Court File and Parties

COURT FILE NO.: CR-15-30000187 DATE: 20170714

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – NICOLA NERO, DEAN WIWCHAR and MARTINO CAPUTO Applicants

Counsel: Andrew Sabbadini, Maurice Gillezeau, and Barbara Lynch, for the Crown Alan Gold, for the Applicant Nicola Nero Adam Boni and Alexander Morris, for the Applicant Dean Wiwchar Greg Lafontaine and Ricardo Golec, for the Applicant Martino Caputo

HEARD: June 20, 2017

APPLICATIONS PURSUANT TO SS. 11(b) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS TO STAY PROCEEDINGS

REASONS FOR DECISION

Clark J.

Introduction

[1] Nicola Nero, Martino Caputo and Rabih Alkhalil were drug dealers. All three regularly imported large amounts of cocaine into Canada. Sometime in the spring of 2012, they decided to steal 200 kilograms of cocaine from another drug dealer, John Raposo. To forestall retaliation, they decided to kill Raposo. So, with the concurrence of Nero and Caputo, Alkhalil hired Dean Wiwchar to assassinate him.

[2] On the afternoon of June 18, 2012, Raposo sat watching a European Cup championship soccer game on the patio of the Sicilian Sidewalk Café on College St., in downtown Toronto. Shortly after three p.m., Wiwchar, disguised as a construction worker, entered the patio and shot Raposo five times, once in the neck and four times in the face.

[3] All four men were tried by this court sitting with a jury for conspiracy to commit murder and first degree murder. On May 11, 2017, all four were found guilty on both counts. After the jury returned their verdicts, Nero, Caputo and Wiwchar asked this court to stay the findings of guilt predicated on what each contended was a breach of his right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). [1] After hearing argument on June 20, the court reserved on the applications. On June 27, in a brief oral pronouncement, the court dismissed the applications. I indicated at that time that I would release written reasons as soon as time might permit. These are those reasons.

Chronology of Proceedings

[4] There were somewhere between 65 and 70 separate court appearances in the lead up to the start of this trial. [2] In addition, counsel attended approximately 23 times before McMahon J. in chambers to discuss scheduling and case management issues.

[5] The following is a brief chronology of the time this matter was before the Ontario Court of Justice:

June 22/12: first appearance for Wiwchar; defence counsel asks for July 27 on the basis that officer in charge (“OIC”) had said disclosure will take that long;

July 27/12: disclosure not ready; matter remanded to August 14 at the request of the Crown; defence counsel agrees without complaint

August 14/12: some disclosure given, but more pending; adjourned (“adj’d”) to Sept 11

Sept. 11/12: adj’d to October 9 for 24 more discs, which would amount to Crown being “½ way through disclosure”; Wiwchar represented by duty counsel, who mentions delays re: disclosure, but makes no complaint re: adjournment

Oct. 9/12: defence counsel complains about problems with electronic disclosure; mentions Wiwchar has been in custody approximately four months and asserts there is no reason why police cannot have completed disclosure in that time; Crown indicates more disclosure to come and suggests a further month adjournment; defence counsel asks judge be appointed to supervise disclosure; adj’d to Nov. 6

Nov. 6/12: accused discharges original lawyer and retains L. Pomerance; agent for new counsel asks for December 19, so Ms. Pomerance can review disclosure; no mention of delay

Dec. 19/12: Crown still awaiting further disclosure; judicial pretrial (“JPT”) set for Jan. 11/13; no complaint re: pace of proceedings

Jan. 11/13: defence asks for Jan 16; no complaint concerning pace of proceedings

Jan. 16/13: preliminary inquiry (“prelim”) scheduled to commence May 14 for 7 weeks; dates available as of May 1, but defence counsel not available; no complaint; remanded to Mar 6 for filing statement of issues

Mar 6/13: first appearance for Nero; adj’d to Mar 20 for cont’d JPT;

Mar. 20/13: Mr. Gold does not appear for Nero, matter spoken to by duty counsel; adj’d to Apr. 9 to be spoken to (“TBST”) re whether previously set prelim suitable for Mr. Gold

Apr 9/13: Caputo’s first appearance; though still not fully retained by Nero, Mr. Gold nonetheless expects to start on May 14 and, though “agreeable to” scheduled May, June, and July dates, since Nero and Caputo have competing prelim on drug charges in Niagara in July; Crown agrees to call evidence relating to Nero & Caputo early to accommodate their competing court obligations in St. Catherines; Court and Mr. Gold indicate they are not available on previously set dates of June 13 and 14 by reason of obligation at Judicial Appointments Advisory Committee; adj’d to May 2 for further focus hearing re: whether prelim would be delayed if Alkhalil arrested

May 2/13: though earlier thought to be unavailable, discovered June 14 now available; Caputo now back in Canada; O’Connor (for Wiwchar) complains disclosure still coming in “waves”, making it hard to focus; Crown says disclosure exceeds 250 gigabytes; Mr. Lafontaine complains there are in excess of 64,000 intercepts; Crown mentions paring intercepts down to “two inches of email” (to expedite matter); Mr. Gold acknowledges (at p. 8) an overview is required because “the volume is overwhelming”; adj’d to May 13

May 3/13: Nero adj’d to May 9, so he can be excused from attendance on May 13 and subsequent days set for prelim

May 13/13: Wiwchar arraigned on original information charging him; others agree to be arraigned later and have evidence against Wiwchar apply against them

May 14/13: prelim ongoing

May 15/13: prelim ongoing

May 16/13: prelim ongoing

May 27/13: prelim ongoing; Ms. Pomerant complains of ongoing disclosure at a time when Crown pressing for admissions; Crown responds that defence was eager to proceed with prelim even though disclosure not complete

May 28/13: prelim ongoing

May 29/13: prelim ongoing; judge’s mother died; matter adj’d to June 4

June 4/13: prelim ongoing

June 6/13: prelim ongoing

June 7/13: prelim ongoing; further (647 pp.) disclosure; Mr. Lafontaine seeks adjournment

June 10/13: prelim adj’d at defence request to June 17 to review new disclosure

June 17/13: prelim adj’d at further defence request to June 25 to review new disclosure

June 25/13: prelim further adj’d at defence request to June 28 for Crown to deal with additional defence disclosure requests arising from disclosure of Sureté du Quebec (“SQ”) materials and to determine whether SQ will disclose what defence requests; additional time required because of Quebec civic holiday and need to translate materials from French to English

June 28/13: no evidence heard; further discussions re: scheduling as a consequence of SQ disclosure; adj’d to Jul 10; no defence complaint as to delay

July 10/13: Crown advises it has made all reasonable efforts to get further disclosure defence demands, but SQ advises there is nothing further; Crown expresses concern this is holding up prelim; Mr. Lafontaine says he has enough disclosure to cross-examine SQ police agent/protected witness, Hugo LeBlanc, so now just a question of getting witness to court; adj’d to July 15 to set a date (“TSD”) (to allow Crown time to find out time required to bring LeBlanc to court); no complaint from defence counsel;

July 15/13: discussion re: further dates for proposed witnesses, LeBlanc and Wroboeswka; defence unavailable for certain dates; court unavailable for others; court pressures defence counsel to make Aug 29 available

Aug 1/13: adj’d to Aug 28, to permit arrangements to be made for LeBlanc to testify via video link from undisclosed location; court strongly suggests written submissions to minimize time required for oral argument;

Aug 28/13: LeBlanc testifies, but testimony not completed; adj’d to Aug 29

Aug 29/13: LeBlanc not completed; adjourned to Sept 27;

Sept 27/13: LeBlanc not completed (testimony declared null due to problem w’ translator); adj’d to Oct 25

Oct 25/13: LeBlanc testimony completed; adj’d to Nov 25 for argument

Nov 25/13: argument re: admissibility of LeBlanc’s evidence (hearsay) and committal; transcript incomplete re: next appearance; adj’d to Dec. 6

Dec 6/13: argument completed re: committal; adj’d to March 5/14 for judgment

Mar 5/14: no transcript filed

Mar 6/14: Nero and Caputo committed for trial

[6] The following is a brief chronology of the matter in the Superior Court, from first appearance until the start of the trial:

Feb. 19/14: first appearance for Wiwchar; (Nero and Caputo not yet committed)

Apr. 16/14: second appearance for Wiwchar; had not yet retained counsel, but had earlier put on record that he had; this causes problems with extradition to B.C. on weapons charges; first appearance for Nero and Caputo, who are remanded to Apr. 22 Assignment Court, TSD for certiorari application to quash committal for trial

Apr. 22/14: Nero, Wiwchar and Caputo adj’d to June 30

Apr. 27/14: all four accused finally before the Court (though not actually present); adj’d to Jun 30 for JPT

May 28/14: Nero and Caputo appear in Superior Court in St. Catherines seeking adjournment of upcoming drug trial, but request denied

June 30/14: JPT held, but cannot set trial date because Wiwchar still not retained counsel; has Oct./14 trial date in B.C. and B.C. Supreme Court wants him returned to stand trial; remanded to July 16 at his request to confirm he has retained Liam O’Connor; Nero and Caputo remanded directly to Sept 11 for further JPT; prospective trial date of Sept 14/15 discussed; no complaint from Nero & Caputo re: the proposed trial date; Wiwchar complains not re: trial date per se, but, rather, because he cannot return to B.C. and set trial date from there; Nero and Caputo adj’d to Nov 3 for certiorari application

Jul 16/14: Wiwchar wishes to represent himself (but only so he can return to B.C. to prepare for trial there); adj’d to Sept 11 for JPT with proviso: if Wiwchar retains counsel before that date, counsel can appear for him at JPT, but, if not, he must appear in person

Sept 11/14: Wiwchar insists he wants counsel, but still has not retained counsel; Legal Aid Ontario (“LAO”) has refused certificate; Wiwchar says if other accused concerned about speedy trial, they can seek severance; adj’d to Oct. 2 at Wiwchar’s request, ostensibly so he can make further inquiries of LAO; Wiwchar indicates LAO refusal was 18 months earlier and he did not appeal it; McMahon J. gets Wiwchar’s consent for O’Connor to participate in JPT pro bono and arranges for LAO representative to be in court on Oct 2

Sept 24/14: John Rosen appears for Wiwchar, indicating not yet retained, but arrangements made to have Wiwchar to apply for LAO; adj’d at defence request to Nov 3 (to marry up with Nero and Caputo, whose certiorari application is scheduled for that day); McMahon J. orders Wiwchar returnable same date TSD for JPT

Oct 2/14: [no transcript filed and no indication in other transcripts of what happened, if anything, on that date]

Nov 3/14: Wiwchar has applied for LAO, but refused; discussion re: expediting appeal to Area Committee; LAO representative says will take minimum one week for paperwork to go to B.C. and back; possible further appeal to Provincial Director discussed; McMahon J. mentions expediting Rowbotham application if required; Wiwchar adj’d to Nov 21 to deal further with retaining counsel; Nero and Caputo’s certiorari application adj’d because counsel had not filed materials; Mr. Lafontaine wants January date to hear certiorari, but then realizes court cannot accommodate it until March 16; McMahon J. wants to set JPT, even without knowing what is to happen with certiorari; all three applicants adj’d to Nov 26 for JPT

Nov 21/14: re: Wiwchar, court advised all LAO appeals exhausted; next step is Rowbotham; adj’d to Nov 27 TSD for Rowbotham application

Nov 27/14: JPT held Nov 26; further JPT set for Dec. 4; target trial date set: Sept. 16/15

Dec 4/14: defence request to delay trial date couple of weeks; adj’d to Jan 8/15 to set new date, at which time status of Rowbotham application should be known

Jan. 8/15: discussion re: Wiwchar’s LAO application, and Nero and Caputo’s still outstanding appeal; [3] counsel indicates appeal not yet perfected and asks if court “might entertain a short extension of a week or two” re: setting JPT on this matter so she can perfect appeal; McMahon J. indicates he has spoken to Strathy C.J.O. re: expediting appeal; matter adj’d to Feb. 12

Feb. 12/15: “based on challenges counsel [were] facing” [4] McMahon J. vacates Sept. 11/15 trial date and sets new trial date of Jan. 11/16; Wiwchar’s counsel reminds court “we also have to see what happens in the court of appeal…” re: Nero and Caputo’s appeal; matter adj’d to Apr. 10 for further JPT

Apr. 10/15: first appearance (in person) for Alkhalil; matter adj’d to Apr. 27 to afford him time to retain counsel

Apr. 27/15: Wiwchar has now retained counsel; Alkhalil asks for further week to retain counsel; adj’d to May 5

May 5/15: because Alkhalil facing criminal charges in Montréal, he is adj’d directly to Jan. 11/16 for trial; other three accused adj’d to June 3 for JPT

June 3/15: disclosure [5] made re: SQ investigation (Project Loquace); adj’d to Oct. 28 for further JPT

Oct. 16/15: Crown discloses PGP communications released to it by VPD [6] ; condition on detention orders (forbidding the accused from communicating with one another) varied on consent to permit communication, in presence of counsel, for purpose of preparing defence

Oct. 28/15: defence application for adjournment (based on health problems of Wiwchar’s counsel and recently disclosed VPD material); Alkhalil’s counsel still not fully retained; Jan. 11/16 trial date vacated; parties agree on target date of Feb. 6/17; McMahon J. notes trial could have proceeded in Sept. 2016, but defence counsel unavailable and notes Wiwchar’s new counsel must be available for target date; adj’d to Jan. 11/16

Jan. 5/16: discussion re whether necessary to bring all accused in person on next appearance

Jan. 8/16: Alkhalil discharges counsel; Alkhalil adj’d to Feb. 5 re: retaining new counsel; Jan. 11 return date vacated for all accused; Nero and Caputo adj’d to Feb. 6/17;

Feb 5/16: matter had been brought forward to Feb. 4, at which time Alkhalil and Wiwchar adj’d to July 14; Nero and Caputo adj’d to trial date of Feb. 6/17 [7]

July 14/16: Wiwchar adj’d to Aug. 11; Alkhalil adj’d to Jan. 23/17

Aug. 11/16: Wiwchar’s placement within penitentiary system discussed; previously set return dates confirmed

Oct. 11/16: discussion re: Nero’s wish to change counsel; adj’d to Oct. 13 TBST

Oct. 13/16: Mr. Gold applies to be removed from record; Crown and other defence counsel oppose matter being adjourned; McMahon J. refuses application

Dec. 9/16: matter spoken to re: records pertaining to Nero

Jan. 23/17: further JPT scheduled for Jan. 24; matter adj’d to trial date of Feb 13.

Position of the Applicants

[7] Although each applicant was arrested and charged at a different time, such that the precise time elapsed is different for each, their respective positions vis-a-vis the delay in this case are essentially identical. [8] Each asserts that:

• the delay between the laying of the charges against him and the verdict in this trial grossly exceeds the presumptive ceiling imposed by R. v. Jordan, 2016 SCC 27;
• apart from certain discrete periods, each short enough to be insignificant in the overall scheme of this proceeding, he has not waived his s. 11(b) rights for any significant portion of the delay between charge and the end of trial;
• he has not deliberately delayed the proceedings in any way, and, indeed, has acted in such a way as to demonstrate that he wished the matter to proceed with all due dispatch;
• the delay is not justified by extenuating circumstances (either discrete events or complexity) or, to the extent that it might have been, the Crown did not act to mitigate such circumstances; and
• notwithstanding this is a transitional case, the delay is still so excessive as to constitute a breach of the applications’ rights to a trial within a reasonable time.

In light of these factors, each applicant asserts that his right to be tried within a reasonable time has been breached and that a stay ought to be imposed.

Position of the Respondent

[8] The respondent acknowledges that the time from the laying of the charges until the end of the trial is well above the presumptive ceiling, but asserts, with respect to the each of the applicants, that, when defence delay is deducted, the net delay is below the Jordan ceiling, such that there has been no beach of s. 11 (b) for any of the applicants.

[9] In the alternative, the respondent submits that, if the court finds that the delay exceeds the presumptive ceiling, it is justified nevertheless by exceptional circumstances.

[10] In the further alternative, if the court finds that the delay exceeds the presumptive ceiling, but does not find that it is justified by exceptional circumstances, the respondent asserts that it is justified by the fact that this is a transitional case.

[11] If the court adopts any of the foregoing three positions, the respondent contends, the applications should be refused.

Discussion

The Framework

[12] The new framework for determining s. 11(b) applications was articulated in Jordan (at paras. 46-117) and succinctly reiterated in R. v. Coulter, 2016 ONCA 704, and, more recently, in R. v. Cody, 2017 SCC 31, at paras. 20-24; accordingly, I need not restate it here.

Total Delay

[13] The total delay in the case of Nero, from February 14, 2013, the date he was charged, to May 11, 2017, when the jury returned their verdicts, is two days short of 51 months. For Caputo, who was charged on February 19, 2013, the delay is seven days short of 51 months. For Wiwchar, who was charged on May 21, 2012, the delay is 58 months and 20 days. At the risk of stating the obvious, for all three applicants it is well beyond 30 months.

End of Trial

[14] Whereas before Jordan, delay was calculated to the start of a criminal trial, it is now calculated to the end of the trial, which begs the question of whether the trial ends when the matter is put in the hands of the trier of fact for decision or when the trier finally delivers a verdict. However, since that delay is only two days in this case, it could not, for all practical purposes, have any meaningful impact on the question of whether the net delay is over or under the ceiling.

Scope of Defence Delay: What is meant by “the defence”

[15] Defence delay can arise in two ways, viz. “(1) ‘delay waived by the defence’; and (2) ‘delay that is caused solely by the conduct of the defence’”: Cody, at para. 26, citing Jordan, at paras. 61 and 63. Thus, before proceeding further, it is necessary to decide what is meant by the term “the defence” in a trial with multiple accused. Can one accused rely on delay caused by another to assert that his s. 11 (b) right has been infringed or must he accept delay caused by one or more co-accused as defence delay even though he himself bears no direct responsibility for it?

[16] Although none of applicants’ counsel ever explicitly asserted that delay was to be determined individually (i.e.: that delay caused by an accused cannot be held against another accused who did not cause it), that proposition was clearly implicit in many of the applicants’ submissions. The respondent, on the other hand, expressly argued that delay is to be determined globally, as it were, and not individually.

[17] To begin, I am mindful of what was said in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 5, concerning the Crown’s exercise of its discretion to jointly try multiple accused and its concomitant obligation “to remain vigilant that its decision not compromise the s. 11 (b) rights of the accused persons.” (Citations omitted.) While noting, at para. 6, that “[i]n many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial”, Moldaver J., speaking for the court, went on to note:

But here, it was clear from the outset that the delay caused by the various co-accused not only prevented the Crown's case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, as he wanted. Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; rather, it is one in which he took proactive steps throughout, from start to finish, to have his case tried as soon as possible. In this regard, his counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline the issues at trial, agreed to admit an expert report, made the Crown and the Court aware of s. 11 (b) problems, and at all times sought early dates.

[18] At paragraph 7 of Vassell, Moldaver J. held that, in the circumstances of that case, “a more proactive stance on the Crown's part was required. In fulfilling its obligation to bring all accused to trial within a reasonable time, the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates.”

[19] In this case, it is true that defence counsel did much to streamline the trial, e.g.: by reviewing disclosure and by making numerous admissions, but, with one exception, [9] none of the applicants took any “proactive steps… to have his case tried as soon as possible”: Vassell, at para. 6. Further, they did nothing to make the Crown or the Court aware of s. 11 (b) problems, and certainly did not at all times seek early dates. On the contrary, they said nothing about s. 11 (b) and acquiesced in the preliminary inquiry and trial dates that were set.

[20] Two post-Jordan cases that address this issue are R. v. Ny and Phan, 2016 ONSC 8031 and R. v. Brissett, 2017 ONSC 401. [10]

[21] In Ny, Ny and Phan, who had earlier been severed from two co-accused, later sought a stay by virtue of a breach of s. 11 (b). Holding that their right had been infringed by delay caused by their former co-accused, Fairburn J. stayed proceedings against both Ny and Phan. At para. 36, she held that “the concept of waiver is antithetical to a group approach.” I agree. Having said that, as I will discuss momentarily, an accused could (at least at times material to the case at bar) tacitly waive his s. 11 (b) right by agreeing, without any protest, to an adjournment: R. v. Smith, [1989] 2 S.C.R. 1120, at para. 38.

[22] In Brissett, on the other hand, at para. 46, Code J. held that, “where the applicants never suggested that severance was a realistic or necessary remedy, the short periods of ‘defence delay’ should be attributed to the case as a whole.” I agree. At para. 49, Code J. further stated:

I am concerned that, post-Jordan, treating delay caused by one co-accused as personal to that accused in cases where a joint trial remains reasonable and justified, will lead to arbitrary results. If this approach is adopted, there will be cases where one co-accused will end up below the 30 month ceiling and another co-accused will be above the 30 month ceiling, even though there may be no real distinction between their overall conduct, their rights, and the interests of justice. This would seem to lose the forest for the trees. It also rewards one co-accused with a windfall that flows solely from the calendar and availability of another accused's counsel. Finally, it complicates s. 11 (b) analysis by placing the burden on the Crown in relation to one co-accused and on the defence in relation to another co-accused.

[23] In R. v. Brooks, [2017] O.J. No. 819 (S.C.J.), distinguishing Ny and following Brissett, Del Frate J. held that “where severance is not a realistic or necessary remedy, short periods of defence delay should be attributed to the case as a whole.”

[24] In R. v. Maone, [2017] O.J. No. 2950, 2017 ONSC 3537, at paras. 50, in refusing to stay proceedings for an alleged breach of s. 11(b), A. O’Marra J. relied on R. v. Nguyen, 2013 ONCA 169, wherein, at para. 61, Watt J.A. observed:

Large, complex prosecutions involving multiple accused and counts require concerted efforts on the part of investigators and prosecutors to ensure timely disclosure and trial. Amongst those charged, the involvement of some will be less than others: peripheral not central, discrete, perhaps disconnected from the principals and the core of the case. In some instances, the minor players can be tried separately, efficiently and more expeditiously. But these decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or to withdraw charges, are contingent upon interdependent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown's decisions, absent clear reason to do so: see Khan, 2011 ONCA 173, [2011] O.J. No. 937 at para 30.

As did O’Marra J. in Maone, I find Watt J.A.’s remarks apposite. I see nothing in this case to even suggest, much less demonstrate convincingly, that the Crown’s discretion was exercised unwisely or in a way that operated unfairly to any of the applicants.

[25] At para. 51 et seq., O’Marra J. continued:

There is no basis proffered by the applicant for the court to question the Crown's decision to proceed with a joint trial with respect of the applicant Fazzari and the other two. Indeed, there are sound policy reasons to do so, in keeping with conserving judicial resources, avoidance of inconsistent verdicts, and requiring witnesses to testify more than once.

In this jurisdiction, one of the busiest in Canada, a multiple accused trial requiring four weeks trial time, the coordination of the court and counsel availability, unfortunately, has often taken longer than 30 months to come to trial. That this case is to be dealt with within 30 months is due to the efforts of the Crown and the court to ensure that this matter is to be tried within a reasonable time.

[26] In summary, then, for purposes of attributing delay, I recognize that, as in Vassell and Ny, there will be cases in which some combination of: (i) an accused/applicant who is blameless in terms of the delay of which he complains, (ii) the delay has been caused by the actions of one or more co-accused, and/or (iii) in the face of delay for which the applicant/accused is blameless, the prosecution is so indifferent to his s. 11 (b) right, that delay should be considered individually. Having said that, I am of the view that, as a general rule, where, in a joint trial, one defendant does nothing to overcome delay caused solely by one or more co-accused, but, rather, passively acquiesces in that delay, the defence should be considered as a collective entity. That is so, in my view, even where the passive acquiescence may not amount to waiver.

[27] In this case, like Maone, “no basis [was] proffered by the applicant for the court to question the Crown's decision to proceed with a joint trial.” A joint trial was both “reasonable and justified” [11] and, with one exception, [12] no one ever suggested severance at any point in these lengthy proceedings. Furthermore, faced with a joint trial, none of the applicants complained of the pace at which the matter was proceeding. On the contrary, irrespective of who or what caused any particular delay, throughout the entirety of these proceedings each of the applicants repeatedly acquiesced in the dates that were set and, in turn, agreed without complaint to the various postponements that circumstances necessitated. Accordingly, I am firmly of the view that this is a case in which it is fitting to look at the delay collectively.

Waiver

[28] “A waiver of delay may be explicit or implicit, but must be informed, clear and unequivocal”: Cody, at para. 27, (citing Jordan, at para 61).

[29] In terms of what constitutes waiver, “[w]hile silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's s. 11 (b) rights might be inferred based on the [attendant] circumstances”: R. v. Smith, [1989] 2 S.C.R. 1120, at para. 38. At para. 41, Sopinka J., speaking for the court, went on to hold that the surrounding circumstances in that case did not permit an inference that the appellant had waived his s. 11 (b) right. Rather, by virtue of the actions taken by defence counsel, “the appellant has displaced an inference of waiver, which would generally arise when an individual agrees to a postponement.” [Emphasis added.]

[30] This understanding of how waiver can arise was reconsidered in Jordan, at paras. 189-191:

Second, there is admittedly some lack of clarity in our jurisprudence as to whether the accused's consent to an adjournment sought by the Crown constitutes "waiver" of the resulting delay. In Smith, this Court created a rebuttable inference of waiver if defence consents to a future trial date. This proposition was qualified, however, by the point that "inaction or acquiescence on the part of the accused, short of waiver" does not result in a forfeiture of an accused's s. 11(b) rights: Smith, at p. 1136. In Morin, Sopinka J. explained that the accused's consent to a trial date "can give rise to an inference of waiver", but this is not the case "if consent to a date amounts to mere acquiescence in the inevitable": p. 790. This Court, albeit in very short decisions, upheld this approach in R. v. Brassard, [1993] 4 S.C.R. 287, at p. 287, and R. v. Nuosci, [1993] 4 S.C.R. 283, at p. 284, stating that consent to a future date will be characterized as waiver in the absence of evidence that it is acquiescence.

A rebuttable inference of waiver from the accused's consent to an adjournment does not sit well with the settled law that waiver must be clear, unequivocal and must be established by the Crown: see e.g. Askov at p. 1232. As noted in Morin, the waiver must be done “with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights”, and that such a test is “stringent”: p. 790.

I conclude that, when the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown that consent, without more, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived, that is, that the accused's conduct reveals something more than “mere acquiescence in the inevitable,” and that it meets the high bar of being clear, unequivocal, and informed acceptance that the period of time will not count against the state.

[31] Turning to this case, and beginning with the requirement that applicants’ waivers be informed, with the exception of certain periods of time during which one or more of them was unrepresented, for the most part each of the applicants was represented by capable, experienced counsel. That said, absent evidence to the contrary, I conclude that each applicant was fully informed of his Charter rights, including his right to a trial within a reasonable time.

[32] That brings me to Mr. Lafontaine’s submission that the applicants’ conduct involved nothing more than “mere acquiescence in the inevitable.” Mr. Lafontaine did not discuss individual dates, but, rather, simply made this as an omnibus submission, as it were, applicable to the entirety of these proceedings. Having carefully read all of the nearly 70 transcripts filed in support of these applications, I find that submission to be unsupported. On the contrary, it is clear that, on numerous occasions, much of the difficulty securing trial dates had to do with the unavailability of one or more defence counsel for earlier dates that were available to the Crown and the court.

[33] As I have said, all the applicants were represented by able, experienced counsel, who are presumed to know the law. Therefore, when defence counsel agreed to future dates, without protest or complaint, they must be taken to have known that (as the law was understood at that time) their agreement amounted to a waiver of their clients’ s. 11 (b) rights for the period of time in question.

[34] I appreciate that, doctrinally, the common law is considered to be found, not made, such that, in theory, it was always the case, as stated at para. 191 of Jordan, “that consent, without more, does not amount to waiver.” However, to consider ex post facto, the law as it is now known to be (post-Jordan), would be to ignore the reality of what was happening on those numerous occasions when defence counsel agreed, without protest or complaint, to adjournments. In terms of the significance of their agreement to future dates, the question is not what the law was (as now revealed by Jordan), but, rather, what counsel understood the law to be at the time. Whatever the actual state of the law, it was defence counsel’s understanding of the law at the various times they agreed to adjourn these proceedings that one should consider to infer the significance of what they did, and, more importantly, what they thought they were doing. That said, I am satisfied that counsel understood (based on Smith, which was then understood to be the law) that by agreeing, without protest, to an adjournment they were waiving delay for the period of the adjournment.

[35] Almost without exception, [13] there is no mention of delay in any of the many transcripts filed on this application. That said, I take the view that by agreeing, without complaint, to every continuance and postponement the applicants implicitly waived the delay occasioned thereby.

[36] Although I have earlier indicated that delay in this case ought to be considered collectively, not individually, insofar as Wiwchar was charged many months before Nero and Caputo, obviously, I must look at the delay in relation to him individually for the period before the other two applicants were charged.

[37] On November 6, 2012, Wiwchar indicated, through counsel, that he was discharging his first lawyer, Mr. Avery, and hiring Ms. Pomerance. Agent for new counsel, Mr. Clement, asked that the matter be adjourned to December 19, 2012. Inasmuch as the matter was adjourned at his request, in order to accommodate an event for which he was solely responsible, namely, hiring new counsel, I conclude that Wiwchar waived the period from November 6 to the return date. [14]

[38] The appearances on December 19, 2012, and January 11 and 16, 2013, can fairly be described as necessary for the Crown to provide further disclosure, and for a JPT to be held. On January 16, after a JPT, the matter was put over to May 14, the date set for the preliminary inquiry to commence. Most of that period can fairly be described as acquiescing in the inevitable. However, since it is clear that the preliminary inquiry could have started May 1, but for defence counsel being unavailable, I subtract that 13 day period from Wiwchar’s total delay.

[39] Since as of April 9, 2013, all three applicants [15] were before the court, from this point forward I will, for the reasons earlier discussed, consider defence delay from a collective, rather than an individual perspective.

[40] Unlike the other applicants, Wiwchar conceded committal for trial on December 6, 2013. This is now said by Mr. Boni to reflect an effort on Wiwchar’s part to expedite his trial, such that the three months’ delay between his committal and that of his co-accused should lie at the feet of the Crown. I disagree. Viewed in isolation, his concession could be understood in that light. However, looked at against the events that followed in Superior Court (which I will discuss shortly), I do not agree. Rather, all it demonstrates to me is that, in the face of a very powerful Crown case, he recognized that his committal was inevitable.

[41] Once the matter was in Superior Court, I am of the view that the applicants waived the following periods of time.

[42] To begin, although Wiwchar appeared in this court, well before Nero and Caputo, he had no counsel up to and beyond the period of time it took the others to appear in this court. Accordingly, I hold that he was not ready to set a date for trial and therefore waived that the period of time from his first appearance, February 19 to April 27, 2014, when the other two applicants first appeared. I do not consider this as waiver against them because they were not yet before this court and therefore cannot be said to have acquiesced in the delay.

[43] In relation to Nero and Caputo, I am of the view that they waived the approximately 21 month period during which they appealed the ruling Ramsay J. made in their September 2014 drug trial in St. Catherine’s. Over their strenuous objection, he admitted certain wiretap evidence at the instance of the Crown. I deal with this more fully when I come to discuss discrete events and complexity, but suffice it to say that in my opinion this amounted, for all practical purposes, to an interlocutory appeal in this proceeding and, thus, cannot be held against the Crown.

[44] As for Wiwchar, although the intercepted private communications at issue were not his, inasmuch as he was alleged to be part of a conspiracy involving Nero and Caputo to murder Raposo, he had an important interest in the admissibility of their communications. Further, his counsel was content to this matter be adjourned pending the outcome of their appeal. [16] Accordingly, I conclude that he, too, waived this period of time.

[45] I also conclude that the applicants waived the approximately five and a half month period from September 2016, to February 13, 2017. As mentioned above, McMahon J. noted on October 28, 2015, that the trial could have gone ahead in September 2016 [17] but for the unavailability of defence counsel.

[46] For Nero and Caputo, subtracting from the total delay of 51 months, the 21 months during which their appeal was extant as well as the five and a half months when defence counsel was unavailable puts the remaining delay at 24 and a half months, well below the Jordan ceiling.

[47] For Wiwchar, from the total delay of 58 months and 20 days in his case, I subtract the period of just under two months [18] I have determined that he waived while he stood charged alone in the Ontario Court of Justice, the just over two months for which he was unrepresented in the Superior Court, the 21 months I have just discussed in relation to Nero and Caputo’s interlocutory appeal, which I also attribute to him, and the five and a half months between September 2016, when the trial could have started (had defence counsel been available), for a total of 30 and a half months. That leaves a net delay of 28 months and 20 days; once again, this is below the ceiling.

[48] It was not argued, much less established, on behalf of any of the applicants that the delay, though below the ceiling was, nonetheless, unreasonable. Accordingly, no breach of any applicant’s s. 11 (b) right has been demonstrated.

Exceptional Circumstances

[49] In the event that, in relation to one or more of the applicants, I am wrong in holding that the net delay is below the presumptive ceiling, such that there has been a presumptive breach of his/their right to trial within a reasonable time, I now go on to consider whether any delay beyond the ceiling is nonetheless justified by virtue of exceptional circumstances.

[50] At para. 68 of Jordan, Moldaver held that “[d]elay (minus defence delay) that exceeds the ceiling is presumptively unreasonable”, but noted that “[t]he Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.”

[51] Moldaver J. went on at paragraph 69 of Jordan to state:

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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

Discrete Events

[52] The applicants argue that there were no discrete events that would justify a delay greater than the presumptive ceiling. I disagree. The following were, in my view, discrete events that generated a considerable amount of delay.

Delay in Completing the Preliminary Inquiry

[53] The evidence of Hugo LeBlanc, a witness called by the defence, took several days to complete and extended the preliminary inquiry well beyond the time originally set aside. One of the days set aside to hear the remainder of LeBlanc’s evidence was lost when it became obvious that the interpreter provided was unable to accurately interpret the proceedings. I hasten to add that the interpreter was provided by authorities in Quebec; officials of the Ontario Ministry of the Attorney General had no control over the person provided for that purpose. I will return to the subject of Leblanc’s evidence when I come to discuss the issue of complexity.

Initial Failure of Wiwchar to Retain Counsel in Superior Court

[54] It would seem [19] that when Wiwchar first appeared in the Superior Court, he no longer had counsel. On June 30, 2014, McMahon J. set a trial date of September 14, 2015; as he made plain, that date was a function of the unavailability of defence counsel before that time. [20] On numerous later appearances, McMahon J. went to extraordinary lengths to assist Wiwchar to retain counsel.

[55] Wiwchar finally retained counsel, Mr. Rosen, who first appeared on February 12, 2015. On that occasion, McMahon J. noted that the trial could not commence as previously scheduled due to “challenges counsel are facing”. [21] The Agreed Statement of Fact filed on these applications reveals [22] that those “challenges” consisted of “personal reasons” on the part of counsel for Wiwchar and the fact that counsel for Nero and Caputo were pursuing their appeal of Ramsay J.’s ruling. On consent of all parties, the trial date was adjourned to January 11, 2016.

[56] Counsel for the applicants have argued that the delay occasioned by the unavailability of Wiwchar’s new counsel for the September 2015 trial date should not be held against any of the applicants because a concurrent event, entirely independent of the difficulties of Wiwchar’s counsel, would have necessitated the trial being postponed. That other event was the disclosure by the Crown on September 22, 2015, of material from the Vancouver City Police Department (“VPD”), namely, the contents of certain PGP [23] cellular telephones and the indication by the Crown that still further disclosure might be forthcoming.

[57] I appreciate that, under the new regime, “defence delay” is restricted to “delay that is caused solely by the conduct of the defence”: Cody, at para. 26. [24] Had the trial gone ahead on September 11, 2015, as originally planned, the disclosure, coming, as it would have done, early in the trial, might have necessitated an adjournment or even, possibly, a mistrial. That said, the fact remains that the September 11, 2015, trial date was adjourned in February 12, 2015, for reasons having to do solely with the defence, not the Crown. To now suggest that this court should conclude that the trial would have been adjourned in any event by reason of Crown conduct is to ask the court to decide the case based, in part at least, on a hypothetical. If I am wrong not to attribute this delay to the respondent, as I will explain below, the disclosure was, nevertheless, a discrete event that, although, arguably, it might have delayed the trial from its anticipated January 2016, start date, justified the delay it occasioned.

Interlocutory Appeal

[58] Another exceptional circumstance (discrete event) in this case is what I have earlier referred to as “the interlocutory appeal” brought by Nero and Caputo.

[59] In May 2012, Nero was arrested on serious drug charges that resulted from an investigation conducted by the Niagara Regional Police Service (“NRPS”). Sometime later, Caputo was charged as well. Their joint trial began before Ramsay J. in St. Catherines. One of the first issues Ramsay J. dealt with in that trial was an application by both Nero and Caputo to exclude certain private communications the NRPS had intercepted. Ramsay J. held the interceptions to be admissible.

[60] In a rather unusual sequence of events, because Nero and Caputo were, by this point in time, also facing the murder prosecution in Toronto, and because the interceptions would form a very significant part of the Crown’s case on murder trial, the drug case was transferred to Toronto and placed before McMahon J., where it was understood that Ramsay J.’s ruling would apply. Once the drug charges were before McMahon J., Nero and Caputo pleaded not guilty, in order to preserve their right to challenge Ramsay J.’s ruling on appeal, but did not challenge the Crown’s case. In the absence of any defence being raised, McMahon J. convicted both men and sentenced each to a lengthy term of imprisonment.

[61] Nero and Caputo then appealed their convictions to the Court of Appeal. The main ground of appeal concerned Ramsay J.’s ruling on admissibility of the wiretap evidence. The Court heard the appeal in June of 2015, but reserved its decision until February of 2016, at which time it dismissed the appeal. The appellants sought leave to appeal to the Supreme Court of Canada; but in July 2016 leave was denied.

[62] Insofar as the private communications were vital to the Crown’s prosecution of the Raposo murder, it was understood and agreed by all parties that the murder trial would not proceed until the appeal of Ramsay J.’s ruling was finally determined, and further agreed that the outcome would bind the parties in the murder case. Although brought with respect to an entirely different prosecution conducted by a different prosecutorial authority, Nero and Caputo’s seriatim appeals of Ramsay J.’s ruling became de facto, if not de jure, interlocutory appeals in this trial. It is trite to observe, however, that there is no statutory provision for interlocutory appeals in criminal matters and no common law authority that permits such appeals: R. v. Codina, 2017 ONCA 527, at para. 20, citing R. v. Johnson (1991), 3 O.R. (3d) 49 (Ont. C.A.), at p. 54.

[63] Mr. Lafontaine argued that the trial of the conspiracy to murder and murder charges ought to have preceded the drug trial and, further, that the respondent did nothing to press for that to happen. [25] I reject this argument for several reasons.

[64] First, although there was some temporal overlap in terms of the crimes lying at the root of the NRPS prosecution and the charges eventually tried in this court, for the most part the allegations underlying the NRPS drug charges predated the allegations in this trial.

[65] Second, pretrial motions had already been completed in that matter and six weeks of trial time had already been set to commence in St. Catherines on September 8, 2014, whereas no date for trial had even been set in this matter.

[66] I note, parenthetically, that counsel raised this issue before Ramsay J. on an application Nero and Caputo brought on May 28, 2014, to adjourn their trial. Ramsay J. refused the application and, at the same time, refused the application of third co-accused in that trial, one Tanya Fletcher (known to be Nero’s then girlfriend), to adjourn the drug trial because she had discharged her lawyer and needed time to retain new counsel. Ramsay J. concluded that Fletcher’s motion was “a sham designed as a backup in case Mr. Nero’s adjournment request [was] dismissed.”

[67] Third, while Mr. Lafontaine argued on this application that the Attorney General of Ontario never did anything to cause the murder trial to precede the drug trial, it is not clear to me what the provincial Crown could have been expected to do. To begin, the provincial Attorney General had no standing in the Niagara matter. Moreover, there is no evidence that as of May 28, 2014, the provincial Crown was even on notice that Nero and Caputo would seek to adjourn their drug trial. The fact is that the two agencies are entirely autonomous. As such, the Attorney General of Ontario has no control over the Public Prosecution Service of Canada. Furthermore, a court had already ruled that the drug trial was to proceed.

[68] Mr. Lafontaine went so far as to submit that the appeals of Ramsay J.’s ruling had no effect on the timing of this trial. I disagree. They had a very significant effect. In the aggregate, the appeals delayed the trial by approximately 21 months. Had the parties been concerned about the pace at which the case was proceeding, it was certainly open to them to simply re-litigate the wiretap issue before this court. While I do not go so far as to say that the appeals were “not legitimate”, I conclude that by bringing them, the applicants Nero and Caputo exhibited a “marked indifference toward delay” (Cory, at para. 33) in this matter. It is clear to me that counsel were entirely unconcerned about the pace at which these proceedings were progressing.

[69] Fourth, the trial could not proceed as scheduled in September 2015 because then counsel for Wiwchar had serious medical difficulties. In argument, as I have already mentioned, counsel tried to conflate this event with the disclosure of the VPD material, as a basis upon which to then argue that the unavailability of Wiwchar’s counsel for the September 2015 commencement of this trial should not be considered as defence delay, because the trial would have had to have been postponed in any event. Thus, so the argument goes, the entire delay from September 2015 to the commencement of the trial in February 2017, should be laid at the feet of the Crown. The flaw in this argument is that the VPD disclosure did not occur until October 2015, well after the September trial date had been vacated. Had Wiwchar’s counsel not had serious medical problems, the trial would have commenced in September. Had the VPD material been disclosed in the midst of a trial that had already started, that might have necessitated an adjournment or possibly a mistrial, but it is speculative to postulate, in hindsight, which, if either, of those remedies might have been sought or, if sought, might have been granted. The fact remains that the application to adjourn the September 2105 trial date “directly” caused the delay: Cody, at para. 28 It is not appropriate to conflate the two events.

[70] On the other hand, if I am wrong, and the two events should be conflated, the fact remains that the disclosure of the VPD materials was, itself, a discrete event over which the Crown had no control. The disclosure led, in turn, to a successful application to adjourn brought by the applicants in October 2015. The VPD was conducting an ongoing investigation into the January 2012, murder of one Sandip Duhre. Albeit the VPD discovered information that became relevant to the TPS investigation leading to this prosecution, the fact remains that the VPD investigation was entirely separate. Although the VPD materials were in the hands of the Ontario Crown well before they were disclosed to the defence, it was on the undertaking that they would not disclose those materials to the defence without the consent of the VPD. It was for the VPD to determine when the Ontario Crown could safely disclose the material to the defence in this case without compromising the integrity of the VPD investigation. Obviously, both professional courtesy and the interests of justice required the VPD to disclose material relevant to the TPS investigation at some point, but the timing was a matter for the VPD to determine. As with the Loquace information, here, too, the Crown could not force the VPD to disclose the fruits of its investigation before it was ready to do so. It is important to note that McMahon J. expressly attributed no fault to anyone when he granted the adjournment based in part on the VPD disclosure. [26]

[71] In connection with Loquace, it is important to note that the Crown made efforts to facilitate the utility of this material to the defence by culling from the vast amount of material the SQ provided certain material that had been previously disclosed by the Crown and, since most of the material was in French, by translating all of it to English.

[72] Together with the inability of counsel for Wiwchar to conduct the case in January 2016 for medical reasons, the disclosure of the VPD material meant that this case had to be delayed to February 2017. Although earlier dates were available to the Crown and the court, the February 2107 date was the first available to all defence counsel.

Crown Efforts to Reduce or Ameliorate Delay

[73] Speaking generally, the Crown cannot rely on discrete events to justify delay unless it has acted so far as reasonably possible to reduce or ameliorate that delay.

[74] In this case, the applicants argue that, even if there were discrete events giving rise to delay, a proposition that the applicants strenuously deny, the Crown cannot rely on them to justify the delay because it “was not outside of the Crown’s control… and because “there is no evidence of an attempt to prioritize this case nor any evident plan to deal with the delay caused by ongoing issues with disclosure.” [27]. I disagree. Having listed, albeit only in point form, many such efforts in the foregoing chronology and having referred to some of them elsewhere in these reasons, I do not propose to reiterate each of the various efforts the Crown made at different points in time to expedite this matter. Suffice it to say, the efforts were, in my opinion, sufficiently numerous and, in many cases, efficacious, that the claim that the Crown did nothing is, with respect, not only inaccurate but unfair. [28]

Summary Re Discrete Events

[75] In summary, I am satisfied that the discrete events in this case lay outside the Crown's control in the sense that they were reasonably unforeseen, reasonably unavoidable, or both, and that the Crown could not reasonably remedy the delays emanating from those circumstances once they had arisen or, in those instances where they did make efforts to reduce the delays, that there was nothing more they could reasonably have done.

Complexity

[76] Turning from discrete events to complexity, at para. 77 of Jordan Moldaver J. held that “exceptional circumstances also cover a second category, namely, cases that are particularly complex.” To say that this is a complex case is to indulge in understatement. Despite the arguments to the contrary by counsel for the applicants, for the following reasons I view this case as very complex. Before discussing what I consider to be certain specific aspects of complexity, I begin by noting the observations of others over the course of the time this matter was before the court.

[77] On January 8, 2015, in the process of relinquishing the disclosure he had received to new counsel, Mr. O’Connor said:

This is an unusual case in the sense that this is – probably the largest disclosure I’ve ever seen. The tactical person at Guns and Gangs told me it’s the largest [sic] than any other Project they’ve had, so I just wanted to make sure it all got here in one piece. I brought with me 37 DVD’s, [sic] which are full disclosure, our working disc drives, which I’ve taken pictures of, of everything, to make sure it all gets here.

And there was at least five boxes of disclosure which I am going to make available to Mr. Rosen on, on Friday. But it’s, it’s a very difficult matter in terms of disclosure because it’s – the evolving nature of the preliminary inquiry made disclosure – these – these disc drives have been added to, sort of countless times, and I’m confident everything is here.

[78] On July 14, 2016, then counsel for Wiwchar, Mr. Rosen, in discussing how long matter was taking to come to trial, stated “this is an old matter but it’s complex.” [29]

[79] On October 13, 2016, after refusing counsel for Nero’s application to be removed from the record, McMahon J. observed that this case was “complex and involved”.

The Case Itself

[80] To begin, the case for the Crown was inherently complex. It consisted, in the main, certainly as it related to Nero and Caputo, of many thousands of intercepted private communications. While arduous and time consuming, electronic interception of these communications was a relatively straightforward matter. Decoding them, on the other hand, was anything but straightforward. The persons involved had gone to great lengths to encrypt their communications so as to render them impervious to unwanted intrusion by law enforcement. As earlier noted, certain communication devices seized by the police had to be submitted to specialists for analysis, some of them on more than one occasion. Further, even where the messages could be decrypted, the applicants and those with whom they corresponded electronically routinely employed a certain degree of coded or guarded language. In some cases, that made the true import of these communications difficult to comprehend, even though the literal meaning was plain.

[81] The true meaning of these communications only became evident to D/Sgt. Matthew Hodges of the NRPS after he had spent approximately four months in the fall of 2012 attempting to decipher and contextualize them relative to other information his investigation had uncovered.

[82] A further level of complexity arose in what, to my mind, can only be fairly described as a Herculean effort required to attribute these messages as having been either authored or received by the applicants. This could only be done circumstantially and required an enormous effort to gather evidence that would tend to confirm independently that the person to whom the police attributed the message in any given instance had in fact sent or received it, as the case may be. [30]

[83] As noted in the foregoing chronology, on May 2, 2013, Mr. Lafontaine complained early on that there were, at that time, in excess of 64,000 intercepts and Mr. Gold acknowledged that an overview of the case was required because “the volume is overwhelming…”

Multiple Defendants

[84] “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: Jordan, at para. 77. I have already discussed how the number of defendants increases the time to get to trial in a serious criminal case.

[85] In their factum, the applicants argue that the Crown was “the architect” of whatever complexity arose because it chose to prosecute the defendants together. Given the longstanding acceptance, as discussed above, that it is sound policy to try persons accused of the same crime(s) together and given that none of the applicants ever raised the issue of severance, [31] much less actually sought a severance, it does not now lie in their mouths to lay responsibility for the delay in this case at the feet of the Crown for having tried these accused together.

Multiple Prosecutions

[86] This prosecution was rendered more complex by the fact that the applicants were involved as defendants in in other prosecutions.

[87] As an example, Nero and Caputo were charged in Niagara with serious drug offences and the date set for the preliminary inquiry in that case conflicted with some of the dates set for the preliminary inquiry in this matter. So as not to interfere with that other prosecution, the Crown in this case endeavoured to call the evidence relating to Nero and Caputo early so that they could be excused from this prosecution to attend the preliminary inquiry in St. Catherines.

[88] What I have called the interlocutory appeal also added complexity to this matter. McMahon J. made concerted efforts to expedite Nero and Caputo’s appeal of Ramsay J.’s ruling to the Court of Appeal for Ontario [32] and, in turn, to the Supreme Court of Canada.

[89] As for Wiwchar, he had serious outstanding gun charges in Vancouver, B.C. and the B.C. Supreme Court was demanding that he be returned to stand trial on those charges. That, in turn, posed logistical problems for this court in its efforts to ensure that he was able to retain counsel for this trial.

Volume of disclosure

[90] While Cody (at para. 64) makes clear that “case complexity requires a qualitative, not quantitative, assessment”, I do not read it as departing from what Moldaver J. said at para. 77 of Jordan, to wit: that the “hallmarks of particularly complex cases include voluminous disclosure…” It is no exaggeration to say that this was a case involving a colossal amount of disclosure. [33]

Sources of Disclosure

[91] Moving from volume of the disclosure to its sources, the materials disclosed in this prosecution emanated from no fewer than [34] four separate police forces: TPS, VPD, SQ, and NRPS. Each of those entities came to possess some of the material disclosed in this case through conducting its own separate investigation into criminal activity within its own mandate. Each investigation was very substantial in scope. Further, delay was inevitably incurred in this prosecution by virtue of the fact that those other investigations were ongoing, at least for some period of time during the currency of this prosecution, meaning that disclosure of relevant material had to be delayed in this case so as not to compromise the integrity of the other investigations.

[92] Delay was incurred, for example, in the preliminary inquiry in this matter by disclosure of a huge amount of material emanating from the then still ongoing Project Loquace.

[93] I note that, in their joint factum, defence counsel contend that “[d]elays in hearing the Applicants’ Preliminary Inquiry were not caused by the Defence; rather, they arose due to late and ongoing disclosure that was brought to the Defence’s attention over the course of the Preliminary Inquiry.” [35] I do not accept this contention.

[94] The preliminary inquiry in this matter was scheduled to be finished by the end of July 2013, but did not finish until early December 2013. [36] Most of that delay was a function of the newly disclosed information from Loquace. Because Loquace was ongoing and premature revelation could have severely compromised the integrity of the project, the Crown had been given this material on the undertaking that it not be disclosed without the SQ’s prior approval. Thus, the Crown had no control over the timing of the disclosure of this material to the defence prior to the SQ giving permission. From the point that the Crown had the SQ’s permission to disclose, I do not understand any applicant to assert that the Crown delayed disclosure thereafter.

[95] As the foregoing chronology reveals, most of the June, July and August 2013 dates originally set for the preliminary inquiry were lost due to successive defence requests for adjournments for counsel to absorb the disclosure related to the SQ police agent, Hugo LeBlanc, and for arrangements to be made for LeBlanc to testify. [37] The existence of LeBlanc and his possible connection to people and events connected to the murder of Raposo were made known to the defence through Crown disclosure of the Loquace materials. That said, it was a defence decision to call LeBlanc as a witness at the preliminary inquiry and to seek adjournments to facilitate having him testify. While, undoubtedly, the defence was entitled to explore LeBlanc’s knowledge of people and events potentially connected to the Raposo murder, the fact remains that the delay came about as a result of that defence decision.

[96] I have already mentioned, when discussing discrete events, the time it took to receive LeBlanc’s evidence. That said, as well as being a discrete event, looked at more globally, it added to the complexity of the matter.

[97] A significant portion of the Loquace material was in French and, although Crown counsel was not legally obliged to translate that material to English, they did; moreover, it is not disputed that their purpose for so doing was to expedite the trial of this matter. As well as translating the material, as I understand it, inasmuch as some of the information contained in the Loquace disclosure was already in the hands of the defence though other Crown disclosure in this case, the Crown also undertook to cull out that information in order to make it easier for the defence to absorb the new material.

Expert Evidence

[98] Although there was relatively little expert evidence in this trial, the expert evidence the Crown did call had a degree of complexity to it. As earlier noted, delay was incurred in the course of the lead up to trial in the Superior Court in 2015, because of disclosure of the VPD material. As I understand it, expert analysis by the Technical Crimes Section of the Royal Canadian Mounted Police (“R.C.M.P.”) of certain communications devices seized by the VPD originally revealed no forensically useful results, but, with the later development of a better forensic tool, a second attempt retrieved information that had been inaccessible when the devices were first examined.

International Aspect

[99] There was an international aspect to the case that added a degree of procedural complexity. Caputo was arrested in Germany on a provisional warrant on February 18, 2013. He waived extradition and returned to Canada voluntarily. Alkhalil, on the other hand, was arrested in Greece and had to be extradited. In order to have the accused tried together, it was necessary to prefer an indictment against Alkhalil.

Summary of Complexity

[100] At para. 80 of Jordan, the majority held “[w]here the trial judge finds that the case was sufficiently complex such that the overall time to trial was justified, the delay is reasonable and there will be no stay.” This case, to my mind, was inherently complex. It was rendered more so by the interface with the three other investigations and the obligation on the Crown to disclose material gathered in them, particularly when, in relation to two of them, the Crown in this case had no control over police bodies in other provinces. It was made still more complex by the fact of multiple defendants, each of whom was represented by busy lawyers whose schedules meant that only dates well into the future were available to them. In the final analysis, I am firmly of the opinion that the delay was justified by the complexity of the case.

Transitional Case

[101] The charges in this case having been laid long before the release of Jordan, it is what has come to be known as a “transitional case”. Although I have found that the delay was justified by the complexity of the case, such that “[n]o further analysis is required” (Jordan, at para. 80), in the event that I am wrong in that view, I will go on to consider the transitional aspect of this case.

[102] In Jordan, at para. 96, speaking for the majority, Moldaver J. held:

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

[103] At para. 97 of Jordan, Moldaver J. went on to say:

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay -- even if it is significant -- will not automatically result in a stay of proceedings.

[104] At paras. 102 ff., Moldaver J. further held:

Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time. In his dissenting opinion in Mills v. The Queen, [1986] 1 S.C.R. 863, Lamer J. (as he then was) was alive to this concern and his comments are apposite here:

This case is the first to have presented this Court with the opportunity of establishing appropriate guidelines for the application of s. 11 (b). The full scope of the section, and the nature of the obligation it has imposed upon the government and the courts has remained uncertain for the period prior to the rendering of this judgment.

Given this uncertainty and the terminative nature of the remedy for a violation of the section, i.e., a stay of proceedings, I am of the view that a transitional approach is appropriate, and indeed necessary, to enable the courts and the governments to properly discharge their burden under s. 11 (b). This is not to say that different criteria ought to apply during the transitional period, that is, the period prior to the rendering of this judgment, but rather that the behaviour of the accused and the authorities must be evaluated in its proper context. In other words, it would be inaccurate to give effect to behaviour which occurred prior to this judgment against a standard the parameters of which were unknown to all.

We echo Lamer J.'s remarks. For cases already in the system, the presumptive ceiling still applies; however, "the behaviour of the accused and the authorities" -- which is an important consideration in the new framework -- "must be evaluated in its proper context" (Mills, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance.

[105] In R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at paras. 319-320, the Court held:

[319] …To invoke this transitional exceptional circumstance, the Crown must establish that the time the case has taken is justified on the basis of the parties’ reasonable reliance on the previous state of the law.…

[320] To determine whether a transitional exceptional circumstance will prevail, a court must undertake a contextual assessment of all the circumstances, sensitive to the manner in which the previous framework was applied and the fact that the parties’ behaviour cannot be judged strictly, against the standard of which they had no notice. Prejudice and seriousness of the offence, often decisive factors under the former calculus, can inform whether the parties’ reliance on the former law was reasonable. Delay above the presumptive ceiling in a jurisdiction with significant institutional delay problems may also be important. [Citations omitted.]

[106] In this case, I note, once again, that, apart from the two exceptions I have earlier mentioned, the subject of delay is not mentioned on any of the many appearances leading up to the commencement of the trial. That is so, in my view, because, given what they quite reasonably perceived to be the scope and complexity of the matter, including the need to accommodate counsel’s schedules, all parties thought that the matter was proceeding apace (at least in the context of the law as it was then understood.)

[107] Considering, in a post-Jordan world, how such a lengthy time from charge to trial might nonetheless seem reasonable, it must be remembered that under the then prevailing Morin regime, an important factor was the prejudice suffered by an accused as a function of undue delay. In this case, of course, the applicants were each serving sentences of imprisonment for other offences throughout a significant portion of the time leading up to the trial.

[108] A factor to be considered in a transitional case is whether the parties have had time to adapt to the new regime: Jordan, at para. 96. In this case, although the trial did not commence until February 2017, approximately seven months after the release of Jordan, that trial date was set well before Jordan was released and it was set to accommodate the availability of Crown counsel, the court and busy defence counsel representing four accused.

[109] I have already mentioned the fact that multiple defendants adds to complexity, but it bears mention again in this context. It was simply part of the reality that all counsel recognized in the course of litigating this matter. That is to say, respecting serious and complex criminal cases involving multiple accused, it is trite to observe that the greater the number of lawyers appearing, and the larger the block of time required to try the case, the further into the future the court is required to go to find a block of time available to all concerned. Apart from periods of time during which one or more of the applicants was unrepresented, each was represented by counsel with a well deserved reputation for both ability and experience. I say this not to flatter, but to make the obvious point that lawyers with such reputations tend to be busy and, at any given point in time, are often unavailable until well into the future.

[110] In summary on this issue, then, I am fully satisfied that the delay in this case is justified based on the parties' reasonable reliance on the law as it previously existed.

Result

[111] In the result, I concluded that none of the applicants’ s. 11 (b) rights were infringed and, for the reasons aforesaid, I dismissed their respective applications.

Clark J.

Released: July 14, 2017 Corrigenda Released: October 02, 2017

COURT FILE NO.: CR-15-30000187 DATE: 20170714

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – NICOLA NERO, DEAN WIWCHAR and MARTINO CAPUTO Applicants

REASONS FOR DECISION CLARK J.

Released: July 14, 2017 Corrigenda Released: October 02, 2017

Footnotes

[1] Alkhalil, who did not raise s. 11 (b), was sentenced on June 22, 2017.

[2] This does not include the individual days involved in hearing the trial itself. It is difficult to be precise because several of the transcripts were not filed and because the accused appeared separately on more than one occasion.

[3] Nero and Caputo commenced a trial in September 2014 in St. Catharines, Ontario, on drug charges. In the course of a pretrial application, Ramsay J. ruled admissible certain intercepted private communications. Nero and Caputo appealed that ruling to the Ontario Court of Appeal and, when they lost at that level of court in February 2015, they launched a further application for leave to appeal to the Supreme Court of Canada; leave was denied in July 2016.

[4] February 12, 2015, Transcript of Proceedings, p. 2. Para. 12 of the Agreed Statement of Fact indicates that those “challenges” consisted of Wiwchar’s counsel being unavailable due to ill health and Nero's counsel having indicated that he had a six-month trial in British Columbia, with a number of co-accused, scheduled to begin in April 2015 and continue through September.

[5] This consisted of a hard drive containing approximately 114 gigabytes of information provided by the Crown at the request of the defence.

[6] Agreed Statement of Fact, at para. 23.

[7] Although no transcript was filed for February 4, 2016, this remand is mentioned in the February 5 transcript.

[8] The applicants filed a single, joint factum on these applications and, on agreement, Mr. Lafontaine made the bulk of the oral submissions, which were adopted, and very briefly supplemented, by counsel for the other applicants.

[9] On certain early appearances, at a time when only Wiwchar stood charged with Raposo’s murder his then counsel, Mr. Avery, complained of the pace at which disclosure was being provided and asked for earlier return dates than were being offered to ensure that disclosure was forthcoming in a more timely way.

[10] I note that counsel were aware of tthese authorities, which were included in the respondent’s casebook.

[11] Brissett, at para. 49.

[12] See September 4, 2014, Transcript of Proceedings, p. 4; at a time when McMahon J. was concerned that Wiwchar was unrepresented, Wiwchar suggested that, if the other accused were concerned about the pace at which the matter was progressing, they could apply for severance.

[13] As noted in the chronology, after a number of appearances, on each of which the Crown indicated that disclosure was not ready or, latterly, that further disclosure was soon to be forthcoming, on October 9, 2012, then counsel for Wiwchar, Mr. Avery, complained that he could “see no reason why the officers who had evidence to charge him in late June, according to them, can’t have provided that by now.” The only time s. 11(b) of the Charter was expressly raised was on July 14, 2016, when Kelly J. asked then counsel for Wiwchar, Mr. Rosen, to “just state for the record, in light of R. v. Jordan, the reason things are going over as they are.” In response, Mr. Rosen, while noting “facetiously” that the onus was on the Crown to justify what had become presumptively unreasonable, went on to say, “this is an old matter but it’s complex.”

[14] 44 days.

[15] Although not having yet been returned from Germany, where he had been arrested, Caputo was present through his counsel, Mr. Lafontaine, appearing on his behalf.

[16] As noted above, on February 12, 2015, when the matter was being adjourned by reason of “challenges” counsel were facing, then counsel for Wiwchar reminded the court that “we also have to see what happens in the court of appeal…” this was a clear reference to Nero and Caputo’s appeal and, coming from Wiwchar’s counsel makes it plain that he considered the outcome of that proceeding to be of importance to Wiwchar’s case as well.

[17] I say “approximately” advisedly, because, although McMahon J. did not mention the precise date in September that the matter could have proceeded, it is the general practice in this court that lengthy murder trials start shortly after Labour Day.

[18] 57 days

[19] I use the phrase “it would seem” advisedly, because the transcript of Wiwchar’s first appearance was not filed on this application, but, as of his next appearance, April 16, 2014, it is clear that he was unrepresented.

[20] June 30, 2014, Transcript of Proceedings, p. 7.

[21] February 12, 2015, Transcript of Proceedings, p. 2.

[22] Exhibit 1, Agreed Statement of Fact, para 27.

[23] The term “PGP” is an acronym for “Pretty Good Privacy”, which is the commercial name under which a form of encryption that can be installed on certain communications devices is marketed.

[24] See also Cody, at para. 28 where Moldaver J., referring to para. 66 of Jordan, the defence conduct “has solely or directly” caused the delay...” [Emphasis added.]

[25] Counsel only raised this issue in reply to a submission made by Crown counsel, prompting the question: if it was of such moment that the murder trial precede the drug trial why did counsel not raise it in the argument in chief?

[26] October 28, 2015, Transcript of Proceedings, p. 11.

[27] Applicants’ Factum, at para. 62.

[28] The complaint, both in the applicants’ factum and as advanced by Mr. Lafontaine in oral argument, focused on the late disclosure, but this ignores: (i) that the Crown was under an obligation not to disclose certain material before it did, in order not to compromise other ongoing investigations; (ii) that the defence was told in advance of the preliminary inquiry that there would be further disclosure; (iii) that, having been told that, the defence was content to press on; (iv) that, once material gathered in the course of other investigations could safely be disclosed without risk to those investigations, the Crown invariably disclosed the material at the earliest possible opportunity; and (v) that, albeit they complained about the volume of disclosure being disclosed at particular times, defence counsel never complained, at any point throughout these lengthy proceedings, about the pace at which the matter was proceeding.

[29] July 14, 2016, Transcript of Proceedings, p. 3.

[30] It took D/Sgt. Hodges several days in the witness box to explain how he confirmed, by reference to independent circumstantial evidence, that the email messages were, in each case, properly attributed. Hodges testified, on consent of all accused, as a Scheel witness (R. v. Scheel, [1976] O.J. No. 651). But for this agreement, Mr. Sabbadini advised in oral argument on this application, just in relation to Wiwchar, the Crown would have had to call something on the order of 80 witnesses, most of whom reside in British Columbia, to establish the circumstantial underpinnings required to prove Wiwchar was the person who sent and received the emails the Crown attributed to him. On the one hand, this speaks well of counsel’s cooperation, but, on the other hand, it seriously undermines counsel’s strenuous submissions on this application, that this was not a complex case.

[31] Apart from, sa mentioned above, Wiwchar’s offhand remark on one occasion.

[32] By writing to Strathy C.J.O. requesting an expedited appeal and by later writing to Smith C.J., asking her to write to McLachlin C.J. C. to ask for a timely hearing in the Supreme Court of Canada

[33] Para. 129 of the Respondent’s Factum reveals that this case involved approximately 350 gigabytes of disclosure, including more than 277,000 pages of notes/written materials, more than 23,000 photographs, more than 280 videos (including both surveillance and witness interviews/statements) and more than 21,000 audio files. There were more than 120 TPS officers involved in the Raposo homicide investigation, more than 90 NRPS officers involved in the Niagara drug investigation, more than 60 Combined Forces Special Enforcement Unit officers involved in surveillance of Wiwchar when he was in Toronto in May 2012, and approximately 102 VPD officers involved in the Duhre murder investigation. In their separate investigations, TPS and VPD officers interviewed more than 65 and 60 civilian witnesses, respectively. The Crown Disclosure Index, filed as part of this application, is several hundred pages in length and subdivided into 76 categories.

[34] Although the four agencies listed were the principal external sources of information for this case, the TPS Homicide Squad actually liaised with “multiple Police Agencies”: Respondent’s Application Record, Affidavit of Terry Browne, at para. 3.

[35] Applicants’ Factum, at para. 6.

[36] For Nero and Caputo, inasmuch as they did not concede committal, the preliminary inquiry did not officially end until early March 2014, when Lipson J. released his reasons for committal. I note, however, that neither Nero nor Caputo complained in early December 2013, when, at the end of oral argument, Lipson J. suggested that he would need until March to render his decision.

[37] It was anticipated that LeBlanc would be a witness in a large number of very serious drug trials involving members of the Hell’s Angels. At all times in the course of this prosecution, LeBlanc was in witness protection and under continuous police guard at an undisclosed location.