Brennan with respect to the process, but that none of the other accused, or their counsel, seemed to be interested in shortening the process. Moreover, there were still two unrepresented accused.
86At that point in time the Crown knew that they would be required to conduct a preliminary hearing. Some defence counsel had still not provided their list of witnesses and issues. Moreover, all of the accused appeared to be opposed to committal. Thus, by the end of July 2015 the Crown had no choice but to proceed with the s.540(7) hearing and produce the Crown witnesses for cross-examination as requested.
87Note that I do not wish to appear to be analyzing the conduct of defence counsel for the purpose of considering whether the defence contributed to the delay. The Crown does raise that issue. Therefore, I only consider defence conduct for the purpose of evaluating the defence submission that the Crown did not reasonably engage with the proposals by defence counsel.
88The third criticism raised by the defence is that the Crown unreasonably failed to sever the charges against some of the accused. The accused rely on comments in the Manasseri decision at paras. 372-375, and in the case of R. v. Vassell, 2016 SCC 26 at paras. 4-7, to the effect that the Crown should consider severance as a way in which to manage the complexity of the case.
89In my view, the Crown’s decision to sever or not to sever is a balancing act. On one hand, severance would likely have made for a less complex trial against a small group of accused persons simply because there would be fewer accused, fewer counsel, and perhaps less evidence.
90However, if the Crown were to sever the charges, there would be a strong likelihood that much of the same evidence would have to be adduced on at least two occasions. That is, in a case like the present case, the Crown would have to run the same or similar trials two or more times. This, in the big picture, could be problematic. If the Crown severed the charges the Crown would run the risk of inconsistent verdicts, would make inefficient use of court resources, would likely cause a further delay of the trials that were last in the queue, and would perhaps encourage tailoring of the evidence by those witnesses who were required to testify on more than one occasion.
91I accept that there is a Crown discretion with respect to severance, subject to the Crown keeping a watchful eye on the s.11(b) rights of the accused. I also accept that in cases in which it is alleged that accused persons have acted as co-conspirators there is a strong presumption in favour of a joint trial, as discussed in the cases of R. v. Chow, 2005 SCC 24 at para. 47, and R. v. Suzack, [2000] O.J. No. 100 (OCA) at paras. 88-90. Therefore, I find that the decision by the Crown in this case to not sever the charges is a reasonable use of the Crown’s discretion.
92Finally, I have considered the defence submission that the Crown should have preferred the Indictment much sooner than it did. This submission goes to the defence position that the Crown did not have a reasonable plan in place for managing this case. In essence, defence counsel submit that the Crown initially planned to pursue this matter in OCJ by way of a preliminary hearing, and then having gone forward with this plan, the Crown changed its mind in October 2015 by preferring the Indictment. Therefore, the defence submits that this was a haphazard approach by the Crown that wasted most of the eight months that were spent in OCJ.
93I acknowledge that there is some merit to the defence position; however, the defence view presumes that the Crown had the ability to foresee all of the events that would unfold in OCJ, and that the Crown would be in a position to decide in advance if the Crown should or should not prefer an Indictment. That, of course, is impossible. I accept that the Crown is entitled to change its plan in order to adapt to events that unfold. That is, having developed a plan, the Crown should not be forced to blindly follow it without considering the events as they occur.
94In this case, by the fall of 2015 it was clear that there would not be a committal until at least June 2016, and therefore the case would not be in SCJ until at least July 2016. Therefore, I accept that by preferring an Indictment in October 2015 and getting the case into SCJ in November 2015 the Crown reduced the time to trial by approximately eight months, based on the situation that existed as of the fall of 2015.
95Therefore, although there is merit in the defence suggestion that the Crown perhaps should have preferred an Indictment earlier, the Crown did in fact save time by doing so in October 2015.
96This brings me to the next point. That is, the role of the court in a Jordan analysis is not to retroactively micromanage the Crown’s case. The Crown has a discretion as to how to proceed. The role of the court is to determine whether the Crown’s plan of management was reasonable. In that respect I rely upon para. 111 of Jordan which reads as follows:
“Third, the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting. While judges will still have to determine defence delay, the inquiry beneath the ceiling into whether the case took markedly longer than it reasonably should have replaces the micro-counting process with a global assessment.”
97So, from a global perspective, did the Crown have a reasonable plan to manage the complexity of this case and did the Crown implement the plan in a reasonable way? In my opinion, the Crown did in fact fulfil its obligations from a global perspective.
98In summary, the Crown attempted to deal with the complexity issues in several ways, including by formulating an initial plan to conduct a s.540(7) preliminary hearing; by offering to produce any requested witnesses for cross-examination; by coordinating the schedules of the court and defence counsel for the purpose of scheduling the preliminary hearing and the trial; by requesting statements of witnesses and issues from the defence; by the disclosure of a large number of documents and electronic data early in the process; and by taking the initiative to engage the case management process in both OCJ and SCJ.
99Moreover, by the time the case came to SCJ, as part of the Crown’s plan, the Crown had delivered to defence counsel a list of 88 requested admissions with respect to what the Crown suggested were non-controversial facts. This was an attempt by the Crown to shorten the trial. In fact, only two defence counsel responded to the Crown’s request for admissions. Counsel for Bulhosen was prepared to make 84 of the requested admissions, but only on certain conditions, including a condition that the Crown would withdraw certain charges against Bulhosen. The only other counsel that responded was counsel for the Vilalta-Castellanos who was prepared to make a few minor admissions without conditions.
100Furthermore, I find that the Crown in effect streamlined the case by resolving the charges against seven of the initial fourteen accused. By resolving the charges against half of the accused, the Crown reduced the complexity of the case.
101I accept that the Crown made two decisions in the course of this proceeding that in hindsight could be criticized. The first, with respect to the late disclosure of the ITOs did not affect the time to trial. The second, the late preferring of the Indictment, caused the loss of some time in OCJ, but it saved some time going forward.
102Overall, in consideration of the Crown’s plan, the way in which the Crown managed the plan, the presumptive ceiling of 30 months, and the complexity of this case, I find that the Crown has proved that the 35 months that this case will take to the end of this trial is reasonable.
103In conclusion, I find that there has not been a breach of s.11(b) of the Charter. The request for a stay is dismissed.
J. R. Henderson J.
Released: November 25, 2016
CITATION: R. v. Bulhosen, 2016 ONSC 7284
COURT FILE NO.: 4355/15
DATE: 2016/11/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Prosecution/Respondent
- and –
Raul Bulhosen, Borja Vilalta-Castellanos, Vito Buffone, Jeffrey Kompon, Marco Cipollone, John Edward Oliver and Dean Brennan
Accused/Applicants
PRETRIAL MOTION DELAY APPLICATION
J. R. Henderson J.
Released: November 25, 2016