COURT FILE NO.: CR-17-30000328-0000 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent – and – HUSSEIN DAYA Accused
Ron Krueger and Michael Passeri, for the Crown Stephen Feldman, for the Applicant (accused)
HEARD: May 12, 2017
Thorburn J.
RULING ON STAY APPLICATION PURSUANT TO s. 11(b) OF THE CHARTER
1. OVERVIEW
[1] It will take 36 months for this trial to be completed. The net delay is 34 ½ months after taking into account the inordinate time for the Applicant, Hussein Daya, to obtain counsel.
[2] The Applicant claims that his Charter right to be tried within a reasonable time has been violated because the 30-month ceiling for the prosecution of cases has been exceeded. He therefore seeks to stay this charge of possession of one ounce of cocaine for the purpose of trafficking.
[3] The issue to be determined is whether the charge should be stayed for delay pursuant to sections 11(b) and 24(2) of the Charter. Both sides have been somewhat complacent about moving matters forward:
a. The Applicant never asked to sever his claim from the others or seek an early trial date. On the contrary, he agreed to all of the proposed dates.
b. The Crown never offered to sever the Applicant’s claim from the rest after being told by the Applicant that he had no interest in participating in the joint Garofoli application pursued by other accused. Moreover, the Crown never asked the Applicant to waive the delay for the hearing of the Garofoli application knowing that the Applicant had expressed no interest in it and knowing that it would take a good deal of time to resolve.
2. HISTORY OF THIS PROCEEDING
[4] In late 2003, the Toronto Police Service began a joint forces wiretap investigation into five gangs in Toronto.
[5] On April 16, 2014, police claim they observed Ken Mai leave his residence with a backpack. Ken Mai was a target of this investigation. Mai entered a vehicle occupied by the Applicant. The backpack was left unopened in the back seat of the vehicle. Mai left the vehicle and the Applicant drove away and was stopped a short distance away. Police seized the backpack and allowed the Applicant to drive away. The backpack was later found to contain one ounce of cocaine.
[6] Prior to this date, the Applicant was not a person of interest in the investigation.
[7] On May 28, 2014, over 50 search warrants were executed, 120 people, including the Applicant, were arrested, and large amounts of drugs and cash were seized. The Applicant was charged with one count of possession of cocaine for the purpose of trafficking. He was released on bail.
[8] Extensive disclosure was provided to all of the accused persons. At the first global Pre-Trial, Downes J. asked whether there were any severance issues. The Crown advised that it was prepared to sever cases but that if there was to be a Garofoli application the cases might as well be kept together.
[9] On the last day of the Preliminary Inquiry in the Fall of 2015, counsel for the Applicant advised that he elected to be tried by a judge alone but that he might have no choice in the matter as other accused had elected to be tried by judge and jury.
[10] A Garofoli application was scheduled involving many of the co-accused to challenge the wiretaps and observations made and surveillance conducted in the common areas of the condominiums (of others, not the Applicant). Had the Garofoli application succeeded, the charges against the Applicant would have been stayed.
[11] On March 10, 2016 counsel for the Applicant advised that, “Yeah, my client has really no interest in terms of the Garofoli but if we return on May the 9th hopefully the matter will crystallize for my client in the interim period of time.”
[12] Counsel for the Applicant agreed to the dates set during various stages of the proceeding and did not complain of the delay.
[13] The total time to the conclusion of trial is 36 months. The parties agree that the net delay is 34 ½ months.
3. POSITIONS OF THE PARTIES
[14] The Applicant claims that the Crown has an obligation to move matters forward and to remain cognizant of the time limits set in Jordan even in cases where multiple accused are charged as part of a joint investigation. The Applicant claims that if his case had been separated in March 2016, after he expressed no interest in participating in the Garofoli application (which took over 10 months to complete), he would have been tried within a reasonable time.
[15] He notes that the 34 ½ month net delay exceeds the limit set in Jordan and that even if the former guidelines were invoked, this is a simple case involving only one charge, the charge is against this accused only, and given the simplicity of the case, there is no excuse for the delay.
[16] The Crown concedes that it could have severed this proceeding from the rest of the group as there was no claim tying the Applicant to other accused and /or the Crown could have asked the Applicant to expressly waive the time for hearing the Garofoli application. However, the Crown claims that the Defence could and should have made some effort to move matters forward. Not only did the Applicant not move matters forward, the Applicant expressly consented to the dates.
4. THE LAW IN RESPECT OF UNREASONABLE DELAY
[17] 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.
[18] Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.
[19] 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.
[20] 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.). The hallmarks of complex cases are those that include voluminous disclosure, a large number of witnesses, and significant requirements for expert evidence and charges that cover a long period.
[21] The Applicant relies on the decisions in R. v. Vassell, 2016 SCC 26, [2016] S.C.J. No. 26 and R. v. Manasseri, 2016 ONCA 703, where the proceedings were stayed.
[22] On appeal in Manasseri, Manasseri’s co-accused argued that his trial had been significantly delayed because of steps taken by Manasseri. At para. 323 Watt J.A. held that:
Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5.
[23] The Crown correctly points out however, that in each of those cases, the accused had made best efforts to move matters forward. Despite their best efforts, the trials became bogged down as a result of things beyond their control. As such, those cases are distinguishable from this case.
[24] However, in Ching v. Her Majesty, 2016 ONSC 7533 at paras 22 to 25, the proceeding was stayed where the accused had not diligently sought to obtain a speedy trial.
[25] Mr. Ching did not expedite matters or indicate a concern with section 11(b) until shortly before bringing his motion. Ducharme J. held that, “Indeed, he inexplicably failed to comply with some of the policies of the Court that are designed to minimize delay and promote organized and efficient litigation of cases.”
[26] However, since the delay exceeded the guidelines and the presumptive ceiling, Ducharme J. concluded that,
“… the central problem was the Crown’s inexplicable decision to prosecute Mr. Ching with the other accused in the Project Infinity investigation. I asked Ms. Crackower about why this was done and all she could say was that all of the charges were the result of the same investigation. That is not a viable excuse. The case against Mr. Ching was readily severable as was demonstrated by the separate prosecution of Mr. Faihz or Mr. Vallegas. Yet the severance of Mr. Ching was not done until after the preliminary inquiry more than a year after Mr. Ching’s arrest.
More seriously, unlike the case against some of Mr. Ching’s former co-accused, the case against Mr. Ching was extremely simple. The Crown need only call the surveillance officers who saw Mr. Ching put the bag in the car and then lead evidence about the contents of the bag, specifically that it contained methamphetamine. That is the entirety of the Crown’s case against Mr. Ching. None of the rest of the evidence the Crown was leading against the other co-accused is relevant to this discrete transaction. The range of defences available to Mr. Ching is limited. But more importantly they are not related to the other evidence being led against his former co-accused.
I also reject the submission that the Crown “continually made efforts to move the matter along expeditiously.” … While on June 26, 2014, Mr. Alibhai for the Crown mentioned the possibility of moving the matter forward or of severing accused, this was apparently not followed up by either the Crown or Defence. This is not consistent with the Crown’s duty to ensure that an accused’s s. 11(b) rights are respected.
[27] For these reasons, he held that the Crown failed to satisfy the Court that delay is justified based on the parties’ reasonable reliance on the law as it previously existed under the Morin guidelines.
[28] Where an 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. 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.)
[29] 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. 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 ONSC 7000 at paragraph 74).
[30] 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.)
5. ANALYSIS AND CONCLUSION
[31] The parties agree that the total delay from the date charges were laid to the anticipated end of the trial is 36 months. The net delay is 34 ½ months. This exceeds the presumptive 30 months set out in the Jordan decision.
[32] Since the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.
[33] The Crown suggests that,
a. this case is complex because it is a Project case with over 30 accused persons; and
b. 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.
[34] Although there was a complicated investigation involving multiple accused, after reviewing the disclosure, it was clear that the case against the Applicant involved only one interaction with a target of the investigation, he was not the subject of the wiretap or surveillance, and involved one transaction where a bag was left by a target in the Applicant’s car. In short, this was a simple case.
[35] Moreover, unlike the companion case in Saccoccia, the Applicant in this case expressed no interest in the Garofoli application which took over 10 months to complete.
[36] At that point, since the Crown chose to prosecute many accused together, as noted by the court in Manasseri, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused.
[37] Since the Crown asserts that a successful Garofoli application would have resulted in staying this charge, the Crown could and should have either (a) obtained an express waiver of the time to conduct the Garofoli application from the Applicant and or (b) agreed to sever this case from the rest such that an early trial date could have been obtained for this one week judge alone trial that involves one count of drug trafficking. This would have put the Applicant to his election to either proceed with this trial before resolution of the Garofoli application or waive the delay so that his trial could await the outcome of the Garofoli application. The failure to do so is inconsistent with the Crown’s obligation to move matters forward and with the Crown’s onus given that the Jordan timeframe was exceeded.
[38] I further find there are no exceptional circumstances that justify additional delay. Although this was a complex investigation, by the time of the Garofoli application it was clear that the case against this Applicant was not complicated, and did not need to be linked to the others.
[39] Lastly, even if this is considered a transitional case because the Jordan decision was released after these charges were laid, a stay of this charge is warranted in these circumstances. The factors to be considered and the onus of proof on pre-Jordan applications under s. 11(b) of the Charter are set out in R. v. Morin, [1992] 1 S.C.R. 771 at paras. 31-33:
- the length of delay;
- waiver of periods;
- 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.
[40] Account must be taken of the interests which s. 11(b) is designed to protect.
[41] In this case, the time in question is not reasonable having regard to the explanation for the delay, the fact that as of March 2016 it was easily avoidable, and the effect on the accused. The delay in this case moderately exceeds the presumptive ceiling and the Crown could and should have avoided the unnecessary delay. In these circumstances, the fact that the Applicant did not actively seek to move this matter forward is not determinative. The accused’s right to a trial within a reasonable time outweighs the societal interest in a trial on the merits of this charge.
[42] For these reasons, this Application to stay these proceedings for delay is granted.