COURT FILE NO.: CR17-90000077-0000
DATE: 20211220
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
QING (QUENTIN) HUANG
Applicant
Howard Piafsky and Brendan Gluckman, for the Public Prosecution Service of Canada
Frank Addario and Samara Secter, for Qing Huang
HEARD: November 19, 2021
M. DAMBROT J.:
[1] This is an application to stay an eight-year-old prosecution for unreasonable delay pursuant to s. 11(b) of the Charter.
BACKGROUND
[2] The applicant, Qing Huang, stands charged in this court with one count of attempting to communicate to a foreign entity information that the Government of Canada was taking measures to safeguard, contrary to s. 16(1) of the Security of Information Act, R.S.C. 1985, c. O-5 (“SOIA”), and one count of preparing to communicate safeguarded information to a foreign entity, contrary to s. 22(1)(c) of SOIA. Both offences are alleged to have occurred on November 30, 2013. The charges are being prosecuted by counsel for the Public Prosecution Service of Canada (“PPSC”), whom I will refer to as Crown counsel, on behalf of the Director of Public Prosecutions. A three-week jury trial of this matter is scheduled to commence on January 4, 2022. The accused has elected to be tried by judge and jury.
THE HISTORY OF THIS PROSECUTION
The Origins of the Prosecution
[3] The charges stem from telephone calls made by the applicant to the Embassy of the People’s Republic of China (“PRC”) in Ottawa on November 25, 2013, that were intercepted by the Canadian Security Intelligence Service (“CSIS” or “the Service”) under the authority of a warrant (“warrant” or “CSIS warrant”). The warrant was issued by a judge of the Federal Court pursuant to the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (“CSIS Act”).
[4] On November 27, 2013, CSIS provided transcripts and recordings of the interceptions to the Royal Canadian Mounted Police (“RCMP”) in accordance with s. 19 of the CSIS Act. While s. 19(1) of the CSIS Act prohibits disclosure of information obtained by the Service in the performance of its duties and functions under the CSIS Act except in accordance with the section, s. 19(2)(a) permits disclosure for use in the investigation of an alleged contravention of any federal or provincial law to a peace officer with jurisdiction to investigate the alleged contravention.
[5] A subsequent RCMP investigation resulted in the applicant’s arrest and prosecution.
From Arrest to Preliminary Hearing
[6] On November 30, 2013, the applicant met with an RCMP officer holding himself out to be from the Embassy of the PRC (“the Embassy”) and allegedly expressed an intention to attempt to provide classified Canadian information to the PRC. He was arrested at the conclusion of the meeting and charged with having committed an offence contrary to s. 16(1) of SOIA and an offence contrary to s. 22(1)(c) of SOIA, each on November 25, 2013. Crown counsel added the present counts to the indictment in December 2016 and withdrew the original counts on September 9, 2020, a matter that I will elaborate on later in these reasons.
[7] On December 6, 2013, counsel for the accused wrote to Crown counsel and requested disclosure “of all of the information and evidence [the Crown] intended to rely on in support of the prosecution’s opposition to bail”, and in particular, as much of a list of eight items as was available before the bail hearing, including a copy of the CSIS letter transmitting information to the RCMP on November 27, 2013 and copies of the recording of the two telephone calls alleged to have been made by the applicant to the Embassy. He did not at that time request a copy of the CSIS warrant authorizing the interception of private communications at the Embassy, nor of the affidavit relied on in the application for the warrant.
[8] On December 20, 2013, a judicial interim release hearing was held. The applicant was released on a recognizance with conditions that included remaining in his residence at all times except in the presence of his surety, or for the purpose of attending court, meeting with his lawyer or emergency medical treatment (“the house arrest condition”); and wearing an ankle bracelet to allow for GPS monitoring. The conditions of release were eased over time. On June 6, 2014, with the consent of the Crown, the house arrest condition was varied to permit the accused to be out of his residence for purposes of employment. On February 12, 2015, with the consent of the Crown, the ankle bracelet monitoring condition was removed and a weekly reporting condition by telephone was added. On January 22, 2016, the house arrest condition was replaced by a curfew between the hours of 9:00 p.m. and 6 a.m. each day except if in the presence of his surety or for emergency medical treatment.
[9] I do not know what disclosure was made to the defence before the bail hearing, but correspondence and conversations about disclosure were on-going after the bail hearing, and disclosure continued. Neither party provided a timetable of that disclosure to me on this application, but it is clear that as of April 23, 2014, several waves of disclosure had been made and reviewed by the defence, and one final wave of disclosure was imminent. The record does not reveal any expression of dissatisfaction by counsel for the accused with the pace of disclosure.
[10] Early in the proceedings, and before any request for their production was made by the defence, the Crown turned its mind to disclosure of the CSIS warrant and supporting affidavit. Crown counsel were of the view that the CSIS materials were third party records that fell within the Crown’s disclosure obligations pursuant to R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. McNeil provides that when Crown counsel is on notice of the existence of relevant information in the possession or control of other Crown agencies or departments, Crown counsel has the duty to make reasonable inquiries and obtain the information if reasonably feasible to do so. If access is denied to Crown counsel, this must be disclosed to the defence so that the defence may pursue the matter as the defence sees fit. Crown counsel took steps to fulfil this obligation prior to any request for disclosure being made.
[11] On February 11, 2014, in furtherance of the duty I have outlined, Crown counsel wrote to CSIS requesting production of the CSIS warrant and supporting authorization, redacted as might be necessary, for the purpose of disclosure to the defence. CSIS also considered the records to be third party records but agreed that they were likely relevant to the case and commenced making efforts to comply with the request. Before the documents could be produced, they had to be redacted in order to protect information that CSIS considered to be privileged. This process involves multiple reviews and levels of approval. Once the Service agreed to Crown counsel’s request for disclosure, the task was assigned to an analyst who obtained the documents and began reviewing the affidavit for information that, if disclosed, would pose national security concerns.
[12] On May 6, 2014, in a letter to Crown counsel, counsel for the accused made an additional 19 distinct disclosure requests. One of these was the very broad request for “All authorizations to intercept communications obtained by CSIS including any affidavit(s) used in support of obtaining the authorizations and any source documents referred to in the affidavit(s).” It is reasonable to assume that this request was intended to be limited to CSIS warrants pursuant to which the private communications of the applicant to the Embassy were intercepted, and the affidavits in support of those warrants. In fact, there was but one such warrant and one affidavit. To be clear, the accused made his first request for production of the warrant and affidavit more than five months after his arrest. By this date, as a result of the initiative taken by Crown counsel, the process of redacting the CSIS warrant and affidavit was well underway.
[13] On June 4, 2014, counsel for the accused agreed to target dates for a preliminary hearing commencing in April 2015. In the interim, a continuing judicial pretrial was held with Boivin J. of the Ontario Court of Justice in an effort to streamline the preliminary hearing.
[14] Returning to the process of redacting and disclosing the CSIS warrant and affidavit, it is important to understand the complexity and sensitivity of this task. The CSIS warrant was issued by a judge of the Federal Court. It permitted the Service to investigate a threat posed by a foreign state, and, of relevance here, it authorized the Service to intercept the communications of that state’s Embassy in Ottawa. As required by s. 21(2) of the CSIS Act, the application to a judge of the Federal Court for the CSIS warrant was accompanied by an affidavit that set out, amongst other matters: (1) the facts relied on by the applicant to justify the belief, on reasonable grounds, that a warrant was required to enable the Service to investigate a threat to the security of Canada as defined in s. 2 of the CSIS Act; and (2) that other investigative measures had been tried and had failed or were unlikely to succeed. As a result, the CSIS affidavit necessarily described a broad range of threat-related activities believed to be occurring in Canada on an on-going basis, included the affiant’s grounds for belief that a threat to the security of Canada existed, the investigative steps that had been taken and the reasons that other steps had not been taken. It also listed the powers requested in the warrant.
[15] As is apparent from the foregoing, this CSIS affidavit, like all CSIS affidavits, contained highly classified information, as did the warrant itself. Before the documents could be produced, they had to be redacted in order to protect information that CSIS considered to be privileged, and, in particular, information that, if disclosed, could pose threats to national security. This process involved multiple reviews and levels of approval.
[16] The process began with a meticulous review of the documents by a core group of Service analysts, who are responsible for systematically reviewing every piece of information present in a document, often many times over, to ensure that the assessment of injury is accurate and consistent. This involves identifying, line by line, how the Service collected the particular piece of information, whether it would reveal a particular investigative interest or collection methodology, and whether disclosure of that interest or methodology would be injurious. This process also involves consultations with subject matter experts within the Service about information that is particularly complex or nuanced.
[17] The analysts who reviewed the affidavit also surveyed similar information that had otherwise been disclosed to the public, including through other judicial proceedings, to ensure that information under consideration had not already been released. They also considered the ability of a sophisticated nation such as the PRC to piece together seemingly innocuous pieces of information to form a picture that would be harmful to Canada’s interests.
[18] The proposed redactions were then reviewed and approved by one or more levels of management, depending on the complexity of the matter in question, in order to further minimize the risks associated with disclosure. As the redaction process proceeded, the rationales for the decisions made were challenged, reviewed and re-reviewed, and as was inevitable, changes were made. When a consensus was reached, the redacted documents were disclosed.
[19] On June 9, 2014, as the redaction process was nearing completion, counsel for the Attorney General of Canada (and not the PPSC) brought an application to the Federal Court on behalf of the Service to obtain a certified true copy of the affidavit so that the redactions could be applied, finalized and provided to the Crown for disclosure to the applicant, as well as an application to unseal a sensitive exhibit to the affidavit that the Service did not otherwise have access to so that it could be reviewed and in order that relevant determinations could be made.
[20] This application was heard by Noël J. on June 20, 2014. Noël J. raised certain legal and factual issues with respect to unsealing and disclosure and requested further submissions. As a result, the unsealing order was not made until October 14, 2014. Once it was made, the redactions were applied to it and the necessary approvals were sought and obtained. The warrant and affidavit were provided to the PPSC at the end of November 2014 and were disclosed to the applicant’s counsel on December 5, 2014.
[21] Regardless of the time taken to redact the affidavit and disclose the warrant and the affidavit to Crown counsel, the preliminary hearing proceeded on schedule. It commenced on April 27, 2015, before Bigelow J., and continued on April 28, 29 and 30 and May 1, 2015. The matter was adjourned to May 13, 2017, for argument. On May 15, 2017, Bigelow J. ordered the accused to stand trial on the two counts in the information in written reasons, and the matter was adjourned to May 27, 2015, for a first appearance in this court.
From Preliminary Hearing to the First Trial Date
[22] Soon after the applicant made his first appearance in the Superior Court, he filed an application for certiorari, seeking an order quashing the order to stand trial. At an appearance on July 17, 2015, the application was scheduled to be heard on November 17, 2015. On September 11, 2015, a judicial pre-trial was held, following which, a four-week trial was scheduled, commencing September 12, 2016. The Court and Crown were available in January 2016, but counsel for Mr. Huang was not available until September 2016.
[23] Mr. Huang’s application for certiorari was heard by Himel J. on November 15, 2015, and was dismissed on December 17, 2015.
[24] On January 22, 2016, the date fixed for Mr. Huang’s trial was pushed back to November 14, 2016, at his request.
[25] On October 18, 2016, less than one month prior to the scheduled commencement of the trial, the applicant discharged his counsel and retained Mr. Addario. Both his former counsel and Mr. Addario are experienced senior counsel.
[26] On November 9, 2016, an application by the accused to adjourn his trial was granted, and on November 30, 2016, a new trial date of June 5, 2017, was set.
The Bringing of a Section 38 Application
[27] On January 24, 2017, more than two years after copies of the redacted warrant and affidavit had been disclosed to the accused, his new counsel wrote to Crown counsel asking him, for the first time, to provide the reasons for the redactions. Crown counsel replied that the redactions were “virtually all s. 38 redactions based on national security concerns”. By this he meant that the redactions were made because the information was either potentially injurious information or sensitive information as defined by s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”). Section 38 defines potentially injurious information as “information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security”, and sensitive information as “information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.”
[28] On January 25, 2017, this matter came before McMahon J. in Assignment Court. At the time, Justice McMahon was the team leader of the Toronto Criminal Team in this Court and oversaw the scheduling of long trials. This matter had been before him several times before this date. At this hearing, McMahon J. confirmed the trial date of June 5, 2017. Counsel then advised him that five days had been set aside in March 2017 for the hearing of an application to challenge the constitutionality of s. 22 of SOIA, and, in addition, that the accused was contemplating a Garofoli application[^1], challenging the admissibility of the wiretap evidence. McMahon J. replied, “This has gone in another direction since I last – I don’t remember anything to do with a Garofoli ever.” Counsel for the accused advised him that there was no certainty about the bringing of a Garofoli application but he asked that four days be set aside in May 2017 for one as a precaution.
[29] On February 13, 2017, counsel for the accused advised Crown counsel that he was “trying to develop [his] thinking about a potential Garofoli application and a disclosure motion preceding it.”
[30] On February 26, 2017, counsel for the accused gave notice to the Crown pursuant to s. 38.01(1) of the CEA of his intention to file an attached Notice of Application pursuant to s. 38.04(2)(c) of the CEA in Federal Court the following day. The application was for a determination that disclosure of the unredacted affidavit and warrant would not be injurious to international relations, national defence or national security. In the notice of application, the accused made clear that the purpose of disclosure was to permit him to investigate and challenge the lawfulness of the interception of his private communications that form the basis for his criminal charges, the admissibility of the intercepted communications and other evidence derivative of them.
[31] The commencement of this application marked the beginning of a dramatic change in defence strategy, and as a result, a dramatic change in the trajectory of this case. From November 30, 2013, until February 26, 2017, a period of three years and three months, counsel for the accused had chosen not to challenge the admissibility of the intercepted communications or the evidence derived from them as part of his defence. Crown counsel understood, and was entirely justified in this understanding, that there was no possibility of disclosure of the information redacted from the warrant and affidavit.
[32] I note that an application made pursuant to s. 38.04(2)(c) of the CEA has to be made in the Federal Court because only Federal Court judges, and not provincial Superior Court judges, have the authority to order disclosure of material over which the government claims a s. 38 privilege.
The Conduct of the Section 38 Application
[33] The s. 38.04(2)(c) application was not commenced strictly according to the rules, but it is clear that Crown counsel had given notice of the accused’s application to counsel for the Attorney General of Canada on February 27, 2017. Section 38.03(3) requires the Attorney General, within 10 days after first receiving notice under s. 38.01(1), to notify any person who provides such notice of his or her decision with respect to disclosure of the information. The accused says, in his factum, that the Attorney General did not do so until early April. There is evidence in the record that the Attorney General had not given notice as of March 16, 2017. There is no evidence of the date when notice was in fact given. I will assume that notice was given on April 1, 2017.
[34] Various procedural steps took place prior to the hearing of the s. 38.04(2)(c) application. On March 16, 2017, a case management conference was conducted by Noël J. to address “how best to move the potential CEA application in order to avoid creating undue delay in the underlying criminal proceedings.” In his order, Noël J. expressed concern about the lack of response of the Attorney General, and fixed deadlines of March 22, 2017, and April 3, 2017, for the filing of material on the application by the accused and the Attorney General respectively. He also appointed amicus curiae to assist the Court in performing its obligations under s. 38.
[35] On March 22, 2017, counsel for the accused asked the Attorney General to obtain from CSIS and disclose to the accused the answers to a series of questions about the interceptions made at the Embassy (the “disclosure request”). Later the same day, counsel for the accused filed a Supplementary Notice of Application in the Federal Court for an order requiring this disclosure.
[36] By April 2017, Mosley J. had assumed carriage of this matter. I will refer to him as the Designated Judge. In a case management teleconference on April 5, 2017, the Designated Judge advised counsel for the applicant that he considered the Supplementary Notice of Application to be premature as there was no court order requiring the production of the requested information for the purposes of the underlying criminal prosecution and no notice had been provided to the Attorney General in respect of that information to initiate proceedings under s. 38 of the CEA. As a result, the applicant brought an application in this court for the information requested in the Supplementary Notice of Application.
[37] On April 11, 2017, the Designated Judge made a number of orders establishing the procedure to be followed in the s. 38.04(2)(c) proceeding. Among his orders was a direction that the Supplementary Notice of Application was to be received by the Court but not filed in the Designated Registry pending further direction of the Court.
[38] The terms of the appointment of amicus were finalized on April 12, 2017, and he was provided with the affidavit on April 24, 2017.
[39] The application was heard by the Designated Judge on May 2, 3, 16 and June 22, 2017, in part in public and in part in private, and the Designated Judge reserved judgment on June 23, 2017. Although neither the accused nor Crown counsel were participants in much of the proceeding, they both did what they could to stress the urgency of the matter and its timely completion. The hearing and determination of the application was completed in little more than four months.
[40] There can be no doubt that the Designated Judge was alert to the fair trial rights of the accused in his criminal trial, including his right to make full answer and defence and his right to be tried in a reasonable time. For example, in an order dated May 5, 2017, concerning the confidentiality of the materials filed in connection with the s. 38 application, the Designated Judge stated, “This Court is also mindful of the fact that these proceedings must be expeditious so as to protect the Applicant’s right to a fair trial including his ability to make full answer and defence in a timely manner: R v Jordan, 2016 SCC 27, [2016] SCJ No 27.”
[41] On July 7, 2017, the Designated Judge gave judgment, in both public reasons (Huang v. Canada, 2017 FC 662) and private reasons. In his public reasons, Mosley J. recognized that Mr. Huang sought the redacted information to assess whether he should challenge the admissibility of the intercept evidence in a Garofoli application, and that the redacted information was at least presumptively relevant for that purpose, in the sense that, whether inculpatory or exculpatory, it may reasonably be useful to the defence. But in the end, he concluded that much of the information in issue was either not in fact relevant or the risk of injury had been established by the Attorney General and the public interest in non-disclosure outweighed that of disclosure. In some instances, however, he concluded that the risk of injury from the disclosure of relevant information had not been established. As a result, the Designated Judge confirmed the prohibition on disclosure in relation to the first category of information and ordered the disclosure of the latter category of information.
[42] In his private reasons, the Designated Judge accepted most of the Attorney General’s claims for the protection of the redacted information as reasonable. However, in his view, some of the claims overreached. For that reason, he ordered disclosure of some of the information from the affidavit. He also ordered disclosure of some information in the form of summaries.
Meanwhile, in the Superior Court
[43] The proceeding in the Federal Court did not bring a halt to the progress of this case in the Superior Court.
[44] On March 30, 2017, B. O’Marra J. heard an application brought by the accused challenging the constitutional validity of s. 22(1)(c) of SOIA on the ground that it violated s. 7 of the Charter and reserved judgment. He also remanded the matter to May 9, 2017, for a Garofoli application.
[45] On April 6, 2017, counsel for the accused advised Crown counsel of his March 22, 2017, disclosure request, acknowledged that Crown counsel was not in possession of the information requested, and asked them to obtain the information and provide it to the accused. On May 2, 2017, Crown counsel agreed that some of the information sought was relevant and advised that he would inquire of CSIS whether or not it intended to assert s. 38 privilege over it.
[46] On May 8, 2017, McMahon J. vacated the May 9, 2017, date for the Garofoli application because the s. 38 application had not yet been decided, but did not vacate the June 5, 2017, trial date in order to be able to respond to developments in the Federal Court. He also set May 23, 2017, as a date for a pre-trial hearing. On May 23, 2017, the pre-trial hearing was rescheduled to May 30, 2017.
[47] On May 30, 2017, McMahon J. vacated the trial date and adjourned the matter to June 15, 2017, to set new dates for the Garofoli application and the trial.
[48] On June 2, 2017, B. O’Marra J. released his decision dismissing the challenge to s. 22(1)(c) of SOIA (2017 ONSC 2589, 383 C.R.R. (2d) 242).
[49] On June 8, 2017, in a letter to Crown counsel, counsel for the accused confirmed that Crown counsel had consented to the making of a disclosure order in relation to the information in the March 22, 2017, disclosure request that the Crown conceded was either relevant or not clearly irrelevant and provided a draft order for approval (the “disclosure agreement”). The expectation was that CSIS would assert s. 38 privilege over this information, and that the accused would then ask that the Supplementary Notice of Application be heard in the ongoing proceedings before Mosley J.
[50] On June 14, 2017, Crown counsel withdrew from the disclosure agreement and asked counsel for the accused to instead bring a third-party records application in this court. The parties disagreed on whether the information in question was Stinchcombe disclosure or third-party disclosure, the third party being CSIS. As a result, I will refer to this application simply as the disclosure application.
[51] On June 15, 2017, McMahon J. fixed April 16, 2018, as the date for the Garofoli application in the hope that the Federal Court proceedings would be completed by then, subject to variation if it was not, and June 4, 2018, as the trial date. In addition, he set August 31, 2017, as a date for the disclosure application.
The Section 38 appeal
[52] On July 17, 2017, the Attorney General commenced an appeal from the Designated Judge’s July 7 decision to the Federal Court of Appeal. In the appeal, the Attorney General argued that the Designated Judge erred in making his disclosure order.
[53] On September 6, 2017, amicus curiae was appointed for the appeal.
[54] On September 20, 2017, the accused filed a cross-appeal. In the cross-appeal, the accused argued that the Designated Judge erred by refusing to order disclosure of some of the redacted information.
[55] On November 13, 2017, counsel for the accused brought a motion in the Federal Court of Appeal for an order appointing a case management judge to ensure that the appeal would proceed in an expeditious manner and to enable him to preserve his trial date in this court and exercise his right to a speedy trial. On December 18, 2017, the Court appointed a case management judge.
[56] The appeal was heard on March 6, 2018, and the Court reserved judgment.
[57] The judgment of the Federal Court of Appeal was released on June 1, 2018, in private and public reasons (2018 FCA 109, 362 C.C.C. (3d) 87). The Court allowed the Attorney General’s appeal in part and returned that part of the disclosure decision to the Designated Judge for reconsideration in accordance with its private reasons. The accused’s cross-appeal was dismissed.
Meanwhile, in the Superior Court
[58] On July 26, 2017, counsel for the accused wrote to Crown counsel asking them to do whatever they could to expedite the disclosure process.
[59] On August 23, 2017, the disclosure application was adjourned to December 15, 2017, at the request of the Crown, for reasons that are privileged.
[60] On November 2, 2017, the timing of the disclosure application was addressed before McMahon J. The December 15, 2017, hearing date was confirmed, and November 30, 2017, was set aside as a date for a preliminary application by the Crown for an order that the disclosure application be held in camera, but with the participation of the accused and his counsel, and that the court files in relation to those proceedings be permanently sealed. I granted the preliminary order requested by the Crown from the bench and released my reasons for doing so on March 16, 2018 (see 2018 ONSC 888).
[61] The disclosure application was heard by me on December 14 and 15, 2017. I released my decision on March 16, 2018, in private and public reasons (2018 ONSC 831). In my decision, I concluded that the information sought from CSIS was third party disclosure, not first party disclosure, and that as a result, the application had to be determined in accordance with R. v. O’Connor, [1995] 4 S.C.R. 41, and not R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. I then determined that on the first stage of analysis mandated by O’Connor, much of what was sought by the accused was not logically probative of a material issue in this case, but that the answers to three focussed questions were logically probative of an issue in the case and met the test of likely relevance. I indicated that if a second stage examination of the records to determine whether, and to what extent, the information should be produced was necessary, it might be arranged, failing which, my decision could be treated as an order for production. No second stage examination was ever sought.
[62] On May 18, 2018, in light of the fact that the Federal Court of Appeal had not yet released its decision, McMahon J. vacated the June trial dates.
The Application for Leave to Appeal to the Supreme Court of Canada
[63] As I have noted, the Federal Court of Appeal released its decision on June 1, 2018. Section 38.1(a) of the CEA provides that an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances.
[64] Despite:
• the limitation on the time within which there is an unfettered right to seek leave to appeal,
• the reminder of counsel for the accused to counsel for the Attorney General on June 8, 2018, that the trial had been adjourned twice because of s. 38 issues and that the accused was not content with the pace of the litigation,
• a follow-up note on June 15, 2018, indicating that it would appear that the Attorney General was not appealing and stressing that it was imperative that the reconsideration hearing before the Designated Judge proceed at the earliest opportunity,
• a further and similar follow-up note on July 13, 2018,
the Attorney General took approximately 12 weeks to decide that she would seek leave to appeal to the Supreme Court of Canada in respect of issues that were not part of the public record. A decision to seek leave to appeal was communicated to counsel on August 22, 2018, and an Application for Leave to Appeal was filed with the Court on August 29, 2018. No explanation for this delay was provided to the accused or to me.
[65] The application for leave to appeal was dismissed on March 14, 2019.
The Return to the Designated Judge and the Aftermath
[66] In addition to the reconsideration of the decision of the Designated Judge directed by the Federal Court of Appeal, the Attorney General launched a second application in the Federal Court to prohibit disclosure to the accused of some of the information previously ordered disclosed on April 1, 2019 (the “new application”), and a motion to vary the disclosure ordered in the original decision because of matters that had arisen on March 29, 2019.
[67] On April 4, 2019, counsel for the Attorney General met with amicus curiae to discuss ways to expedite the hearing of the application. In a letter to the Federal Court dated April 11, 2019, counsel for the Attorney General set out the details of the meeting and the joint steps that were being proposed to expedite the proceeding. The Designated Judge convened a case management conference with counsel for the Attorney General and amicus curiae on April 24, 2019, and gave oral directions on April 25, 2019.
[68] The Designated Judge heard the three applications together on May 3, 27 and 29, 2019, and reserved judgment.
[69] On August 30, 2019, in private and public reasons (2019 FC 1122), the Designated Judge granted the reconsideration application in part and the new application in part but dismissed the motion to vary.
[70] On September 10, 2019, the Attorney General filed a Notice of Appeal to the Federal Court of Appeal. CSIS then re-edited the affidavit, lifting the redactions that were not the subject of the new appeal and provided it to Crown counsel. Crown counsel disclosed the affidavit to counsel for the accused on October 11, 2019.
[71] On November 14, 2019, for the first and only time to date, the Attorney General exercised the power under s. 38.13 of the CEA to personally issue a certificate prohibiting the disclosure of six paragraphs of the affidavit. On December 2, 2019, the Attorney General discontinued its appeal to the Federal Court of Appeal.
Back to the Superior Court
[72] Section 38.14 of the CEA “expressly indicates that the fair trial rights of the accused must be protected - not sacrificed - in applying the other provisions of the scheme” ( R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at para. 32). It permits a judge presiding at a criminal proceeding to make any order that the judge considers appropriate to protect the right of the accused to a fair trial where information, the disclosure of which would be injurious to international relations or national defence or national security, has been withheld from that accused. One such order that may be made is an order effecting a stay of proceedings. The Attorney General’s certificate precipitated an application by the accused for a stay of proceedings under s. 38.14. His application was filed on December 9, 2019.
[73] On December 16, 2019, a further pre-trial conference before McMahon J. was fixed for December 19, 2019, and a three-day hearing of the s. 38.14 application was fixed for March 30, 2020.
[74] On December 19, 2019, the March 30, 2020, date for the s. 38.14 application was confirmed and June 10, 2020, was fixed as a date for a five-day hearing of the Garofoli application. The June 10 date was later pushed back to June 17, 2020.
[75] On March 15, 2020, the Chief Justice of the Superior Court, issued an order adjourning all criminal matters scheduled for any type of appearance between March 17, 2020 and June 2, 2020, to June 2, 2020, unless otherwise ordered, due to the urgent public health crisis caused by COVID-19. This, of course, covered the date for the s. 38.14 hearing.
[76] On May 5, 2020, the Chief Justice extended his order, further adjourning criminal matters scheduled to commence after March 17, 2020, that had been adjourned to June 2, 2020, to July 6, 2020. As a result, the Crown and defence “agreed” to vacate the dates fixed for the s. 38.14 and Garofoli applications.
[77] In an email dated July 15, 2020, Crown counsel advised counsel for the accused that they were working on a plan to streamline the proceedings but were not yet in a position to share it. At an appearance the following day, the matter was adjourned to August 12, 2020, at the request of the Crown and defence.
The Return to Court on a Modified Basis
[78] The Court resumed sitting on a modified basis on August 12, 2020. At the accused’s appearance on that date, Crown counsel advised the Court that it was staying two counts in the indictment. The Court adjourned the matter to September 9, 2020, for that purpose.
[79] On September 9, 2020, the Crown stayed the two counts in the indictment related to the calls made by the accused to the Embassy on November 25, 2013. The Crown provided the following reasons for its decision:
Although the Crown is not required to explain its reason for instituting a stay, I can indicate that the concern is with the effect on the overall prosecution of the additional time required to deal with issues particular to these counts. And given the procedural steps and time that would be required to bring them to trial, the Crown has decided to institute a stay of proceedings with respect to them. The Crown is ready to proceed with the other two counts on the indictment and would like to set dates for trial as soon as possible.
[80] Counsel for the accused immediately made it clear to the Court that this development did not affect the accused’s intention to proceed with both the s. 38.14 application and the Garofoli application. The parties had not been able to contact the trial office and obtain available dates for the applications, and the matter was adjourned for that purpose.
[81] On September 30, 2020, McMahon J. fixed dates of December 17, 2020, and January 18, 2021, for the hearing of applications in this matter. It is not clear from the transcript exactly how McMahon J. contemplated that the motion time would be allocated, but what is clear is that the applications that he referred to were the s. 38.14 application, an application by the Crown to summarily dismiss the s. 38.14 application, and an application under s. 486 of the Criminal Code to seal some of the material filed on the summary dismissal application. The matters could have proceeded in October 2020, but counsel for the accused was not available. The motions were adjourned to December 17, 2020, and January 18, 2021.
[82] On December 17, 2020, I heard the Crown’s s. 486 application. The Crown requested an order that the CSIS affidavit and warrant that were filed by the accused on the Crown’s application to summarily dismiss the s. 38.14 application remain sealed from the public, and that if there were any need for reference to them in the Crown’s application for summary dismissal, the court would hear about it in camera. This application was, out of necessity, heard in person at the height of the pandemic, and was vigorously opposed by the Globe and Mail. After hearing argument, I reserved my decision and adjourned the summary dismissal argument to January 18, 2021.
[83] On January 11, 2021, I granted the s. 486 application with certain alterations, in written reasons (2021 ONSC 221).
[84] On January 18, 2021, I heard the Crown’s application to summarily dismiss the accused’s application to stay the proceedings pursuant to s. 38.14 of the CEA. At the conclusion of the argument, I dismissed the application from the bench for brief reasons delivered orally and adjourned the matter to February 18, 2021.
[85] On February 18, 2021, I heard the s. 38.14 application remotely. At the end of the hearing, I reserved judgment.
[86] On April 14, 2021, I released my decision on the stay application in written reasons (2021 ONSC 2654). I concluded that the non-disclosure of relevant evidence in the affidavit would adversely affect trial fairness for the applicant, but I ordered a remedy short of a stay of proceedings that I was satisfied would assure the accused of a fair trial. Specifically, I made the following order:
It is declared, solely for the purpose of this prosecution, that as a result of non-disclosure of information redacted from the affidavit sworn in support of the CSIS warrant as a result of the prohibition in the Attorney General’s certificate made pursuant to s 38.13 of the CEA, the issuance of the warrant and interception of Mr. Huang’s private communications pursuant to the warrant will be viewed by the Court as having violated s. 8 of the Charter; and
It is further declared, solely for the purpose of this prosecution, that in considering the admissibility of evidence obtained in a manner that violated s. 8 of the Charter, the Court will assume that the affidavit sworn in support of the CSIS warrant contained information that the affiant knew or ought to have known was false, inaccurate, or misleading, and that if that information had been excised, the authorization could not have issued.
[87] As a result of the decision of the Crown not to tender the intercepted communications of the accused in evidence at his trial together with my determination that the issuance of the warrant and interception of Mr. Huang’s private communications pursuant to the warrant would be viewed by the Court as having violated s. 8 of the Charter, the accused’s Garofoli application became simply an application to exclude other evidence that was obtained as a result of the interceptions pursuant to s. 24(2) of the Charter.
[88] On April 29, 2021, I fixed June 8 and 9, 2021, as the dates for the s. 24(2) hearing before me. The Court and defence were available from May 24 onward, but June 8 and 9 were the first dates that the Crown was available.
[89] On July 29, 2021, I dismissed the Applicant’s s. 24(2) application. The matter was adjourned to August 18, 2021, in assignment court to set a date for trial.
[90] On August 18, 2021, the Court fixed a date for the commencement of a three-week jury trial. The Court was available on November 15, 2021. Counsel for the accused were available for three weeks from November 22 to December 10, 2021. Crown counsel was available on December 13, 2021. The Court was unwilling to schedule a three-week jury trial that would commence in mid-December. Instead, the matter was set for three weeks, starting January 4, 2022, and concluding by January 21, 2022. The Court also set this motion to be heard on November 19, 2021, which it was. I reserved judgment.
ANALYSIS
[91] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. The proper application of these few words has been fraught with controversy. The Supreme Court of Canada first developed a framework for applying s. 11(b) in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Court concluded that the Morin formula had given rise to both doctrinal and practical problems and established a new framework.
[92] At the heart of the Jordan framework lies a ceiling beyond which, delay is presumptively unreasonable. For trials in this court, the presumptive ceiling is 30 months.
[93] Gillese J.A. provided the following helpful summary of the new framework in R. v. Coulter, 2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 34-41:
34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
37 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 (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
38 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 (Jordan, para. 75).
39 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 (Jordan, at para. 80).
40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96). [Emphasis in original.]
[94] I will proceed in conformity with this framework.
Total Delay
[95] In this case, the delay from the charge to the anticipated end of the trial is 8 years, 1 month, 3 weeks and 2 days.
Defence Delay
[96] Counsel for the accused concedes that there are two “incidents” of defence delay, amounting to 17.25 months. They make this calculation on the following basis:
On September 11, 2015, the initial date for trial was scheduled. The Court and Crown counsel were available to commence the trial in January 2016, but counsel for the accused was not. As a result, the trial was set to proceed on September 12, 2016. Then on January 22, 2016, the date was pushed back to November 14, 2016, at the request of the defence. These events occasioned approximately 10 months and two weeks of defence delay.
On October 18, 2016, less than one month prior to the scheduled commencement of the trial, the applicant discharged his counsel and retained new counsel. As a result, the accused brought an application to adjourn the trial. On November 9, 2016, the application was granted, and on November 30, 2016, a new trial date of June 5, 2017, was set. These events occasioned an additional 6 months, 3 weeks and 2 days of defence delay.
[97] I accept these concessions, but I do not think that they exhaust what must be seen as defence delay. The delay in this case was not simply comprised of the months lost as a result of periods during which the original counsel for the accused was unavailable and the months lost when the accused later changed counsel and, as a result, secured a further delay of his trial. The more fundamental delay was caused by the change in defence strategy that followed the change of counsel. The change in strategy more than 3 years after charges were laid did not simply mean that the trial had to be delayed to accommodate new counsel’s schedule and give him time to prepare for trial. It meant that more than a two-year opportunity to pursue the new strategy had been lost and had to be recovered. To explain why I say this, I will return to the beginning.
[98] On November 30, 2013, the accused was arrested and charged.
[99] On May 6, 2014, in a letter to Crown counsel, counsel for the accused requested the production of all authorizations to intercept communications obtained by CSIS and supporting affidavits.
[100] On December 5, 2014, the redacted warrant and affidavit were disclosed to the accused’s counsel.
[101] As a result, as of December 5, 2014, the accused was in a position to bring an application pursuant to s. 38.04(2)(c) of the CEA for a determination that disclosure of the unredacted affidavit and warrant would not be injurious to international relations, national defence or national security, to enable him to challenge the lawfulness of the interceptions of his private communications that form the basis for his criminal charges and the admissibility of the intercepted communications and other evidence derivative of them. Counsel for the accused made a conscious decision to neither bring such an application nor to explore a challenge to the lawfulness of the interception of the accused’s private communications.
[102] It is important to note that had the accused brought a s. 38.04(2)(c) application on or about December 5, 2014, or even on January 5, 2015, allowing for a one-month opportunity to prepare the application before commencing it, it would not have impeded the holding of the preliminary hearing or the accused’s application to quash the committal for trial. The s. 38.04(2)(c) application and the criminal proceeding would have been on two separate tracks. One would not have held up the other. A pending s. 38.04(2)(c) application would not have provided grounds for an application by the defence to delay the preliminary hearing. The purpose of the application was to acquire an evidentiary basis for a Garofoli application aimed at the exclusion of evidence at trial, not an evidentiary basis to challenge the outcome of a preliminary hearing.
[103] It was not until February 26, 2017, that new counsel for the accused gave notice to the Crown of his intention to file an application pursuant to s. 38.04(2)(c) of the CEA. As I have noted, the commencement of this application marked the beginning of a dramatic change in defence strategy, and as a result a dramatic change in the trajectory of this case. More specifically, the trajectory of this case was set back 2 years, 1 month and 3 weeks, again allowing for the accused to take one month to launch a hypothetical s. 38.04(2)(c) application. It is impossible to know whether or not the trial could have commenced on June 5, 2017, if the s. 38.04(2)(c) had been brought on or shortly after December 5, 2014, with different counsel, different circumstances and even a different Attorney General. It would amount to nothing more than speculation. But what is certain is that the delay in bringing the s. 38.04(2)(c) application made the June 5, 2017, trial date an impossibility.
[104] The question I must address is, is this legitimate or illegitimate defence delay for purposes of Jordan analysis? The decision of the Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, is instructive on this issue. The Court said the following at paras. 31-35:
31 The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.
32 Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
33 As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently” (Jordan, at para. 138).
34 This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time - and the need to balance both - in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.
35 We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. 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.
[105] For another application of this reasoning, albeit in quite different circumstances, see R. v. Lai, 2021 SCC 52.
[106] Simply put, counsel for the accused acted entirely legitimately in pursuing the accused’s right to challenge the redactions in the warrant and affidavit and to pursue a Garofoli application. However, what was illegitimate was to omit to pursue this avenue for several years. I do not say that the original counsel acted illegitimately in deciding not to pursue this course, nor do I say that the new counsel acted illegitimately in deciding to pursue it. I cast no aspersions on the ethics or professionalism of either counsel. I simply say that the accused cannot have it both ways. By first declining to pursue this course of action and then, years later, deciding to pursue it, counsel for the accused are collectively responsible for illegitimate defence conduct. As stated in Cody, at para. 36, all participants in the criminal justice system share the responsibility to take a proactive approach that prevents unnecessary delay. Such an approach was not taken here.
[107] As a result, as I have said, I will consider the delay of 2 years, 1 month and 3 weeks in bringing the s. 38.04(2)(c) application as defence delay and add it to the delay conceded by the accused.
[108] I recognize that it is possible that had the s. 38.04(2)(c) application been brought in a timely way, it might still have been necessary to delay the June 5, 2017, trial date. If so, it might be concluded that I am double counting the delay. But again, that is speculation. The defence caused each of these three delays and cannot avoid the consequence of them by speculating about what might have been.
[109] As a result, I calculate the total defence delay in this case as 3 years, 7 months and 2 days.
Net Delay
[110] Subtracting the defence delay from the total delay, I calculate the net delay as 4 years and 6 months. That delay exceeds the 30-month presumptive ceiling and 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.
Exceptional Circumstances
[111] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. I will consider each category in turn.
Discrete Events
[112] In Jordan, the Court did not attempt to define a discrete event, beyond noting that a discrete event must be exceptional. They did provide a few illustrations, including medical or family emergencies on the part of the accused, important witnesses, counsel or the trial judge, unforeseen or unavoidable developments that arise at trial, and cases with an international dimension.
[113] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. However, the Court noted in Jordan, at para. 75, that the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. As a result, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted.
[114] In this case, Crown counsel raised two potential discrete events: (1) litigation of national security privilege; and (2) the impact of the pandemic. I will consider each in turn.
Litigation of National Security Privilege
[115] In Jordan, at para. 71, the Supreme Court acknowledged that it is impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. The list is not closed. The determination of whether circumstances are “exceptional”, including whether a discrete event is exceptional, will depend on the good sense and experience of trial judges. The appellate courts have been called upon to review some such determinations by trial judges. I will refer to two examples.
[116] In R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at paras. 34-35, the Court affirmed the determination of the trial judge that the time taken to extradite the accused to Canada constitutes a discrete event, as contemplated at para. 72 of Jordan. The Court explained that the extradition process is a necessary one that can take time to complete, but it must be finalized before the accused can be tried. The Court noted that while some of the extradition process is in the hands of Canadian authorities, a significant portion of it is in the hands of foreign jurisdictions, where control over timing is difficult. The Court further noted that the complexity of the extradition process should not be underestimated, involving as it does the need to meet international obligations, which can fluctuate depending upon the state from which the extradition is sought.
[117] However, the Court went on to say, at para. 36, the trial judge did not err in removing four months from the discrete event because the Canadian authorities did not appear to be diligently pursuing the extraditions during that period of time. The Court cautioned, however, that micromanaging extraditions from an after-the-fact perspective may risk missing the nuances involved in those complex international affairs.
[118] In R. v. Tsega, 2019 ONCA 111, 144 O.R. (3d) 561, at paras. 75-82, the Court held that where the Crown has brought a certiorari application and/or appealed from a decision granting or refusing certiorari resulting in net delay that exceeds the Jordan ceiling, it is open to the Crown to argue that such delay constitutes a discrete event. The Crown has an obligation to take such steps as required to fulfill his or her duties in the prosecution of a case, the same way defence counsel must take all reasonable steps to make full answer and defence on behalf of his or her client. Where the Crown has a reasonable basis for seeking such remedies, it should not be automatically forced to abandon its obligations for fear of a s. 11(b) application.
[119] In determining whether delay caused by a Crown application should be excluded from the delay calculation, the reviewing judge must recognize the Crown's discretion to take such steps and limit the analysis to a consideration of whether the Crown’s actions were frivolous, in the sense that they had no arguable basis, were undertaken in bad faith, or were executed in a dilatory manner.
[120] With regard to a defence application, the Court stated, at para. 83, that where it is frivolous or made in bad faith, it will generally constitute defence delay. But where it is brought in good faith, it constitutes a discrete exceptional event because it is outside of the control of the Crown, unless in opposing such an application or an appeal from such an application the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner.
[121] In my view, the time required to hear and resolve a s. 38.04(2)(c) application shares similarities with both extradition proceedings and applications for and appeals from extraordinary remedies. The conclusion that it amounts to a discrete exceptional event is irresistible, for the following reasons.
[122] It cannot be denied that it is most exceptional for a person accused of a crime to bring an application for an order with respect to disclosure of information that has been withheld from them on the basis that the information was “of a type that, if it were disclosed to the public, could injure international relations or national defence or national security”, or related “to international relations or national defence or national security” and “is of a type that the Government of Canada is taking measures to safeguard”. While, superficially, a s. 38 application is similar to an ordinary disclosure application in a criminal case, the reality is far different.
[123] On a disclosure application, the issues are generally straightforward, usually involving simple questions of relevance and reasonable usefulness to the accused, occasionally involving commonplace issues of privilege, such as informer privilege. Even third-party records applications and applications for production of personal information records to an accused charged with a sexual offence pursuant to ss. 278.1 to 278.9 of the Criminal Code are not terribly prolonged or burdensome. None of these applications implicate delicate considerations of international relations and national security, which are nuanced, complex, and require high level government input and detailed and careful analysis, and that necessarily give rise to appellate rights.
[124] Like extradition, an application under s. 38.04(2)(c) has both national and international dimensions, concerns national and international matters of the highest importance, is complex and necessarily takes time to complete. While, unlike extradition, it is not directly in the hands of a foreign jurisdiction, it implicates important obligations to foreign jurisdictions. And while no foreign actors are involved in the process, the progress of the application is out of the hands of Crown counsel.
[125] And like a certiorari application brought by an accused, or an appeal taken by the Crown from a decision granting or refusing certiorari, each step of a s. 38 matter, if taken responsibly, is a reasonable one that either defence counsel must take to make full answer and defence on behalf of his or her client, or that the Attorney General must take in order to fulfill his or her duties. This includes: bringing an arguable application under s. 38.04(2)(c), bringing an arguable application under s. 38.04(1), and bringing an arguable appeal from a decision made on any such application.
[126] As a result, I conclude that the various s. 38 proceedings taken in this case collectively constitute discrete exceptional events, subject to a consideration of whether any of the Crown’s actions were frivolous, in the sense that they had no arguable basis, were undertaken in bad faith, or were executed in a dilatory manner. In undertaking that consideration, I remind myself of the caution in Barra that micromanaging from an after-the-fact perspective may risk missing the nuances involved in complex affairs.
[127] Despite all that I have said, I note that counsel for the accused have made an argument that in considering the time taken for litigation of national security privilege, I must also take into account delay occasioned by the bifurcated nature of the disclosure process when a national security claim is made. I will proceed to consider the litigation of the national security claim first without reference to the bifurcation issue, and then consider the effect of bifurcation at the end.
[128] I turn then to a consideration of the litigation of national security privilege in this case.
- The Application to the Designated Judge
[129] The national security litigation was commenced, albeit imperfectly, on February 26, 2017, when counsel for the accused gave notice to the Crown pursuant to s. 38.01(1) of the CEA of his intention to file an attached Notice of Application pursuant to s. 38.04(2)(c) of the CEA in Federal Court the following day. It concluded on December 2, 2019, when the Attorney General discontinued an appeal to the Federal Court of Appeal. As a result, 2 years, 9 months and 6 days are attributable to this discrete event, subject to a consideration of whether any of the Attorney General’s actions were frivolous, were undertaken in bad faith, or were executed in a dilatory manner. I will undertake that exercise next.
[130] There are certainly some actions of the Attorney General that bear scrutiny. I begin with the response of the Attorney General to the accused’s application.
[131] I have noted that the notice of application came to the attention of counsel for the Attorney General on February 26, 2017. Although it was not commenced strictly according to the rules, it is clear that Crown counsel gave notice of the application to counsel for the Attorney General of Canada on February 26, 2017. Section 38.03(3) requires the Attorney General, within 10 days after first receiving notice under s. 38.01(1), to notify any person who provides such notice of his or her decision with respect to disclosure of the information. As I explained above, I will assume that notice was given on April 1, 2017, 3 weeks and 2 days late. In the absence of any explanation for this delay, I will attribute it to dilatoriness.
[132] Even before the Attorney General apparently notified the accused of his decision, the Federal Court began taking procedural steps to move this matter along.
[133] On March 16, 2017, a case management conference was conducted by Noël J. to address “how best to move the potential CEA application in order to avoid creating undue delay in the underlying criminal proceedings.” In his order, Noël J. fixed deadlines of March 22, 2017, and April 3, 2017, for the filing of material on the application by the accused and the Attorney General respectively. He also appointed amicus curiae to assist the Court in performing its obligations under s. 38.
[134] By April 2017, Mosley J. had assumed carriage of this matter. He held a case management conference on April 5, 2017. On April 11, 2017, he made a number of orders establishing the procedure to be followed in this proceeding. The terms of the appointment of amicus were finalized on April 12, 2017, and he was provided with the affidavit on April 24, 2017.
[135] Mosley J. was also acutely aware of the need for expedition. He stated, in an order made on May 5, 2017, “This Court is also mindful of the fact that these proceedings must be expeditious so as to protect the Applicant’s right to a fair trial including his ability to make full answer and defence in a timely manner.”
[136] The hearing of the application commenced before Mosley J. on May 2, 2017, a mere 2 months and 6 days after notice of the application was given, and one month and one day after the Attorney General apparently notified the accused of his decision. The hearing continued on May 3, May 16 and June 22, 201. After reserving judgment, Mosley J. released his decision on July 7, 2017.
[137] It took little more than four months from the date of notice to the Attorney General to the date of the release of the decision to complete this matter, and, aside from the Attorney General’s initial dilatoriness, there is no cause for me to refrain from deducting this period of time from the total delay. There is no basis to conclude that the Crown’s actions were frivolous, undertaken in bad faith, or otherwise executed in a dilatory manner.
[138] The outcome of the hearing was mixed. As I have explained, Mosley J. recognized that Mr. Huang sought the redacted information to assess whether he should challenge the admissibility of the intercept evidence in a Garofoli application, and that the redacted information was at least presumptively relevant for that purpose. But in the end, he concluded that much of the information in issue was either not in fact relevant or the risk of injury had been established by the Attorney General and the public interest in non-disclosure outweighed that of disclosure. In some instances, however, he concluded that the risk of injury from the disclosure of relevant information had not been established. As a result, the Designated Judge confirmed the prohibition on disclosure in relation to the first category of information and ordered the disclosure of the latter category of information. He also ordered disclosure of some information in the form of summaries.
- The Appeal to the Federal Court of Appeal
[139] On July 17, 2017, the Attorney General commenced an appeal from the decision of the Designated Judge to the Federal Court of Appeal. In the appeal, the Attorney General argued that the Designated Judge erred in making his disclosure order. On September 20, 2017, the accused filed a cross-appeal. In the cross-appeal, the applicant argued that the Designated Judge erred by refusing to order disclosure of some of the redacted information. On November 13, 2017, counsel for the accused brought a motion in the Federal Court of Appeal for an order appointing a case management judge to ensure that the appeal would proceed in an expeditious manner and to enable him to preserve his trial date in this court and exercise his right to a speedy trial. On December 18, 2017, the Court appointed a case management judge. The appeal was heard on March 6, 2018, and the Court reserved judgment.
[140] The judgment of the Federal Court of Appeal was released on June 1, 2018. The Court allowed the Attorney General’s appeal in part and returned that part of the disclosure decision back to the Designated Judge for reconsideration in accordance with its private reasons. The accused’s cross-appeal was dismissed.
[141] Plainly, the Attorney General’s appeal was not frivolous, and, despite the lack of success, there is no reason for me to conclude that the accused’s appeal was frivolous. There is no basis for me to conclude that the Crown’s actions were frivolous, undertaken in bad faith, or otherwise executed in a dilatory manner, and again, no reason to refrain from deducting the time taken for the appeal from the total delay.
- The Application for Leave to Appeal to the Supreme Court of Canada
[142] As I have already discussed, the Attorney General brought an application for leave to appeal to the Supreme Court from the decision of the Federal Court of Appeal. Section 38.1(a) of the CEA provides that an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances. Despite this time limit, and despite the reminder of counsel for the accused to counsel for the Attorney General on June 8, 2018, and a follow-up note on June 15, 2018, and a similar follow-up note on July 13, 2018, the Attorney General took approximately 12 weeks to decide that she would seek leave to appeal to the Supreme Court of Canada in respect of issues that were not part of the public record. A decision to seek leave to appeal was communicated to counsel on August 22, 2018, and an Application for Leave to Appeal was filed with the Court on August 29, 2018. No explanation for this delay was provided to the accused or to me.
[143] The application for leave to appeal was dismissed on March 14, 2019.
[144] I see no reason to doubt the Attorney General’s good faith in bringing this application, and no reason to conclude that the application was frivolous, but the delay in bringing the application is unexplained. I do not doubt that the Attorney General considered the matter to be of importance, and the national security issues to be serious, but this does not excuse the delay in bringing the application, since the Attorney General also knew that the fair trial rights of an accused were implicated. As a result, I conclude that the time from June 11, 2018, when the ten day limitation period elapsed, to August 29, 2018, when the application was filed, was the result of dilatoriness, and I will not deduct that period of 7 weeks from the total delay. I will deduct the remainder of the time taken by the leave application.
- The Reconsideration Hearing
[145] The matter was then returned to the Designated Judge for reconsideration in accordance with the decision of the Federal Court of Appeal. On March 29, 2019, the Attorney General joined the reconsideration with a motion to vary the disclosure ordered in the original decision because of matters that had arisen subsequently, and on April 1, 2019, the Attorney General also joined this reconsideration with a new application to prohibit disclosure to the accused of some of the information previously ordered disclosed.
[146] In a letter to the Federal Court dated April 11, 2019, counsel for the Attorney General set out the details of a meeting he had convened with amicus and the joint steps they were proposing to expedite the proceeding. The Designated Judge convened a case management conference with counsel for the Attorney General and amicus curiae on April 24, 2019, and gave oral directions on April 25, 2019.
[147] The Designated Judge heard the three applications together on May 3, 27 and 29, 2019, reserved judgment and released his decision on August 30, 2019. He granted the reconsideration application in part and the new application in part but dismissed the motion to vary.
[148] Given the outcome, it is clear that the Crown’s actions in pursuing the matters raised before the Designated Judge were not frivolous or undertaken in bad faith. And as with the first hearing before the Designated Judge, the Attorney General did not act in in a dilatory manner. The reconsideration was brought on quickly, the new matters were added expeditiously, steps were taken to expedite the matter, the hearing came on in a timely fashion, and no doubt the Designated Judge released his decision in as timely a fashion as he could, being fully aware of the delay in the trial in this Court.
- The Second Appeal to the Federal Court of Appeal and the Attorney General’s Certificate
[149] On September 10, 2019, the Attorney General filed a Notice of Appeal to the Federal Court of Appeal. CSIS then re-edited the affidavit, lifting the redactions that were not the subject of the new appeal and provided it to Crown counsel. Crown counsel disclosed the affidavit to counsel for the accused on October 11, 2019.
[150] On November 14, 2019, for the first and only time to date, the Attorney General exercised his power under s. 38.13 of the CEA to personally issue a certificate prohibiting the disclosure of six paragraphs of the affidavit. On December 2, 2019, the Attorney General discontinued its appeal to the Federal Court of Appeal.
[151] I turn to consider whether the time from September 10, 2019, to December 2, 2019, should be excluded from the “Litigation of National Security Privilege” discrete event. A filed and later abandoned notice of appeal raises concerns about potential frivolousness. However, the first month of this period was taken up with the re-editing and disclosing of the affidavit in accordance with the decision of the Designated Judge, with the exception of the matters being appealed. This amount of time was not unreasonable, and I would not count it against the Crown. That leaves the time from October 11, 2019, to December 2, 2019, a period of 7 weeks. I do not count the period from November 30, 2019, to December 2, 2019, because it was a weekend.
[152] On November 14, 2019, 1 month after filing the notice of appeal, the Attorney General issued his certificate prohibiting the disclosure of six paragraphs of the affidavit. In the interim, the Attorney General had to consider whether to continue to litigate a matter that he believed raised serious national security concerns, or instead for the first and only time to date, issue a certificate. I do not doubt that weighed heavily on the Attorney General. The certificate places a decision that touches the fair trial rights of an accused beyond the reach of judicial review. Indeed, we should be comforted that his decision was not made lightly or hurriedly. The time taken to make the decision was clearly necessary to exercise his obligation to take such steps as were required to fulfill his duties as Attorney General. I will deduct this period of time from the total delay as part of a discrete event.
- The Effect of Bifurcation
[153] The factum of the accused begins with an assertion that this is an eight-year-old prosecution, and that the delay is unreasonable. This is followed by the claim that, “The delay is a product of Parliament’s decision to bifurcate the disclosure process in criminal cases after the government makes a national security claim.” Counsel goes on to say that the delay in this case “was caused in part by Parliament’s decision to remove the power of trial judges (including judges of inherent jurisdiction) to determine whether defendants like Mr. Huang are entitled to disclosure of potentially sensitive information.”
[154] The accused finds support for this position in the decision of the Supreme Court of Canada in Ahmad. In that case, the court concluded that the scheme in ss. 38 to 38.16 of the CEA, which provides a procedure to govern the use and protection of “sensitive information”, and “potentially injurious information”, is constitutional. It violates neither s. 96 of the Constitution Act, 1867, nor s. 7 of the Charter.
[155] At para. 2 of Ahmad, the Court acknowledged that in some situations, the prosecution’s refusal to disclose relevant (if sensitive or potentially injurious) information in the course of a criminal trial may on the facts of a particular case prejudice an accused’s right to a fair trial or to a trial within a reasonable time. However, the Court held that s. 38 preserves the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including, where he or she deems it necessary, to enter a stay of proceedings.
[156] The Court further recognized, at para. 76, that the legislative division, or bifurcation, of responsibilities has the potential to cause delays and to pose serious challenges to the fair and expeditious trial of an accused, especially when the trial is by jury. The Court noted that:
[S]ituations may well arise in which the division of responsibilities between courts will give rise to unreasonable trial delays, undue disruption to jurors and risk of juror contamination. These will have to be addressed on a case-by-case basis and the appropriate remedies issued to avoid an unfair trial.
[157] To be clear, the Court did not say that bifurcation inevitably causes delay. It went no further than to say, at para. 5, that, “bifurcation may in some instances lead to delays and inefficiencies in the trial process” and that these must be addressed on a case-by-case basis.
[158] The accused argues that the length of the time spent litigating in the Federal Court in this case, was attributable, at least in part, to bifurcation. At the core of this argument is the assumption that had Parliament placed the determination of national security privilege claims in the trial courts, or at least in the provincial Superior Courts where serious criminal trials are heard, the result would be different. The time spent litigating the s. 38 issues would have been shorter. This claim must be tested. If it is correct, then I must adjust my assessment of the discrete event of national security litigation.
[159] I begin by noting that this case is unusual. In most cases, the information with respect to which privilege is claimed is evidence that the accused may wish to lead at trial, or that may be of assistance in fashioning a defence to the Crown’s allegations. The information that was in dispute here could not conceivably be used in evidence at the accused’s trial or be useful in fashioning a defence to the Crown’s allegations. The sole purpose for which disclosure was sought was to build the foundation for a pre-trial application that the warrant that authorized the interception of his private communications was granted in violation of s. 8 of the Charter.
[160] In other words, this case is entirely outside the concerns expressed by the Supreme Court. The court noted that the bifurcated procedure has come under heavy criticism, most notably, in the Air India Report[^2]. The Court noted, at para. 72, that the Commissioner’s concerns were largely tied to the inability of trial judges to obtain information about, or access to, the withheld material, which the Court addressed in a practical way in its ruling, and which is not the issue here. But the Court went on to say, at para. 73, that the Commissioner also expressed concerns in his report about the manner in which the s. 38 process “affects both the efficiency and the fairness of terrorism prosecutions”. In particular, as noted in para. 74, the Commissioner, was concerned about s. 38 litigation that begins during a criminal trial. Again, that is not this case.
[161] The Court expressed its concern in paras. 76 and 77 of the judgment:
76 We recognize that the legislative division of responsibilities does have the potential to cause delays and to pose serious challenges to the fair and expeditious trial of an accused, especially when the trial is by jury. While we do not find that this potential invalidates the legislative scheme, situations may well arise in which the division of responsibilities between courts will give rise to unreasonable trial delays, undue disruption to jurors and risk of juror contamination. These will have to be addressed on a case-by-case basis and the appropriate remedies issued to avoid an unfair trial.
77 An important step the parties can take is attempting to identify potential national security issues during pre-trial proceedings. This would allow the disclosure arguments to take place at an early date. Section 38 encourages early-stage disclosure proceedings. In fact, it was amended in 2001 to allow the scheme to be engaged prior to the criminal trial and to “permit the government to take pro-active steps in the appropriate circumstances” (Department of Justice, “Amendments to the Canada Evidence Act (“CEA”)” […]). Due diligence in this respect will work to minimize the risk of mistrials. Disclosure by the Crown in a series of stages over a period of time, each new stage of disclosure triggering additional s. 38 proceedings, will heighten the risk of resort by the trial judge to s. 38 remedies.
[162] Since the issue here relates exclusively to material that would ordinarily be considered by a trial or motions judge on a pre-trial Garofoli application, there was no risk of disruption to or contamination of jurors. Moreover, had s. 38 been invoked at an early-stage disclosure proceeding, as the Supreme Court advises and as would only be logical for purposes of a Garofoli application, there might have been no delay in resolving it. The failure to raise this at an early-stage disclosure proceeding, or at any time before the date initially set for trial, falls squarely and unequivocally on the defence. The accused had every right to change counsel, alter his defence and set this case on a new trajectory. But he must also take the blame for the consequences. The delay caused by the very late start of the s. 38 proceedings, contrary to the advice of the Supreme Court, was occasioned by the accused, not bifurcation.
[163] I point out as well that the Crown did take at least one very proactive step. As I have discussed in greater detail above, on February 11, 2014, before the accused sought disclosure of the CSIS warrant and affidavit, Crown counsel wrote to CSIS requesting production of the relevant CSIS warrant and supporting authorization, redacted as might be necessary, for the purpose of disclosure to the defence. The redaction process was understandably lengthy, but it was initiated by Crown counsel at a very early opportunity.
[164] Next, I note that the Designated Judge and the Federal Court of Appeal heard this matter expeditiously, with a sensitivity to the right of the accused to have a trial in a reasonable time. I have absolutely no basis to assume that the litigation would have been concluded any faster in this court. In saying this, I bear in mind that this would never have even vaguely resembled a routine disclosure motion before a trial judge. The intervention by the Attorney General, independent of Crown counsel, was done to advance national security issues that are properly the concern of the state and are very far from the concerns entrusted to Crown counsel conducting a criminal trial. There would still be a need for amicus, for a secure registry for storing confidential information, secure offices and computers, secure hearing rooms and security cleared staff. I do not say that these facilities could not be created in every trial court in Canada. But the presence of all of this in the Federal Court is itself an efficiency.
[165] The reality in this case was that it was not bifurcation that caused the delay. Both hearings before the Designated Judge were completed efficiently. Instead, it was the availability of appeals. Interlocutory appeals from routine disclosure decisions made by motions judges and trial judges are not available, although prerogative remedies may be. However, the better analogy is to s. 37 of the CEA.
[166] Section 37 creates a scheme that is somewhat similar to s. 38. It permits a Minister of the Crown in right of Canada or other official to object to the disclosure of information before a court with jurisdiction to compel such disclosure, based on the grounds of a specific public interest. Unlike s. 38, the determination may be made in a superior court (but not in a provincial court of criminal jurisdiction). Like s. 38, this scheme provides for an appeal to a court of appeal (s. 37.1) and a further appeal to the Supreme Court of Canada (s. 37.2). In addition, s. 37.3(1) provides for subsequent orders by the judge presiding at the criminal trial to protect the rights of the accused to a fair trial, including a stay of proceedings, in language that is virtually identical to s. 38.14.
[167] If the s. 38 matter had proceeded in this court instead of the Federal Court, but with the s. 38 appellate rights intact, as is the case with s. 37 proceedings, I see nothing to suggest that the process would have taken appreciably, or indeed any less time. In fact, it is hard to imagine that a judge of this court could have adjudicated the claim as expeditiously as did Mosley J. While judges of this court generally have no experience with CSIS warrants or national security issues, Mosley J. is highly experienced with them, as well as with the criminal law.
[168] In this regard, I simply note what was acknowledged by the Supreme Court in Ahmad at para. 70. There are a limited number of designated judges at the Federal Court who deal with issues of national security. These designated judges frequently meet to discuss national security issues, new developments in the jurisprudence and best practices. They have developed relevant programs concerning privacy, human rights and national security, in conjunction with judges from other jurisdictions and scholars. And it is clear to me from reading the jurisprudence that as a result of their specialization and institutional memory, far from being overawed by the seriousness of the work of CSIS, they have been willing to be far more critical of the Service than a Superior Court Judge would have the background to be. I mention this not in any way to quibble with the caution about bifurcation raised by the Supreme Court in Ahmad, but simply to say that I cannot imagine that a judge of this court was positioned to determine the s. 38 application more expeditiously than did the Designated Judge.
[169] In the end, I am unable to conclude that the delay in this case is a product of Parliament’s decision to bifurcate the disclosure process in criminal cases after the government makes a national security claim. Nor do I conclude that bifurcation contributed to the delay.
- Conclusion on National Security Litigation Privilege as a Discrete Event
[170] In my view, the time required to hear and resolve the application brought pursuant to s. 38.04(2)(c) amounts to a discrete exceptional event that ordinarily would have to be subtracted from the total period of delay for the purpose of determining whether the presumptive ceiling has been exceeded. In this case, that period amounts to 2 years, 9 months and 6 days less 7 weeks, leaving approximately 2 years, 7 months and 2 weeks. However, I have already effectively subtracted 2 years, 1 month and 3 weeks of the time necessary to hear the s. 38.04(2)(c) application from the total delay in this case as defence delay. I cannot subtract that time twice. Instead, I will treat the additional time it took to complete the application as a discrete exceptional event, which, rounding slightly, amounts to 6 months. However, if I was wrong to treat 2 years, 1 month and 3 weeks as defence delay, then I would include it in the calculation of this discrete exceptional event.
The Impact of the Pandemic
[171] I turn next to consider the COVID-19 pandemic, the second discrete event raised by Crown counsel. I note that while many judges have considered the pandemic to be a discrete exceptional event under Jordan, it is still necessary to consider how the pandemic affected the particular case in question (see e.g., R. v. Schardt, 2021 ONSC 3143, at para. 68). I turn to consider how the pandemic affected this case.
[172] As I noted above, the s. 38.14 application was originally set to proceed on March 30, 2020. By virtue of two orders of the Chief Justice of the Superior Court adjourning all scheduled appearances in criminal matters because of the COVID-19 pandemic, the March 30, 2020, date had to be vacated. The effect of the two orders was that this matter, along with a great many other matters, was adjourned first to June 2, 2020, and then to July 6, 2020. It was, of course, not anticipated, nor conceivable, that the matters so adjourned would proceed to a hearing on July 6, 2020. As the second order stated, an orderly process for the re-booking of trial and motion dates was to follow.
[173] The hearing of the application ultimately commenced on December 17, 2020, 8 months and 18 days after it was initially scheduled. Plainly, the delay in hearing must be attributed to the COVID-19 public health crisis. The real question is, how much delay?
[174] Counsel for the accused conceded that the s. 38.14 application could not proceed on March 30, 2020, because of COVID. But, she noted, the courts re-opened in July 2020, at least for “virtual” hearings – hearings conducted on-line, usually via Zoom – and the defence pressed for such a hearing of the s. 38.14 application. As a result, she argued that the COVID credit should not extend beyond the end of June, a period of 3 months.
[175] I do not agree with the defence approach to the COVID delay. A similar approach was advanced to, and rejected, by my colleague Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209. In that case, which involved the delay of a jury trial, counsel for the accused argued that the discrete event exceptional circumstance should only be from March 25, 2020, to September 2020, when the courts were again scheduling jury trials. Nakatsuru J. disagreed. He held, at para. 68, that the “whole time period to the new trial date should count.” His reasons for reaching this conclusion bear repeating. He stated, at paras. 69-77:
69 First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 - 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) at paras. 29 - 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23.
70 Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.
71 Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 - 84.
72 Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.
73 Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region--which has now suspended jury trials again since October 9, 2020--has recently extended the suspension of jury trials to January 4, 2021. In short, when it comes to assessing COVID-19's impact on the criminal justice system, this discrete event continues.
74 Finally, in order to qualify as a discrete event, the Crown must show it could not have reasonably mitigated the delay. The Crown cannot sit idly on their hands when rescheduling the backlog created by COVID-19--at minimum, thoughtful triage of trials is expected. …
75 … I recognize securing new jury trial dates amidst an ongoing pandemic is no doubt as much a challenge for the defence as for the Crown or the court. COVID-19 has put enormous pressure on us all. Thus, I will say that it would not be wrong, in my view, to characterize the post-pandemic delay not as defence-caused delay per se due to defence counsel unavailability, but as a result of this most exceptional discrete event that was reasonably unforeseen and unavoidable. It would not be wrong to attribute the whole period of delay to the COVID-19 public health crisis without parsing out the periods of delay.
76 As said by many of our public health leaders, we are all in this together. We have done the best we can in the circumstances. Therefore, we should not be quick to cast blame or be overly critical of the actions of the criminal justice system or its participants as we continue to meet the challenges of getting trials heard amidst the ongoing pandemic.
[176] I adopt these reasons, with one clarification. One year after the decision in Simmons, neither the pandemic nor its effect on the criminal justice system are over. We are now into the fourth wave of COVID-19. A new variant, the Omicron variant, with uncertain effects, is looming. While we are now a substantially vaccinated community, we are conducting jury trials in modified courtrooms that of necessity are less numerous than normal, and certainly fewer than we need to make real inroads into the COVID backlog. I do not believe it is necessary to trace the precise difficulties experienced in this case to fix a new application date, but clearly there were challenges. The following observation of Nakatsuru J. in Simmons applies equally here: “it would not be wrong in this case to attribute the whole period of delay to the COVID-19 public health crisis without parsing out the periods of delay”. However, I must still consider whether the Crown could not have reasonably mitigated the delay.
[177] While I do not agree with the defence that the fact that they asked for a virtual hearing should bring the curtain down on the COVID exception at the end of June 2020, I must still consider whether the Crown’s refusal to consent to such a hearing was a failure by the Crown to reasonably mitigate delay. Ordinarily, I would say that it was. But not here. The Crown resisted a virtual hearing because some of the evidence that the Crown intended to adduce on the application was sensitive, top-secret evidence that had to be heard in camera, and could not be safeguarded if heard electronically. I accept this explanation. I do not see how else the Crown could reasonably have mitigated the delay in having the s. 38.14 application heard.
[178] I note that in September 2020 the Crown stayed two of the counts in the indictment with the expectation that this workflow would eliminate the s. 38.14 application and mitigate the delay. I have no doubt that this was well-intended, but it was misconceived. It did not eliminate the s. 38.14 application. Given my conclusion about the delay occasioned by COVID, I will say nothing more about it here.
[179] As a result, I attribute the period from March 30, 2020, to December 17, 2020, a period of 7 months and 18 days, to the COVID-19 health crisis.
Other Discrete Events
[180] There are two other steps taken by the accused in this case that arguably were discrete events: an application for certiorari brought by the accused soon after he made his first appearance in this Court, in which he sought the quashing of his committal for trial, and a pre-trial application challenging the constitutional validity of s. 22(1)(c) of the SOIA on the ground that it violated s. 7 of the Charter. The Crown did not raise these matters, but I will consider them briefly.
[181] The application for certiorari was heard by Himel J. on November 15, 2015. It was dismissed on December 17, 2015. It did not delay the progress of this case, and, as a result, cannot be considered a discrete event.
[182] The constitutional challenge was heard by B. O’Marra J. on March 30, 2017. It was dismissed on June 2, 2017. It was heard while the Federal Court litigation was ongoing and did not cause any delay in this case.
[183] As a result, neither of these events have an impact on my analysis. The Crown was right not to raise them.
Remaining Delay
[184] Subtracting delay caused by discrete events (6 months for the litigation of national security privilege and 7 months and 18 days for the consequences of COVID) from the Net Delay (4 years and 6 months), I calculate the remaining delay as 3 years 4 months and 13 days.
[185] Since the remaining delay exceeds the presumptive ceiling by 10 months and 13 days, I must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
Particularly Complex Case Justification
[186] To determine whether or not this case qualifies as particularly complex, I must begin with the Supreme Court’s explanation of what is meant by particularly complex cases in Jordan, at paras. 77-78, where the Court said:
77 As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. 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.
78 A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.
[187] There is no question that this case cannot be considered particularly complex because of the nature of the evidence. The trial will be relatively short, and the evidence simple and straightforward. What makes this case particularly complex, in the Crown’s submission, is the nature of the issues.
[188] In making this argument, Crown counsel pointed to the proceedings in the Federal Court as well as the applications heard by me in this case. I will say immediately that I will not consider the time taken to litigate national security privilege in the Federal Court in determining if this case should be labelled as a complex case, since I have already considered that time in the assessment of defence delay and exceptional discrete events.
[189] As for the complexity in this Court, the Crown points to the following:
The hearing of a disclosure application (2018 ONSC 831).
The s. 38.14 hearing, in which I had to determine if the fair trial rights of the accused were infringed by the Attorney General’s certificate, and if so, what the appropriate remedy was (2021 ONSC 2654).
The s. 24(2) application, where I determined the admissibility of evidence derived from unlawfully intercepted private communications (2021 ONSC 5316).
[190] There are two problems with the Crown’s argument. First, I do not agree that the applications I have heard were themselves so complex or time-consuming as to justify exceeding the presumptive ceiling. And second, and more importantly, the Crown’s argument overlooks the further explanation of the particular complex case justification in Cody, which places this case outside the exception.
[191] I begin with the first problem I have with the Crown’s argument – that I do not agree with the Crown’s assessment of the complexity of the three applications I have listed.
[192] First, the disclosure argument. True, it took three days to argue: November 30, December 14 and December 15, 2017. However, the first day was devoted to an application by the Crown for an order that the disclosure application be held in camera, but with the participation of the accused and his counsel, and that the court files in relation to those proceedings be permanently sealed. The substance of the application was argued on the two remaining days, December 14 and 15. I reserved judgment for four months and released my decision in both public and private written reasons on March 16, 2018.
[193] Second, the s. 38.14 application. I heard this application in one day on February 21, 2021, reserved judgment for less than two months, and released my decision in writing on April 14, 2021.
[194] Third, the s. 24(2) application. I heard this application in one day, on June 8, 2021, reserved judgment for 1 month and three weeks, and released my decision in writing on July 29, 2021.
[195] I acknowledge that the issues in these three applications were numerous, and some of them were novel and difficult. But nothing about these three applications suggests to me that they could not have been accommodated within the presumptive ceiling. And ultimately, the three applications were not so time-consuming as to have in fact caused the “remaining delay” to have exceeded the 30-month presumptive ceiling. In saying this, I bear in mind that the 30-month presumptive ceiling is not an aspirational target. Rather, the public should expect that most cases can and should be resolved before reaching the ceiling (see Jordan, at para. 56).
[196] The second problem: Cody. The decision in Cody, at paras. 64-5, sheds additional light on the particularly complex case justification. First, it emphasized that the presumptive ceilings set in Jordan already reflect the increased complexity of criminal cases since Morin, including the emergence of new procedures, new obligations on the Crown and police, and new legal tests. Second, unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Third, complexity cannot be used to deduct specific periods of delay. The delay caused by a single isolated step that has features of complexity should not be deducted. Instead, a case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable. As a result, when determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity.
[197] Turning to this case, and viewing it qualitatively, bearing in mind that I have already accommodated the Federal Court proceedings, it is difficult to see the case as a whole as particularly complex. In the words of Crown counsel, the trial itself is relatively straightforward and contained. There is no co-accused. Disclosure was not voluminous. The trial is scheduled to take no more than three weeks. It will focus on an interaction between the accused and an undercover officer of brief duration. It does not require a large number of witnesses or expert evidence. And, as I have said, the three applications, while novel and somewhat challenging, were three isolated events that, even considered cumulatively, do not make the case as a whole particularly complex.
[198] I do note that on September 9, 2020, Crown counsel made an effort to streamline this case by staying the two counts on the indictment related to the calls made by the accused to the Embassy on November 25, 2013. The Crown believed that this would eliminate the need for the stay motion and the s. 24(2) application. This strategy was misconceived, for reasons that I need not rehearse here. Counsel for the accused immediately made it clear to the Court that this development did not affect the accused’s intention to proceed with both the s. 38.14 application and the s. 24(2) application. The Crown persisted in its misguided view and brought a so-called Cody/Kutynec motion to dismiss the s. 38.14 application as having no prospect of success. I dismissed this application from the bench. As a result of the bringing of this motion, the s. 38.14 application was delayed by 1 month.
The Final Delay
[199] Having concluded that the particularly complex case justification is not available in this case to further reduce the remaining delay of 3 years 4 months and 13 days (or 40 months and 13 days), I conclude that the final delay exceeds the presumptive ceiling and is unreasonable.
DISPOSITION
[200] The accused’s right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter has been breached, and the remaining counts in the indictment must be stayed.
M. DAMBROT J.
RELEASED: December 20, 2021
COURT FILE NO.: CR17-90000077-0000
DATE: 20211220
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
QING (QUENTIN) HUANG
REASONS FOR ORDER
M. DAMBROT J.
RELEASED: December 20, 2021
[^1] A Garofoli application is an application to exclude the recordings of intercepted communications from evidence, pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. It is governed by the principles and procedures established by the Supreme Court of Canada in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
[^2] Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy, vol. 3, The Relationship Between Intelligence and Evidence and the Challenges of Terrorism Prosecutions (Ottawa: Public Works and Government Services Canada, 2010).