Court File and Parties

Court File No.: CR-16-30000059-0000 Date: 2017-05-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Christopher Saccoccia, Accused

Counsel: Ron Krueger, for the Crown Ismar Horic, for the Applicant (accused)

Heard: May 1, 2017

Before: Thorburn J.

Ruling on Stay Application Pursuant to s. 11(b) of the Charter

1. Overview

[1] The Applicant, Christopher Saccoccia, claims that his Charter right to be tried within a reasonable time has been violated. He therefore brings an Application to dismiss the charges against him for delay.

[2] The Applicant claims the case against him is simple: there are three charges of possession of drugs for the purpose of trafficking and one of possession of proceeds of crime. He claims that although it took many months to obtain counsel, this was because he was initially denied Legal Aid. Moreover, at no point was the matter delayed because of his failure to retain counsel as, until counsel was retained, he attended court without counsel. The Applicant claims the presumptive ceiling of 30 months for cases that proceed to the Superior Court has been exceeded, even after taking into account Defence delay. Moreover, the transitional case exception does not apply.

[3] The Crown claims that this is a complex proceeding involving 112 accused persons, over 35 of whom were part of this subgroup of Project Battery cases. The Applicant’s trial could not take place until after a Garofoli application brought on behalf of many of the Project accused was heard. The Application was brought to determine whether surveillance and information from video cameras in the condominium complex that includes the Applicant’s condominium could be used at trial.

[4] The Applicant specifically asked that his Application be heard as part of the group.

[5] If the Application had been successful the charges against the Applicant would have been stayed. In any event, the delay is only 5 ½ months over the 30 month limit and the Applicant made little effort to move the trial forward quickly.

2. History of this Proceeding

[6] In late 2003, the Toronto Police Service began an investigation into various gangs in Toronto. Project Battery focused on the so-called Asian Assassinz. The Applicant became a focus of the investigation after police observed him in conversation with an alleged Asian Assassinz associate and later observed the associate enter his unit using a key. Police surveillance footage shows the Applicant and the associate visiting one another’s units.

[7] A search warrant was executed on the Applicant’s unit on May 28, 2014 and police found illegal drugs and proceeds of crime. A single Information was issued for over 30 accused persons. The following day the Applicant was released on bail.

[8] On June 13, 2014 a summary of the disclosure was available but the Applicant had not retained counsel.

[9] A second Information was sworn on July 17, 2014 following the arrest of other accused persons. The Project Battery accused were divided into three groups and the Applicant was in Group 2. The following day, at the first global judicial pre-trial, the agent for the Applicant received a disc of disclosure.

[10] On August 22, 2014, the Applicant advised the court that he was waiting for a decision from Legal Aid. On September 25, 2014 the Applicant advised the court that he had been refused Legal Aid and was appealing the decision.

[11] On October 27, 2014 the Applicant’s appeal to obtain Legal Aid was dismissed. On that date, the Applicant attended court for a judicial pre-trial without counsel. The Crown was prepared to sever the Applicant and one co-accused from the rest on terms. He says he was unable to do so because the Crown required undertakings pertaining to how to deal with the Garofoli and search warrant issues. Neither counsel for the co-accused nor the Crown was able to discuss them with the Applicant as he had no legal representation. Moreover, the Crown was led to believe that it was always the Applicant’s intention to retain counsel and that this was forthcoming.

[12] The Preliminary hearing for the Project Battery Group 2 was scheduled for October 19, 2015 for 6 weeks. It was set on a with-or-without counsel basis for the Applicant.

[13] On February 26, 2015 the Applicant advised the Crown that he did not know how to fill out the Statement of Issues.

[14] On March 24, 2015 the Applicant advised the court that he had selected counsel and provided a letter to say that counsel intended to bring a Rowbotham application to obtain funding for his legal representation. The case management judge advised the Applicant of the urgent need to retain counsel. The matter was adjourned to May 4, 2015 so that the Applicant could provide the court with an update regarding his attempts to retain counsel.

[15] On May 4, 2015, counsel attended with the Applicant and advised that he had not yet been retained but would bring a Rowbotham application in the next few weeks. At that time the court advised the Applicant that, “If you don’t have counsel, you’ll be representing yourself” at a focus hearing to proceed on August 26, 2015.

[16] On August 26, 2015 the Applicant had still not retained counsel or brought the Rowbotham application but advised that he was planning to do so on September 21, 2015. The matter was remanded to September 22, 2015 so that the Rowbotham application could be heard first.

[17] There is no stated reason why the Defence took over 5 months to bring the Rowbotham application.

[18] On September 15, 2015 a judicial pre-trial was held to discuss severance and other issues.

[19] On September 22, 2015, counsel for the Applicant advised that, “We’re now retained and we’re ready to proceed to the start of the prelim, which I believe is October the 19th.”

[20] On October 19, 2015, a new Information was laid in respect of the Applicant and his then girlfriend only. As such, Mr. Saccoccia and Ms. Batler’s case were severed from the others. On October 21, 2015, counsel for the Applicant advised that the Applicant wished to be tried by judge and jury with a preliminary hearing.

[21] The Preliminary Inquiry began on November 17 and on November 24, 2015 the Applicant’s counsel conceded committal.

[22] On December 3, 2015, the Applicant was committed to stand trial and the matter was remanded to the Superior Court.

[23] On February 9, 2016, a group pre-trial was held although the Applicant was now on a separate indictment. The Applicant advised that he wished to join the group of 35 Applicants on the joint Garofoli application. The group Garofoli application was scheduled for May 9, 2016 to challenge the wiretaps (of others not the Applicant) and observations made and surveillance conducted in the common areas of the condominiums including that of the Applicant. Legal Aid designated one counsel to act on behalf of all parties.

[24] On June 27, 2016, Code J. rendered a decision on the wiretaps and the matter was adjourned to enable the accused persons to file further evidence. The following day, the Applicant appeared without counsel. The Crown indicated that “we targeted May 1, 2017 for an 8 week trial” and that he had spoken with the Applicant’s counsel who was available to commence the trial on that date. Counsel for the Applicant raised no concerns.

[25] A further judicial pre-trial was scheduled for July 28, 2016. At that time the Crown advised that the second issue on the Garofoli application had not been heard and they were waiting for a decision from Code J. in respect of the hallway cameras.

[26] On December 3, 2016, Code J. rendered his judgment on the remaining Garofoli issues and further judicial pre-trials were held on January 11, 2017, January 27, 2017 and February 8, 2017.

[27] On February 8, 2017, it was agreed that the issues had been narrowed such that the 8 week trial would now only take 2 weeks.

[28] The matter was adjourned to April 3, 2017 for a trial readiness meeting. The trial was scheduled to begin on May 1st for 2 weeks.

3. The Law in Respect of Unreasonable Delay

[29] The case of R. v. Jordan, 2016 SCC 27 stipulates temporal ceilings for the prosecution of criminal cases in Canada. Cases that proceed to the Superior Court must be tried within 30 months from the time of arrest. Any delay clearly waived by the Defence or caused by the Defence is then subtracted from the total calculation. If the time from arrest to the end of trial less Defence delay exceeds 30 months, section 11(b) of the Charter is presumed to be violated and the proceeding will be stayed unless there are exceptional circumstances.

[30] In R. v. Coulter, 2016 ONCA 704 paras. 34 to 41, the Court summarized the approach to be taken under the new Jordan framework as follows:

i. Calculate the total delay, from the date the charges were laid to the actual or anticipated end of trial; ii. Subtract Defence delay from the total delay; iii. Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Absent exceptional circumstances, a stay will follow; iv. Exceptional circumstances can include discrete events or particularly complex cases; v. Delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the presumptive ceiling has been reached; vi. Where there is delay resulting from the fact that a case is particularly complex, and the presumptive ceiling is exceeded, the court must consider whether the particular complexity was such that the time the case took is justified and the delay is reasonable; vii. If the remaining delay falls below the presumptive ceiling, the onus is on the Defence to show that the delay is unreasonable.

[31] Complex pre-trial proceedings are not delay attributable to the Defence, assuming they are not frivolous. However, they may amount to exceptional circumstances that justify lengthening the 30-month ceiling. (R. v. Jordan, supra at paras. 72, 77 and 81.)

[32] Where the accused was charged prior to July 8, 2016, the transitional framework developed in Jordan applies. In such cases, in addition to the above factors, the court must consider whether there are transitional exceptional circumstances that justify the delay under the previously existing Morin framework.

[33] The Court must balance the interests of the accused and the societal interests in a trial on the merits. (See: R v. Williamson; R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at para. 9; R. v. Tran, 2012 ONCA 18, 287 O.A.C. 94, at para. 24; R. v. Morin, [1992] 1 S.C.R. 771, at pp. 786-803 and R. v. Stilwell, 2014 ONCA 563, 324 O.A.C. 72.)

[34] Where there is a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused's fair trial interests) takes on added significance in the s. 11 (b) analysis. The absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable. (R. v. Seegmiller, (2004), 191 C.C.C. (3d) 347 (Ont. C.A.), at paragraph 25.) On the other hand, society's interests should not permit the accused's "constitutional rights to be eviscerated" (see: R. v. S.H., [2008] O.J. No. 5736 at paragraph 74).

[35] Where delay exceeds the 30-month ceiling, a transitional circumstance will only apply where the Crown establishes that the delay is justified because of the parties’ reasonable reliance on the law as it existed at the time. A contextual assessment is required since the parties’ behaviour “cannot be judged strictly against a standard of which they had no notice.” (Jordan, at para. 96.)

4. Analysis and Conclusion

[36] The parties agree that the total delay from the date charges were laid to the anticipated end of the trial is 35.5 months. This exceeds the presumptive 30 months set out in the Jordan decision.

[37] The Crown suggests however that there is,

a. Defence delay resulting from the long time it took the Applicant to retain counsel; b. this case was complex because it involved a Project case with approximately 30 accused persons; and c. the transitional exception applies because the parties reasonably relied on the framework that existed for the determination of delay that existed before the Jordan decision was rendered.

[38] For the reasons that follow, I agree that there was Defence delay in retaining counsel, the case was complicated by the fact that this was part of a Project case, and the transition exception applies.

[39] The Applicant was charged on May 28, 2014. He was refused Legal Aid on September 25, 2014. He did not contact his current counsel until 7 months later on March 23, 2015. Thereafter his counsel did not set down the Rowbotham application to secure funding until August and it was heard on September 21, 2015.

[40] While the Applicant did attend court proceedings before counsel was retained, his failure to obtain legal counsel resulted in delays. As early as November 26, 2014, the Crown was prepared to sever the Applicant and one co-accused from the rest of the Project accused on terms. Neither counsel for the co-accused nor the Crown was able to do so because the Crown required undertakings pertaining to how to address the Garofoli issue, which was of concern to the over 30 accused persons. The Crown could not discuss this with the Applicant as he had not retained counsel.

[41] There is a delay of over 1 year from the time the Applicant knew he was denied Legal Aid to the time he retained counsel. During that time there were some fruitless attendances before the court, the Statement of Issues could not be filed and, because the Applicant had no lawyer, no discussions regarding the implications of severance could take place.

[42] I note that a finding that delay was caused solely or directly by the conduct of the Defence is not a finding of fault. (R. v. Gandhi, 2016 ONSC 5612 at para. 44.). Section 11(b) of the Charter is “not concerned with assigning blame, but only in the cause of delay.” (R. v. Philips (1993), 80 CCC (3d) 167 (Ont. C.A.) at p. 173.)

[43] I find that some of the time spent by the Applicant to retain counsel must be attributable to Defence delay. In particular, it should not have taken 7 months to contact legal counsel and it should not have taken an additional 4 months for Defence counsel to file a motion for a Rowbotham application. While it is understandable that the Applicant needed time to understand and address the issues, some of the time he took to retain counsel must therefore be attributed to Defence delay understanding of course, that this is not a finding of fault but only to address the cause for delay.

[44] The subtraction of 7 months from the 35 ½ month delay brings the net delay within the 30 month ceiling set by the Supreme Court of Canada.

[45] In any event, there are exceptional circumstances that justified additional delay.

[46] Delays were occasioned because judicial pre-trials were set for the Project group and a lengthy Garofoli application was brought on behalf of the group. The Applicant was asked and advised the court that he wished to participate in the Garofoli proceeding which, if it had been successful, would have resulted in a stay of these proceedings. Because of the number of accused persons participating and the number of days set for the hearing of the Application, 10 months elapsed from the time of the first days of argument to the time to enable Defence counsel to seek further information, to provide further submissions and for the judge to rule on the matter.

[47] The time for hearing and disposing of the Garofoli application which the Applicant chose to be part of, was considerably longer and more complex by virtue of the number of Applicants (35) and the number of issues. For this reason, 6 of the 11 months it took to deal with the Garofoli Application should be attributable to the exceptional circumstances resulting from the complex issues and multiple parties to the Application.

[48] Lastly, and in any event, this is a transitional case because the Jordan decision was released after these charges were laid but before the trial.

[49] The factors to be considered and the onus of proof on pre-Jordan applications under s.11 (b) of the Charter is set out in R. v. Morin, [1992] 1 S.C.R. 771 at paras. 31-33 include:

1. the length of delay;
2. waiver of periods;
3. reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the parties, (c) limits on institutional resources and other reasons, and (d) prejudice to the accused.

[50] Account must be taken of the interests which s. 11(b) is designed to protect.

[51] In this case, the time in question is not unreasonable having regard to the interest s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused. Even if the delay in this case modestly exceeds the presumptive ceiling (which I have found it does not), the Crown did not create any unnecessary delay. The issue of delay was not raised or referred to at any of the many judicial pre-trials or motions. Moreover, although the accused’s right to a trial within a reasonable time is always a strong societal concern, there is also a strong societal interest in a trial on the merits of these serious charges of drug trafficking.

[52] For the reasons set out above, this Application to dismiss these proceedings for delay is dismissed.

Thorburn J. Released: May 1, 2017