Court File and Parties

COURT FILE NO.: 15-138 DATE: 2017/07/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent AND: SANDY WAMMES, Applicant

BEFORE: MR. JUSTICE CALUM MACLEOD

COUNSEL: Richard Addelman, for the Accused (Applicant) James Meloche, for the Crown (PPSC) (Respondent)

HEARD: July 7th, 2017

Decision and Reasons

Introduction

[1] This is an “11 (b) application” to stay the charges against Mr. Wammes due to alleged violation of his right to be tried within a reasonable time. [^1]

[2] The basic facts are not in dispute. The accused was arrested on December 3rd, 2014 and charged with certain offences on December 4th, 2014. The Jordan presumptive ceiling of 30 months was exceeded in June of this year unless time should be deducted. [^2] The matter is scheduled for trial before a judge alone for 5 days in November. By the time the trial is completed the total delay will have been approximately 36 months (or three years) since the original charges were laid.

[3] This is a transitional case. I am required to apply the Jordan framework as recently reaffirmed and clarified by the Supreme Court of Canada in R. v. Cody. [^3] This framework requires a finding of “net delay” and if the delay continues to exceed the presumptive ceiling, consideration of whether special considerations or transitional considerations justify that delay. If the ceiling is exceeded and the delay cannot be justified then the proceeding must be stayed.

[4] For the reasons that follow, I am declining to stay the proceeding. As set out below, 36 months exceeds the new presumptive ceiling even if I reduce it for a minor amount of defence delay and this case is not sufficiently complex to justify delay in the post-Jordan framework. All participants in the justice system must adjust to the new reality and the new expectations. But for the fact that this is a transitional case, it would be subject to a stay.

[5] In the case at bar, the bulk of the delay occurred before Jordan was released and because of that the court must give weight to considerations such as complexity, seriousness of the offences and prejudice to the accused that would have been involved in the pre-Jordan Morin analysis [^4]. In the wake of Jordan the parties have moved with dispatch and for all intents and purposes the matter is on the eve of trial. In my view the delay can be justified by transitional circumstances.

Background

[6] In order to understand the nature of the proceeding it is necessary to briefly outline the facts giving rise to the charges now before the court. I will then summarize the manner in which the matter has proceeded before describing my findings in relation to “net delay”.

[7] The original charges apparently came about as the result of an on-going drug trafficking investigation in Ottawa and Pembroke. There were originally three accused including Mr. Wammes, his driver Mr. Laroque and the driver of another vehicle, Mr. Schauer. Mr. Schauer and Mr. Wammes had been under surveillance and on December 3rd, 2014 after they had been seen meeting in Mr. Schauer’s vehicle at a location in Ottawa, both vehicles were stopped and searched. Apparently Mr. Wammes was in possession of approximately $6,000.00 in cash and Mr. Schauer was in possession of 2.9 ounces of cocaine. There were other items and paraphernalia in the vehicles. Consequently all three accused were charged with trafficking, possession and other related offences. Although they were charged with the same offences arising out of the same set of circumstances, each accused was charged on a separate information.

[8] Following the arrest of the accused, the police carried out a search of a property belonging to Mr. Wammes’ parents in Osgoode, Ontario pursuant to a general warrant. Evidence obtained as a result of the execution of that warrant then formed the basis for a further warrant under s. 11 of the Controlled Drugs and Substances Act obtained on December 4th, 2014. Execution of this latter warrant led to further charges against the accused including possession of hydromorphone for the purpose of trafficking, possession of marijuana, possession of a taser, and possession of ammunition contrary to a prohibition order to which he was subject at the time. As I will come to later on, it is this second set of charges that remain before the court.

[9] Apparently a search of Mr. Schauer’s residence resulted in further charges against Mr. Schauer and his girlfriend but because his residence was in Renfrew County, those charges were before the court in Pembroke and not in Ottawa.

[10] The applicant was released on bail on December 11th, 2014 and apart from being re-arrested for an alleged breach of condition (subsequently withdrawn) and certain variations, he has remained at liberty on fairly strict conditions ever since. Those conditions have included various restrictions on his movement, communication, possession of various items, his residence and a requirement for regular reporting to the OPP in Kemptville.

[11] Ultimately on the eve of a preliminary inquiry in November of 2016 (just 4 months after the Jordan decision) there was a resolution. This involved Mr. Schauer agreeing to committal on the first set of charges and ultimately pleading guilty to them. The first set of charges was then withdrawn against Mr. Laroque (the driver) and against Mr. Wammes. For his part, Mr. Wammes agreed to waive the preliminary inquiry and to committal on the second set of charges arising from the warrants executed in Osgoode.

[12] As a consequence, the indictment now before this court is dated November 9th, 2016 and consists of 5 counts including possession of hydromorphone for the purpose of trafficking contrary to ss. 5 (2) and 5 (3) (a) of the CDSA; possession of a taser being a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Criminal Code; possession of a prohibited device (the taser) contrary to s. 91 (2) of the Code; and two counts of possession of ammunition while prohibited from possessing ammunition by an order under s. 109 (a) of the Code contrary to s. 117.01 (1).

[13] The matter is set for trial for 7 days before a judge of this court on November 27th, 2017. Besides this application to stay under s. 11 (b) of the Charter, there are two other motions to be heard by the trial judge prior to the trial. There is a timetable in place and these motions were taken into account when the trial date was set. As noted at the outset, assuming the trial is completed when scheduled and in the allotted time, 36 months will have passed since the first charges were laid. On the other hand the matter will have come to trial in just over a year from the date of the indictment and less than 17 months from the release of Jordan.

The Progress of the Matter Before the Courts

[14] In some ways the progress of this action in the pre-Jordan era, that is to say in the 19 months prior to the release of that decision, is almost an exemplar for the situation that Jordan was intended to rectify. The Supreme Court held that the existing analytical framework required revision because it had fostered a culture of complacency within the system towards delay.

[15] Following the release of the accused on bail, the matter was adjourned to the federal remand court in the Ontario Court of Justice in Ottawa on December 17th, 2014 and then adjourned to January 14th, 2015. On December 12th, 2014 counsel for the accused had written to the Crown requesting full disclosure of the evidence against the accused “including but not limited to: Officer’s notes; Officer’s Investigative Action Reports, All Surveillance Reports including Mr. Wammes and the co-accused; All Search Warrant material including the ITO’s with respect to any searches” involving Mr. Wammes. On January 14th, 2015, at the suggestion of the Crown, the matter was put over to February 11th, 2015 to complete disclosure that was “not quite available” primarily it appeared because there was an outstanding application to seal certain warrants.

[16] Between January and August 2015 there were approximately a dozen court appearances. I will highlight only certain aspects of what was said. On each of the appearances in January, February and March, the accused indicated he was still waiting for disclosure and the matter was put over to the following month. On April 1st, 2015 the Crown indicated two further weeks were required for disclosure. In remand court it is frequently a paralegal who appears on behalf of the Crown or another lawyer and that was the case here. It does not appear that the assigned Crown appeared before April 22nd, 2015. On that date, Mr. Meloche appeared and indicated the Crown required another four weeks because it was a “project file”. On May 6th, 2015 the Crown advised the court it required another two weeks.

[17] On May 15th, 2015 before the Local Administrative Judge, for the first time the Crown indicated that disclosure was complicated because the investigation dated back to 2013, involved over a thousand pages of disclosure and required careful vetting in collaboration with the investigating officer because there were 8 police informants whose names had to be protected and redacted. But the LAJ was left with the impression that all of this was “on track”. She was told “those should be out hopefully very soon” and that the “notes and surveillance reports should be out, I would hope, by the end of next week”. The matter was then put over to June 10th, 2015.

[18] On June 10th, 2015 the Crown provided additional disclosure although as it turned out there was more to come. Mr. Addelman for the accused expressed the hope that “with the recent disclosure we should be in a position to move the matter along at this point”. But because each accused was on a separate information, there was a different court date set for one of the co-accused. The matter was put over to June 17th. On June 17th, 2015 the representative of the Crown had no instructions about joining the two informations and she also stated that the Crown would be reviewing additional disclosure and “we’ll be able to provide it to defence counsel within those three weeks”. The matter was then adjourned to permit a CPT and the additional disclosure.

[19] On July 8th, 2015 the Crown stated it was trying to join the matters with the Pembroke file and wished to set a JPT date once that had been done. On July 22nd the Crown advised that it was still waiting for the Pembroke file. It was not until August 12th that a JPT date was ultimately set. On October 7th the Crown had finally joined the three sets of charges on a single information and advised that the original information would be stayed.

[20] On January 6th, 2016 following the JPT, dates were set for a “Dawson application” [^5] and the preliminary inquiry. The application by each of the accused was to be heard on November 3rd, 2016 and the preliminary inquiry was to take place on December 5th, 6th, 7th and 8th, 2016.

[21] On July 8th, 2016 there was a paradigm shift. The Supreme Court rendered its decision in Jordan. In that decision the court indicated that complacency by all participants in the justice system was unacceptable and the previous regime introduced by Askov & Morin appeared to have been insufficient to ensure that s. 11 (b) Charter rights were taken seriously. Henceforth there was to be a presumptive ceiling of 30 months for matters going before the Superior Court.

[22] Although at the time the decision was released, this case was still under the new Jordan ceilings, it was apparent that the dates set for the preliminary inquiry would be highly unlikely to bring this case to conclusion within 30 months.

[23] Certain steps were taken which had the effect of speeding up the case. On October 21st, 2016 the defendants announced they would abandon the Dawson applications and were working on an agreement to advance the date of the preliminary inquiry. On that date the Crown also provided further disclosure.

[24] On November 9th, 2016 the court was advised that the parties had entered into an agreement. The Crown agreed to drop the original charges against the accused and to proceed only with the charges arising from the search warrant executed at the property in Osgoode. The accused agreed to waive the preliminary inquiry and agreed to committal on the remaining charges. As noted, one of the co-accused had agreed to plead guilty on the original possession and trafficking charges. Those charges were then transferred to Pembroke and disposed of there.

[25] This streamlined the matter since there were a reduced number of charges and no co-accused were involved. As indicated above, the indictment was drawn up immediately and the matter transferred to this court.

[26] On January 10th, 2017 and January 27th, 2017 there was a JPT before Ratushny J. This resulted in a trial date and scheduling of this 11 (b) application as well as the other pre-trial applications mentioned earlier in these reasons. All parties were aware that the new Jordan deadline was June 2nd, 2017. No trial dates were available before then and the first date after June which was available to both counsel was November 27th. The time from the date of the indictment to the end of the trial will be just under 13 months. The time from the date of the first set of charges will exceed 36 months but would have been longer had the accused not waived the preliminary inquiry. [^6]

Analysis

[27] Analysis of s. 11 (b) applications is governed by the most recent pronouncement by the Supreme Court of Canada in Cody. In Cody a unanimous court affirmed that the Jordan framework must be followed by all courts in Canada and cannot be lightly discarded or overruled. Cody also streamlines and simplifies the analysis and it attempts to clarify treatment of transitional cases.

[28] As the Supreme Court makes clear, the constitutional right to a fair and timely trial is a right that exists for the benefit of all citizens and it must be enforced to retain the integrity of the justice system. The rights enshrined in the Charter are not new rights but are a codification of rights long recognized by common law systems and consistent with international norms. [^7] What the Charter does is to codify these rights and to arm the courts with remedial powers. When faced with unconstitutional delay, the appropriate remedy is a stay.

[29] Under the new analytical framework, faced with the fact that total delay will be 36 months from the date of the first charges, the first question is whether there is “defence delay” that should be deducted from this total. Defence delay can include either “waiver” or “defence caused delay”. [^8] No one is suggesting any conduct that amounted to waiver of rights nor does the Crown suggest any deliberate and calculated tactic by the defence to delay the trial. So the only question is whether there was action by the defence which directly caused delay.

Was Any Delay Caused by the Defence?

[30] Apart from considerations of deliberate delaying tactics or actual misconduct by the defence, the search for defence caused delay is not primarily a fault finding exercise. As the Court reiterated in Cody “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to trial within a reasonable time.” [^9]

[31] Delay by the defence legitimately required to make full answer and defence should not be deducted but delay caused by the accused taking steps that are not necessary to respond to the charges can be counted. This can include frivolous applications and requests or simply circumstances in which the court and the Crown are ready to proceed but the accused is not. [^10] Furthermore, as the court also stresses in Cody, “inaction, inefficiency or marked indifference towards delay” may suffice and all justice system participants, defence counsel included, “must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 (b) of the Charter.” [^11]

[32] Measured against this standard, the year of repetitive remand courts in which there were repeated promises of disclosure and delays to sort out problems arising because there were separate informations and charges in Pembroke must surely be judged wanting. But it is difficult to identify any of this as defence delay. With the benefit of hindsight more should have been done but in the pre-Jordan world I am hard pressed to categorize the defence as complacent.

[33] Mr. Addelman sent a letter demanding disclosure as soon as he was retained. He repeatedly raised the issue at most of the court appearances and on more than one occasion questioned if the Crown would be able to comply with its promises to complete disclosure in the estimated time. He indicated his willingness to engage in a CPT at an early date and more than once thereafter. He indicated his wish to set a JPT date and expressed concern about delay repeatedly. He proposed that the matter go before the LAJ for direction and he urged the Crown to simplify matters by combining the informations.

[34] It is true that the accused could have more urgently sought case management and could have pressed the court to order the Crown to allocate more resources to the production problems. He could have tried to insist on a JPT date even without having all of the disclosure. But having reviewed each of the transcripts, there is nothing in the record that suggests complacency or inaction sufficient to tag the accused with causing or contributing to delay up to the point of the JPT.

[35] The Crown argues that scheduling the later abandoned Dawson applications delayed the preliminary inquiry and could be viewed as defence delay. Without in any way criticising counsel I accept that scheduling applications that ultimately do not proceed is delay that can meet the definition of defence caused delay. That may in part depend on the nature of the application and of course the objective of the Dawson application may also be accomplished by a Garofoli. [^12] In fact I believe the latter is still contemplated and is one of the pre-trial motions to be heard by the trial judge. For purpose of the application I accept the argument that scheduling this application in advance of the preliminary inquiry delayed the date but the record shows that at most this delay was a month. The Dawson application was scheduled for November 3rd, 2016 and the preliminary inquiry was scheduled for December 5th to give “time for the presiding judge to make a ruling”. Ultimately of course the date for the preliminary was advanced when the parties reached an agreement.

[36] At best then defence delay in this case results in a deduction of a month and makes the net delay 35 months. Of course this is still beyond the ceiling.

Were There Exceptional Circumstances?

[37] The next step in the framework is to consider whether there are exceptional circumstances. These are circumstances that are either unforeseen or unavoidable and which the Crown could not reasonably remedy. They are generally either discrete events or particularly complex cases. There were no discrete events and the Crown concedes that although there is complexity in this case, it is not the kind of complexity that would justify delay post-Jordan. In other words in future, in a case such as this, all parties would be expected to have put a plan in place to bring the matter to trial despite the issues that were encountered with disclosure and the number of co-accused. If this was entirely a post-Jordan case, it would not be considered to be complex. As the Supreme Court said in Cody, “while voluminous disclosure is the hallmark of a complex case, its presence is not automatically demonstrative of complexity.” The question is whether the case taken as a whole is exceptionally complex and justifies exceptional delay.

Can the Delay Be Justified Due to Transitional Circumstances?

[38] This leaves the question of transitional circumstances. As stated in Cody, this step recognizes the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice and that change takes time. The Crown may rely on transitional exceptional circumstances where the delay that took place before the release of the Jordan decision would have been understood as reasonable given the pre-Jordan expectations and the way delay and other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

[39] Most of the delay in this case took place before the Jordan decision. From that point forward the parties moved with reasonable dispatch. Can the delay be justified by complexity that might not be adequate after Jordan but might have appeared sufficient under the previous state of the law?

[40] In this case there existed some procedural complexity and some complexity in the matter of disclosure. Arguably at least some of this complexity was created by the Crown. For example the fact there were three co-accused on different informations contributed to one or two additional appearances. But the objective of protecting constitutional rights is not to have the court second guessing tactical and procedural decisions at a micro-level. A certain amount of organizational complexity is inherent in there being co-accused, new charges arising from additional warrants and charges in more than one jurisdiction.

[41] The delay relating to disclosure resulted from the nature of the investigation and the materials that had to be produced but it was not just a matter of volume. There were several warrants and many sets of officer’s notes in an investigation spanning several years, potentially targeting other accused and involving police informers. The material required extensive review and redaction. Proper redaction required consultation between the Crown and the officers responsible for the project. Certainly the record suggests that the Crown failed to grasp the magnitude of the work that had to be done or else it did not adequately convey the extent of the problem to the representative of the Public Prosecution Service attending at court. Still it must be recognized that a “project case” such as this inevitably required processing disclosure in a manner that was more labour intensive than a garden variety prosecution.

[42] The charges as originally constituted and the charges remaining before the court are serious charges though the Crown has conceded that they are not the “most serious”. Nonetheless, they are significant and in my view they are serious enough that under the Morin analysis some leeway might have been expected. Under the Morin analysis factors such as systemic and institutional delay, lack of resources, seriousness of the offence and prejudice or lack of prejudice were involved in a balancing exercise and the onus remained on the accused to prove prejudice. As stated in Cody the considerations that would have been considered under Morin “can inform whether any excess delay may be justified as reasonable”. [^13]

[43] I do not take from this that in order to meet the test of transitional exceptional circumstances, the court must actually perform the Morin analysis in the alternative to Jordan. What Cody tells us is that the “determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due sensitivity to the manner in which the previous framework was applied.” [^14] In other words it is the new framework that applies but it is possible to justify the delay for transitional cases if the parties appear to have relied on the previous state of the law. It is evident that there were several factors in this case that could have justified delay under Morin and before Jordan was released there had been no suggestion the accused was considering a s. 11 (b) challenge.

[44] I am not condoning the lack of urgency with which the Crown or the justice system approached the need to complete disclosure, get the case organized and set dates. With the benefit of hindsight viewed through the lense of Jordan the transcripts demonstrate exactly the kind of complacency that the Supreme Court says must end. On the other hand it seems apparent that before Jordan this was not a case which the Crown would have identified as at risk.

[45] There is prejudice to the liberty interest of the accused as he has been under strict bail conditions since 2014 and that bail has continued longer than would have been necessary had the matter already come to trial. The prejudice to be considered however is the incremental prejudice in a relatively short delay rather than prejudice caused by the bail conditions themselves. There is no evidence that his procedural interests have been prejudiced or that there is any risk his trial will be less fair as a result of the additional delay. The trial dates were set in January almost as soon as the case arrived in this court. There is at this point no suggestion those dates will not be met. The matter will be brought to a conclusion before the end of the year.

[46] In my view this is a case in which the delay can be justified on the basis of exceptional transitional circumstances. While it is superficially similar to Cody, because that was a “project” drug investigation in which the net delay, was 36.5 months, the actual delay from charge to trial in Cody was five years. Furthermore there was evidence in Cody of “real and substantial actual prejudice.” The Supreme Court was clearly of the view that a balancing of the factors under the Morin analysis would have weighed in favour of a stay because the trial judge’s findings under the previous law would strongly have supported it.

Conclusion

[47] In conclusion, I calculate the net delay in this case at 35 months which gives rise to a presumptive breach of s. 11 (b) of the Charter. The Crown has been successful in demonstrating exceptional transitional circumstances and has therefore rebutted the presumption. I decline to order a stay.

[48] Of course this is without prejudice to the accused to bring a new application if there is further delay and the trial is not actually completed within the time anticipated.

Mr. Justice Calum MacLeod Date: July 17, 2017

Footnotes

[^1]: Guaranteed by s. 11 (b) of the Canadian Charter of Rights and Freedoms. [^2]: R. v. Jordan, 2016 SCC 27; [2016] 1 SCR 631 – judgment rendered, July 8th, 2016. [^3]: R. v. Cody, 2017 SCC 31 – judgment rendered, June 16, 2017. [^4]: R. v. Morin, [1992] 1 SCR 771. [^5]: R. v. Dawson, (1998) 123 CCC (3d) 385 (Ont. CA). [^6]: Which of course was made possible by the agreement of the Crown to dismissal of the earlier charges and the decision of the co-accused to plead guilty. [^7]: See for example the Universal Declaration of Human Rights, in particular Articles 8, 9, 10 and 11. [^8]: R. v. Coulter, 2016 ONCA 704, at paras. 42 & 43. [^9]: Cody, at para. 1. [^10]: Cody, at para. 30. [^11]: See Cody, at paras. 31-35. [^12]: R. v. Garofoli, [1990] 2 SCR 1421. [^13]: Cody, at para. 69. [^14]: Cody, at para. 69.