Court File and Parties

Court File No.: 24-0016-00 Date: 2025-08-15 Ontario Superior Court of Justice

Between: His Majesty the King

- and -

Russell Bullock and Michael Prahay

Applicants

Counsel:

• L. Taylor, for the Crown
• R. Rusonik, for the Applicants

Heard: March 3, 4, 6, 17, April 8, 23, May 12, 16, 20, 21, 22, 30, June 4, 9, 12 & 14, 2025 at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Reasons for Decision on Application

Overview

[1] This is an application brought by Mr. Bullock and Mr. Prahay (the "Applicants"), for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter"). The Applicants allege a violation of their right to be tried within a reasonable time as enshrined in s. 11(b) of the Charter.

[2] The Applicants stand charged with the following, alleged to have occurred April 26th, 2022:

a. Possession of cocaine, fentanyl, methamphetamine, hydromorphone, and Xanax for the purpose of trafficking, contrary to s. 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act;

b. Six firearms related charges each, including but not limited to possession of a loaded prohibited firearm, possession without a licence, and possession of a firearm while prohibited;

c. Possession of the proceeds of crime exceeding $5,000, contrary to s. 354(1)(a) of the Criminal Code;

d. Mr. Bullock has an additional possession for the purpose of trafficking of oxycodone charge; and

e. Mr. Prahay is charged with obstructing a peace officer by running away, contrary to s. 129(a) of the Criminal Code.

[3] The Applicants allege the delay in this matter to be 37.5 months (1140 days) to the date of hearing this application. The Defence argues that at least one additional month should be added to that time to allow for the completion of the remaining defence s. 11(b) Charter [solicitor-client privilege] and if necessary, Garofoli applications. This brings the total delay to 38.5 months (1171 days). The Defence argues that the presumptive ceiling has been exceeded and the charges must be stayed. While the Defence concedes some defence delay, they argue it does not bring the completion of the case below the presumptive ceiling of 30 months. The Defence further argues that the Crown cannot meet its burden of justifying the delay based on the presence of exceptional circumstances. As such, the case against each accused must be stayed.

[4] The Crown does not disagree with the calculation of the total delay to the date of hearing of the application. The Crown argues that:

a. 11.5 months or 341 days of delay is attributable to Mr. Bullock as defence delay, bringing the net Jordan ceiling to 26.3 months or 799 days; and

b. 10 months or 297 days of delay is attributable to Mr. Prahay as defence delay, bringing the net Jordan ceiling to 27.7 months or 843 days.

[5] In addition, the Crown urges me to attribute 99 days' delay to each accused on account of the s. 11(b) stay application brought for a breach of solicitor-client privilege. Initially the Crown sought to only apply this delay to Mr. Bullock, as it was his notes that were seized by corrections officers. The Crown amended their position to attribute this delay to each accused when counsel, Mr. Rusonik, confirmed that the relief sought in the solicitor-client breach stay application was for both accused, as it reveals privileged communications and strategies applicable to each of his clients. The Crown argues that Mr. Bullock set in motion the very incident involving the breach of his solicitor-client privilege for which he is now seeking a stay. He should not be permitted to benefit from the delay that application has caused to the proceeding. A deduction of an additional 99 days brings the net Jordan ceiling for each accused down to the following:

• Mr. Prahay: 843 days less 99 days = 744 days = 24.8 months
• Mr. Bullock: 799 days – 99 days = 700 days = 23 months

[6] The Defence makes no argument for a stay if the net delay is below 30 months. The Defence's argument is that there is no defence delay that brings the net delay below the presumptive ceiling.

[7] The Crown does not argue exceptional circumstances if the net delay is above 30 months.

[8] The question for me to determine is what delay should be attributed to the Defence.

[9] For reasons that follow, the application is granted and the charges are stayed.

Facts

[10] Both accused persons are originally from Southern Ontario. It is alleged that they were in Thunder Bay for the purpose of selling illegal drugs. Police conducted a surveillance operation, following which arrests were made. Based on the transcripts before the bail court, the allegations involve approximately two and a half kilograms of cocaine, some 500 grams of fentanyl, over a thousand pills of various types, and firearms. Additionally, approximately $186,000 in cash was seized.

[11] The Applicants were arrested and charged on April 26th, 2022. The matter proceeded in the Ontario Court of Justice, with trial dates being promptly set to commence May 30th, 2023. A Basi hearing was conducted at the Ontario Court of Justice trial. It is agreed by the Crowns and Defence that the Basi hearing was not conducted properly as the trial judge failed to provide the Defence with an opportunity to make submissions before a ruling was made. The Crowns and Defence agreed that the Ontario Court of Justice proceeding would be converted to a preliminary inquiry, which was not concluded until January 29, 2024.

[12] Once the matter was in the Superior Court of Justice, each accused required new counsel. Their retainers with their previous counsel had been exhausted and was not being continued. Ultimately, new counsel was retained.

[13] A judicial pre-trial conference was conducted on May 24th, 2024, before Pierce J. The endorsement from the pre-trial confirms that the Defence was to rest on a Garofoli application. If the Defence succeeded, the evidence was to be excluded, and the Crown case gutted. If the Defence lost, an Agreed Statement of Facts dealing with all evidence on the indictment would apply, resulting in convictions on three of the charges on the indictment. The Applicants have been arraigned on three charges pertaining to possession for the purpose of trafficking fentanyl, possession of a loaded firearm, and possession of a firearm while under prohibition from doing so.

[14] The Garofoli application commenced before me on December 17th, 2024, and continued on December 18th. At the conclusion of the proceeding, a Step 6 summary was provided to the Defence. The balance of the Garofoli and Defence Charter applications were adjourned to March 4th, 2025, for five days.

[15] The matter resumed a day early on March 3rd, 2025. The Defence had brought a stay application pertaining to the seizure of a file folder of handwritten notes from Mr. Bullock's cell on December 30th, 2024. The Defence took the position that the notes were subject to solicitor-client privilege, and that disclosure of the seized documents and further information was required. The Crown had received notice of the application in early February, but did not make any inquiries, insisting it was awaiting an affidavit for further particulars. The matter was adjourned to March 6th, 2025, to permit the Crown to make further inquiries of the police and the jail. I noted in my March 6th endorsement that it was unfortunate that counsel had not spoken prior to March 3rd to avoid delays in the proceeding. At a subsequent appearance, Mr. Rusonik expressed that he had attempted to do so, but the Crown did not respond. The matter was adjourned to March 17, 2025, for the Crown to obtain the requested disclosure.

[16] On April 8th I conducted an in-camera hearing with Defence counsel. I determined that the six pages of disclosed, seized documents contained information that was the subject of solicitor-client privilege. The matter was further adjourned for a case conference on April 23rd, 2025, for a case management conference to discuss next steps, and counsel was directed to discuss next steps prior to that date.

[17] On April 23rd, counsel appeared but could not agree as to next steps. There were now going to be three applications before the Court: s. 11(b) Jordan application, s. 11(b) stay application (solicitor-client privilege issue), and the original Garofoli. The matter was scheduled to May 16th for evidence on the s. 11(b) application (which necessitated evidence on the stay application re solicitor-client privilege given the nature of the Crown arguments). Argument was to commence on May 20th, with May 21st also set aside (if required). Numerous procedural orders were made to try to ready the matter to proceed.

[18] The matter proceeded May 16th, 20th, and 21st. Additional dates were required on May 22nd and 30th to deal with evidence. Counsel grossly underestimated the length of time required for evidence. Submissions were finally heard June 4th. July 14-17th had also been set aside as additional dates for the solicitor-client privilege and/or Garofoli application, if required. Depending on the outcome of this application, coupled with the understanding that the July week would not likely be sufficient to complete the case, additional days in the month of July would be required.

[19] Both the Crown and Defence rely on the transcripts and the chart found in Appendix A to the Defence factum, filed in support of the application. The Crown has also completed its own charts outlining its position with respect to various periods of delay.

Analysis

The Legal Framework

[20] The legal principles are not controversial. It is the application of those principles where the Crown and the Defence differ.

[21] Section 11(b) of the Charter provides that a person who is charged with an offence has a right to be tried within a reasonable time.

[22] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 ("Jordan"), set out a framework for determining whether the rights of an accused to a trial within a reasonable time pursuant to s. 11(b) of the Charter, have been infringed.

[23] Jordan sets a ceiling beyond which delay in a criminal proceeding is presumptively unreasonable. For cases in the Superior Court of Justice, the presumptive ceiling is 30 months from the date of the charge to end of the trial: Jordan, at para. 49.

[24] Once the Defence has established a delay that exceeds the ceiling, the Jordan framework shifts the burden to the Crown to rebut the presumption of unreasonableness by establishing that the delay was caused by exceptional circumstances beyond its control: R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 25.

[25] The Jordan framework was designed as a proactive approach to remedy a "culture of complacency" that the Supreme Court identified as pervasive in criminal proceedings. The expectation is that with all participants in the criminal justice system knowing in advance what their obligations are, proactive measures can be taken to avoid and/or remedy unnecessary delay.

[26] As explained further by the Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 ("Cody"), at para. 36, the Jordan framework requires all participants in the system to share in responsibility for unnecessary delay.

[27] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, ("Coulter") at paras. 34-41, the Court of Appeal summarized the mechanics of the Jordan framework as follows:

a. Calculate the total delay, starting from the date of the charge to the actual or anticipated end of trial;

b. Subtract any defence delay, which results in the "net delay";

c. Compare the net delay to the presumptive ceiling;

d. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable, and the Crown must rebut the presumption by establishing the presence of exceptional circumstances;

e. If the Crown fails to rebut the presumption, then a stay will be granted;

f. Generally, exceptional circumstances will fall under the categories of discrete events and particularly complex cases;

g. Subtract the delay caused by discrete events from the net delay, leaving the "remaining delay";

h. If the remaining delay still exceeds the presumptive ceiling, then the court must consider whether the case was particularly complex such that the time it has taken is reasonable. If it is not, then a stay will follow; and

i. If the remaining delay falls below the presumptive ceiling, then the onus shifts back to the Defence to show that the delay is unreasonable.

Total Delay

[28] The delay to the date of hearing the application is not disputed. The Crown did not factor in additional delay beyond the hearing date. I find that the Defence was correct to do so. I accept that the total delay would have been 38.5 months, and this is assuming the matter would have been fully completed in the month of July, but for this decision.

[29] The sole issue is what delay is attributable to the Defence. The Crown argues that defence delay in this case can be divided into two categories:

a. Non-application related delay:

• Mr. Bullock: 341 days or 11.5 months
• Mr. Prahay: 297 days of 10 months

b. The delay in dealing with the solicitor client privilege application: 99 days attributable to the Defence.

[30] The Crown also made some submissions with respect to delay pertaining to the Garofoli, although the Crown's position was not clear to me or the Defence. Originally, the Crown took the position that additional delay should be attributable to the Defence on account of the Garofoli, primarily based on the Crown view that the Defence arguments were frivolous given what happened at the OCJ and the evidence/conclusions reached, and that the grounds alleged and evidence described failed to meet the threshold for leave to cross-examine. The Crown amended its position to include any delay associated with the Garofoli in its regular "non-application" delay. Having said this, the Crown did make submissions pertaining to the merits of the Garofoli.

[31] The Defence concedes delay attributable to a missed judicial pre-trial by Mr. Bullock's former counsel. Otherwise, the Defence denies any delay is properly attributable to the Applicants under the Jordan framework.

Legal Principles Applicable to Defence-caused Delay

[32] The element of defence delay has two components. The first is defence waiver. The second is delay caused solely by the conduct of the defence: Coulter, at para. 42.

[33] It is agreed that no delay was waived by the Applicants.

[34] I now turn to delay caused solely by the conduct of the Defence. This comprises situations where the accused's acts either directly caused the delay or are shown to be a deliberate and calculated delay tactic employed to delay the trial (Jordan, at para. 63).

[35] Defence actions taken legitimately to respond to the charges, such as applications or requests that are not frivolous, will not count as defence delay. Similarly, time needed for preparation will not be attributable to defence delay. Examples of defence-caused delay often include frivolous applications or requests, and periods during which the court and Crown are ready to proceed but the defence is not. This is not an exhaustive list, and such determinations are "highly discretionary": Jordan, at paras. 54, 60-66 and Cody, at paras. 28-31.

[36] Jordan makes it clear that defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. Applications and requests that are not frivolous will also generally not count against the defence.

[37] Jordan also makes it clear in para. 21, that where accused persons benefit from their own delay-causing conduct, such a result "operates to the detriment of the public and the system of justice as a whole". As such, the conduct of the Defence must be examined and any delay attributable to that conduct or inaction should be subtracted from the total delay.

[38] The determination of whether some step taken by the Defence is legitimate or not requires considerations of both substance and procedure. As the Supreme Court stated at para. 32 of Cody, "the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny". Even where an application presents with some merit, "a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay."

[39] In R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, the Supreme Court of Canada set out the following factors as being relevant to the assessment of whether defence action is legitimate:

a. The overall number of applications;

b. Strength and importance;

c. Proximity to the Jordan ceilings;

d. Compliance with any notice or filing requirements; and

e. Timeliness of defence applications.

Was there non-application related defence delay?

June 27th, 2022 to September 22nd, 2022 – to retain counsel

[40] The Federal Crown argues that it provided significant disclosure including the Information to Obtain for the search warrant by June 11, 2023 (6.5 weeks or 1.5 months after the offence date of April 26th, 2023) and was ready to proceed. This is confirmed by the transcript of proceedings dated July 29th, 2022.

[41] With respect to Mr. Prahay, the matter was adjourned at the request of the accused between June 27th, 2022, to August 5th, 2022, to confirm his retainer and for Defence counsel to obtain instructions. The total delay the Crown seeks to attribute to Mr. Prahay is 43 days.

[42] With respect to Mr. Bullock, the matter was adjourned four separate times between July 29th, 2022, to September 8th, 2022, to allow him to confirm his retainer with counsel, Ms. Schofield. This is a delay of 59 days that the Crown says should be attributed to him.

[43] The Defence denies that any delay should be attributable to it during this period of time as the Provincial Crown did not provide its disclosure until November 14th, 2022, and therefore nothing could move forward in any event. The Defence argues that despite the uncertainty of his clients' retainers, it was impossible to make an informed election as to how to proceed on two types of serious charges being prosecuted together by two different Crown offices, without meaningful disclosure of both sets of charges. The Defence further argues that it would have been the height of negligence for counsel to advise their clients as to an election in a vacuum of disclosure with regards to one whole type of serious charges (i.e. the gun charges).

[44] The Crown argues that this was a joint Federal/Provincial prosecution and disclosure was provided by the Federal Crown by June 11th, 2022. The Crown argues that even if disclosure was not complete, the transcripts suggest it was sufficiently complete to permit the case to move forward. The Crown relies on R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (C.A.), 73 O.R. (3d) 161 for two propositions: the defence does not need every stitch of disclosure that will eventually be made to set preliminary inquiry or trial dates; but an accused does need meaningful disclosure before being called upon to plead or to elect the mode of trial. The Defence's position is that it did not have meaningful disclosure up until November 2022, and therefore regardless of the Applicants' retainer issues, the case could not move forward in any event.

[45] While the Provincial Crown was able to provide a detailed record of its disclosure, the Federal Crown was unable to confirm what disclosure was provided and when. During the period in question, the matter was prosecuted on behalf of the Federal Crown by an agent. No disclosure log is available from that agent. Counsel for each accused was different than current counsel. Other what I can glean from transcripts, I do not know what was provided by the Federal Crown to assist me in determining whether the delay should be attributed to the Applicants' failure to confirm their retainers with their respective counsel, or whether the lack of disclosure with respect to the gun charges (or otherwise) prevented matters from moving forward regardless of the status of the retainers.

[46] I note the following from the transcripts with respect to Mr. Prahay:

a. On June 27th, 2022, a paralegal appearing for Christopher Avery confirmed he was retained by Mr. Prahay. The matter was adjourned to July 7th, 2022, for a bail hearing. I see nothing in this period that is attributable to Defence delay. This was a reasonable adjournment.

b. On July 7th, 2022, Mr. Prahay's bail hearing was adjourned to July 19th, 2022, at his request. The paralegal appearing as agent for Mr. Prahay's counsel advised the Justice of the Peace that "…the case is still new. We're still in the process of receiving and reviewing disclosure so we're kind of at the same time working on the case as well as working on release…"

c. On July 19, 2022, Mr. Prahay's counsel sought an adjournment to August 2, 2022, to review disclosure and schedule a counsel pre-trial.

d. On August 2nd, 2022, Mr. Prahay's counsel failed to attend before a Justice of the Peace (his paralegal came on the line after conclusion of court). The Federal Crown advised that counsel for Mr. Prahay had received disclosure June 21st. The agent for the Federal Crown noted that the matter had been in the bail phase for some time and should be placed into a court for a trial track. Adjourned to August 5th. Regardless of any outstanding disclosure, this is delay that falls clearly at the feet of the Defence. 4 days is attributable to Mr. Prahay.

e. On August 5th, 2022, the Federal Crown referred to the disclosure of the warrant, 422 pieces of media evidence, and "this file" having been disclosed. I do note that the presiding judge noted that given the voluminous disclosure the Federal Crown referenced, the six weeks Mr. Prahay's counsel had had to review it was a "tight timeframe". Later, the judge indicated he would be "surprised if you've been through it all at this point". The agent for Defence counsel referred to still being in the process of reviewing and sending supplementary requests for disclosure. She further indicated that a follow-up request had been sent for the notes of "five to ten" officers. Matter was adjourned to August 26th, 2022.

[47] With respect to Mr. Bullock, the transcripts reveal:

a. On July 8th, 2022, Mr. Bullock's counsel appeared in the Ontario Court of Justice (OCJ) on his behalf. An adjournment was requested to July 29th to review the disclosure provided. Counsel for Mr. Bullock indicated that he had received a "substantial amount" of disclosure that morning from the Crown. The presiding judge encouraged the Crown and Defence to have all co-accused appear at the next appearance so that if judicial pre-trial (JPT) dates needed to be set, it could happen.

b. On July 29th, 2022, new counsel appeared on behalf of Mr. Bullock. The agent appearing for Ms. Schofield advised she was not yet retained on the substantive charges and may possibly be conducting a bail review. The agent for the Federal Crown advised that disclosure has been available since May 29, and had been provided to Mr. Bullock's former counsel. The warrant was available for disclosure on June 11th. The Crown expressed that the bail matter should not delay prosecution of the charges. The matter was adjourned to August 5th, 2022, to allow for the retainer to be confirmed.

c. On August 5th, 2022, Ms. Schofield's office was still not prepared to go on record as his counsel. The agent for Ms. Schofield referred to requesting disclosure once retained. The matter was adjourned to August 26th, 2022. On the 26th, the matter was adjourned again to September 8th, 2022. The transcript from August 26th shows that counsel for Mr. Bullock was still not prepared to confirm her retainer, but her agent advised that disclosure was being received. The paralegal from Mr. Avery's office also appeared for Mr. Prahay to advise that his matter was moving along with a counsel pre-trial (CPT) scheduled with the Federal Crown. The paralegal expressed surprise that Mr. Prahay had provincial charges and indicated that it was her understanding from the disclosure that they were only dealing with the Federal Crown. Both the Bullock and Prahay matters were adjourned to September 22nd, 2022. The Federal Crown noted that the adjournment was a defence request.

d. On September 8th, Mr. Bullock's retainer with Ms. Schofield's office still had not been finalized. Ms. Schofield's office sought an adjournment to September 22nd to confirm the retainer and ensure that Mr. Bullock's case was put to the same date as the co-accused. It was again mentioned that disclosure would be requested once the retainer was confirmed.

e. On September 22nd, 2022, agents for counsel for both Mr. Bullock and Mr. Prahay appear. Ms. Schofield's retainer is finally confirmed. They are in receipt of the initial disclosure and are ready to have a CPT and start looking at JPT dates. Counsel for Mr. Prahay had initiated a request of the TC for JPT dates. The matter was adjourned to October 20th, 2022, to confirm dates for a JPT. Counsel for Mr. Prahay advised that disclosure from the Provincial Crown on the gun charges had been requested since the beginning of August, but not yet available.

[48] On October 20th, 2022, Ms. Puchniak, a paralegal from the law office of counsel for Mr. Prahay, advised that while they were prepared to proceed with the scheduling of the JPT for December 8th, 2022, the disclosure on the provincial portion of the matter continued to be outstanding and they had "zero" disclosure with respect to the provincial charges. She was advised by email from the Provincial Crown's office that there is a "serious backlog". Ms. Kashani, on behalf of Ms. Schofield, advised they had just received the ITO the day before.

[49] Reluctantly, I must concur with the position of the Defence. Firstly, the initial adjournment requests by the Defence to review the disclosure were reasonable and do not constitute delay: they were part of the process. Secondly, while the retainer, particularly of Mr. Bullock's counsel took an inordinate amount of time to be confirmed, it is clear from the transcripts that the case was not ready to proceed in any event. But for four days' delay necessitated by Mr. Prahay's counsel's non-attendance, the case could not have proceeded given the significant delay in the production of the Provincial Crown disclosure. Mr. Prahay's counsel references having made the request for that disclosure in August, but it was not delivered until November. There is nothing to cause me to believe the situation would have been different if Mr. Bullock had confirmed his retainer with counsel earlier. While the Defence did not require complete disclosure to move forward, they needed some disclosure on the gun charges, and appropriately finally agreed to set a JPT date in anticipation of receiving it. Mr. Prahay's counsel's paralegal's surprise at the provincial charges suggest to me that this disclosure may not have been included with the Federal Crown disclosure. Unfortunately, given the lack of any tracking of what was provided by the Federal Crown, we cannot know.

December 15th, 2022 – March 7th, 2023 – cancelled JPT

[50] A JPT was scheduled in the OCJ for December 8th, 2022. The JPT was cancelled by the Defence because they needed more time to consider their election. A new JPT was scheduled for February 14th, 2023, but it did not proceed as neither accused were able to confirm their election. They would have had sufficient disclosure at this point. The matter was adjourned to March 7th, 2023, for this purpose. The Crown argues that this is a delay attributable to the Defence of 85 days and should be deducted from the total delay.

[51] The Defence agrees that there was defence action delay from December 8th, 2022, to March 23rd, 2023, for a total of 105 days.

[52] Upon reviewing the transcripts, the delay from March 7th, 2023, to March 23rd, 2023, was not attributable to either Mr. Bullock or Mr. Prahay, but rather a third co-accused. While this issue was not addressed in argument, my reading of the transcripts does not suggest that the three co-accused proceeded as a collective: R v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 37. The third co-accused was represented by different counsel who did not attend and provide her client's instructions as to the election. The Crown approach is consistent with the direction of the Ontario Court of Appeal in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171. The delay attributable to the Defence is 85 days.

March 30th, 2023 – May 25th, 2023 – Bullock counsel to confirm retainer

[53] The Crown seeks to attribute 55 days to defence delay for this period of adjournment that was required by Defence counsel to confirm his retainer.

[54] The Defence takes the position that there is no defence action delay during this period. Trial dates had been set and confirmed on the record prior to March 30th. The delay between March 30th and May 25th, 2023, did nothing to lengthen the delay.

[55] A review of the transcripts indicates that on March 23rd, 2023, 7 days of trial were scheduled commencing January 8th – 12th, 2024, and January 29th -30th, 2024. Various stages of a Garofoli application were scheduled for May 30th, 2023, July 4th, 2023, August 21st, 2023, and October 20th, 2023.

[56] Ms. Schofield confirmed her retainer on May 19th, 2023. The transcripts from that date suggest that the trial and application dates previously set were done so on a with or without counsel basis. Regardless, Ms. Schofield confirmed she would take the necessary steps to ensure that there was no delay to the next stage, being May 30th, 2023.

[57] I agree with the Defence. No delay is attributable to Mr. Bullock for this period.

May 25th, 2023 – June 21st, 2023 – Counsel for Prahay removed from record

[58] The Crown says a further period of 29 days is attributable to Mr. Prahay for delays associated with his counsel's application to be removed from the record, and new counsel coming on the file.

[59] The Defence takes the position that new counsel did not cause any delay in the previously set trial and application dates.

[60] A review of the transcript for June 21st, 2023, reveals that Mr. Prahay's then counsel brought an application to adjourn the July 4th, 2023 date set for argument, for leave to cross-examine the affiant in the Garofoli application. Counsel indicated that s.11(b) was to be waived to the extent that any delay was caused in the proceedings, but proposed a solution that did not result in delay. The application was granted. The Defence's application for leave to cross-examine the affiant was to now occur on August 21st, 2023, the date originally set for cross-examination should the leave application be granted. No date was set for cross-examination, but rather left to be determined on August 21st, 2023.

[61] While I agree with the Crown that delay related to a change in lawyer is generally attributable to the Defence, there was no delay evident in the transcripts as a result of the change in counsel. The originally selected trial dates were maintained. While some application dates were changed, and some additional appearances were required, this did not affect what was supposed to be the final determination of the case, set to conclude January 30th, 2024. No delay during the period of May 25th, 2023, to June 21st, 2023, is attributable to the Defence.

August 21st, 2023 – October 20th, 2023 – Adjournments of the OCJ Garofoli

[62] There are three periods of delay that the Crown says are attributable to each accused, totalling 62 days:

a. August 21st, 2023 – September 12th, 2023: Garofoli adjourned to disclose the source handler's notes.

b. September 12th, 2023 – September 13th, 2023: Garofoli adjourned one day.

c. September 13th, 2023 – October 20th, 2023: Garofoli adjourned for the defense to amend their application and for the court to consider whether to appoint amicus.

[63] I agree with the Defence that no delay is attributable to it as Defence action did not delay the OCJ proceedings. The trial still proceeded as scheduled and was only derailed by the error of the trial judge on the Basi hearing, which resulted in the trial being converted to a preliminary inquiry.

March 14th, 2024 – April 19th, 2024 – both Accused to retain new counsel

[64] The Crown argues that an additional 37 days should be attributable to each accused as defence delay for these adjournments required to permit them to retain new counsel.

[65] I agree that this is attributable to the Defence. Nothing happened during this period of time as a result of the adjournment request.

November 25th, 2024 – December 10th, 2024 – re date set for Garofoli Step 6, and February 3rd, 2025 – March 3rd, 2025 – re date set for the Garofoli leave to cross-examine

[66] The Crown argues that 15 days' delay is attributable to the Defence because both the Court and the Crowns were available to proceed on November 25th with the Step 6 Garofoli, but Defence counsel requested a later date.

[67] The Crown further argues that both the Court and the Crown were available February 3rd, 2025, for the Garofoli leave to cross-examine application, but Defence counsel asked for a later date. March 3rd was ultimately chosen, which resulted in 29 days' delay attributable to the Defence.

[68] Defence counsel denies that any delay is attributable during this period. The Defence relies on R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 ("Godin"), for the proposition that defence counsel need not hold themselves in a state of perpetual availability for the purpose of scheduling steps in a proceeding, and are therefore not required to accept the first available date offered (the "Godin principles").

[69] The Crown has provided the email communication with respect to the setting of dates. After the JPT held in the Superior Court of Justice, Defence counsel immediately wrote to the trial co-ordinator, with copies to the Crown to secure dates for:

a. a one-half day application to fund the defence from seized funds;

b. three days for the Step 6 Garofoli; and

c. five days for the balance of the Garofoli.

[70] Dates for the Step 6 and balance of the Garofoli leave application were provided starting September 9th and through to February 10th. The Crowns did not initially respond to the dates offered. On May 29th, 2024, Defence counsel suggested August for the application to fund, with the Step 6 taking place October 21st, and the balance of the Garofoli commencing January 20th.

[71] The Federal Crown responded on June 5th with its availability. Availability did not start until November 25th. Defence counsel responded on June 7th suggesting the week of December 16th as the first date for the Step 6 and the week of January 20th for the balance of the Garofoli.

[72] The trial co-ordinator responded, inquiring as to whether the week of January 20th gave the presiding judge sufficient time if a decision needed to be prepared from the Step 6. The trial co-ordinator suggested the week of February 3rd for the Garofoli leave to cross-examine application.

[73] Defence counsel responded by suggesting the weeks of March 3rd or 10th, both of which were available to the Court. The Federal Crown had previously confirmed availability for the week of February 3rd.

[74] In para. 32 of Albinowski, the Court of Appeal for Ontario distinguished Godin, and cautioned that it is important for application judges to be mindful of the circumstances under which the Godin principles were made. Specifically, that the need to reschedule a date was at the request of the Crown. Those are not the facts in this case, and therefore I am not inclined to apply the Godin principles to the delay complained of here.

[75] Despite this, I cannot attribute the delay from November 25th – December 17th and February 3rd, 2025 – March 3rd, 2025, to the Defence, even though both the Court and the Federal Crown were available on the earlier dates. This is a joint prosecution, and the Provincial Crown did not confirm availability for these dates. The only communication from the Provincial Crown in the email string provided to me was on June 10th, confirming that the dates requested by the Defence work for the Province. The Provincial Crown did not confirm availability for the earlier dates.

Was there Defence Delay Caused by the Solicitor-client privilege stay applications?

[76] There is no dispute that the Garofoli application, originally intended to dispose of the trial, was derailed by the Defence solicitor-client privilege stay application. This application became the focus of the proceeding from March onwards.

[77] The Crown argues that the application was not brought in good faith because:

a. On December 26th, 2024, Mr. Bullock willingly and deliberately showed a corrections officer portion of the notes over which he was claiming solicitor-client privilege;

b. Mr. Bullock advised the officer that the documents over which he subsequently claimed solicitor-client privilege contained information he was collecting about an investigating police officer and his family tree; and

c. Comments subsequently made by Mr. Bullock suggested he had deliberately planned the incident to involve police and cause trouble for other corrections officers.

Mr. Bullock ought not be entitled to use up court time on an application alleging the very state actions which he deliberately induced. As a result, the application is frivolous, and the time spent ought to be deducted from the Jordan ceiling.

[78] I disagree. While it is true that Mr. Bullock set events in motion by showing a corrections officer a document which purported to draw familial ties between an investigating police officer and a confidential informant involved in Mr. Bullock's case, it was not Mr. Bullock who reacted to those events with conduct alleged to have been in breach of Charter rights. I cannot find that the Defence stay application was frivolous. I made a finding that the documents seized from his cell in a warrantless search constituted solicitor-client privilege. There are many arguable issues, including (but not limited to) whether the warrantless search was justified based on exigent circumstances to protect the safety of the officer and his family and/or to protect evidence. There were numerous other issues raised by the events that flowed from Mr. Bullock's action and the state's reaction, including what is the appropriate remedy if a Charter breach is found. Whether or not the Defence would have ultimately been successful, the application was a legitimate and appropriate one to bring.

[79] I do agree with the Crown that the Defence should bear some responsibility for the delay caused by this application for other reasons. Mr. Bullock was put in contact with counsel on December 30th, 2024, to discuss the seizing of his notes pertaining to discussions with his lawyer and his thoughts and strategies about his case. The Crown was not put on notice until February 2025 that he would be seeking a remedy. With the Garofoli application scheduled for early March, this contributed to the delay.

[80] The Defence argues that the Crown is deemed to know what had occurred at the hands of state actors. The Defence assumes no responsibility for the delay of one month in communicating to the Crown that a remedy would be sought. I find that the Defence does bear some responsibility for not having notified the Crown sooner. Whether or not the Crown should have known about the seizure, it could not have known that the Defence was seeking a remedy until it was so notified. The Defence delayed in doing so.

[81] After notification by the Defence, the Crown did nothing. It did not investigate and confirm whether a file had been seized and whether it remained in the possession of the jail/police, or otherwise. The Crown says it had a responsibility not to look at documents that could be the subject of solicitor-client privilege. While this may be the case, the Crown should have investigated whether there was in fact a file and if so, what had happened and who had seen it. This, combined with the piecemeal disclosure surrounding this issue, necessitated adjournments and contributed to the delay associated with the application.

[82] I also find that some of the lines of inquiry of the Defence contributed to the delay. For example, there was lengthy cross-examinations of various corrections and police officers with respect to allegations that appeared to lack any foundation and struck me as fishing expeditions.

[83] Overall, I find that there is delay associated with this application that should fall equally at the feet of the Applicants and the Crowns. I attribute 49.5 days to defence delay.

Garofoli Application

[84] I take the Crown argument on this issue to be that the Garofoli application has delayed this proceeding by the Defence's failure or refusal to perfect it by establishing the necessary grounds for the granting of leave to cross-examine the affiant of the ITO. The Crown argues that the affiant was already cross-examined at the preliminary inquiry. The Crown further argues that the gist of the application is the assertion, unsupported by any evidentiary basis, that confidential informant #4 is not a confidential informant, but rather a state agent. A Basi hearing was held, and while there were some errors that resulted in a mistrial, this does not change the fact that witnesses were called and on the basis of their evidence, conclusions drawn. Having had one opportunity to do so, the Defence has renewed the application in the Superior Court proceeding, without providing an evidentiary basis for their assertion.

[85] I disagree.

[86] The Applicants have not used repeated Garofoli applications to delay this matter. They first elected to have their trial in the Ontario Court of Justice within the 18-month ceiling. Despite various counsel changes, the trial proceeded as originally scheduled. When the mistrial occurred, the Applicants were entitled to disregard the findings made on the Basi hearing given that no summary of the evidence during that hearing had been provided to them, and their counsel had no opportunity to make submissions. The evidence of the officers at the converted preliminary inquiry simply became discovery. The Crown and the Defence subsequently agreed to a scheduling of the renewed Garofoli instead of a trial, which was contemplated to decide the entire trial. The Applicants, in the circumstances, were entitled to have a proper Garofoli process. The Applicants agreed to forego Step 2 of the Garofoli and let the Crown conduct the Step 6 hearing, with applications for cross-examinations, defence evidence, and submissions as to ss. 8 and 24(2) to follow. It was the solicitor-client privilege issue that derailed the Garofoli. There is nothing in how the Applicants have proceeded that suggests to me that the renewed Garofoli intentionally delayed the proceeding. It was intended to do the opposite and was designed to legitimately respond to the charges.

[87] With respect to the basis for the application, the Applicants' sub-facial attack on the constitutionality of the issuance of the search warrant is not based solely on whether informant #4 is an agent. The Applicants also allege that there was an undisclosed agent operating in the investigation. The evidence in support of this allegation was to come from Mr. Bullock, Mr. Ragaza, and Mr. Christie. Not having heard that evidence, I am not able to judge the sufficiency of it for frivolity. While the facts I am aware of suggest to me that this was not the strongest argument, I cannot say for certain what would have unfolded had I heard the evidence at a hearing. The ground for the allegation were set out in the application and it was clear to me what was being argued and the basis for it. Whether I would have ultimately agreed with that argument or not, is not for me to determine at this stage.

[88] The Applicants also challenged the facial validity of the issuance of the warrant on the basis that the ITO failed to disclose reasonable grounds to believe evidence of an offence would be found at the address, 634 McKellar Street North. For this part of the application, the evidence is the ITO itself. The basis for the challenge was sufficiently set out in the notice of application so that the Crown knew the case it had to meet. Based on the facial challenge alone, I am able to find that the Garofoli application was not manifestly frivolous for inadequate notice or otherwise. While I have not heard the evidence, there appears to have been arguable issues on the Garofoli.

[89] Overall, I cannot find that Defence action with respect to the Garofoli application delayed this proceeding.

Conclusion

[90] Based on the foregoing, I find that the total defence delay is 171.50 days for Mr. Bullock and 175.50 days for Mr. Prahay. This roughly equates to 5.7 and 5.85 months respectively. After deducting defence delay from the total delay, the net delay is 32.8 months for Mr. Bullock and 32.65 months for Mr. Prahay. Even if I had used 37.5 months as the total delay, the net delay would still exceed the presumptive ceiling.

[91] In conclusion, with allowable periods of defence delay, the presumptive ceiling for each Applicant remains exceeded. The charges must be stayed.

[92] If there are any calculation errors contained in this judgment, counsel may schedule a brief appearance before me to address them.

The Hon. Justice T. Nieckarz

Released: August 15, 2025