



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Poloni,









2012 BCCA 8




Date: 20120110

Docket: CA037250

Between:

Regina

Appellant

And

Robert Luigi
Poloni

Respondent



Corrected Judgment:
the reference at paragraph 12 has been corrected to

read
in
Horner
at para. 84.




Before:



The Honourable Madam Justice Ryan





The Honourable Madam Justice Saunders





The Honourable Mr. Justice Lowry




On Appeal from the
Supreme Court of British Columbia, July 2, 2009 (
R. v. Poloni
, 2009 BCSC
882, Vancouver Registry, Docket 2476301)




Counsel for the Appellant:



W.P. Riley





Counsel for the Respondent:



H. Rubin, Q.C.





Counsel for the Intervenor, Attorney General of British
  Columbia



M.J. Dewitt-Van
  Oosten





Place and Date of Hearing:



Vancouver, British
  Columbia

November 9 & 10,
  2010





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2012









Written Reasons by:





The Honourable Madam Justice Ryan





Concurred in by:





The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry








Reasons for Judgment of the Honourable
Madam Justice Ryan:

[1]

These reasons are released concurrently with
R. v. Horner
, 2012
BCCA 7, as both cases arise from the same facts and raise the same issues.  In
both cases, the Crown has appealed stays of proceedings entered by Mr. Justice
Leask following his finding a breach of Mr. Horners and Mr. Polonis right to
be tried within a reasonable time pursuant to s. 11(b) of the
Canadian
Charter of Rights and Freedoms (the Charter).
The overriding concern of
the Supreme Court Justice was delay caused by the lack of institutional
resources.  Since Mr. Horner and Mr. Poloni were co-accused on the same
information, the delay they experienced is largely the same.  My reasons in
Horner
explain the overlapping facts and procedural history of these cases.

[2]

Mr. Poloni resisted the Crown appeal taking issue directly with its
grounds of appeal.  In defending the stay of proceedings he also argued that
proceedings should have been stayed in any event as the Crown did not have the
power to directly indict him while his trial was continuing in the Provincial
Court.  Because I have reached the conclusion that the Crowns appeal must
fail, it is unnecessary for me to deal with Mr. Polonis argument, which was
rejected by the Supreme Court Justice, as to the validity of the direct
indictment.

[3]

The
Charter
remedy of a stay of proceedings is individually
tailored to each accused.  I have already dealt with the Crown appeal in Mr.
Horners case.  His case differs in some respects from that of Mr. Poloni. 
What follows is a short discussion of the particular facts pertaining to Mr.
Polonis case and my reasons for concluding that the Crowns appeal in his case
should also be dismissed.

[4]

Mr. Poloni was charged along with James Horner, Robert Della Penna,
Robert Muoio and James Micklewright as follows:

Count 2:

Between the 1
st
of June, 2004 and the 30
th
of September, 2004 at or near the cities of Burnaby and Vancouver, British
Columbia and elsewhere in the Province of British Columbia and in Toronto,
Ontario and elsewhere in the Province of Ontario did unlawfully conspire
together, the one with the other or others of them and with Casey WELLS, Liaqat
KHAN, Amaran TYAB, Clint FARRELL, Ernest POLONI, Micro PASTRO and Robert
FRIEDMAN and with a person or with persons unknown, to commit the indictable
offence of trafficking in a controlled substance, to wit: Cocaine contrary to
section 5(1) of the
Controlled Drugs and Substances Act
and did thereby
commit an offence contrary to section 465(1) of the
Criminal Code of Canada
.

[5]

I have set out the Crowns allegations against Mr. Poloni in my reasons
for judgment in
Horner
and will not repeat them here.

[6]

Mr. Poloni was arrested on October 15, 2004.  He was released on bail on
November 2, 2004 on a recognizance in the amount of $250,000 with two sureties
and with conditions similar to those of Mr. Horner.

[7]

His trial proceeded along with Mr. Horner and the other accused persons
in Provincial Court, culminating in his direct indictment to the Supreme Court
in November of 2008.

[8]

While Mr. Horners case was stayed by Justice Leask on April 23, 2009,
Mr. Poloni did not make his application for a stay until May 22, 2009. 
Justice Leask stayed the proceedings against Mr. Poloni on June 9, 2009 and
delivered written reasons for so doing on July 2, 2009.

[9]

The reasons for judgment that Justice Leask delivered in
R. v. Horner
provided the template for his reasons in Mr. Polonis case with some
differences.

[10]

The first difference is that the Supreme Court Justice concluded that
Mr. Poloni had not waived any delay that occurred in this case.  On the
contrary, he found that Mr. Polonis counsel, Mr. Rubin, was actively engaged
throughout the years in efforts to expedite the proceedings.  Crown counsel
does not dispute that finding on this appeal.

[11]

Nor did the Supreme Court Justice attribute much of the other delay in
the case to Mr. Poloni.  As set out in my reasons in
Horner
, one police
officer was central to obtaining the entire wiretap authorizations in this
case.  Rather than cross-examine him globally on all of the wiretap
authorizations, the
voir dires
proceeded on a step-by-step basis, which
required an examination and a ruling on each wiretap in chronological order. 
There was a reason for this.  A ruling on one wiretap could affect submissions
and rulings on subsequent wiretaps.  Nonetheless, counsel for Mr. Poloni
disagreed with this method (proposed by the Crown and endorsed by counsel for
Mr. Della Penna).  In dealing with the position of Mr. Poloni at trial, Justice
Leask said this at para. 13 of his reasons in
Poloni
:

[13]      Furthermore, counsel
for Mr. Della Penna, counsel for the accused other than Mr. Poloni, and counsel
for the Crown all opted for a step-by-step procedure which entailed several
separate
voir dires
proceeding one application after another,
interspersed with applications for disclosure and for cross-examination of wire
tap affiants.  I find that it was this procedure that caused the 2½ months of
delay during the
voir dire
stage of the proceedings.  Counsel for Mr. Poloni
repeatedly opposed this procedure and argued on numerous occasions that an
alternative procedure involving a single
voir dire
that dealt with the
applications altogether would be a more efficient way to proceed.  The trial
judge acceded to the desires of the majority despite Mr. Polonis
counsels objections that his client was suffering serious prejudice as a
result of the trial delays caused by the step-by step procedure, and his
complaints that Mr. Polonis s. 11(b) rights were at issue.

[12]

Thus, the Supreme Court Justice concluded that the
delay
caused by the procedure adopted was not attributable to Mr.
Poloni.  I agree with that conclusion.  The Crown argues that, although Mr.
Polonis counsel objected to the procedure the Court adopted in determining the
validity of the authorizations, he did take an active role in attacking their
substance.  I agree that the Supreme Court Justice
should have
characterized Mr. Polonis challenges to the wiretap authorizations as actions
of the accused under the
Morin
test.

That
said, this re-characterization makes little difference to the analysis for the
reasons I gave in
Horner
at para. 84.

[13]

Justice Leask characterized the other periods of delay in the same way
he characterized them in his reasons in
Horner
.  As mentioned in my
reasons in
Horner,
I am of the view he erred in attributing any delay to
the actions of Crown counsel.

[14]

In the end, I am of the view that the Supreme Court Justice did not err
in concluding that the delay in this case was largely due to the scarcity of
institutional resources.  As in
Horner
, the decision on this appeal
turns on that finding.

[15]

The question then, is whether the trial judge erred in balancing all of
the factors in deciding whether to stay proceedings against Mr. Poloni.  In
considering the case for Mr. Poloni, the Supreme Court Justice recognized that
the charges against Mr. Poloni were more serious than those against Mr.
Horner.  Mr. Poloni was alleged to be a seller of 20 kg of cocaine, as opposed
to Mr. Horner who was said to be a courier.

[16]

Considering the length of time that passed, the Supreme Court Justice
concluded that he was compelled to infer prejudice, but went on to note the specific
instances of hardship to Mr. Poloni.  This included loss of income, loss of
employment, his inability to find work, deterioration of personal
relationships, anxiety, and depression.  The Supreme Court Justice concluded
that these problems ensued from the delay in the case rather than from the fact
of being charged itself.  I cannot say that these findings are unreasonable. 
Nor can I say that the Supreme Court Justice erred in balancing the factors he
was obliged to consider.

[17]

For these reasons, and for the reasons I have set out in
Horner
insofar as they are applicable to this case, I would dismiss the appeal.

The Honourable
Madam Justice Ryan

I Agree:

The Honourable
Madam Justice Saunders

I Agree:

The
Honourable
Mr. Justice Lowry


