Court File and Parties

COURT FILE NO.: CR-19-900000584 DATE: 2022-04-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen, Respondent – and – Shaji Bashir Ahmad, Applicant

Counsel: Kim Schofield and Sandra Kimberg, for the Applicant Christina Malezis, for the Respondent

HEARD: March 3-5, 2022

Ruling on Charter Application

NISHIKAWA J.

Overview

[1] The Applicant, Shaji Bashir Ahmad, was arrested on May 18, 2018 and charged with possession of cocaine, heroin and oxycodone for the purposes of trafficking and possession of proceeds of crime. The Applicant brings this application for a stay of proceedings pursuant to s. 24(1) of the Charter on the grounds that his right to be tried within a reasonable time under s. 11(b) has been infringed.

[2] The trial was scheduled to begin on March 14, 2022. The total delay from the date of arrest to the anticipated end of the trial is 46 months, which significantly exceeds the presumptive Jordan ceiling of 30 months. The Crown’s position is that the delay was largely caused by the defence and that once the defence delay of 23.5 months is subtracted, the total delay falls below the presumptive ceiling under Jordan.

[3] The defence’s position is that the delay was caused by the Crown’s failure to disclose certain evidence in a timely manner, which negatively impacted Mr. Bashir Ahmad’s ability to prepare a defence.

[4] In view of the impending trial date, on March 7, 2022, I granted the application with reasons to follow. These are the reasons.

Factual Background

The Arrest

[5] In early 2018, the Toronto Police Service (TPS) received information from two confidential informants alleging that the Applicant was selling cocaine. The TPS obtained search warrants for the Applicant’s residence; a second address, which was alleged to be a “stash house”; and a vehicle. The search warrants were executed on May 18, 2018. Police found over 750 grams of cocaine, 330 grams of heroin, 24 grams of crack cocaine and 35 oxycodone tablets hidden under a concrete step leading to the second address. The Applicant was arrested at his residence where the police seized some more drugs, $1,900 in cash, three cellular phones, and a digital scale.

The Cell Phone Search Warrants and the Return of the Cell Phones

[6] On November 2, 2018, the TPS obtained judicial authorization to forensically examine the three cell phones, an iPhone, a Blackberry phone and an Alcatel phone, that were seized during the execution of the search warrants. The informations to obtain (ITOs) were sworn by Detective Constable Asner.

[7] Sergeant (then Detective Constable) Ryan Keveza, the TPS officer managing the case, testified at the application hearing that the investigators decided to obtain search warrants for the cell phones because they believed the phones might yield information helpful to the case. Sergeant Keveza testified that because of the backlog at the TPS Tech Crimes Unit, the TPS chooses carefully when to have cell phones analyzed. Priority is given to homicides and child pornography cases. It was not a general practice to obtain search warrants for cell phones in cases such as this.

[8] The Tech Crimes Unit received the phones on November 6, 2018. However, because of the volume of devices to be examined and because the case was not a high priority, the cell phones were not examined until March 2020. Detective Constable Nandino Garcia of the Tech Crimes Unit testified that where the case is not identified as high priority, it can take over a year for cell phones to be analyzed and returned. DC Garcia began the examinations on March 18, 2020 and completed them on March 27, 2020. He did not recall whether the examinations were instigated by a phone call or inquiry from the officer-in-charge (OIC). DC Garcia’s process is to examine the SIM card and then the device, and then to extract the data from the phone. DC Garcia puts all of the notes and data into an electronic folder. The OIC is then generally advised to attend the Tech Crimes Unit with a storage medium, such as a USB or disk, to copy the folder.

[9] After DC Garcia completed the examinations on March 27, 2020, the Tech Crimes Unit did not notify the OIC that they were done. DC Garcia recalled that in March 2020, a COVID-related investigation took precedence. DC Garcia also explained that at the time, there were only two computers at the Tech Crimes Unit from which email could be sent out. If both computers were occupied when he completed the cell phone examinations, he might not have been able to send an email to the investigators right away, and then forgotten to send an email later. In any event, no email was sent to advise the investigators that the data extractions were done. The investigators also failed to follow up with the Tech Crimes Unit to ask about the cell phones.

[10] It was only when the defence requested the return of the cell phones in February 2021 that Sgt Keveza followed up with the Tech Crimes Unit. The police had not advised the Crown that search warrants had been obtained for the cell phones.

The Criminal Proceeding

[11] Initial disclosure was provided to the defence on October 1, 2018. [1]

[12] A preliminary inquiry was held on September 9-10, 2019. The first dates offered were on August 27-28, 2019, however, defence counsel was not available. The defence admits that the period between the two dates constitutes defence delay of 13 days (“Delay 1”).

[13] On October 16, 2019, the Applicant discharged his counsel and retained his current counsel. The defence requested an adjournment of the judicial pre-trial (JPT) from October 23, 2019 to November 27, 2019 to review disclosure and to prepare. The defence admits that this period of 35 days also constitutes defence delay (“Delay 2”).

[14] On November 27, 2019, a JPT was held in Superior Court. The Crown and court were available for trial beginning on June 8, 2020. However, the trial was set for May 10, 2021, the first available dates to the defence. At the time, the defence waived this period of delay, which was approximately 11 months. On this application, the defence submits that while counsel was not available for trial, the period does not constitute defence delay because the waiver was uninformed, as further detailed below. The defence submits that at most, nine months and 15 days can be attributed to the defence. The period of the delay, and to which party it should be attributed, is thus disputed (“Delay 3”).

[15] On February 7, 2021, defence counsel met with the Applicant to prepare for trial. As a result of this meeting, defence counsel learned information that led her to seek the return of one of the cell phones, an Alccatel phone, for forensic analysis. Defence counsel made this request on February 26, 2021.

[16] On March 8, 2021, the defence brought an application to adjourn the trial date in order to bring an application for the return of the phone and, if necessary, to have the phone analyzed by an expert. The defence took the position that an analysis of the cell phones was necessary for a Charter application and that there was insufficient time to complete the necessary steps.

[17] On March 15, 2021, when the Crown requested the return of the three seized cell phones from the police, it learned for the first time that police had obtained search warrants to extract the data from the three cell phones. The following day, Sgt Keveza obtained the data extractions and the cell phones from the Tech Crimes Unit.

[18] When the defence initially indicated its intent to seek an adjournment, defence counsel expressly waived the delay from the existing trial dates to the new trial dates. However, when the defence learned of the existence of the cell phone search warrants and data extractions, counsel advised that they would no longer be waiving the delay.

[19] On March 24, 2021, the parties appeared in practice court. The Crown advised that it was in the process of returning the phones and learned that police had obtained warrants to extract data from them. In respect of the defence’s adjournment application, the Crown stated that it would generally oppose such a request, “but for the fact that this has potential exculpatory evidence.” The Crown stated that it would courier the data immediately once it was received from the police, hopefully, within the week. Campbell J. urged the Crown to do all that it could to get the cell phone data to the defence and warned that the Crown would “be in a worse position” if the material was not disclosed. The matter was set to return to practice court the following week.

[20] In an email sent later that day, defence counsel requested a copy of the search warrants and ITOs for the cell phones and inquired as to the status of the return of the phones. The defence took the position that an adjournment would be necessary because of the impending new disclosure, and that the delay would rest with the Crown.

[21] In an email sent on March 25, 2021, the Crown advised as follows:

Today we expect to receive the data that investigators recently received from tech crimes. We will immediately forward this to your office by courier. You should have it by the end of day today or tomorrow. To be clear, the Crown was unaware that this existed. We learned of it when we acted on your request to return the phones. The Crown is not relying on this disclosure at Mr. Bashir-Ahmad’s trial.

[22] The Crown further advised that it had requested the unsealing of the warrants and ITOs for the cell phones and that they would need to vet them before making disclosure. The Crown took the position that it would not consent to an adjournment of the trial date without a s. 11(b) waiver. Defence counsel responded by email that if the Crown was not leading evidence derived from the extractions, they would revert to the initial position and waive s. 11(b).

[23] On March 25, 2021, Sgt Keveza delivered the cell phones and a USB containing the data extractions to the Crown.

[24] On March 29, 2021, the Crown advised the defence that it had reviewed the cell phone data extractions which were unreadable and of no probative value:

In efforts to preserve the phone data we understand that a copy of the phone data was made. In the form that it was provided to us, it is unreadable and of no probative value. It would appear that the phone represents the best evidence. As such, there is nothing else to disclose in relation to the seized phones.

[25] The parties appeared in practice court on March 31 and April 7, 2021. At the March 31 appearance, the Crown advised the court that the cell phone data, which consisted of a “photo dump” and “data dump” was “effectively unreadable” and that the Crown had no further disclosure to make. On April 7, the defence advised that it would pick up the phones on April 8 (the earliest date available to the TPS) and that the defence expert could analyze the phones by April 9. The defence again requested that the trial be adjourned because there was insufficient time to review the data, get instructions and draft Charter application materials. No adjournment was granted at that time.

[26] On April 8, 2021, the defence picked up the cell phones from the TPS Property Unit.

The Adjournment Applications

[27] On April 14, 2021, Campbell J. heard the defence’s application for an adjournment. Defence counsel advised the court that their expert was having trouble accessing the phone data, which was necessary for the Charter applications. Defence counsel also had logistical issues because a staff member had come down with COVID and staff were in isolation. The defence waived the delay for the purposes of s. 11(b) and, as a result, the Crown did not oppose the adjournment. The adjournment was granted. Defence counsel was not available for the first trial dates available to the Crown and court, in June 2021. The trial was adjourned to December 6, 2021 (“Delay 4”). The defence now takes the position that the waiver is invalid.

[28] The defence’s expert delivered a report on July 7, 2021. A second report was provided on November 2, 2021. The defence expert’s second report suggested anomalies in the data that led the defence to believe that the phones had been accessed without authorization. On November 2, 2021, the defence renewed its request for the search warrants and also sought the property logs. At an appearance at practice court on November 10, 2021, both parties confirmed that they were ready for trial.

[29] The defence made a further request for the search warrants on November 12, 2021.The Crown responded that it was in the process of unsealing the search warrants and ITOs and would provide them as soon as possible. On November 25, 2021, the Crown disclosed the cell phone search warrants and supporting ITOs to the defence.

[30] On November 29, 2021, the defence filed an application for an adjournment of the December 6 trial date.

[31] On November 30, 2021, the defence asked the Crown to confirm whether the data extractions had been disclosed. The Crown forwarded its message from March 29, 2021 and did not otherwise respond.

[32] On December 1, 2021, Presser J. granted the adjournment application on the basis that the defence should be afforded the opportunity to pursue an application under ss. 7 and 24(1) of the Charter, based on new information and the recently disclosed search warrants and ITOs. Given the circumstances, the Crown did not oppose the adjournment but took the position that the delay should rest with the defence. Presser J. did not decide the issue of who would bear responsibility for the delay in terms of s. 11(b), which she found was a matter to be determined by a judge hearing a s. 11(b) application, if one were to be brought.

[33] The trial was rescheduled to take place on March 7-18, 2022. The delay from the December 6, 2021 trial dates to the new trial dates is three months and 12 days (“Delay 5”). The defence admits that it delayed the scheduling of the trial by seven days, from December 15 to 22, 2021 (“Delay 6”).

[34] On December 13, 2021, the defence noted on the Form 17 for the JPT that the disclosure of data extraction notes was outstanding. On December 14, 2021, the Crown disclosed some of the data extractions and notes to the defence but not the complete file. On December 20, 2021, the defence asked the Crown if the material disclosed on December 14 were the same extractions that the Crown had previously described as “unreadable.” The following day, the Crown responded advising that the material sent on December 14 was part of the extractions. On December 21, 2021, the Crown disclosed the remaining data extractions to the defence. On December 23, the Crown delivered a USB with the complete data extractions, photos and other items from the search of the cell phones.

Summary

[35] To summarize, the defence does not challenge that Delays 1, 2 and 6 are attributable to the defence. The total undisputed defence delay is thus one month and 25 days. The defence disputes that Delays 4 and 5 ought to be considered defence delay, as further detailed below. In respect of Delay 3, while defence counsel was unavailable for trial during that time, the defence takes the position that the entire period is not attributable to the defence because the cell phone data was also outstanding at the time.

[36] The table below summarizes the parties’ positions in respect of each period.

Time Period	Crown Position	Defence Position
Delay 1 August 27 to September 9, 2019	13 days defence delay	Admitted
Delay 2 October 23 to November 27, 2019	35 days defence delay	Admitted
Delay 3 June 8, 2020 to May 10, 2021	11 months and 2 days defence delay	Defence waiver invalid At most, 9 months and 15 days defence delay
Delay 4 May 10, 2021 to December 6, 2021	7 months and 12 days defence delay Alternatively, 6 months from the earliest trial dates available to the Crown and Court (June 2021) and the earliest dates available to the defence	Defence waiver invalid
Delay 5 December 15 to 22, 2021	3 months and 12 days defence delay	Crown delay
Delay 6 December 6, 2021 to March 7, 2022	7 days defence delay	Admitted

Issues

[37] The issues on this Application are as follows:

(a) Was the defence waiver of s. 11(b) for the relevant periods of delay effective? (b) Which periods of delay were caused solely by the defence? (c) Were there exceptional circumstances justifying the delay? (d) Was the Applicant’s right to be tried within a reasonable time under s. 11(b) of the Charter breached?

Analysis

The Applicable Principles

Delay

[38] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada set out the framework for analyzing whether a defendant’s right to a trial within a reasonable time has been violated. The Supreme Court established a 30-month ceiling, beyond which delay is presumptively unreasonable. The burden then shifts to the Crown to demonstrate exceptional circumstances justifying the delay. The Crown’s failure to establish exceptional circumstances to rebut the presumption of unreasonable delay will result in a stay of proceedings under s. 24(1) of the Charter.

[39] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal summarized the steps to be taken by the court in conducting the Jordan analysis as follows:

(i) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. (ii) Subtract defence delay from the total delay, which results in the “Net Delay.” (iii) Compare the Net Delay to the presumptive ceiling. (iv) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. (v) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purposes of determining whether the presumptive ceiling has been reached. (vi) 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. (vii) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. (viii) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released.

[40] Defence delay has two components: (i) delay waived by the defence; and (ii) delay caused solely by the conduct of the defence: Jordan, at paras. 61-63.

[41] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, the Supreme Court clarified that the only defence delay that is deductible as “delay caused solely by the defence” is delay that is: (i) solely or directly caused by the accused person; and (ii) flows from defence action that its illegitimate in that it is not taken to respond to the charges: at para. 30. It does not include “defence actions legitimately taken to respond to the charges”: Cody, at para. 29. Inaction that is not legitimate may also amount to delay: Cody, at para. 32.

[42] Where the court and the Crown are ready to proceed but the defence is not, the resulting delay should also be deducted: Jordan, at para. 64.

Waiver

[43] In R. v. Morin, [1992] 1 S.C.R. 771, at p. 790, the Supreme Court of Canada reiterated that “in order for an accused to waive [their] rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights.” A waiver can be explicit or implicit. However, if the mind of the defendant and their counsel is not turned to the issue of waiver and are not aware of what the conduct signifies, the conduct does not constitute waiver: Morin, at p. 790.

[44] In the context of s. 11(b), the waiver is not of the right itself but the inclusion of specific periods in the overall assessment of reasonableness: Jordan, at para. 61.

Disclosure

[45] The issues in this application turn to a large extent on the manner in which the Crown has fulfilled its disclosure obligations.

[46] The Crown’s obligation to disclose all relevant information in its possession relating to an investigation is constitutionally entrenched in the right of an accused person to make full answer and defence under s. 7 of the Charter. The Crown has an obligation “to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.” R. v. Stinchcombe, [1991] S.C.R. 45, at para. 18. Information ought not to be withheld if there is a reasonable possibility that withholding the information will impair the right of the accused to make full answer and defence: Stinchcombe, at pp. 338-39.

[47] Moreover, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or defence: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. In McNeil, the Supreme Court of Canada stated that the “necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police… to disclose to the Crown all material pertaining to its investigation of the accused”: McNeil, at para. 14. The investigating police force, while distinct from the Crown at law, is not a third party; it acts on the same first party footing as the Crown: McNeil, at para. 23.

Was the Defence Waiver of the Relevant Periods Effective?

[48] As noted above, the defence takes the position that the waiver of s. 11(b) in respect of two specific periods is invalid because the defence did not know that the police had obtained search warrants for the three seized cell phones and that, as of March 2020, the extracted data was available.

[49] The Crown submits that the defence’s lack of awareness about the cell phone search warrants and data extractions does not impact the waiver. The Crown further submits that the delay should be attributed to the defence because defence counsel only sought the return of the cell phones almost three years after they were seized, and lacked diligence in pursuing the cell phone search warrants.

Delay 3 – June 8, 2020 to May 10, 2021

[50] At the JPT on November 27, 2019, the defence waived the delay from the first trial date available to the Crown and to the court, to the first date available to defence counsel, for a total of approximately 11 months. The defence submits that the waiver of the delay was ineffective because, at the time, the defence did not know about the cell phone search warrants. As a result, the defence submits that despite the fact that defence counsel was unavailable for trial, the entire period should not be counted against the defence. Alternatively, the defence submits that at most, nine months and 15 days, until March 23, 2021 should be counted against it. The defence uses the March 24, 2021 date because that was the first time the Crown disclosed the existence of the cell phone search warrants.

[51] As detailed above, although the cell phone search warrants were obtained in November 2018, the cell phone data was not extracted by police until March 2020. The existence of the cell phone search warrants was not disclosed to the defence until March 2021. The cell phone search warrants and ITOs themselves were not disclosed until November 2021, and the complete data extractions were not disclosed until December 2021.

[52] In November 2019, when the defence waived the delay for the purposes of s. 11(b), it was unaware that the cell phone search warrants existed. In fact, the Crown was also unaware of them because the police failed to advise the Crown that search warrants had been obtained to extract the data from the seized cell phones.

[53] As noted in McNeil, at para. 24, “[i]t is also widely acknowledged that the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown.” Because the investigating police force is required to disclose the fruits of the investigation to the Crown, the Crown’s lack of knowledge of the cell phone search warrants does not relieve it from its disclosure obligations. Although the roles of the police and the Crown are distinct, the police are responsible for investigating alleged offences and have a duty to participate in their prosecution. The police are the means through which the Crown obtains the relevant material. The police are thus subject to a duty to disclose all relevant material/all material pertaining to the investigation of an accused person: McNeil, at para. 23.

[54] Sgt Keveza recognized this when he admitted on cross-examination that the cell phone search warrants should have been disclosed shortly after they were obtained in November 2018 and that it was “my fault” that they were not. Sgt Keveza testified that the police did not advise the Crown of the cell phone search warrants until the Crown requested the return of the cell phones in February or March 2021. Sgt Keveza confirmed that he did not disclose the existence of the cell phone search warrants to the Crown at the preliminary inquiry. He explained that because the original disclosure had been completed when the cell phone search warrants were obtained, they just “did not come up.” However, there were ongoing disclosure requests from the defence and subsequent disclosure was provided in October, November and December 2018, and January, November and December 2019. Sgt Keveza further admitted that it was an oversight on his part that he did not follow-up with the Tech Crimes Unit to ask for the data extractions.

[55] The police had an obligation to disclose the existence of the search warrants to the Crown. The failure of the police to do so resulted in the Crown’s inability to fulfil its disclosure obligations to the defence. When the defence waived the delay between the first available trial date to the May 2021 trial date, they were completely unaware of the existence of the cell phone search warrants and, consequently, that police believed that a search of the cell phones could lead to the discovery of potentially relevant evidence. In the ordinary course, if disclosure had been made as required, the defence would have had this information. The fact that the data had yet to be extracted from the cell phones when the defence waived the delay means only that the data itself could not have been disclosed. The search warrants and ITOs, however, ought to have been.

[56] In R. v. Jansen, 2017 ONSC 2954, the defendant argued that his s. 11(b) waiver was uninformed and therefore invalid because the Crown had withheld material information regarding the status of an investigation into a third-party suspect. The court rejected the argument on the basis that the defendant was aware from the bail hearing that a third party was being investigated and because the Crown had no obligation to disclose the status of an ongoing investigation. Jansen differs from this case because the status of the third-party investigation was irrelevant to the defence waiver. In this case, Mr. Bashir Ahmad lacked information about the investigation into the charges against him and the existence of potentially exculpatory or inculpatory evidence.

[57] As a result, because the defence lacked knowledge that the seized cell phones were to be searched, I find that the defence waiver of the delay was uninformed and therefore invalid. My finding that the waiver was uninformed should not be taken to suggest that a lack of disclosure by the Crown renders any defence waiver of delay for s. 11(b) purposes invalid. In this case, however, the Crown failed to disclose important first party disclosure that it was clearly obligated to provide. Had the defence known that the police obtained search warrants to extract the cell phone data for investigative purposes, and that the information was outstanding, it is unlikely that the defence would have agreed to waive the delay.

[58] Because I have found that the defence did not waive this period of delay, I must also consider whether, because of defence counsel’s unavailability, the delay was nonetheless caused solely or directly by the defence.

[59] In R. v. Hanan, 2022 ONCA 229, at para. 56, the Court of Appeal found that it is not necessarily the case that once defence counsel is unavailable, all of the delay until the next available date is characterized as defence delay. The Court of Appeal relied on a recent Supreme Court of Canada decision, R. v. Boulanger, 2022 SCC 2, where the Court confirmed that “in some cases, the circumstances may justify apportioning responsibility for delay among [the participants in the criminal justice system] rather than attributing the entire delay to the defence.” In determining whether the delay should be attributed to the defence, the court must take a contextual approach that considers circumstances whether the defence is the sole or direct cause of the delay: Hanan, at para. 58.

[60] In this case, having regard to the context and circumstances, given that defence counsel was unavailable for trial from June 8, 2020 to May 10, 2021, I find it appropriate to apportion a significant portion of that delay to the defence. However, I agree with the defence that the period after March 24, 2021 ought not to be attributed to the defence because by that date, the Crown had obtained, but had not yet disclosed, the cell phone search warrants, ITOs, and data extractions. The Crown received a USB containing the data extractions and other information from the cell phones in March 2021 but did not, for at least another eight months, disclose this material to the defence. In fact, in their March 25, 2021 email, the Crown advised the defence that they would be delivering a USB with the data extractions in the next day or so. However, the Crown did not deliver this material to the defence until December 2021.

[61] Between March 10 to April 14, 2021, the parties appeared almost weekly in practice court to address the defence’s request that the May 2021 trial dates be adjourned. In March 2021, the Crown knew that the defence believed that the cell phone data was relevant to Mr. Bashir Ahmad’s defence. Because of statements made by defence counsel at these court appearances, the Crown also knew that even after the cell phones were returned, the defence expert was having difficulty accessing the cell phone data. The Crown baselessly advised the defence, and the court, that the data extractions were “unreadable.” A USB of the file created by the Tech Crimes Unit was in evidence on the application. It contains photographs, Cellebrite reports and other material, all of which is in fact readable. Moreover, Sgt Keveza confirmed in cross-examination that at no time did the Crown request further assistance with the USB file, as might be expected if the file was unreadable.

[62] Moreover, the Crown took the position in its March 29, 2021 email that the cell phones themselves were the “best evidence” and that it had no further disclosure to make. At the appearance on March 31, 2021, the Crown also advised the court that there was no further disclosure. When the Crown took this position, it was plainly erroneous. The cell phone search warrants, ITOs and data extractions were all outstanding. Even if the Crown mistakenly believed that the data extractions were unreadable, it still had an obligation to disclose the cell phone search warrants and ITOs. The Crown had specifically committed, in the March 25 email message, to doing so.

[63] Based on the Crown’s failure to disclose, and its unjustified position on the status of disclosure, the defence was not in a position to assess or prepare its case. I therefore find that the period from June 8, 2020 to March 23, 2021 is defence delay, for a total of nine and a half months. The remaining period, from March 24 to May 10, 2021, is delay attributed to the Crown.

Delay 4 – May 10, 2021 to December 6, 2021

[64] On April 14, 2021, the defence’s adjournment application was granted. While the defence waived s. 11(b), the defence’s position on this application is that the waiver is invalid because it was uninformed.

[65] In order to determine whether the waiver was informed, it is necessary to consider what the defence knew and did not know when the waiver was given. In April 2021, the defence knew about the existence of the cell phone search warrants and ITOs, but they had not yet been disclosed. The defence also knew that the police had examined the cell phones and extracted data from them. Despite the Crown’s commitment to disclosing the data at the earliest opportunity, however, the Crown later took the position that it was not required to disclose the cell phone data because it was unreadable and because the cell phones had been returned.

[66] The defence’s knowledge was incomplete in the following key respects. First, based on the Crown’s email communication, the defence understood that the data was recently extracted by police to retain a copy before the cell phones were returned. However, the defence did not know at the time that the search warrants had been authorized in November 2018, and that the data had been extracted in March 2020 because police believed it might yield information relevant to the investigation. Second, and relatedly, because defence counsel understood that the cell phone searches were recent, counsel became concerned about signs, based on the expert’s examination of the phones, that they had been used or tampered with after they were seized. Third, based on the Crown’s March 29, 2021 email message, the defence believed that the data extractions were “unreadable” and of no probative value. This too was incorrect. The defence’s adjournment request was largely based on the challenges their expert was having in extracting the data from the cell phones, which they believed might yield exculpatory information. Had the defence known that the data extractions were available and readable, and had the Crown disclosed them as it was required to do, the defence would have been in a better position to prepare the Charter applications and the defence. Had the data extractions been disclosed shortly after they were originally completed, the defence might not have had to retain an expert at all. Most importantly, had the defence known that the cell phone data was available in a readable form, it would not have agreed to waive s. 11(b) when making the adjournment request.

[67] For the foregoing reasons, I find that the defence waiver was not informed. The defence was prepared to waive s. 11(b) during this period to have time to prepare a s. 8 Charter application and Mr. Bashir Ahmad’s defence. The fact that police had searched the cell phones for investigative purposes and the existence of the cell phone data in a readable, accessible form were both material pieces of information not known to the defence when the waiver was given. The waiver of the delay was thus ineffective. Again, it is not the case that a waiver will be ineffective whenever there is a failure to disclose by the Crown. In this case, however, defence counsel had communicated that the cell phone data was critical to the Charter application and Mr. Bashir Ahmad’s defence. The Crown had a USB containing the data in its possession but did not disclose it or correct its description of the data as unreadable.

[68] As above, having found that the defence’s waiver was invalid, I must also consider whether any part of the delay was caused solely or directly by the defence.

[69] The Crown submits that the defence lacked diligence in pursuing the cell phones, search warrants, ITOs and data extractions. The Crown notes that the defence did not seek the return of the cell phones until 2021, almost three years after Mr. Bashir Ahmad’s arrest. The Crown further submits that it did not have to disclose the cell phone data because it made clear at all times that it would not be relying on it.

[70] It is clear that the “fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure”: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37. However, the Crown’s position on the defence’s lack of diligence in requesting the return of the cell phones disregards that it is the Crown who was obligated, and failed, to disclose the existence of the search warrants and ITOs. Had the search warrants and ITOs been disclosed in November or December 2018, the defence would have been alerted to the fact that the police sought information from the cell phones. The defence did not know about the cell phone search warrants until March 2021. Having failed to fulfil its fundamental disclosure obligations, the Crown cannot argue that the defence ought to have been more diligent in pursuing the return of the cell phones. In fact, but for the defence’s request for the return of the cell phones, the fact that the cell phones were searched might not have been discovered at all.

[71] Moreover, I find the Crown’s argument that the defence was insufficiently diligent in pursuing the search warrants, ITOs and data extractions is unsupported by the evidence. Defence counsel requested the search warrants and ITOs on March 25, 2021, shortly after the court appearance at which they first became aware of them. The Crown was thus on notice in the spring of 2021 that the defence sought the search warrants and ITOs. The Crown in fact advised the defence on March 25, 2021 that it was proceeding to have the ITOs unsealed. However, the ITOs were not unsealed until November 2021. It remains unclear why the unsealing of the ITOs, which are two and half pages long and contain no redactions, took over seven months. The defence was not required to repeatedly follow-up with the Crown after it advised that steps were being taken to unseal the ITOs. The Crown’s position that the defence failed to make further requests for the search warrants and ITOs disregards that it was always the Crown’s duty to disclose them and that they ought to have been disclosed soon after they were obtained in November 2018.

[72] Similarly, had the Tech Crimes Unit notified the investigators when the data extractions were completed on March 27, 2020, that information could have been disclosed around that time. There were a number of unfortunate lapses in this case that led to a lengthy delay in the disclosure of the search warrants, ITO and data extractions. The officers who testified had no explanation for the lapses. At the time, the TPS did not have a system to log the various steps, such as when cell phones are received, when they are analyzed, and when investigators are advised that the examinations are completed. Even after the electronic file with the data extractions was provided to Sgt Keveza on March 16, 2021, the file was not provided in its entirety to the defence until December 23, 2021. The Crown has offered no explanation for the delay. Further, the defence cannot be faulted for not pressing the disclosure of the cell phone data extractions when the Crown had advised that the data was unreadable.

[73] The Crown’s position that the delay in disclosure did not matter because it did not intend to rely on the data extractions disregards that at all times, the Crown was under an obligation to disclose all relevant information to the defence. The Crown’s disclosure obligations do not end at potential evidence upon which the Crown intends to rely but includes all material that could be relevant to the defence. Moreover, during a court appearance, the Crown had acknowledged that the data could potentially include exculpatory evidence. The Crown was aware that the defence believed that the cell phone data was relevant to Mr. Bashir Ahmad’s defence. Consequently, the Crown’s view that the cell phone data was immaterial did not relieve it of its disclosure obligations.

[74] As a result, I find that none of the delay during the period from May 10 to December 6, 2021 was caused solely or directly by the defence.

To Which Party Is the Remaining Delay Attributable?

Delay 5 – December 6, 2021 to March 7, 2022

[75] On December 1, 2021, Presser J. granted the defence’s application for an adjournment and found that the issue of to whom the delay ought to be attributed should be left to the judge hearing the s. 11(b) application.

[76] The fact that the defence is required to bring an adjournment application in order to respond properly to late disclosure does not result in defence delay or a waiver of s. 11(b): R. v. Jacques (1998), 127 Man. R. (2d) 161 (Q.B.). In Jacques, the court found that the delay was caused by the lack of disclosure by the Crown.

[77] In this case, the Crown submits that the delay should be attributed to the defence because they lacked diligence in pursuing the cell phone search warrants and ITOs. The Crown further submits that it was not aware of the significance of the cell phone data to the defence until the December 1 hearing and thus could not remedy any delay.

[78] At the hearing, defence counsel raised for the first time that they would be bringing an application under ss. 7 and 24(1) of the Charter based on information that the expert discovered in examining the cell phones. Defence counsel acknowledged that the Crown would not be in a position to know the full extent of the defence’s concerns until the application was delivered. The application was precipitated by the disclosure of the cell phone search warrants, which were dated November 2018, and the expert’s finding of signs that the cell phones were used or accessed at a much later date.

[79] In my view, the Crown’s submission that it was not in a position to know the significance of the cell phone data to the defence is without merit. At repeated court appearances, defence counsel made comments that revealed that the defence expert was trying to access the cell phones and having difficulty obtaining the necessary data. The defence needed more time to complete this analysis. It ought to have been apparent to the Crown that the defence would not be going to such lengths if the cell phone data was immaterial to the defence. Even at the December 1 hearing, defence counsel stated that the defence expert had been able to get into the cell phones “to a certain extent.” It is evident from this comment that (i) the defence expert continued to have difficulty extracting data from the cell phones; (ii) that the data remained important to the defence case; and (iii) that the defence continued to believe the data extractions obtained by the police were unreadable.

[80] The detail that was not known to the Crown until the December 1 hearing was the defence’s intention to bring an application under ss. 7 and 24(1) of the Charter. The defence had previously only referred to an application under ss. 8 and 10(b) of the Charter. However, the s. 7 issue only arose after the defence received the cell phone search warrants and ITOs, which they believed were inconsistent with the dates on which the cell phones were accessed.

[81] As noted above, had the Crown disclosed the cell phone search warrants and ITOs when they were authorized in November 2018 or in March 2021 when the Crown first became aware of them, rather than in November 2021, the concerns raised by the defence about unauthorized access would have been apparent much sooner. Having failed to disclose the search warrants and ITOs, the Crown cannot fault the defence for failing to raise these concerns, which only arose when the defence became aware of the date on which the search warrants were authorized.

[82] In addition, the Crown ought to have disclosed the cell phone data shortly after the police provided it on March 24, 2021. It was only on December 23, 2021 that the Crown finally delivered to the defence a USB containing the material extracted from the cell phones. Having taken the position in March 2021 that the data extractions were “unreadable” and of no probative value, the Crown failed to take further steps, until December 2021, to provide those extractions to the defence. In cross-examination, Sgt Keveza expressed surprise when he heard that the USB that he delivered to the Crown had not been provided to the defence until December, almost nine months later. This late disclosure was contrary to the Crown’s clear obligation to disclose all relevant material, not to mention the Crown’s commitment, on March 24, 2021, to the defence and the court to provide the material within a week.

[83] The adjournment of the December 2021 trial dates could have been avoided if the Crown had provided prompt disclosure of the cell phone search warrants, ITOs and data extractions. The issues would have come to the fore and could have been addressed long before the scheduled trial date. I find that Delay 6, the period between the scheduled trial dates to the new trial dates, is not defence delay but was caused by the Crown’s late disclosure. The total delay is three months.

Net Delay

[84] The total delay is 46 months. Delay 1, 2 and 5 are defence delay. In respect of Delay 3, a period of nine and half months is attributed to the defence. The total defence delay is thus 11.5 months. The net delay is thus 34.5 months, which exceeds the Jordan ceiling of 30 months.

Are There Exceptional Circumstances Justifying the Delay?

[85] Once the presumptive ceiling has been breached, the Crown must demonstrate the existence of exceptional circumstances to rebut the presumption of unreasonableness.

[86] Exceptional circumstances exist when (i) they are reasonably unforeseen or reasonably unavoidable; and (ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan, at para. 69. The circumstances need not be rare or uncommon.

[87] The Crown submits that the cell phone issue is a discrete exceptional circumstance because it was reasonably unforeseen by the Crown, who had no knowledge of the cell phone search warrants or the potential significance of the cell phones. The Crown further submits that it made significant efforts to alleviate the delays once it was aware of the issue.

[88] I disagree. The Crown was aware from the outset that three cell phones had been seized when the original search warrants were executed. The rationale for seizing cell phones is that they might yield evidence beneficial to the investigation or prosecution of the offences. Sgt Keveza testified that while it was not common to obtain search warrants to examine cell phones in drug cases, it was not unusual. It could reasonably be foreseen that if cell phones are seized, that they might be further examined and that, as a result, there would be search warrants and data extractions. The Crown cannot rely on the police’s failure to advise them of the cell phone search warrants as an exceptional circumstance. It is inconsistent for the Crown to argue both that the defence knew all along that the cell phones had been seized and thus ought to have requested their return earlier, but that it was reasonably unforeseen to the Crown that the seized cell phones would be examined.

[89] Moreover, even after the Crown became aware of the cell phone search warrants, it did not act reasonably to remedy the delay. Instead, the Crown delayed over seven months before disclosing the search warrants and ITOs and took the unreasonable and inexplicable position that it did not have to disclose the data extractions. The Crown went so far as to advise the court that it had no further disclosure to make when all of this material was outstanding.

[90] The Crown’s position, that it would not rely on the cell phone data at trial, did not remedy the delay. The Crown knew from March 2021 that the defence was seeking the data to prepare a defence and Charter application.

[91] In respect of Delay 4, the Crown further submits that the defence could not proceed to trial in May 2021 because of a “COVID-19 outbreak” at defence counsel’s office, and that this was a discrete exceptional circumstance justifying the delay. While defence counsel advised that an employee had contracted COVID-19 and that the need for staff to isolate was creating logistical issues, this was not the reason for the adjournment request. It is clear that the basis for the adjournment application was the inability to access the cell phone data and prepare the Charter applications in time. The fact that an employee at defence counsel’s office contracted COVID-19 is not an exceptional circumstance justifying the delay.

[92] For the foregoing reasons, I find that the Crown has failed to rebut the presumption of unreasonable delay.

Conclusion

[93] Accordingly, the application is granted and the proceeding is stayed.

Nishikawa J.

Released: April 19, 2022