COURT FILE NO.: CR-23-46
DATE: 2024-07-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Sam Weinstock, for the Crown/Respondent
- and -
KEVIN NYADU
Heather Spence, for the Defendant/Applicant
HEARD: January 15 -19, 2024
11(b) MOTION RULING #2
MIRZA J.
OVERVIEW
[1] This is Kevin Nyadu’s second application pursuant to sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings on the basis that his right to a trial within a reasonable time has been infringed.
[2] Mr. Nyadu is charged with Possession of a Restricted Weapon (s. 91(3)), Possession of a Restricted Weapon without a License (s. 92(3)), Careless Storage of a Firearm (s. 86(3)) and Possession of a Weapon Dangerous to the Public (s. 88(2)) contrary to the Criminal Code. He is also charged with two counts of Possessing for the Purposes of Trafficking cocaine and fentanyl contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[3] The first 11(b) motion was heard before me on September 11, 2023. The motion was dismissed in a ruling dated September 27, 2023. R. v. Kevin Nyadu, 2023 ONSC 5452.
[4] At the time of the first 11(b) motion, the Defence and Crown agreed that the jury trial set at that time for January 8, 2024, was scheduled to complete in 27 months and 13 days (27.5 months). This is 2.5 months below the 30 month ceiling for a Superior Court trial pursuant to R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. I ruled that 27.5 months for the trial to conclude in the Superior Court of Justice did not breach the Applicant’s right to be tried within a reasonable time.
[5] Mr. Nyadu’s Charter motions were set to proceed on October 10, 2023, for 4 days. However, the Defence received additional disclosure the week prior to October 10, 2023.
[6] The Defence submitted that this additional disclosure informed a further request for materials that were relevant to the section 8 Charter application. The Crown submitted that the additional materials sought by the Defence were not disclosable. As a result, a disclosure motion was set and heard on December 5, 2023. To permit the disclosure motion, the Charter motion and trial dates were adjourned by the case management judge. All of the Charter motions were rescheduled for the week of January 15, 2024. The trial date was rescheduled for two weeks, starting April 15, 2024.
[7] The Applicant brought a further 11(b) motion that I heard on January 15, 2024. The section 8 Charter motions were heard the same week. At the end of the hearing, the Defence abandoned the section 7 lost evidence motion.
[8] The Defence concedes some delay due to unavailability for earlier trial dates offered in March and April and submits that the total delay is 29.5 months. The Defence contends that this amount of delay, although below the presumptive ceiling, breaches the Applicant’s 11(b) rights and warrants a stay.
[9] The Crown submits that the Applicant’s 11(b) motion should be dismissed. The delay is below the presumptive ceiling. The Defence has not demonstrated that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.
[10] I rely on my ruling for the first 11(b) motion that explains in greater detail the allegations, analysis of the earlier chronology, and applicable law for when the delay is below the presumptive ceiling. In this ruling, I will include an updated chart. My updated analysis will focus on the additional dates since the first 11(b) ruling.
CHRONOLOGY
Date
Appearance Details
October 6, 2021
Applicant is arrested.
October 7, 2021
Information Sworn.
October 12, 2021
Bail hearing. Applicant is released.
November 9, 2021
Counsel requested initial disclosure to the Provincial Crown Attorney’s office.
November 10, 2021
First Appearance: Matter is adjourned to November 28 to marry up information with co-accused’s return date.
November 10, 2021
Counsel requested initial disclosure to the Federal Agent Prosecution office.
November 24, 2021
Second Appearance: Crown counsel indicated that they were in the process of obtaining disclosure and the matter is adjourned to December 22 to receive disclosure.
December 22, 2021
Third Appearance: Matter is adjourned to January 5 to receive disclosure to be released that day.
December 22, 2021
Wave 1 of disclosure is shared with counsel.
January 5, 2022
Fourth Appearance: Matter is adjourned to January 26 to receive and review additional disclosure along with co-accused.
January 10, 2022
Counsel sent a disclosure request for officers’ notes and four (4) Information to Obtain Search Warrants.
January 18, 2022
Wave 2 of disclosure is shared with counsel.
January 26, 2022,
Fifth Appearance: Matter is adjourned to February 16 to review wave 2 of disclosure and potentially conduct a Crown pre-trial.
February 15 – March 1, 2022
Counsel requested to set a Crown pre-trial, and scheduling is discussed.
February 16, 2022
Sixth Appearance: Matter is adjourned to March 16 to conduct a Crown pre-trial in the interim.
February 28, 2022
Crown pre-trial is conducted.
March 1, 2022
A follow up discussion with the Crown occurred.
March 7, 2022
An OCJ judicial pre-trial is scheduled for April 25, 2022.
March 16, 2022
Seventh Appearance: Matter is adjourned to April 25 to conduct a Judicial pre-trial.
April 25, 2022
A judicial pre-trial is conducted. Defence indicates: “I can indicate that myself and Ms. Kent’s client, we’re open to an Ontario Court of Justice trial matter. But there is going to be an election for judge and jury, and there is going to be no severance. So given that, we will be moving forward with the prelim.”
The matter is subsequently adjourned to May 5 to schedule preliminary trial dates.
May 5, 2022
The prosecution emailed defence counsel to advised that the matter would be moved from the Newmarket courthouse to the Brampton courthouse.
May 5, 2022
Eighth Appearance: Counsel is advised that the matter is being transferred from Newmarket to Brampton and preliminary trial dates cannot be set. Adjourned to June 10 for the Applicant’s matter to be transferred to Brampton.
June 10, 2022
Ninth Appearance: The matter is adjourned to June 24 to hear back from the Crown as to whether a new Judicial pre-trial needs to be held due to the matter moving to Brampton.
June 15, 2022
A meeting time is set with the Trial Coordinator’s office to set a preliminary hearing date.
June 24, 2022
Tenth Appearance: The matter is adjourned to August 5 to canvas preliminary trial dates in the interim.
June 29, 2022
The following preliminary trial dates were offered by the trial coordinator in the following manner:
October 30 to November 3, 2023 - yes for everyone but co-accused Ameyaw.
November 6-10, 2023 - yes for everyone but co-accused Ameyaw.
November 14-17, 2023 - yes for everyone but co-accused Ameyaw.
November 12, 20-24, 2023 - yes for everyone but co-accused Ameyaw.
November 27 to December 1, 2023 - yes for all.
Preliminary Trial is scheduled for November 27, 2023, to December 1, 2023.
August 5, 2022
Eleventh Appearance: Preliminary trial dates are put on the record. Agent for counsel Mr. Fletcher stated: “Preliminary hearing is November 2023. It will be 25 plus months to get to the preliminary hearing. These are the first dates offered. It was up from delay from the matter being transferred from Newmarket to Brampton, but 11(b) is a live issue.”
The matter is then adjourned directly to the first date of the preliminary hearing.
Application Record, Tab 16, Transcript of Proceedings
January 19-24, 2023
Email from Crown advising counsel that they will be proceeding on a Direct Indictment in this matter against the Applicant and brought the matter forward to January 25.
Application Record, Tab 23j, Emails Regarding Indictment
January 25, 2023
Twelfth Appearance: The Co-accused, Mr. Amponsah’s charges are stayed by the Crown. The Crown is proceeding by direct indictment on the remaining accused and there will be a first appearance in SCJ practice court on February 3, 2023.
Counsel makes the following comments on the record: “So, the, so, Ms. Kent and Ms. Spence for, for Nyadu and Ameyaw, have always wanted an OCJ trial. It is actually Mr. Amponsah who elected, who elected a trial of the Superior Court of Justice with a prelim. It, so we were deemed to elect on behalf of Mr. Nyadu and, and Ms., Mr. Ameyaw were deemed to elect. Now that Mr. Amponsah’s charges are getting stayed, I understand that we’ve asked for the Crown’s consent to re-elect back down. And I understand that based on the brief discussions that for the purpose of, I mean, just say it nicely for the purpose of preventing any 11(b) issues, the Crown is not consenting at this point. So that’s, those are the options that Ms. Spence that my friend alluded to, Ms. Spence needs to consider.”
Matter is adjourned to February 10, 2023, for counsel to evaluate options.
February 3, 2023
First Appearance in SCJ Practice Court: Matter is adjourned directly to a Judicial pre-trial on February 23.
February 10, 2023
Thirteenth OCJ Appearance: Matter is adjourned to March 10 to conduct Judicial pre-trial in the interim.
February 14, 2023
Counsel Ms. Spence sent a further disclosure request.
February 23, 2023
SCJ Judicial pre-trial is conducted, and S. 8 motion dates are offered in the following manner:
October 3, 2023 – Applicant not available
October 10-13, 2023 – Yes for both.
February 23, 2023
Emails sent regarding the vacating of the preliminary hearing dates.
March 1, 2023
Judicial pre-trial continued:
The Applicant’s matter is severed, and trial dates are set for January 8-12 and 15-19, 2024.
Trial readiness motion date is set for September 29, 2023.
Trial readiness date is set for December 22, 2023.
Application Record, Tab 21, Transcript of Proceedings
March 10, 2023
Fourteenth Appearance: Court withdrew charges at the OCJ level and Counsel put trial motion dates on the record and adjourned directly to that date on September 29, 2023.
March 15, 2023
An email is sent to the Crown requesting any explanation for the delay in proceeding with a direct indictment. Mr. Weinstock stated: “I will have to wait to see your application to better determine.
how to respond.”
Ms. Spence responded: “If
there is an explanation that will be tendered to the Court in response to the s. 11(b) Application then I expect that it would be as disclosable now as it would be as part of the response to the Application.”
March 28, 2023
Wave 4 of disclosure is released.
March 28-April 17, 2023
Emails discussing outstanding disclosure.
Additional Relevant Events after the 1st 11(b) Motion was argued (September 11, 2023)
August 10, 17 and September 25, 2023
Defence sends disclosure request for investigative file of affiants. The August 10 request names DC Salvatore. The request includes investigative checks/”searches” and notes re: meetings with CI handlers and to prepare the warrants. The August 17 request requests the same for the tracking warrant affiant, named as DC Partridge.
September 25 letter requests above for both officers and indicates that essential outstanding disclosure prevents preparing for the motion.
September 25, 2023
Defence disclosure request for investigative files of the affiants DC Partridge and DC Salvatore including their notes.
September 27, 2023
Defence adjournment application filed due to the failure to disclose the investigative files of the affiants.
September 28, 2023
Defence seeks outstanding disclosure.
Crown disclosure letter response. The Crown advises that all affiant’s notes disclosed. Crown indicates that that affiant, DC Salvatore, for warrants for residence, storage unit, and production is also the CI handler.
Crown advises Defence that redacted handler notes of DC Salvatore and checks to corroborate will be disclosed, subject to vetting for privilege.
Crown advises Defence that affiant for tracking warrant did not take notes. Crown says it has a summary of Appendix A, and that a redacted Information to Obtain (ITO) will be provided. It resists disclosure of a redacted Appendix A.
September 29, 2023
Trial readiness court appearance. After discussions, parties agree motions to proceed as scheduled, subject to confirmation at Exit JPT.
Defence raises disclosure and adjournment of Charter motions set for October 10.
Crown opposes adjournment and submits that judge at motion can address absence of notes and remedy.
Crown advises Defence that redacted notes of the CI handler who was the affiant on the second set of warrants will be disclosed.
Defence indicates that it expected redactions but that can be dealt with at Garafoli/ step 6 hearing. Main issue is stay motion.
Judge orders motions to proceed, grants Defence short notice to file additional materials for stay, and subject to exit JPT to confirm if motions can proceed.
Defence sends a further disclosure request letter seeking the investigative checks and the maintenance of the affiants’ investigative files; and background information and police files about the CI, and the YRP policy
and procedure manual for handling CIs. Defence cites R. v. Mackenzie, 2016 ONSC 242
October 2, 2023
Defence files stay motion for DC Partridge’s failure to keep an investigative file.
October 3, 2023
Crown discloses six pages of redacted handler notes of DC Salvatore.
The Crown refuses disclosure of the other documents sought including
handler notes of previous investigations, background information and police files about the CI, and the YRP policy and procedure manual for handling CIs on the basis of informer privilege.
October 4, 2023
Crown responds to Defence stay motion.
October 5, 2023
Court appearance on record. (Exit JPT not conducted).
Defence advises that disclosure motion is required as it expected more from handler/affiant DC Salvatore. Crown only disclosed on “last Thursday” that handler/affiant the same. On Tuesday Crown advised that it would disclose redacted notes of affiant (DC Salvatore).
Defence submits disclosure relevant to Garafoli and needs time to prepare the disclosure motion.
Crown submits that it has disclosed all materials that it can. The handler role disclosure requires careful consideration, and it was disclosed after appropriate consultation. Crown opposes disclosure of affiant/handler’s notes of prior investigations involving CI. Crown submits that disagreements can be dealt with by motion’s judge on current schedule.
Court decides that Charter sections 7, 8, 9, et al. motions and trial dates adjourned.
Judge comments about potential 11b impact:
At the end of the day, if Ms. Spence is wrong and this application has
occasioned the delay, delay needlessly, then I think any resulted delay will fall at the feet of the defence. So, you know, from an 11(b)
standpoint, you know, that’s where the delay will be attributed. On contrast, if she’s right, again, I can’t adjudicate that right now, then it
will likely fall at the, you know, not fall at the feet of the defence, and it will part of the mix.
For the disclosure motion, the Court offered, the Crown was available, and the Defence declined November 23rd, 24th, 27th, 28th or 29th. The Defence indicated that it was available from October 16 to November 18.
Disclosure motion scheduled for December 5, 2023.
The Charter motions were set for January 15, 2024, which were the prior trial dates.
The Court offered trial dates two weeks starting the week of
March 11, 2024, and April 8, 2024. The Crown was available, and the Defence declined as it was not available March 11-22 and April 8-12, 2024.
The Defence concedes this period is Defence delay.
The trial was set for the court's sittings commencing the week of April 15, 2024(for two weeks, with a jury and a challenge for cause). Trial Readiness Confirmation: April 5, 2024, at 10:00 a.m. by Zoom.
October 26, 2023
Defence Disclosure motion materials filed.
November 21, 2023
Crown response to disclosure motion filed. Crown identifies that it identified R. v Bennett, 2017 ONCA 780 and that this ruling addresses the issue that when affiant was the also the CI handler, the handler notes and documents from earlier investigations were subject to disclosure. As a result, the Crown modified their position.
The Crown maintained its position that any background and police files about the CI, and the YRP policy and procedure manual for handling CIs were not subject to disclosure.
December 1, 2023
Disclosure motion readiness appearance.
December 4, 2023
Defence informs the Crown that after reviewing
Bennett, a number of CI-related items were no longer being requested.
December 5, 2023
Disclosure motion heard.
No further disclosure ordered.
Justice Woollcombe rules:
In those handler notes, there are no references
to Detective Constable Salvatore consulting other
sources of information. And I’m satisfied on the
basis of what I was asked to undertake, that
there is nothing further that needs to be
disclosed as a result of that review.
Defence schedules 11b motion to be heard before the section 8 motion the week of January 15, 2024.
January 15-19, 2024
11b and section 8 Charter motion dates.
April 15-26, 2024
New trial dates.
THE LAW
Delay Below the Presumptive Ceiling:
[11] In R. v. Coulter, 2016 ONCA 704, the Court of Appeal summarized the steps to calculate delay as follows:
[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).
[12] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the Defence to show that the delay is unreasonable. To do so, the Defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the ceiling are to be rare and limited to clear cases. Jordan, at paras. 48, 82.
[13] First, there must be Defence initiative to expedite the proceedings to obtain earlier dates. The Defence is required to act reasonably, not perfectly. Jordan, at para. 85.
[14] Second, the Defence must establish that the time the case has taken markedly exceeds the reasonable time requirements of the case. Jordan, at paras. 87-91.
[15] In R. v. K.J.M., 2019 SCC 55, [2019] 4 SCR 39, at paras. 107-111, the Supreme Court instructed that the focus regarding reasonable time requirements of the case is on whether the case took markedly longer than it reasonably should have to be completed. It is not about whether the case should have been completed in less time.
ANALYSIS
[16] The total delay from the laying of the information on October 7, 2021, to the anticipated end of the new trial date of April 26, 2024, is 30 months and 19 days.
[17] The Applicant submits that the adjusted delay, after subtracting defence delay, is 29.5 months. In their notice of application and factum, the Defence concedes a period of 1 month and 4 days of defence delay due to counsel not being available when the Court and Crown were available for trial on March 11 to 22 and April 8 to 12, 2024. 1 month and 4 days is the delay between March 22, 2024, the first offered date available to the Court and Crown, and April 26, 2024, the actual expected completion date.
[18] I accept the Applicant’s concession about defence delay as correct. It is made by experienced counsel that is fully informed and has already argued one 11b motion in this case on behalf of the Applicant. The concession reflects that the earlier March and April dates available to the Court and Crown were declined by the defence because Applicant’s counsel had other cases that they were not prepared to try to adjourn and chose to prioritize. This is understandable. However, counsel was aware of the presumptive ceiling date and the Court’s concerted efforts to provide new Charter motion and trial dates, beneath the ceiling. The dates offered below the ceiling were declined by counsel and conceded as defence delay.
[19] I have considered that scheduling requires reasonable availability and reasonable cooperation by defence counsel. It does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. R. v. Godin, 2009 SCC 26 at para. 23. In R. v. Hanan, 2023 SCC 12, at para. 9, the Supreme Court of Canada rejected a “bright-line rule” that all of the delay until the next available date following defence counsel’s rejection of a date offered by the Court must be characterized as defence delay. Instead, all relevant circumstances should be considered to determine how delay should be apportioned amongst the participants. See also: R. v. Boulanger, 2022 SCC 2, at para. 8, citing Jordan at para. 64; R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659, at paras. 31-36.
[20] All participants in the criminal justice system must take a proactive approach to prevent unnecessary delay by targeting its root causes Cody, at para. 36. An accused may not benefit from the lengthening of delay where it is caused by the accused’s own conduct. R. v. Boulanger, 2022 SCC 2, 411 C.C.C. (3d) 279, at para. 6; R. v. Ste‑Marie, 2022 SCC 3, C.C.C. (3d) 1, at para. 11; and R. v. J.F., 2022 SCC 17, at para. 32.
[21] That being said, circumstances may justify apportioning responsibility for delay among them. Boulanger, at para. 8. For example, when there is reasonable co-operation and efforts by all participants, but a lack of common available dates over a period of time. In such a situation, apportionment can be more just than attributing the entire delay to the defence.
[22] Similarly, where there are multiple problems that cause the delay, apportionment is fair. In Boulanger, the combination of the conduct of defence counsel bringing the 11(b) late, the prosecution’s changes in strategy, institutional delay, and the court’s lack of initiative to recognize the need for a continuation date at an earlier stage despite counsel’s request, meant that no other date was offered sooner.
[23] The period of delay resulting from defence unavailability may be attributed to the Defence. However, periods of time during which the Court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.
[24] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the Defence must be allowed preparation time, even where the court and the Crown are ready to proceed. Jordan, at paras. 63-65.
[25] I accept that when motion or trial dates are adjourned, defence counsel may have less availability. However, when earlier dates are offered by the court and accepted by the Crown to proactively keep the case below the ceiling, defence unavailability and counsel’s decisions to prioritize other cases is relevant to the determination of delay.
[26] Maintaining a bird’s-eye perspective on the total background and delay, I am not satisfied that the delay of 29.5 months for this case is markedly longer to complete this case than it reasonably ought to have taken.
[27] Before I deal with the test for when the delay is below the presumptive ceiling, I will start with some essential principles applicable to disclosure in the context of Confidential Informant (“CI”) based warrants that result in criminal charges.
[28] It is well established that in cases involving search warrants obtained with the assistance of CIs, Charter, and step 6 Garafoli motions are an expected part of the modern criminal trial and constitutional framework. They are frequently the primary basis that the charges in this category are contested. Accordingly, the Crown is required to be pro-active and provide timely disclosure. At the same time, it must be recognized that this process takes additional time to vet for privilege. To facilitate disclosure and the setting of properly informed motion dates, the Crown must also provide timely responses and explanations to defence disclosure requests.
[29] DC Salvatore’s notes pertaining to his role as affiant and handler for the search warrants and production order should have been disclosed earlier. Similarly, notes of the handler’s prior involvement with the CI that informed his view that the CI was proven and reliable, should have been disclosed. R. v. Bennett, 2017 ONCA 780, at paras. 34-37.
[30] I recognize that in general, timely defence requests influence the assessment of whether there are timely Crown responses.
[31] However, it is important to remember that the Crown has an independent obligation to provide all relevant and essential disclosure that it is permitted to provide, especially in the ex parte and CI context where the defence is disadvantaged from knowing the extent of the information and materials that exist. The Crown is better situated to know information that can be disclosed or materials that exist but cannot be disclosed due to informer privilege. While respecting that the Crown, police, and courts must be guided by the principle of caution in safeguarding CI privilege, what can be safely disclosed should be disclosed in a diligent manner. Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21 at paras. 43-46.
[32] In this context that inherently takes more time, the Crown generally should not wait for a defence disclosure request to prepare and provide essential disclosure relevant to whether the warrant could have issued. This is for a number of reasons.
[33] First, in the context of criminal charges that are pursuant to the execution search warrants where Information to Obtain (“ITO”)s are based in part on CI and handler relationships, core disclosure that could reasonably be expected to assist the accused in making their case against the issuance of the warrant includes but is not limited to the redacted ITOs, police and affiant notes, CI handler notes, proof of investigative checks, and Crown summaries of redactions.
[34] Second, the Crown is the gatekeeper of the disclosure and the primary guardian of the CI privilege in the court process. This procedure is subject to police consultation. It is the Crown’s duty to identify what can be disclosed and what redactions or objections to disclosure are appropriate. This means the Crown must turn their mind to this disclosure as soon as possible and take the necessary steps to facilitate the process moving forward. These steps include consulting with the police, making appropriate redactions and advising of any materials that exist but cannot be disclosed.
[35] The necessity of vetting and consultation to protect CI privilege (and handlers’ continuing investigations where appropriate) are fundamental to essential disclosure. Again, I recognize that this disclosure process will require additional time to prepare and will depend on the complexity of the case. In complex cases, the process of obtaining, reviewing and vetting documents in wiretap cases may require significant resources on the part of police. World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 130.
[36] That said, continuing Crown diligence is paramount to ensure fairness and respect for the proactive approach mandated in Jordan. Reasonable steps are required by the Crown. Their diligence will be assessed based on the nature of the case that includes factors such as volume of materials produced by the investigation, complexity, and number of accused.
[37] Third, an accused, (including self-represented persons), can only understand their potential defences and provide informed instructions to their counsel about whether to contest, resolve, or which pre-trial Charter motions to advance based on the reception of timely disclosure. It is only with reasonable disclosure that an accused can have a fair appreciation of what they can challenge or not. A defence lawyer is expected to be able to inform their client of their defences and prospects.
[38] Due to regularity of prosecutions based on CI assistance coupled with heavy redactions and sealing, the defence is significantly disadvantaged from obtaining key disclosure and having some appreciation of reasonable follow-up requests, without the Crown taking initiative and remaining pro-active.
[39] In this case, the ITOs were not complex. There were two officers involved in drafting the ITOs, including the handler. The confidential appendices are similar and not long.
[40] It was not reasonable that at least some of the relevant search warrant related disclosure for an offence dated September 2021, with warrants obtained between September and December 2021, was not provided by the Crown to the Defence until late in 2023. This includes the affiant and handler’s notes and explanation for any absence of notes. This is despite the Crown being on notice that the defence intended to bring Charter motions and could not proceed without the materials. The Defence could not know fully the extent that the Charter arguments could be advanced until disclosure was settled.
[41] It is not clear why the Crown, in their letter of September 28, 2023, resisted disclosure of a redacted copy of the Confidential Appendix. This was disclosed when the Charter motion was argued.
[42] With those principles identified that may be of assistance in future cases, I turn to the framework in Jordan and the delay in this case.
[43] Given the Defence concession that, after factoring in Defence delay, this case is below the presumptive ceiling, I must situate the full background within the requirements of the applicable legal factors. In particular, the Defence bears the onus to show that the delay is unreasonable. To do so, the Defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Jordan, at para. 48.
[44] The Crown submits that the Defence caused the delay as their requests that became the subject of the disclosure motion were not received until August 10, 17, and September 25, and 29, 2023.
[45] I disagree. I am satisfied that the defence took meaningful steps and demonstrated a sustained effort. Defence counsel requests were consistent and included appropriate follow-ups. This must be considered in the context of the disadvantage described above, where the Crown is gatekeeper. The continuing disclosure is provided in segments, redacted. Also, the timing does not absolve the Crown for some responsibility for late disclosure of DC Salvatore’s handler notes for other cases involving the same CI until the fall of 2023. The Crown eventually conceded in November 2023 that those materials were disclosable pursuant to the Court of Appeal ruling in Bennett.
[46] Still, although the Defence efforts for continuing disclosure were consistent, I must consider that the Defence requested several items that were not disclosable and decided to pursue a disclosure motion for all of these items, until the eve of the hearing based on an erroneous understanding of the law.
[47] I also factor into my assessment that the items requested increased after the September 29, 2023, appearance. Some of this may have been due to the incremental disclosure. However, all of these circumstances contributed to the need for an adjournment of the trial dates and the scheduling of the disclosure motion on December 5, 2023.
[48] With respect to their letter of September 29, 2023, the Defence sought several items that were too broad and, in my view, not reasonable requests to advance at a disclosure motion. For example, the Defence requested “any background information or personal details about the CI”, “any police intelligence files or confidential informant files that may exist in relation to this confidential informant,” “any police information or any documents regarding the previous involvement of the CI in other unrelated investigations and or cases,” and the York Regional Police (“YRP”) policy and procedure manual for handling CIs. This was based on their interpretation of the law at that juncture.
[49] These items were not shown to be relevant in this case to the issue of whether the warrant could have been issued. The burden was on the accused to establish that there was a reasonable likelihood that the records sought will be of probative value to the issues on the application. Bennett, at paras. 38-39, citing World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 124. When a sweeping list of items are requested and then litigated, without success, this can contribute to inordinate pre-trial delay. World Bank, at para. 130.
[50] After the trial was adjourned, the Crown’s research resulted in the review of the Court of Appeal’s decision in Bennett. Both the Crown and defence then changed their positions. The Crown’s responding disclosure motion record dated November 21, 2023, agreed to provide disclosure requested that was relevant to the handler and CI’s history. On December 4, 2023, the Defence acknowledged that in preparing its motion, it did not review this appellate decision. After, the Defence modified their position, reducing the number of items sought. By the time of the disclosure motion, the focus was information that was relied on by DC Salvatore to prepare the warrant.
[51] At the disclosure hearing of December 5, the presiding judge conducted an open and then ex parte, in camera proceeding, examining DC Salvatore’s notes to determine if anything further could be disclosed. No meaningful additional disclosure was provided.
[52] The parties agreed that the Court of Appeal’s decision in Bennett established which CI-related documents should be disclosed. The Crown had provided or agreed to provide these documents in its responding application record. Although the Defence motion did not succeed as argued, parts of the earlier disclosure requests were valid and influenced the Crown’s decision to disclose more.
[53] Based on the lack of merit to part of the Defence motion pursuant to the Court of Appeal’s decision in Bennett, and lack of success to the disclosure issue ultimately litigated, I find that this justifies apportioning part of the delay. Half of the delay for the adjournment of the trial is attributable to the Defence. Parts of the motion were not properly informed and caused inefficiency. Cody at para. 32.
[54] This can be calculated in two ways. Boulanger, at para. 8; Jordan, at para. 65.
[55] The trial dates were ultimately adjourned 3 months, from January 8 to 26, 2024 to April 15-26, 2024. The Defence properly conceded 1 month and 4 days of delay since the Court and Crown were available March 11 to 22, 2024.
[56] The delay between January 26, 2024, to March 22, 2024, is 56 days. Factoring the partial lack of merit for the disclosure motion as warranting half of that time as Defence delay, there would be 23 days of additional Defence delay. This would bring an adjusted total to about 28 months and 21 days of delay.
[57] Alternatively, even if the Defence concession of delay of 1 month and 4 days was not accepted because that delay was not caused by the Defence pursuant to Hanan, half of the delay from January 26, 2024, to April 26, 2024, is 1 month and 15 days. Subtracted from 30 months and 19 days of total delay, this would bring the adjusted delay to 29 months and 5 days.
[58] Either way the delay is beneath the ceiling. It is simply matter of the extent.
[59] Overall, I find that this is not a clear case where delay beneath the ceiling warrants a stay. Stays beneath the ceiling to be rare and limited to clear cases. Jordan, at para. 48.
[60] The total delay is still below the presumptive ceiling. It is effectively the result of a misunderstanding by both counsel in different ways, as to what could be properly disclosed. The additional two months of delay are properly part of the inherent time requirements of this case considering the total circumstances.
[61] The circumstances indicate that the Court of Appeal’s ruling in Bennett was not known to both counsel until after the adjournment. Both Defence and Crown counsel are experienced and capable criminal lawyers. That absence of clarity is indicative that the disclosure process in this context is more litigious and ultimately part of the inherent time limits of a case of this nature. This is the reason that I have reviewed and emphasized disclosure principles in this context going forward.
[62] From a higher view, the total amount of time is fair and reasonably necessary.
[63] The reality remains that that the Applicant’s multi-week jury trial is set to conclude below the 30-month ceiling.
CONCLUSION:
[64] I am satisfied that on these facts, the 29.5 months for this case to be tried is a reasonable period of time in this jurisdiction.
[65] The 11(b) motion is dismissed.
Mirza J.
Released: July 05, 2024
COURT FILE NO.: CR-23-46
DATE: 2023-07-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and -
KEVIN NYADU
Defense
11(b) MOTION RULING
Mirza J.
Released: July 05, 2024