COURT FILE NO.: CR-22-0256-00
DATE: 2023-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Applicant
- and -
Elmi Osman
Respondent
R. Poirier for the Applicant
S. Senra, for the Respondent
HEARD: December 11, 2023, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Judgment on 11 (b) Application
Background
[1] Elmi Osman applies to have charges against him stayed. He submits his right to be tried in a reasonable time under section 11(b) of the Charter has been violated. Mr. Osman says the presumptive ceiling of 30 months set out in the leading decision of the Supreme Court of Canada in R. v. Jordan was reached on October 27, 2023. The Crown resists the application.
The Facts
[2] The parties agree as to many of the events involved in the progress of the matter to date.
[3] Mr. Osman is facing four charges:
Possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA).
Possession of the proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code.
Unauthorized Possession of a Prohibited Weapon, contrary to s. 91(2) of the Criminal Code.
Unauthorized Possession of a Prohibited or Restricted Weapon Knowingly, contrary to s. 92(2) of the Criminal Code.
[4] Mr. Osman was arrested on April 27, 2021. He is scheduled to be tried on February 26, 2024. The trial is scheduled to be completed on March 1, 2024. This matter will be tried in Thunder Bay. All the relevant events in this case occurred in Thunder Bay.
[5] On this application the Crown accepted that a statement of the facts set out in the factum submitted by Mr. Osman in this matter from paragraphs 5 to 58 were substantially correct. As these facts form the basis for this decision, I will set them out now.
[6] During March 2021, the Thunder Bay Police Intelligence Unit started a drug investigation into illegal substances being trafficked out of numerous addresses around the city of Thunder Bay, Ontario.
[7] On April 27, 2021, Thunder Bay Police executed a CDSA search warrant for two of these addresses: 202-53 Cumberland Street South and 263 Lincoln Street. At 263 Lincoln Street, they arrested four individuals, including the Applicant. The Applicant was charged with the following offences:
-Possession for the Purpose of Trafficking
-Proceeds of Crime Over $5,000.00
-Possession of a Prohibited or Restricted Weapon (Brass Knuckles)
-Possession of a Prohibited or Restricted Weapon (Brass Knuckles) Knowingly.
[8] On April 28, 2021, Mr. Osman was held for bail and brought to the Ontario Court of Justice before the Honourable Justice J. Niel. His Information was sworn, and his charges were read to him. Mr. Osman acknowledged this, and advised that he had spoken to Leo Russomanno, his lawyer. Mr. Osman’s matter was put over to May 7, 2021, for bail planning.
[9] On May 7, 2021, J. Burling (Mr. Russomanno's law-student) appeared before the Honourable Justice Woods to confirm that Mr. Osman’s bail hearing was scheduled for two-hours on May 11, 2021, with the co-accused Dustin Swanson.
[10] On May 11, 2021, Justice of the Peace B. Leaman released Mr. Osman and Mr. Swanson on conditions after a contested bail hearing. On May 12, 2021, Leo Russomanno, Mr. Osman’s lawyer, requested his initial disclosure from the Federal Crown's Office.
[11] On June 7, 2021, A. Kaki appeared as agent for Mr. Russomanno before the Honourable Justice C. Ellard. Mr. Kaki adjourned the Applicant's matter six weeks to receive disclosure and schedule a crown pretrial. Mr. Kaki advised that Mr. Russomanno was waiting for disclosure. He also confirmed that Mr. Russomanno followed up with the Federal Crown's office about it on June 4, 2021.
[12] On July 15, 2021, A. Kaki appeared as agent for Mr. Russomanno before the Honourable Justice C. Brochu. Mr. Kaki adjourned Mr. Osman’s matter three-weeks to August 5, 2021, to review disclosure and to conduct a crown pretrial. The Crown asked that the matter come back on August 19, 2021, due to a busy court schedule. The Crown advised that Mr. Russomanno will have the Applicant's Information to Obtain (ITO) by then. Lastly, the Crown advised that following the next appearance - the Crown will be seeking that the dates be scheduled.
[13] A third appearance occurred on August 19, 2021. The court could not locate the recording for this appearance.
[14] On September 20, 2021, Mr. Osman, and his co-accused – Mr. Swanson and Patrick Chimenti, all had their Court Information(s) before the Honourable Justice C. Belda. (Note that the fourth co-accused - Connor Roy - had his charges withdrawn because he had passed- away).
[15] Mr. Habjan, counsel for Patrick Chimenti, advised that he was recently retained and that he had received the initial disclosure, but that it was not complete. He advised that he had not yet had the opportunity to review it. He then requested for Mr. Chimenti's matter to be adjourned to November 15, 2021, to review disclosure and to conduct a crown pretrial.
[16] Mr. Parmar appeared as agent for Mr. Matthews, counsel for Mr. Swanson. He advised that Mr. Matthews was in the process of scheduling a crown pretrial and that he had sent a request to the Provincial Crown and Federal Crown about this, and that he was waiting to hear back from them. (Note that Mr. Swanson had additional criminal charges before the court at this appearance that predated his matter as co-accused with Mr. Osman and Mr. Chimenti). Mr. Parmar requested that Mr. Swanson's matter follow Mr. Habjan's request for Mr. Chimenti to November 15, 2021.
[17] Ms. Williams appeared as agent for Mr. Russomanno. Ms. Williams advised that Mr. Russomanno had conducted his crown pretrial and requested that Mr. Osman’s matter follow the co-accused to the date of November 15, 2021, in the "hope that we can either schedule a JPT in the interim or figure that out based on where the co-accused is at as well”.
[18] The Federal Crown, Mr. Haque, advised that: "From the Federal Crown's perspective, Mr. Russomanno's had disclosure since July 5th, the ITO was provided, I believe sometime in July or August rather, in August, so about a month ago. The defence is in the possession of disclosure, and it should be in the position to make elections. This matter is from April of this year".
[19] The court adjourned Mr. Osman and his two co-accused to November 15, 2021, to set a date for a judicial pretrial and for elections to be made prior to or on that day.
[20] On November 15, 2021, Mr. Parmer appeared as agent for Mr. Russomanno and Mr. Matthews, counsel for Dustin Swanson, before the Honourable Justice C. Brochu. He requested a two-week adjournment, advising that Mr. Russomanno was waiting on "significant disclosure" and that he was in the process of scheduling a JPT. Mr. Osman’s matter was put over to November 29, 2021.
[21] On November 16, 2021, Mr. Russomanno sent the Federal Crown an additional disclosure request.
[22] On November 27, 2021, Mr. Russomanno, Mr. Matthews, counsel for Dustin Swanson, and Mr. Habjan, counsel for Patrick Chimenti, conducted a judicial pretrial with the Honourable Justice F. Valente. Mr. Haque appeared for the Federal Crown. Mr. Osman and Mr. Swanson were on the same information. Patrick Chimenti was on a separate information with Connor Roy, the other co-accused, who had passed away on September 2, 2021. The Crown was considering joining Patrick Chimenti with Mr. Osman and Mr. Swanson on the same Information.
[23] Mr. Russomanno wanted to move Mr. Osman’s matter forward. He advised that he wanted an Ontario Court of Justice election for Mr. Osman and would be bringing a Garofoli application.
[24] Disclosure remained outstanding. This included an expert forensic report, the ITO for Patrick Chimenti, and the ITO source debriefing reports and source materials. The Crown was not yet in receipt of the forensic disclosure, but content to proceed with out it. Mr. Matthews, for Mr. Swanson, needed a day or two to get instructions about elections. He was considering a Superior Court election with a preliminary inquiry, but possibly an election in the Ontario Court of Justice. He was concerned about the outstanding forensic report.
[25] Mr. Habjan, counsel for Patrick Chimenti, was without the ITO for his client and did not have instruction regarding elections. Justice Valente noted that the defence was entitled to know about the DNA test results before setting trial dates. His Honour put the judicial pretrial over to another date to sort things out, including what the Crown was going to do regarding the informations.
[26] There was a sixth appearance on November 29, 2021. Unfortunately, the court cannot locate the recording for this appearance.
[27] On December 1, 2021, a continuing judicial pretrial was held with Justice Valente. Mr. Russomanno appeared for Mr. Osman. Mr. Matthews appeared for Mr. Swanson. Mr. Haque appeared for the Federal Crown. The Crown was proceeding on a separate Information for Patrick Chimenti. Mr. Matthews elected a Superior Court trial, judge alone, with a preliminary inquiry. Disclosure remained incomplete, but sufficiently complete for the purpose of conducting the preliminary inquiry. Outstanding were three sets of surveillance notes, which the Crown advised would be received by defence counsel by December 15, 2021. Also missing was an exhibit list from one of the searches and the expert report for the latent fingerprint.
[28] Six days was the estimated time to conduct the preliminary inquiry, which included a Mohan voir dire for the expert witness (latent fingerprint analysis) and a Dawson Application. Committal was in issue.
[29] On January 10, 2022, Mr. Matthews, counsel for Mr. Swanson, submitted the trial/preliminary inquiry scheduling form to the trial coordinator. Mr. Osman was included as the co-accused. (Patrick Chimenti, the other co-accused, was not included, as his matter was proceeding on a separate information). Mr. Russomanno was available for all of the suggested dates offered by the trial coordinator except for one, which was December 22, 2022.
[30] On January 10, 2022, Ms. Williams appeared as agent for Mr. Russomanno before the Honourable Justice C. Brochu. Mr. Parmar appeared as agent for Mr. Matthews, counsel for Mr. Swanson. Mr. Haque, the Federal Crown, noted that in the morning he had received a statement of issue for Mr. Osman and Mr. Swanson. Mr. Parmar confirmed the preliminary inquiry dates. He put them on the record as follows: December 15-16, 19-21, and 23, 2022, with November 25, 2022, as the confirmation hearing date.
[31] On November 25, 2022, Crown counsel addressed Mr. Osman’s matter on behalf of Mr. Russomanno before the Honourable Justice E. A. Burton. Crown counsel advised that Mr. Russomanno was not able to attend Mr. Osman’s court appearance due to a scheduling issue. The Crown noted that Mr. Osman was the only party remaining on the Information (Dustin Swanson's charges were dropped on November 17, 2022), and that Mr. Russomanno and the Crown had "worked out a resolution deal, but they've worked out a deal that would involve the preliminary hearing not proceeding ... ". The court adjourned the matter to December 2, 2022, so that Mr. Osman could formally waive his preliminary inquiry on the record.
[32] On December 2, 2022, G. Joseph appeared as agent for Mr. Russomanno before the Honourable Justice D. Gibson. Mr. Joseph formally waived Mr. Osman’s preliminary inquiry and consented to have him committed to stand trial in the Superior Court of Justice.
[33] On December 19, 2022, P. Vo appeared as agent for Mr. Russomanno before me in the Superior Court of Justice. Ms. Vo advised that there was a possibility that Mr. Osman would be retaining local counsel to run his trial. She informed the court that Mr. Russomanno would be referring this matter to Mr. Joseph potentially. Ms. Vo requested that Mr. Osman’s matter go over to January 30, 2022, to sort this out.
[34] The Crown noted that the preliminary inquiry was to have commenced that very week, but that within the last month, Mr. Osman decided to waive the preliminary hearing and consented to committal. They noted that the Mr. Osman’s indictment was filed with the court, and that this was Mr. Osman’s first appearance.
[35] On January 30, 2023, Mr. Russomanno appeared before the Honourable J. Fregeau. Mr. Osman was present in court by way of Zoom. Mr. Osman consented to have Mr. Russomanno removed as his counsel of record, and advised that he would be retaining new counsel by his next appearance.
[36] Mr. Senra appeared as Mr. Osman’s new counsel on the twelfth appearance on February 27, 2023, before Fregeau J. and put himself formally on the record. Mr. Haque, for the Crown, advised that Mr. Osman’s matter should be scheduled for a pretrial. Mr. Senra confirmed that he would schedule pretrial dates before the next assignment court date on March 27, 2023.
[37] On February 27, 2023, Mr. Senra requested initial disclosure from the Federal Crown and requested judicial pretrial dates for late April or early May from the Trial Coordinator. Mr. Senra selected the first available date in May which was May 16, 2023.
[38] On February 28, 2023, Mr. Senra sent an email to the Federal requesting dates to conduct a Crown pretrial. Mr. Senra selected the first offered date of Saturday, March 4, 2023, which was rescheduled for the following day by the Federal Crown on March 5, 2023. On March 13, 2023, Mr. Senra sent an email to the Federal Crown's office confirming that he had received the Applicant's disclosure USB and requested additional disclosure, namely: the ITO. In addition to this, Mr. Senra sent a follow up email request for the statutory declarations from Mr. Swanson, having only previously received one for Mr. Chimenti.
[39] On March 27, 2023, Mr. Senra appeared before the Honourable R.S.J. B. Warkentin and confirmed the Applicant's pretrial date of May 16, 2023. He also confirmed that he had receive initial disclosure. However, he indicated he was without the ITO and the statutory declarations of the former co-accused. The Crown advised that the ITO was readily accessible, and that it would be sent to Mr. Senra by email within the hour. Regarding the statutory declarations, it remained unclear whether each of the former co-accused (Mr. Chimenti and Mr. Swanson), had signed them.
[40] On March 31, 2023, Mr. Senra sent a detailed email to the Federal Crown's office requesting additional disclosure items, such as: source documents for the ITO, officer notes and reports, surveillance reports, copy of written consent by the landlord, covert camera surveillance notes/reports, booking videos for the Applicant and co-accused, SOCO photos, and pre search and post search videos.
[41] On April 19, 2023, Mr. Senra sent a detailed email to the Federal Crown's office requesting the disclosure related to the latent fingerprint expert analysis conducted by the Thunder Bay Police Service, and followed up on the outstanding disclosure.
[42] On May 3, 2023, Mr. Senra sent an email to the Federal Crown's office requesting a continuing Crown pretrial ahead of Mr. Osman’s May 16, 2023, judicial pretrial.
[43] On May 16, 2023, Mr. Senra conducted Mr. Osman’s judicial pretrial before the Honourable Justice H. Pierce. The Crown consented to Mr. Osman’s re-election to judge alone. Legal issues were considered, and time estimates for Charter motions and trial were discussed. Mr. Senra advised that delay was in issue, given that Mr. Osman’s Jordan date was alleged to be October 27, 2023. He further advised that depending upon the availability of dates, an 11(b) application would be brought. Regarding other pretrial motions, Mr. Senra advised that Mr. Osman would be bringing a section 8 application for unreasonable search and seizure, which included a Garofoli application to challenge the ITO of the search warrant. The Crown challenged standing.
[44] On May 19, 2023, Mr. Senra sent an email to the Trial Coordinator at Thunder Bay requesting trial dates. He included the Federal Crown on the email. The Trial Coordinator provided two options:
Option # 1
Standing Application - August 1, 2023.
Garofoli Application (if Standing Approved) - October 12 - 14, 2023.
Five Day Trial - January 8 to 15, 2024.
Option # 2
Standing Application - December 11 or 12, 2023.
Garofoli Application (if Standing Approved) January 17 - 19, 2024.
Five Day Trial - February 26, 2024.
[45] Mr. Senra was available for option one, and was in position to select the earliest available dates. The Federal Crown was not. The Federal Crown was only available for the option two dates.
[46] On May 29, 2023, Mr. Senra appeared before the Honourable Justice H. Pierce. Mr. McConnell appeared for the Federal Crown. On behalf of Mr. Osman, Mr. Senra noted that he filed the Applicant's re-election to judge alone. He also advised that he was before the court to confirm dates. The court acknowledged that there was a standing application, a Garofoli Application, and then trial. It was confirmed that December 11, 2023, would be the Applicant's standing application (by way of Zoom); and that if standing was approved - that January 17, 2024, to January 19, 2024, was for the Applicant's Garofoli Application (in person); and then the Applicant's five-day trial to follow, and set for the week of February 26, 2024. Mr. Senra advised for the record that he was available for earlier dates while the Crown’s office was not and that the dates he confirmed were the earliest dates the Crown could accommodate.
[47] I note at paragraph 53 of the factum it was noted that as of May 16, 2023, disclosure remained outstanding (and remains outstanding to date of the production of the factum). In argument Crown counsel argued that disclosure had been completed well prior to Mr. Senra coming on the record.
The Law
[48] Mr. Osman argues there has been no defence delay in this matter. The Crown disagrees. The parties focused their submissions on the law related to defence delay in an 11(b) context.
[49] The principles enunciated in the leading decision of the Supreme Court in R. v. Jordan, 2016 SCC 27 are well known. Section 11(b) of the Charter guarantees that any person charged with an offence has the right to be tried within a reasonable time. The primary purpose of this section is to protect the individual rights of an accused, in particular, the right to security of the person, the right to liberty, and the right to a fair trial. Section 11(b) provides an individual accused with a counterweight to the state's power and authority to prosecute, specifically, the obligation to do so within a reasonable time.
[50] The Jordan framework aims to simplify section 11(b) applications. No longer are courts asked, in a retrospective manner, to examine and balance numerous factors to determine if there was unreasonable delay in any one case. Instead, Jordan sets out a more intuitive, forward focused, and step-based analysis. The framework takes total delay and subtracts from that delay any defence caused or defence waived delay to arrive at a net delay. If net delay is above the applicable presumptive ceiling, then the delay is presumptively unreasonable. Once delay is found to be presumptively unreasonable, the burden shifts to the Crown to rebut the presumption by establishing an exceptional circumstance. If the Crown can prove an exceptional circumstance, the associated time is deducted from net delay. If the remaining delay is still above the presumptive ceiling, then the delay is unreasonable, and a stay of proceedings must follow.
Disposition
[51] Mr. Osman took the initial position there was no defence delay. When the Court pointed out that Mr. Osman had switched counsel mid proceedings, Mr. Osman did modify his position to acknowledge that there was defence delay from the time Mr. Osman released Mr. Russomanno and Mr. Senra came on the record. This would be delay for the period December 19, 2022, until February 27, 2023. Two months and eight days.
[52] I also agree with the Crown submission that Mr. Osman's decisions during the period of January 10, 2022, to December 15, 2022, must be of some consequence to the calculation of defence delay. In the period from November 10, 2022, to December 15, 2022, Mr. Osman was in a position to re-elect to the Superior Court or waive the preliminary hearing. He did neither until the charges were dropped against Mr. Swanson. Mr. Osman had the ability to move the matter forward and did not. In my view, this period has to be attributed as defence delay. This is a period of 10 months and five days.
[53] Taking these two time periods in to account the presumptive Jordan date for this matter would be sometime in November 2024. This is after the time this trial is scheduled to be completed in March 2024. I also agree with the Crown assertion that disclosure is complete. Mr. Osman’s application lacked sufficient particularity with regard to his submission that disclosure has not been completed. This far into a file one would expect the defence to be able to pinpoint at least in general terms, items of disclosure that it lacked. The one statutory declaration that was discussed during the hearing of the standing application prior to this application is not sufficient for me to agree with the submission that disclosure is at this point incomplete. This also suggests to me that Mr. Osman’s right to a trial within a reasonable time has not been violated to date or by having his trial heard when it is presently scheduled.
[54] The application is therefore dismissed.
[55] This matter had been adjourned to the assignment court in Thunder Bay on January 29, 2024. This date is vacated. As I have found in a decision released together with this one, that Mr. Osman has no standing to challenge the search warrants relied upon by the Crown, this matter is to be returned for trial commencing February 26, 2024.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: December 20, 2023
COURT FILE NO.: CR-22-0256-00
DATE: 2023-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
Elmi Osman
Accused
JUDGMENT ON 11(b) APPLICATION
Fitzpatrick J.
Released: December 20, 2023