Court File and Parties

Court File No.: CR-24-20000163-0000
Date: 2025-02-20
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Brandon Caleb

Appearances:
C. Shepherd, for the Crown
M. Leitold, for Mr. Caleb

Heard: 19 November 2024
Judge: S.A.Q. Akhtar

Factual Background and Overview

Introduction

[1] Brandon Caleb was arrested for possession of a firearm, criminal organisation, and drug trafficking charges on 19 May 2022, after police executed a search warrant at a residential address. Following further police investigation, Mr. Caleb’s matter was joined to a large group of other individuals also facing charges arising from a criminal organisation investigation named Project Venom. Subsequently, the applicant was severed from that group and set to stand trial alone. His trial is set to end on 7 February 2025. This would mean that the period from the charge being laid to the end date of his trial amounts to 32 1/2 months.

[2] Mr. Caleb brings an application to stay these charges because he argues that the delay violates his s. 11(b) right under the Canadian Charter of Rights and Freedoms, and as defined by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[3] For the reasons set out below, I find that no such violation has occurred and the application is dismissed.

Background Facts

[4] The applicant faces the following charges:

• Trafficking in a controlled substance
• Possession of a firearm when not the holder of an authorisation, licence or registration certification
• Two counts of possession of a weapon when prohibited from doing so by court order (s. 109 of the Criminal Code, RSC 1985, c C-46)

[5] On 16 May 2022, police executed a search warrant on the applicant’s residence in Brampton, Ontario. The Information to Obtain (ITO) contained surveillance of the applicant and intercepted communications between the applicant and another individual by the name of Jahmel Burke, who is alleged to be one of the ring leaders of the organisation. When the applicant’s home was searched, police seized a semi-automatic Beretta handgun loaded with seven rounds of ammunition from the front pocket of a pair of men's jeans in the main bedroom closet drawer.

[6] The applicant was arrested on 19 May 2022 and his charges were incorporated into a larger criminal organisation investigation labelled Project Venom. The alleged criminal organisation is said to have operated in the Lawrence Heights area of Toronto.

[7] In August 2022, after the police had completed their "takedown" of the other gang members involved in Project Venom, the applicant’s case was transferred from Brampton to Toronto. The applicant had been released on bail shortly after his arrest and the Crown had agreed to a proposed bail variation. When the applicant appeared in Toronto, he appeared on an information with nine other accused persons. New charges pursuant to ss. 467.11 (participate in a criminal organisation) and 467.12 (commit an offence for the benefit of a criminal organisation) were laid.

[8] The criminal organisation case was founded upon intercepted conversations between the applicant and five other members of the alleged organisation. The Crown alleges that the applicant was a member of the organisation and received his supply of illicit substances from Burke. It is further alleged that the applicant trafficked illicit substances out of his girlfriend's residence – which was located within the area where the criminal organisation operated. Further conversations captured on wiretaps appear to indicate that the applicant would confer with other organisation members after an associate had been arrested.

History of the Case

[9] Over 40 accused were originally involved in the project. In an attempt to manage the case, the Crown separated the prosecution into 12 groups. The applicant was placed in Group 2, which was originally comprised of 11 co-accused and was later merged with another. The Crown proposed to hold a single trial for the criminal organisation charges with all of the major players – including the applicant – appearing on the indictment.

[10] Given that the Crown does not allege any defence caused delay, I can briefly summarise the proceedings in the Ontario Court of Justice.

[11] The arrest phase of Project Venom was executed on 28 June 2022 and led to the arrest of over 40 people. Disclosure was substantial and provided to all accused in 14 different “waves”.

[12] On 3 August 2022, the applicant’s case was transferred to the Toronto West courthouse to join the rest of Project Venom. The Crown provided the applicant’s counsel with an 89 page synopsis outlining the Project Venom allegations, as well as two synopses relating to the conspiracy to traffic drugs and possession of firearm charges. The applicant was joined on an information with nine other accused.

[13] By 30 November 2022, the applicant had received all of the search warrants, intercepted communication authorisations, and surveillance materials in relation to his charges. In a judicial pre-trial form filed on 28 November 2023, the applicant explained that the only outstanding disclosure item was a “gang expert report”. That report, however, was never written as the Crown decided that an expert was not necessary.

[14] The criminal organisation charges arise from the Crown’s allegations that the applicant trafficked prohibited drugs in association with other members of the organisation, including Jahmel Burke, Jahvon Burke, Tamara Cunningham, Isiah Gordon-Brown, and Burnell Smith. The Crown’s case was that Jamel Burke supplied the applicant with drugs and provided instructions on how to price and sell the drugs.

[15] The Crown also alleged that intelligence regarding police investigations was shared amongst the group members.

[16] The purpose of dividing all accused into 12 groups was to ensure that preliminary inquiry dates could be set. The Crown’s objective was to hold one criminal organisation trial indicting all of the major players – including the applicant.

[17] Between August and November 2022, various discussions took place between the Crown and the applicant’s counsel, focussing on counsel pre-trials and variations to the applicant’s bail conditions. In December 2022, the Crown sought to schedule judicial pre-trials. However, a number of the accused did not provide the required completed judicial pre-trial forms. On 3 January 2023, the Crown joined the applicant’s firearms charges with those of his then girlfriend, Julia Nerb, in an attempt to streamline matters.

[18] Two judicial pre-trials were held, on 16 January 2023 and 13 February 2023. The Crown indicated that it would seek to have witnesses’ testimony admitted pursuant to s. 540(7) of the Criminal Code. On February 28, 2023, the trial coordinator informed the parties of available dates for the preliminary inquiry. Those dates ranged from June 2023 to February 2024. Counsel were asked to respond by 3 March 2023. The Crown indicated that it was available on all the dates. The applicant suggested dates starting 18 September 2023, a week in October, and then dates in January and February 2024.

[19] Not all counsel responded at the same time and some did not respond at all. The Crown wrote to counsel asking for confirmation of availability. Ultimately, the trial co-ordinator provided three weeks for the preliminary inquiry commencing 11 September 2023.

[20] The preliminary inquiry commenced on schedule with the Crown calling two expert witnesses and three officers at the request of one defence counsel, and another three at the applicant’s behest. The applicant sought to discharge five of the counts on the information whilst the rest of the co-accused argued there was no evidence supporting the s. 467.12 charge - committing an offence for the benefit of a criminal organization - and that it should be discharged.

[21] In the meantime, the Crown had scheduled a global hearing in the Superior Court of Justice to determine the admissibility of intercepted communications in any subsequent trial involving Project Venom accused. That hearing was due to be heard on 11 December 2023 before Code J. The Crown preferred direct indictments in relation to some members of the separated groups who were at risk of missing the hearing because their preliminary inquiry would not conclude in time.

[22] The preliminary inquiry judge, North J., had been made aware of this development and informed the parties that he would render his judgment on 9 November 2023. However, on 8 November 2023, North J. informed the parties that he would not be ready on that date and remanded the matter to 20 November 2023 for judgment.

[23] On that date, North J. did not provide detailed reasons and instead gave an oral judgment that simply indicated which counts would be committed, and which would be discharged. North J. discharged all of the accused - except for one who had consented to committal - on the charges alleging offences committed for a criminal organisation. The judge found there was no evidence of a criminal organisation as alleged by the Crown. The judge eventually issued written reasons on 3 January 2024.

[24] After committal, the Crown added the count of participating in the activities of a criminal organisation – a charge not subject to the process of a preliminary inquiry – to the indictment of all members of Group 2 and severed one of the accused from the rest of the prosecution.

[25] On 12 January 2024, Code J. dismissed the global Garofoli application brought on behalf of the accused charged under Project Venom. The applicant was one of those accused.

[26] The prosecution continued its pre-trial process in the Superior Court of Justice through a series of judicial pre-trials.

[27] On 7 February 2024, the applicant’s counsel wrote to the Crown requesting that the applicant be severed from the rest of the accused so that he could be tried by himself either at the Superior Court of Justice or at the Ontario Court of Justice. The Crown declined the request, suggesting that there was no reason to do so as the charge of participate in a criminal organisation would have to be tried in conjunction with the other accused members.

[28] However, it appeared as though the two members of the alleged criminal organisation that the Crown intended to join on the same indictment as the applicant intended to plead guilty on 6 March 2024. On 1 March 2023, the Crown filed a new indictment in relation to the applicant that contained counts of drug trafficking and firearms possession. The new indictment removed the criminal organisation count because the Crown no longer planned on proceeding with this count after the accused’s co-accused plead guilty. The Crown contacted the applicant’s counsel about their availability for trial dates on 6 March 2024.

[29] Somewhat unexpectedly, the pleas did not transpire. The Crown wrote to the applicant’s counsel indicating that since a criminal organisation trial was now necessary, it would proceed in its original fashion: a single trial for the applicant and his co-accuseds’ criminal organisation charges. The applicant’s counsel urged the Crown to continue with the applicant’s separate trial.

[30] On 6 March 2024, the Crown reverted to the view that the applicant should have a separate trial. This change in position was borne out of necessity, because it believed that the two co-accused were not proceeding as quickly as anticipated. The applicant’s matter was first remanded to 26 March 2024 and then to 2 April 2024, at which time, the parties set dates for a trial commencing on 27 January 2025. The Crown’s earliest availability date was 18 April 2024 and the applicant’s was 23 September 2024. However, the court’s first available date was in January 2025.

[31] On that date, the applicant raised the possibility of bringing a s. 11(b) Charter application and asked for the matter to be remanded to 7 May 2024 to seek instructions from his client. On 27 May 2024, the applicant confirmed that he would be proceeding with a Charter application seeking to stay the indictment.

Legal Principles

[32] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada fundamentally altered the application of the principles relating to s. 11(b) of the Charter, principles that had formerly been in effect since the court’s decision in R. v. Morin, [1992] 1 S.C.R. 771.

[33] The Court set a new ceiling of 30 months for offences tried by indictment and delay beyond this point was presumptively unreasonable.

[34] Calculation of the time period requires the court to identify the time accruing from the date of charge to the end of the trial (“the total delay”) and subtract periods of delay attributable to the defence. This leaves a “net delay” figure.

[35] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75.

[36] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
2. Subtract defence delay from the total delay, which results in the “net delay.”
3. Compare the net delay to the presumptive ceiling.
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5. Subtract delay caused by discrete events from the net delay (leaving the “remaining delay”) for the purpose of determining whether the presumptive ceiling has been reached.
6. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[37] See also: R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776.

Analysis

[38] Given that there is no dispute that the presumptive ceiling has been breached by three months and there was no defence caused delay, the main focus in this application is whether the Crown can demonstrate that exceptional circumstances exist to justify the breach of the presumptive ceiling.

[39] In Jordan, the court described two types of exceptional circumstances that the Crown could point to in seeking to justify this category of delay: discrete events beyond its control and cases that are particularly complex. It is the second category that the Crown relies upon in its arguments before this court.

[40] At para. 77 of Jordan, the court described this concept in the following manner:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[41] The court indicated, at para. 79, that in determining whether this category of exceptional circumstances applied, the judge hearing the delay application “will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity”.

[42] The Crown’s failure to have foreseen the complexity of the case and plan accordingly would mean that it would be unable to show exceptional circumstances because it could not show that the circumstances were beyond its control.

[43] The applicant argues that this case cannot be characterised as a complex case. He argues that “it was a very straightforward” matter which simply involved the arrest and search of his residence after the police had executed a search warrant. I cannot agree.

[44] As described above, the court in Jordan provided examples of what might constitute hallmarks of complex cases.

[45] This was a very large gang prosecution involving thousands of pages of disclosure, wiretap evidence, a significant number of charges and distinct issues relating to each accused, as well as a series of lengthy hearings in the Ontario Court of Justice. There is no doubt that it was a complex case.

[46] Did the Crown attempt to minimise the delay?

[47] Here, the applicant criticises the Crown’s decision to join his charges to the criminal organisation charge faced by the larger group of accused and submits that it created unnecessary delay. He claims that this delay worsened after North J. discharged the criminal organization charges at the preliminary inquiry.

[48] The applicant says that the Crown’s “indecision of the issue of a joint trial” was “the primary cause of delays in the matter” until the trial date was set. Nor, says the applicant, was the Crown pro-active in their assessment of the case or the implications of having the applicant’s matters proceed within the larger group of accused.

[49] Moreover, the applicant argues that the matter took markedly longer than reasonably required, because it lacked an appropriate plan to prosecute the matter. The applicant points to the Crown’s varied decisions such as first separating, then joining, and then severing the applicant again, as significantly contributing to the delay.

[50] It is clear from R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 57, that the determination of whether a case is complex requires a consideration of the entirety of the case and not singular parts: see also R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 71; R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at para. 37.

[51] Although the applicant argues that this was, at the outset, a straightforward case, they submit the Crown’s decision to join the applicant in the criminal organisation prosecution clearly made it far more complex. The evolution of a case from simple to complex through development has been recognised by the caselaw even when the case may return to simplicity by the time of trial: Picard, at para. 40.

[52] Here, the Crown did not unnecessarily make the case complex by joining the applicant’s case to the criminal organisation prosecution: there is clear evidence - including the use of intercepted communications - that the applicant was part of the criminal organisation and the Crown was entitled to exercise its discretion to prosecute the applicant as part of the project. As described below, North J.’s decision was contradicted by the finding of another judge at the Garofoli hearing.

[53] Rather than follow the decision in R. v. Gharibzada, 2022 ONSC 4667, as urged by the applicant, I am more inclined to accept that this case is akin to R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1. Khan is a pre-Jordan case where, similar to here, the accused’s case was joined to a larger prosecution where there was a prospect of defence counsel bringing a global Garofoli application. That application never crystallised and the Crown severed the accused from the main prosecution group. The application judge found that after a 41 month delay, the accused’s s. 11(b) right had been violated and stayed the case against him. The Court of Appeal overturned that decision.

[54] Writing for a unanimous court, Karakatsanis J.A., as she then was, indicated that in cases of complex prosecutions the Crown had to assess whether a particular accused should be joined to the larger prosecution. She added, at para. 30, that “the court should be hesitant to second-guess the Crown's decisions on how to proceed and whether and when to withdraw charges, particularly in complex prosecutions where decisions are contingent upon interdependent circumstances”. At para. 82, she added that “[l]arge group prosecutions play an important role in the administration of justice. Not only do they conserve judicial resources, but there is also a societal interest in having these cases decided on their merits”.

[55] Nor was the Crown automatically required to sever the applicant from the larger prosecution simply because doing so would ensure an earlier trial date. Provided it is in the best interests of justice to proceed jointly against co-accused, delay resulting from the existence of multiple co-accused would be considered as a factor when considering the complexity of the case. In R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 142, the court confirmed that “provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly-charged accused are considered under the exceptional circumstances analysis in Jordan”.

[56] Here, the interests of justice favoured a joint trial: the Crown’s goal was the prosecution of the criminal organisation as a whole and it made sense for all of the members to be prosecuted jointly. However, the Crown also took note of the principle repeated in Gopie, at para. 171, that there may come a time when the interests of justice would not be served by a joint prosecution because the applicant’s s. 11(b) rights might be violated. It severed the applicant’s charges to ensure his right to a trial within a reasonable time would be protected.

[57] The Crown's decision making was responsive to the evolving circumstances of the case: whenever the circumstances shifted the calculus of the most efficient mode of proceeding, the Crown adapted its plan. When multiple co-accused intended to go to trial, the Crown maximized judicial resources by proceeding jointly. By the same token, when the number of co-accused dwindled or other accused dawdled, the Crown sought a separate trial. The fluid decision making in this case is not indicative of poor planning; instead, it shows that at each juncture, the Crown re-evaluated its current plan and actively modified it where necessary.

[58] I do not agree with the applicant’s submission that the Crown should have severed him after North J. discharged the criminal organisation charges at the conclusion of the preliminary inquiry. One charge - the participate in criminal organisation - did not fall within the purview of the preliminary inquiry and was therefore not subject to North J.’s decision. The Crown could proceed with that charge irrespective of North J.’s finding. Nor were they bound by that finding. Its decision to continue with the criminal organisation charges were justified when other Superior Court of Justice decisions found that there was evidence of a criminal organisation: see e.g. R. v. Abudu and 30 Others, 2024 ONSC 297. The criminal organisation case depended on the intercepted communications which tied the applicant to five other members of the association. Once the communications were found to be admissible, there was clearly evidence of participation.

[59] Moreover, the Crown did have a plan for dealing with the large scale project from the outset. The Crown organised the various accused into multiple distinct groups based on their association with each other, merging those groups to match the developing circumstances. Voluminous disclosure was provided to all parties in an efficient manner and the Crown sought to schedule judicial pre-trials with all counsel to ensure that the matters kept moving. Understandably, with the amount of accused involved in the project, there was delay occasioned by the lack of simultaneous response. The Crown sought to keep things progressing by sending all counsel material for the preliminary inquiry, including a series of Compendia of Evidence and a reference guide to streamline the hearings. The Crown also applied to have much of the evidence admitted under s. 540(7) of the Criminal Code and set preliminary inquiry dates as expeditiously as possible.

[60] It also had the foresight to ensure that a Garofoli application - governing 31 accused - could be heard at the Superior Court of Justice as quickly as possible.

[61] When the matter was committed, the Crown indicated that it was willing to set trial dates as soon as possible after the judicial pre-trials had been conducted or take pleas if the parties indicated that resolution was possible.

[62] As previously described, when the Crown acknowledged that the applicant’s co-accused group were delaying matters, they severed the applicant from the joint matter. It preferred a direct indictment for the two co-accused re-instating the criminal organisation charges discharged by North J. However, the Crown severed the applicant in order to ensure that his right to a trial within a reasonable time was safeguarded. The Crown was proactively using procedural tools to ensure the dates were preserved.

[63] The record shows that the Crown sought to prioritise the prosecution of the major participants and resolve those who were lower down on the ladder. Finally, the Crown took the step of severing the applicant when it became apparent that potential co-accused were moving too slowly in the system.

[64] I find that that the Crown has shown that exceptional circumstances existed in this case that justify the delay that exceeds the Jordan guidelines.

[65] For these reasons, the application is dismissed.

S.A.Q. Akhtar
Released: 20 February 2025