FACTUAL BACKGROUND AND OVERVIEW

The Allegations

[1] Patrick Prince stands charged with the offences of Possession of Proceeds of Crime exceeding $5000, and possession of cocaine for the purposes of trafficking.

[2] The events leading up to the charges began in January 2014 when police initiated “Project Ream”, an investigation into allegations of drug trafficking in the Toronto area. Their tools of investigation included the use of warrants, assistance orders, and intercepted communications.

[3] In June 2014, surveillance began on two residential addresses located at 117-325 South Park Road and 108-273 South Park Road in Markham, Ontario. The applicant was seen going into the buildings on 4, 6 and 9 June. Police observations also noted the applicant exercising control over a black Jeep and grey Land Rover.

[4] Covert entries into the two addresses and the Land Rover led to the discovery of $22,050 in a black knapsack and a safe containing USD $384,000 and CAD $85,000. In addition, when searching the Land Rover, police discovered one kilogramme of cocaine in a knapsack on the rear driver’s side passenger seat.

[5] As Project Ream was still ongoing, the applicant was not arrested, and no items were seized in order to ensure the investigation remained secret.

[6] The applicant was last seen on 12 June 2014. However, the investigation continued until 10 August 2014 when the police executed a series of warrants and arrested a number of suspects.

[7] On 16 June 2014, the police received information suggesting the applicant had travelled to Jamaica entering the country through Montego Bay. The police also observed contents from South Park Road being placed into a moving van. Subsequently, the police received information indicating the applicant had left Canada with his property.

[8] On 16 September 2014, the police swore an information laying charges against the applicant and a warrant of first instance was issued for the applicant’s arrest.

[9] On 10 June 2015, Jamaican authorities contacted the Canadian authorities informing them of the applicant’s presence in Jamaica, and expressing their desire to arrest the applicant on the Canadian warrant. Shortly thereafter, the Public Prosecution Service of Canada (PPSC) began proceedings to extradite the applicant.

[10] On 25 July 2016, counsel for the applicant, Mr. Weisberg, wrote to the officer in charge of the case to advise him that the applicant was aware of the charges against him and was returning to Canada. Counsel notified the officer of the applicant’s wish to surrender to the authorities. The applicant was arrested when he arrived at Pearson International Airport and taken to court for a bail hearing on 26 July 2016. The next day he was released on a recognisance in an amount of $150,000 with sureties.

Position of the Parties

[11] Mr. Prince alleges that his right to a trial within a reasonable time has been violated and brings an application to stay the indictment pursuant to s. 11(b) of the Charter of Rights and Freedoms. Mr. Weisberg, on behalf of the applicant, argues that the total delay in this case is approximately 44 months, well above the presumptive ceiling of 30 months set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. He further argues that in the circumstances of this case, the Crown cannot justify the delay by arguing the existence of exceptional circumstances or through reliance on the transitional exception described in Jordan.

[12] In response, Crown counsel, Mr. Visca, submits that the delay in this case was caused by the applicant’s departure from Canada. He argues that the period between charge and arrest falls at the feet of the applicant, relying on evidentiary inferences that the applicant knew of the charges and deliberately refrained from returning to Canada to avoid arrest. Alternatively, Mr. Visca argues that the time period in which the applicant was absent from the jurisdiction is a “discrete event” which should be deducted from the total period of time.

Legal Principles

[13] The Jordan decision set out a new landscape for analysing s. 11(b) claims, discarding the guidelines previously prescribed in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. A new presumptive ceiling amounting to 30 months - for offences tried by indictment - was imposed as the benchmark for reasonable delay.

[14] In determining whether the ceiling has been breached, a court calculates the total length of delay and applies deductions that may apply, for example, delay caused solely by the actions of defence. This leaves a “net delay” figure: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433. A “net delay” greater than 30 months shifts the onus to the Crown to justify the excessive delay due to exceptional circumstances: Jordan, at paras. 47, 68-75. Finally, for cases that began prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine unreasonable delay.

[15] In Coulter, the Court of Appeal for Ontario, provided guidelines for determining the manner in which periods of delay should be analysed and deducted, as necessary. At paras. 34-41, the following approach was suggested:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial

(2) Subtract defence delay from the total delay, which results in the “Net Delay”

(3) Compare the Net Delay to the presumptive ceiling

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases

(5) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached

(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable

(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable

The Chronology

[16] The relevant timeline in this case is set out as follows:

• 14 June 2014 - Police receive information that the applicant has travelled to Montego Bay.

• 16 September 2014 - Information laid against the applicant with issuance of warrant for arrest.

• 10 June 2015 - Jamaican authorities contact Det. Douglas Backus and indicate their wish to arrest him on the Canadian warrant. Backus contacts the Public Prosecution of Canada (PPSC) to discuss steps to return the applicant to Canada. PPSC considers extradition request.

• 20 July 2015 - First internal memorandum regarding extradition completed by PPSC.

• 10 August 2015 - The applicant is served with an order restraining his assets by the Jamaican authorities.

• 24 August 2015 - The applicant files affidavit in Jamaican proceedings. The PPSC and TPS are notified of this development the next day.

• 25 September 2015 - Revised memorandum completed by PPSC lawyer, Faiyaz Alibhai.

• 22 October 2015 - Ontario Regional Office gives permission to seek extradition and PPSC begins work on affidavits.

• 18 November 2015 - Draft affidavits for police officers and Affidavit of Law completed by Mr. Alibhai. Consultation period begins.

• 23 February 2016 - Mr. Alibhai seeks information about the discovery from police about the discovery of the applicant’s location.

• 8 March 2016 - Det. Backus provides the information requested in the form of a will state.

• 2 May 2016 - File received by International Assistance Group (IAG) for approval of extradition request.

• 30 May 2016 - IAG approves the final drafts which require execution and return to IAG.

• 3-5 June 2016 - Affidavits sworn.

• 14 June 2016 - IAG sends the extradition request to Global Canada.

• 25 July 2016 - The applicant’s counsel sends an email to the Toronto Police Service indicating that he will return to Canada.

• 26 July 2016 - The applicant is arrested.

• 23 August 2016 - Disclosure provided to applicant.

• 12 September 2016 - Judicial pre-trial date is set.

• 11 October 2016 - Judicial pre-trial held and preliminary inquiry date set.

• 21 July 2017 - Preliminary inquiry commences.

• 21 September 2017 - Preliminary inquiry completes and matter is committed for trial to the Superior Court of Justice.

• 14 May 2018 - Scheduled Trial Date.

WAS THERE UNREASONABLE DELAY?

Defence Delay

[17] The parties agree that the total delay in this case equals 1336 days or 43.9 months. Of this amount, the defence concedes that approximately two months is attributable to the actions of the defence. In Jordan, at paras. 61-3, the court defined defence delay as any period of delay explicitly waived by the defence and any delay “caused solely by the conduct of the defence”.

[18] Mr. Weisberg concedes two blocks of time where delay should be accorded to the defence.

[19] First, he agrees that 39 days should be deducted from the total delay as the defence were not available on 12 June 2017, the first date that the court and Crown were available to begin the applicant’s preliminary inquiry. As a result, the matter was adjourned to 21 July 2017. Mr. Weisberg therefore concedes that the period between 12 June 2017 and 21 July 2017 must be considered as defence delay and that 39 days is to be deducted from the total delay. The Crown agrees.

[20] Mr. Weisberg’s second estimated block of time is, however, contested.

[21] On 27 September 2017, when the matter had reached the Superior Court of Justice, two trial dates were offered: 12 - 23 March 2018, and the weeks of 7 and 11 May 2018. However, defence counsel were not available in these two time periods. The trial was therefore set to start on 14 May 2018. Mr. Weisberg argues that only the total of these two periods of time of unavailability, 21 days, rather than the entire period between 12 March and 14 May, should be added to the amount to be deducted. On Mr. Weisberg’s calculations defence delay would amount to a reduction of 63 days from the total period of delay.

[22] Mr. Visca, for the Crown, on the other hand, argues that the defence submission does not accord with the principles set out in Jordan and that the whole period between 12 March 2018 (the date on which both the court and Crown were ready to proceed) and 14 May 2018 (the next date on which the court and Crown were available) provides the correct amount to be removed from the total delay.

[23] I accept the Crown’s submission. In Jordan, at para. 63, the court identified the setting of dates and defence unavailability as being a source of defence delay. In doing so, it identified the parameters of that delay in the following manner:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [Emphasis added]

[24] In R. v. Mallozi, 2018 ONCA 312, the defence was not available for a preliminary inquiry on the original dates offered by the court resulting in a delay of 87 days to accommodate defence counsel’s schedule. At trial, the judge failed to allocate that period of time to delay caused by the defence and ultimately stayed the charges. On appeal by the Crown, the defence argued that this should not count as defence delay because they were available on dates earlier than those originally offered. The court disagreed. At para. 7, it noted that:

Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.

[25] For these reasons I find that the whole period between 12 March and 14 May - 63 days - constitutes delay wholly caused by the defence.

[26] I find the total amount of defence delay in this case amounts to 102 days or 3 months, 10 days. The net delay is therefore 1234 days or 40 months and 18 days.

The Extradition

[27] Both parties agree that after the applicant’s arrest, matters proceeded expeditiously and that there are no discrete events during this period of time.

[28] The central issue in dispute in this case is the period of time between the laying of the information and applicant’s return to Canada.

[29] Mr. Weisberg argues that during this period of time, approximately 22 months and 10 days, the Crown and police “did nothing” to bring the applicant to trial.

[30] He relies on a series of cases which resulted in stays for delay following prosecutorial inaction over extradition.

[31] In R. v. Macintosh, 2011 NSCA 111, 281 C.C.C. (3d) 291 aff’d, 2013 SCC 23, [2013] 2 S.C.R. 200, the accused was charged in 1995 with multiple charges of sexual assault that had allegedly occurred two decades earlier. At the time of the charges, the accused was working in India, having been transferred there by his employer the previous year. Although the RCMP knew the accused’s location from the outset, an extradition package was not readied until 2003 and the request was not made until 2006. The Court of Appeal for Nova Scotia quashed the convictions and stayed proceedings finding that the 14 year delay in bringing the accused to trial violated his s. 11(b) rights. The Supreme Court of Canada agreed.

[32] In R. v. Burke, 2017 ONSC 3261, 383 C.R.R. (2d) 189, the accused was charged with multiple counts of kidnapping and sexual assault and fled to the United States in 1986, in breach of his bail conditions. He changed his name to avoid detection but was arrested in California for serious charges including kidnapping and robbery. As a result, he was sentenced to a lengthy period of incarceration from 1988 to 2015. Until 2003, the accused could not be legally extradited by Canada. However, amendments to the extradition treaty between the two countries permitted his return to Canada to face trial, despite his imprisonment in an American institution. In 2015, the accused returned to Canada and was arrested. At trial, the judge found that the delay from 2003 fell at the feet of the Crown and breached the accused’s s. 11(b) rights. Accordingly, the charges were stayed.

[33] In R. v. Arsenault, 2013 ONSC 5675, 291 C.R.R. (2d) 145, the court stayed proceedings in which the accused was charged with attempted murder. The prosecution alleged that the accused had wired a spark plug from the victim’s car into his gas tank. In 2001, the Crown became aware that the accused was looking into the possibility of leaving the country to work abroad. He left Canada in November 2001 to reside in South Korea. In May 2002, after receiving forensic evidence implicating the accused, police laid charges. Thinking that the accused would return to Canada, the police decided not to extradite him. The accused was ultimately arrested in December 2009 on his return to Canada. The court found that his s. 11(b) rights had been breached.

[34] The authorities disclose a set of principles that must be adhered to in analysing the existence of a legitimate s. 11(b) violation. First, there is no obligation on an accused person who has left the jurisdiction to surrender themselves to the authorities or otherwise facilitate their return to Canada. Second, if the authorities are fully aware of an accused’s location outside Canada, it is incumbent upon them to act as expeditiously as possible to bring the accused to trial. Third, if an accused person deliberately flees the jurisdiction and makes attempts to conceal his whereabouts or otherwise frustrate the Crown’s ability to extradite him or her their actions are counted as defence delay in the s. 11(b) context. Fourth, where delay is caused by the need to extradite an accused, this may constitute a discrete event: Jordan, at paras. 72, 81.

The Disputed Period I - 16 September 2014 - 10 June 2015

[35] As noted, the entire period between 16 September 2014 (the laying of the information) and 26 July 2016 (the arrest of the applicant) is the subject of dispute. Two separate analyses apply. These analyses split the time period into two segments with the call to Det. Bacchus by Jamaican authorities acting as the severance point.

[36] The Crown argues that this period of time should be treated as a discrete event because the police did not know with any certainty where the applicant was located. Mr. Weisberg, on the other hand, claims that even if the police did not know the applicant’s whereabouts, the police were under an obligation to attempt to locate him.

[37] For the following reasons, I reject the defence submission.

[38] The critical difference between the case at bar and the authorities relied upon by Mr. Weisberg is that in those cases the police knew where each accused was and deliberately chose not to take any action to extradite him.

[39] In MacIntosh, the Canadian authorities knew of the accused’s location in India, and in Burke, they knew that the accused had been incarcerated in an American prison. It would have been very easy for the authorities in those cases to begin extradition proceedings and serve a request notice on the appropriate authorities, once they knew of the targets’ location. The court found that in MacIntosh, there was no attempt to even begin the extradition process until two years later. In Burke and Arsenault, there was no attempt at extradition. Moreover, in MacIntosh, even though the extradition package was complete in July 2003, the request was not forwarded until three years later.

[40] The applicant’s case is very different. As per his affidavit, Detective Backus knew that the applicant had travelled to Montego Bay but did not know if he was still in Jamaica or if he had travelled elsewhere. He had information that the applicant regularly returned to Canada. In short, the police did not know how or where to find the applicant.

[41] Although it may, in hindsight, have been preferable to continue inquiries to ascertain whether the applicant was in Jamaica, the failure to do so does not mean that the Crown cannot discharge its burden to justify a delay that exceeds the ceiling. The police have a limited budget and resources. Imposing an obligation that would require them to conduct international searches for an accused who has gone missing is both impractical and undesirable.

[42] I find support for this view in R. v. Singleton, 2014 BCCA 232, 310 C.C.C. (3d) 534, where the argument mounted by the defence bears strong similarities to that advanced by the applicant. There, the accused was charged with defrauding an estate of which he was the executor. He was charged in 1997 but was, by then, living in the US. Police had information connecting the accused to a city in Texas but were told that that the accused had moved. The officer in charge of the case turned his attention to another file, leaving the case untouched for four years. When that officer returned to the case, he was able to track down the accused through his daughter in 2004. The accused was extradited two years later and convicted at trial. He argued that the case should have been stayed because his s. 11(b) rights had been breached. The main plank of his delay argument was the four year period of inactivity where no effort had been made to locate him.

[43] The British Columbia Court of Appeal dismissed his appeal, acknowledging that trying to locate someone in a country as vast as the US was a monumental task. As Frankel J.A. pointed out, “[a]lthough the police could have located Mr. Singleton earlier had they known where to look, they did not know where to look until [the officer] spoke with Ms. Singleton. There is nothing in the evidence to suggest that Mr. Singleton could have been located before [the officer] learned of his possible connection to Peck, Kansas”.

[44] Significantly, Frankel J.A., at para. 101, discussed where the burden of proof lay when the question of whether police inquiries might have led to a speedier discovery:

I appreciate that in R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120 at 1132-1133, Mr. Justice Sopinka stated that although the ultimate or legal burden of proof is on the accused who raised s. 11(b) of the Charter, it is seldom necessary to evaluate the reasonableness of any delay on the basis of the burden of proof. As well, he indicated there will be circumstances where an evidentiary or secondary burden will be placed on the Crown, for example, to explain why the Crown requested an adjournment. However, in a case where an accused who was located in a foreign country pleads, in effect, "the police could have found me sooner", I consider it appropriate to place the burden of establishing that fact on the accused. The police should not be faulted for failing to pursue a possible avenue of inquiry unless it is shown that doing so would have provided useful information. [Emphasis added]

[45] The question is not whether the police “did nothing” but whether they acted with reasonable diligence: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 54; R. v. Thind, 2018 ONSC 1337, at para. 76. Here, the police did not know where the applicant was or even what country he was in.

[46] Nor do I accept the police did “nothing”. They quickly sought and obtained an arrest warrant that would permit the applicant’s detention if found by other authorities, and which ultimately led to the applicant’s discovery. Ironically, the pre-requisite for obtaining the warrant was the laying of charges which set the s. 11(b) clock ticking.

[47] Once they became aware of the applicant’s whereabouts, the PPSC immediately initiated the extradition process.

[48] In the circumstances of this case, with no exact knowledge of the applicant’s location, the police action was not unreasonable.

The Disputed Period II: 10 June 2015 - 26 July 2016

[49] The second segment of time that is criticised by Mr. Weisberg is the period subsequent to the Jamaican authorities’ contact with Detective Backus which occurred on 10 June 2015. Almost immediately thereafter, the Crown began the extradition process.

[50] Mr. Weisberg, argues that the extradition was not a discrete event and that, even if it were, the Crown has failed to establish that it acted with reasonable diligence in pursuing its goal. At most, says Mr. Weisberg, only four months should be deducted from the time that the applicant was out of the country.

[51] As noted, the court in Jordan, at paras. 72 and 81, explicitly referred to extradition as a matter which may constitute a discrete event. I find that to be the case here. As I have already made clear, the police could not identify, with any certainty, the location or whereabouts of the applicant prior to being contacted on 10 June 2015.

[52] In R. v. Barra, 2017 ONSC 6008, Labrosse J. accepted a 19 month delay in proceedings so that the accused could be extradited as a discrete event. However, he undertook an analysis in determining whether the Crown had acted speedily enough to return the accused to Canada. He concluded that four months of the process should be counted as part of the total delay as the Crown had not shown itself to be reasonably diligent in pursuing the application.

[53] In R. v. Lee, 2015 SKCA 53, 323 C.C.C. (3d) 313, the court took the same view, adding that even though the Crown must exercise reasonable diligence, it is not required to immediately initiate extradition proceedings.

[54] Like Labrosse J., I find the extradition process in this case constitutes a discrete event. Where I differ from my colleague, however, is the scrutiny applied to the process. I do not find that it is a proper application of Jordan to parse each and every period belonging to the extradition process to attribute periods of delay. Once extradition is found to be a discrete event, it should not be micro-managed to determine whether a “faster” extradition was possible.

[55] Extradition is a complex procedure involving international treaties and requirements. It is clear that the Crown began the attempt to extradite the applicant immediately after receiving his location and their efforts continued throughout a year-long period involving foreign jurisdictions, multiple investigative agencies and prosecuting authorities; and provide a basis in law for the extradition through affidavit and other evidence.

[56] Nor is it clear what period of time should be considered as a reasonably diligent extradition period. Extradition cases are distinct legal creatures involving different countries and different facts. It is noteworthy that in Barra, Labrosse J. found a period of 15 months to be reasonable in the delay context.

[57] I qualify these comments with the observation that there may be periods of time in extradition where a delay is apparent from the facts. For example, if the Crown had received approval for extradition but delayed the filing of the extradition request for an inordinate length of time, a finding of a lack of reasonable diligence would be justified.

[58] For these reasons, I find that the period between the laying of the information and the arrest of the applicant to be a discrete event.

[59] Once the period constituting a discrete event (22 months and 10 days), is deducted from the net delay of 40 months and 18 days, the remaining delay amounts to 18 months and 8 days, a total well within the 30 month limit set by Jordan.

[60] If the defence wish to argue, in any particular case, that the Crown could have taken less time in extraditing an accused, it is still open to them to do so. If, as in this case, the extradition proceeding qualifies as a discrete event and thereby reduces the total delay below the presumptive ceiling, the defence may still seek to demonstrate that even though it took steps to expedite the case, it still took markedly longer than it should have: Jordan, at para. 82. In these circumstances, however, the burden of doing so, however, falls upon them.

[61] In light of the foregoing, it is unnecessary to consider the Crown’s alternative arguments.

[62] For the above reasons, the application is dismissed.

S.A.Q. Akhtar J.

Released: 17 May 2018

COURT FILE NO.: CR-17-90000687-0000

DATE: 20180517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PATRICK PRINCE

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. v. Prince, 2018 ONSC 3033

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

The Allegations

Position of the Parties

Legal Principles

The Chronology

WAS THERE UNREASONABLE DELAY?

Defence Delay

The Extradition

The Disputed Period I - 16 September 2014 - 10 June 2015

The Disputed Period II: 10 June 2015 - 26 July 2016

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1