



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2013
    ONCA 169

DATE: 20130320

DOCKET: C54526

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Tat Nguyen

Respondent

James Clark, for the appellant

Kim Schofield, for the respondent

Heard:  October 5, 2012

On appeal from a stay of proceedings entered by Justice
    J. Getliffe of the Ontario Court of Justice on October 6, 2011.

Watt J.A.:

[1]

Law
    enforcement agencies become interested in international trade when they suspect
    the commerce involves contraband.  Like guns and drugs.

[2]

The
    respondent Nguyen was one of more than three dozen individuals charged with gun
    and drug offences at the conclusion of a lengthy investigation involving
    several Canadian and American law enforcement agencies.

[3]

Two
    years after his arrest, the respondent appeared for trial in the Ontario Court
    of Justice on a new information that charged only him with three drug offences
    and a single count of possession of the proceeds of crime. The presiding judge
    concluded that the Crown had not brought the respondent to trial within a
    reasonable time and ordered that the proceedings against the respondent be
    stayed.

[4]

The
    Crown appeals. The reasons that follow explain why I conclude that the trial
    judge erred in his decision to stay the proceedings. I would allow the appeal,
    set aside the stay, and order a new trial before a different judge of the
    Ontario Court of Justice.

THE BACKGROUND FACTS

[5]

A
    brief overview of the underlying investigation, followed by a trudge through
    its procedural sequents, suffices in assessing the correctness of the trial
    judges decision to order a stay of proceedings.

The Investigation

[6]

Project
    Ulverston was an investigation involving several Canadian police forces, the
    Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Canadian Border
    Services Agency. The investigation continued for nine months and included
    execution of more than five dozen judicial authorizations, warrants, and
    production orders.  Investigators conducted electronic, video, and physical
    surveillance, executed search warrants and production orders, and intercepted
    in excess of 60,000 telephone calls and text messages.

[7]

The
    project concluded on October 5, 2009, when several search warrants were
    executed and more than three dozen persons arrested on drug, firearm, proceeds
    of crime, and criminal organization charges.

The Search of the Respondents Home
    and Vehicle

[8]

On
    October 5, 2009, investigators executed search warrants at the respondents
    home. There, they found crack cocaine, hashish and marijuana, along with a
    money counter, digital scales and more than $7500 in cash.  The crack cocaine
    was being dried a few feet away from the respondents bed.  Components essential
    for the production of crack cocaine were also found in the respondents home. A
    warranted search of the respondents car yielded $8,000 in bundled currency.

[9]

The
    estimated street value of the drugs found at the respondents residence was
    about $63,000. The estimated street value of all the drugs seized at the
    conclusion of Project Ulverston exceeded $3 million.

The Early Appearances and Prosecution
    Disclosure

[10]

The respondent
    first appeared in court on October 6, 2009, the day following his arrest. Although
    he had retained counsel before October 7, 2009, duty counsel appeared on the
    respondents behalf on the first four occasions on which the respondent
    appeared before a justice of the peace.

[11]

Counsel for the
    respondent, who has represented him throughout these proceedings including on
    appeal, and counsel for the Crown at trial (who was not Mr. Clark) agreed on
    the terms of the respondents release from custody. The respondent was released
    on a recognizance with sureties and a deposit. His release was subject to
    several conditions including a specified place of residence as well as a
    prohibition against possession of non-prescribed drugs, cell phones,
    Blackberries and pagers. The recognizance did not contain any house arrest or
    curfew conditions.

[12]

The trial Crown
    anticipated that disclosure would be provided to the respondent on November 20,
    2009. A case management judge was appointed and counsel for the respondent
    filed a designation under s. 650.01 of the
Criminal Code
prior to
    November 20. However, no disclosure was made on that date.

[13]

On November 27,
    2009, an agent appeared as counsel for the respondent, along with the trial
    Crown. The trial Crown advised the case management judge that a problem with
    the server at the police department would delay disclosure until December 18,
    2009. The case management judge advised all counsel that on December 18, 2009
    he would be assigning a series of dates over consecutive weeks in May, June,
    July, and August, 2010 for preliminary inquiries to be held. He directed all
    counsel to resolve any potential conflicts before December 18th and directed
    that any changes of counsel would require 45 days notice.

[14]

The case management
    judge encouraged the trial Crown to follow the procedure detailed in s. 540(7)
    of the
Criminal Code
at the preliminary inquiry and instructed counsel
    for the accused to provide a list of witnesses and their anticipated evidence at
    counsels next appearance on December 18, 2009.

[15]

On December 18,
    2009, the case management judge provided several available dates in June, July,
    and August, 2010 for the parties to hold preliminary inquiries.  The trial
    Crown provided most but not all of the disclosure to defence counsel that day
    and stated that he anticipated that there will be more [disclosure] coming
    within the next approximately a month.  The December 18, 2009 disclosure
    included officers notes, surveillance videos, and informations to obtain
    various search warrants, some of which remained sealed and required editing
    before disclosure could be made.

[16]

Counsel for the
    respondent did not appear before the case management judge on December 18,
    2009.  An agent appeared on her behalf.

[17]

The case
    management judge fixed February 5, 2010 as the date for electing a mode of
    trial after counsel had reviewed the disclosure provided by the Crown.

Severance and Setting a Trial Date

[18]

On February 5,
    2010, the trial Crown reported that the hard drive I expected to have here
    today is not finished burning yet. It should be ready in the next couple
    days.  He then continued:

but theres still a good deal of information that I think
    counsel are going to need to look at before theyd be in a position to do that.

[19]

The case management
    judge noted that a month had been lost because of the Crowns inability to
    provide disclosure. The trial Crown indicated that he expected the outstanding
    disclosure would be provided during the following week.  He added that:

[the disclosure is] going to be voluminous, and I would
    expect that its going to take about a month for counsel to get a grip on it.

[20]

The case
    management judge indicated that the Crowns conduct might violate s. 11(b) of
    the
Charter
, but neither the agent for counsel for the respondent nor
    counsel for any co-accused said anything in response. The case management judge
    adjourned the proceedings to April 9, 2010 and noted:

This means I want elections, this means resolution meetings.
    Im also prepared to entertain any guilty pleas at that time for what I would
    still treat as an extremely early guilty plea worthy of all consideration that
    should be given for a guilty plea at earliest possible opportunity.

[21]

In advance of
    the April 9, 2010 proceedings, counsel for the respondent, the trial Crown, and
    the case management judge participated in a focus hearing by telephone. The
    trial Crown indicated that he expected to remove the respondent from the joint
    information and lay a new information charging only the respondent before the
    court on which the Crown would proceed.

[22]

The Crown made
    three appearances before the case management judge in May 2010 and confirmed
    that he would be proceeding on a separate information against the respondent
    alone. Counsel for the respondent did not attend at any of these appearances.  A
    judicial pre-trial conference occurred on June 14, 2010 and proceedings were
    adjourned to July 27, 2010, to permit counsel to propose an agreed statement of
    fact for trial proceedings in the Ontario Court of Justice.

[23]

On July 27,
    2010, the trial Crown and an agent for the respondents counsel appeared before
    the case management judge. Trial dates of March 10 and 11, 2011 were fixed.
    Trial dates in early February 2011 had been offered, but counsel for the
    respondent was unavailable that month. A further pre-trial was directed by the
    case management judge because the earlier pre-trial had been conducted on the
    basis that proceedings in the Ontario Court of Justice would be a focus hearing
    or a preliminary inquiry.

[24]

In the period
    between the respondents first appearance on October 6, 2009 and July 27, 2010
    when the trial date was set, counsel for the respondent had yet to appear personally
    on her clients behalf. None of the agents who did appear on counsels behalf remarked
    upon the pace of proceedings. A designation was filed on the respondents
    behalf in October, 2010 relieving him of the obligation to appear personally on
    each of the several occasions on which his case was before the court.

The Adjournment Application

[25]

On March 10,
    2011, the first day of the scheduled two-day trial, counsel for the respondent
    sought an adjournment. The basis of the request was that, two days earlier,
    counsel had been served with a substantial volume of casino records as
    further disclosure. Investigators had made a FINTRAC request on November 12,
    2010 and received a reply 10 days later. They obtained a production order for
    the casino records on January 19, 2011. The records were available on January
    31, 2011, picked up a week later, turned over for duplicating, and provided to
    Crown counsels office on February 22, 2011.

[26]

Counsel for the
    respondent submitted that the casino records were relevant to the respondents
    defence (on the proceeds count) and bruited the prospect of an application to
    challenge the validity of the production order. She also considered abandoning
    a
Charter
motion she had filed earlier and proceeding directly to
    trial.

[27]

Trial counsel
    for the Crown suggested that the allotted time for trial, two days, could be
    used to introduce evidence on other aspects of the case, for example, the
    warranted drug search and seizure on October 5, 2009.  Counsel for the
    respondent opposed this suggestion. The trial judge added that she was retiring
    on May 31, 2011. She was concerned that she would be unable to complete the
    proceedings during her tenure if they were heard in instalments as the trial
    Crown proposed.

[28]

The trial judge
    granted the respondents request for an adjournment and counsel discussed
    available dates to continue proceedings with the trial co-ordinator. Counsel
    for the respondent was not available for dates in early April 2011 or
    mid-November of the same year. Counsel agreed on trial dates of November 24 and
    25, 2011.

[29]

The trial judge
    asked about the issue of 11(b). Her inquiry and the response of counsel for
    the respondent is in these terms:

THE COURT:        Youre welcome.  With respect to the issue of
    11(b), do you wish me to just leave it for both of you to decide what you do
    with as time goes by?  I wont sing that, but .

MS. SCHOFIELD:  Well, it is a potential issue. My friend, in
    light of that I think, has agreed to vary Mr. Nguyens bail to delete the
    curfew, which, Im not sure of the logistics in the building but well discuss
    that.

[30]

During the
    following month the trial Crown and counsel for the respondent discussed
    earlier trial dates. Counsel for the respondent rejected the available dates in
    July, August, and September 2011, as well as the suggestion that the author of
    the ITO testify by videotaped discovery in order to complete the trial at an
    earlier date.  The trial was rescheduled for October 6-7, 2011.

The Application under s. 11(b)

[31]

On October 6,
    2011, the first of two days scheduled for trial, counsel for the respondent
    sought an order staying proceedings on the information on the basis that the
    respondents right to a trial within a reasonable time had been infringed. In
    her application of September 5, 2011, counsel for the respondent relied upon
    the respondents affidavit (to demonstrate prejudice), the transcript of
    various court appearances, and synopses compiIed by another police force in
    relation to another accused. In response, the trial Crown adduced affidavits
    from one of the lead investigators, a proceeds of crime investigator who
    described Project Ulverston. Specifically, the affidavit detailed the assembly
    of the materials in connection with the proceeds of crime count.

[32]

On the hearing
    of the s. 11(b) application, Corp. Jennifer Asbury, a Proceeds of Crime
    investigator with the RCMP, testified that she was unaware of discussions on
    May 28, 2010 about severing the respondent from the joint information and
    proceeding against him alone on a separate information. She did not know when
    she had been advised of the respondents trial date. She acknowledged that she
    could have moved more quickly to obtain the financial records had she been
    aware of the respondents trial date. On November 12, 2010, Corp. Asbury completed
    her FINTRAC inquiry. Ten days later, the FINTRAC response advised the officer
    of several transactions made by the respondent at various casinos. Four months
    later, the officer provided disclosure disks to the trial Crown.

[33]

The respondent
    testified that he had not been employed for the two-year period during which he
    awaited trial. He had been fired from his previous job due to low energy and
    misbehaviour. It was a very stressful period, during which he had fallen apart.
    His mood had changed, big time. In late August, 2010, about two weeks after his
    arrest in connection with a 300 plant marijuana grow operation, the respondent
    was referred for a psychiatric assessment at the insistence of his girlfriend.
    He was prescribed sleeping and other medication. He testified that because of
    the charges he faced, people looked down on him and thought he was an
    embarrassment. He was found not guilty on the marijuana charges on July 6, 2011.

The Trial Judges Ruling

[34]

Immediately
    after counsel had concluded their submissions, the trial judge gave his reasons
    for staying proceedings against the respondent.

[35]

The trial judge
    acknowledged that the respondent first appeared as one of a large number of
    accused arrested and brought before the court to answer several charges originating
    in Project Ulverston. In the trial judges view, however, very quickly after
    the respondent was charged, the matter became quite simple if not focussed on
    him due to the seizures made at the respondents home. Disclosure issues were
    or became fairly simple, and most of the disclosure was promised in a
    reasonably appropriate period of time.

[36]

The trial judge derided
    the casual pace at which the prosecution had proceeded under the case
    management judge, as well as the failure of investigators to provide timely
    disclosure of the materials, causing an adjournment of the first trial date. He
    rejected the trial Crowns earlier proposal of a bifurcated hearing on the
    first trial date, especially in light of the imminent retirement of the [then]
    trial judge and the prospect that the case might not be completed.

[37]

The trial
    judges ultimate conclusion appears in two passages at the end of his reasons:

So that on all of the material before me and that Ive looked
    at and I have considered the math here, I am satisfied that with the Crown and
    the institutional delay thats been set out in the material filed by Ms.
    Schofield, the Application is successful.



The problem here is perhaps Justice Pockele has some
    involvement in this matter, because it was assigned to him as Project
    Ulverston, there were a number of lawyers, there were a number of accused, but
    very quickly, in my view, looking at all the transcripts, the matter could very
    easily have been moved ahead more quickly. We shouldnt have been in March of
    2011 looking to deal with a case that started in October of 2009.

THE GROUNDS OF APPEAL

[38]

The Crown
    appeals from the order staying proceedings and advances several grounds of
    appeal. At root, the Crown submits that the trial judge failed to conduct a
    proper analysis of the relevant periods of proceedings and, as a consequence, erred
    in concluding that the delay was unreasonable.

[39]

It is
    unnecessary to elaborate upon the chronology of events described above. However,
    it is helpful to recapture the positions advanced by counsel in their written
    submissions and oral argument.

The Arguments on Appeal

[40]

For the
    appellant, Mr. Clark begins his arguments by recalling the standard of review.
    Characterization of the various periods of delay on a s. 11(b) application, as
    well as the ultimate decision about whether the delay is unreasonable, is
    reviewed on a standard of correctness. Underlying findings of fact are subject
    to review on a standard of palpable and overriding error.

[41]

Mr. Clark submits
    that the trial judge erred by not providing reasons for his allocation of the
    periods of delay. The trial judge simply adopted the respondents allocations
    of Crown and institutional delay. The trial judge failed to examine the
    proceedings entire history, identify relevant time periods within it, and
    explain how and why he allocated the various delays. Mr. Clark further submits
    that the trial judge failed to adequately consider the inherent time
    requirements of the case. The trial judge failed to take into account the need for
    several pre-trial conferences to address the procedural and substantive issues
    associated with complex cases involving several accused and multiple charges
    and the use of a wide variety of investigative procedures, all of which may be subject
    to challenge and may also be interdependent.

[42]

Mr. Clark
    contends that the trial judge failed to consider the conduct of the defence and
    its possible role in the delay. Defence counsel sought further pre-trial
    hearings even after severance had taken place. Moreover, the trial judge made
    no specific finding that the respondent had been prejudiced by the delay, nor
    did he balance any inferred prejudice to the accused against societys interest
    in an adjudication on the merits.

[43]

For the
    respondent, Ms. Schofield acknowledges that the appellant correctly
    characterizes the governing standards of review. She submits that, even if the
    trial judge failed to analyze the relevant time periods and assign
    responsibility for them as the authorities require, and even if the trial
    judges reasons are insufficient to permit meaningful appellate review, the
    trial judge correctly concluded that s. 1(b) was infringed. The delay was
    presumptively unreasonable. The Crown failed to rebut the presumption of
    unreasonableness in a case that began as a complex matter but soon developed
    into a manageable, potentially expeditious trial.

[44]

Ms. Schofield submits
    that the trial judge appreciated the complexity of the case when it first
    entered the criminal justice system and recognized that a lengthier intake
    period was required. He was also alive to the inferred and actual prejudice
    suffered by the respondent and properly balanced it against societys interest
    in an adjudication of the case on its merits. In sum, the respondent submits
    that the trial judge reached the correct conclusion in determining that s.
    11(b) had been breached and staying the proceedings against him.

THE GOVERNING PRINCIPLES

[45]

In order to
    assess the correctness of the trial judges decision to stay proceedings for
    infringement of the respondents right to be tried within a reasonable time, it
    is necessary to review, to some extent at least, some of the legal principles
    that govern applications under s. 11(b) of the
Charter
.

The Crowns Right of Appeal

[46]

I begin by
    reviewing the scope of the Crowns right to appeal from the trial judges
    order. Section 676(1)(c) grants the Crown the right to appeal against an order
    made by a trial court staying proceedings on an indictment. Leave to appeal is
    not required. Unlike under s. 676(1)(a), the Crowns right of appeal under s.
    676(1)(c) is not restricted to grounds of appeal involving questions of law
    alone.  Section 686, which enumerates the powers of the court of appeal, makes
    no express reference to the dispositive authority on appeals taken under s.
    676(1)(c).

The Standard of Review and Analysis under s. 11(b)

[47]

It is common
    ground between the parties that on appeal, the trial judges characterization
    of the various periods of delay on s. 11(b) applications, as well as the
    ultimate decision concerning whether the delay is unreasonable, is reviewable on
    a correctness standard:
R. v. Tran
, 2012 ONCA 18, at para. 19;
R.
    v. Khan
, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 18; and
R. v.
    Schertzer
, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71. The underlying
    findings of fact are subject to review on a standard of palpable and overriding
    error:
Tran
, at para. 19;
Khan
, at para. 18; and
Schertzer
,
    at para. 71.

[48]

In allocating
    delay, trial judges should give sufficient reasons to permit the parties and
    the reviewing court to understand the time that has been allocated and the
    reasons underpinning it:
R. v. Cranston
, 2008 ONCA 751, 244 OAC 328,
    at para. 33. Reasons that reveal no real attempt to examine the time periods or
    to explain allocation of the delay are flawed for failure to permit meaningful
    appellate review:
Cranston
, at para. 33.

[49]

For the purposes
    of unreasonable delay under s. 11(b) of the
Charter
, the relevant period
    of assessment is the overall period beginning at commencement of the
    proceedings to the end of the trial. In querying whether delay has been
    unreasonable, the trial judge must consider the length of the delay
    (subtracting any periods waived by the accused), taking into account the
    reasons for the delay, any prejudice suffered by the accused, and the interests
    that s. 11(b) seeks to protect:
R. v. Godin
, 2009 SCC 26, [2009] 2
    S.C.R. 3, at para. 18;
Tran
, at para. 20; and
Khan
, at para.
    20. This assessment of the period of delay must eschew the application of any
    mathematical or administrative formula and instead adopt a judicial
    determination that balances the interests s. 11(b) protects against factors
    that either inevitably lead to delay or otherwise cause delay:
Godin
,
    at para. 18;
Khan
, at para. 21; and
R. v. Morin
, [1992] 1
    S.C.R. 771, at p. 787.

[50]

To assist in
    assessing the reasonableness of systemic delay, the
Morin
court
    suggested a guideline of eight to ten months from the start of proceedings to
    trial as an acceptable delay in the provincial courts:
Morin
, at p.
    799; and
Khan
, at para. 22. However, guidelines are not fixed
    limitation periods and should not be applied in a mechanical way as though they
    were limitation periods. In individual cases, guidelines will yield to other
    factors:
Morin
, at p. 797. The presence or absence of prejudice also
    influences the application of guidelines:
Morin
, at p. 798.

[51]

In its analysis
    and determination of an application for a stay under s. 11(b), a court must
    consider, among other factors, the reasons for the delay:
Tran
, at
    para. 20. Factors a court must consider in assessing the delay include:

i.

the inherent time requirements of the case;

ii.         the actions of the accused;

iii.        the actions of the Crown;

iv.        limitations on institutional
    resources; and

v.         other reasons for the delay.

Morin
, at pp. 787-788; and
Tran
, at
    para. 22.

[52]

The inherent
    time requirements of a case vary.  Prosecutions differ in their complexity.
    Some are simple and straightforward. A single accused and count.  A handful of
    witnesses. Others entail many more variables. A complex property offence.
    Several accused and counts. Electronic surveillance. Experts. Complaints of
    unreasonable searches and other constitutional infringements. The inherent time
    requirements of the proceeding include the time needed to retain and instruct
    counsel, to conduct bail hearings, to comply with disclosure obligations: in
    short, the time required to get the parties ready to set dates for trial:
Cranston
,
    at paras. 37-38; and
Khan
, at para. 32.

Pre-Hearing Conferences and their Use

[53]

Section 625.1(1)
    of the
Criminal Code
authorizes pre-hearing conferences to be held
    before trial or other proceedings (for example, a preliminary inquiry) to
    consider the matters that, to provide a fair and expeditious hearing, would be
    better decided before the start of the proceedings and other similar matters. 
    Where a case is set to be tried by a court composed of a judge and jury, a
    pre-hearing conference to consider any matters that would promote a fair and
    expeditious trial is mandatory under s. 625.1(2).

[54]

Pre-hearing
    conferences are an essential feature of our criminal procedure. Whether
    required by s. 625.1(2) or permitted by s. 625.1(1), pre-hearing conferences
    are and have proven to be an invaluable ally in the struggle to promote a fair
    and efficient criminal trial process. The conferences are of particular
    assistance in complex cases involving multiple accused and counts arising out
    of lengthy investigations where investigative procedures are likely to be
    tested for
Charter
compliance.  Pre-hearing conferences, particularly where
    proceedings follow a lengthy investigation, sometimes add several weeks to the
    intake period in a case, but may well result in an earlier trial date, a
    shorter and more focused trial, or a reduction in the number of counts and
    accused going to trial. The time required to schedule, prepare for, and conduct
    pre-hearing conferences should be considered an inherent time requirement of
    the case, both generally and specifically for the purposes of a s.11(b)
    analysis:
Khan
, at para. 53;
Tran
, at paras. 36-37; and
Cranston
,
    at para. 46.

[55]

As mentioned earlier,
    s. 625.1 of the
Criminal Code
permits and, in some cases, stipulates
    pre-hearing conferences between the prosecutor and the accused or counsel for
    the accused. In cases to be tried by a judge sitting alone, pre-hearing
    conferences are discretionary and may be requested by the prosecutor, the
    accused, or on the motion of a judge of the court. The conferences are held
    prior to the proceedings (whether a trial or a preliminary inquiry) and are presided
    over by a judge of the court. At the conference, the participants are required
    to consider anything that, to promote a fair and expeditious hearing, would be
    better decided before the start of the proceedings.

[56]

The case
    management judge may help the parties to identify the issues to be resolved at
    the various stages of our criminal procedure and the nature and extent of the
    evidence required for the resolution of those issues.

[57]

The case
    management judge may help the parties to make admissions and reach agreements
    about uncontroversial issues, thereby reducing the length and complexity of
    contested proceedings.

[58]

The case
    management judge may hear guilty pleas and impose sentences on various
    participants, thus reducing the number of accused and counts that must proceed
    to trial. For those remaining, the case management judge may assist in making arrangements
    for tiered prosecutions, hearings to determine issues common to several
    accused, and, in general, setting a schedule for filing materials and argument
    on issues that remain outstanding.
[1]

[59]

Pre-hearing and
    case management conferences are justified and necessary tools in busy judicial
    centres designed to ensure effective and efficient use of available court
    resources and to protect not only the
Charter
rights of the persons
    charged, but also societys interest in determining allegations of serious criminality
    and their merits:
Tran
, at para. 34; and
Khan
, at para. 82.

[60]

To conclude this
    discussion of pre-hearing conferences, I emphasize that barring cause to do so,
    courts tasked with deciding whether an accuseds rights under s. 11(b) have
    been infringed should be slow to second-guess the need for or number of such
    conferences.

[61]

Large, complex
    prosecutions involving multiple accused and counts require concerted efforts on
    the part of investigators and prosecutors to ensure timely disclosure and trial.
    Amongst those charged, the involvement of some will be less than others: peripheral
    not central, discrete, perhaps disconnected from the principals and the core of
    the case. In some instances, the minor players can be tried separately,
    efficiently, and more expeditiously. But these decisions about how to proceed,
    against whom, upon what charges, and on what evidence, for that matter, whether
    or when to do so or to withdraw charges, are contingent upon interdependent
    circumstances and factors far removed from the knowledge of presiding judges.
    Courts should be hesitant to scrutinize the Crowns decisions absent clear
    reason to do so:
Khan
, at para. 30.

[62]

Finally, an
    accused, by agreement or other conduct, may waive his or her rights to complain
    about delay in whole or in part. Waiver can be explicit or implicit, but must
    be clear and unequivocal, made with full knowledge of the rights the procedure
    was enacted to protect and of the effect the waiver will have on those rights:
Morin
,
    at p. 790. To be implicit, there must be something in the conduct of the
    accused sufficient to support an inference that the accused has understood that
    she or he has the right to be tried within a reasonable time, understood the
    nature of that right, and has waived it:
Morin
, at p. 790. Conduct
    falling short of waiver may nonetheless be relevant to the s. 11(b) analysis as
    actions of the accused:
Morin
, at p. 790.

THE PRINCIPLES APPLIED

[63]

The reasons of
    the trial judge, read as a whole, disclose no attempt to identify and analyze relevant
    time periods between the respondents first appearance in the Ontario Court of
    Justice and the entry of a stay of proceedings. Nor do the reasons explain to
    whom the trial judge allocated the delay or why he did so. In the end, the
    reasons do not provide an adequate basis for informed appellate review.

[64]

The absence of
    sufficient reasons leaves it to this court, at one remove from the proceedings,
    to identify and analyze the relevant time periods, allocate the delay,
    determine whether the respondent has suffered prejudice, and balance the
    respondents rights against societys interest in having those persons accused
    of crime be adjudicated upon fairly and expeditiously.

[65]

Proceedings
    began when the original information was laid and process issued on October 5,
    2009. Proceedings ended, so far as the respondent is concerned, when the trial
    judge entered a stay on October 6, 2011. The parties agree that this period of
    two years warrants an inquiry under s. 11(b) of the
Charter
.

The First Period: October 6, 2009 to March 27, 2010

[66]

The first period
    that warrants examination commenced on October 6, 2009, when the respondent
    first appeared in answer to the charges, and concluded on March 27, 2010, when
    counsel agreed on trial dates of March 10 -11, 2011. The entire period
    aggregates about 9.75 months.

[67]

Several factors
    inform the allocation of various time periods within this overall expanse and lead
    me to conclude that this entire period is properly characterized as intake or
    inherent time requirements.

[68]

First, the
    inherent time requirements must take cognizance of the nature of the case
    involved. A more complex case that involves more extensive requirements demands
    and will serve to excuse longer periods of delay:
Khan
, at para. 32.

[69]

These
    proceedings began as a result of evidence gathered during a nine-month joint
    forces investigation involving Canadian and United States law enforcement
    agencies and police forces. The investigation focussed on international traffic
    in guns and drugs. The investigative techniques and procedures included the
    issuance of 62 warrants and authorizations that permitted the seizure of
    substantial volumes of evidence, including the interception of more than 63,000
    private communications. Drugs with a street value of $5 million were seized.
    Thirty-seven persons were arrested. Among the 139 charges were allegations of
    criminal organization and proceeds of crime offences.

[70]

Prosecutions
    originating in lengthy investigations require significant time for
    investigators to prepare and deliver disclosure to the Crown for provision to
    the defence. In many cases, investigators are (or should be) in a position to
    provide disclosure to the Crown very soon after the charges have been laid,
    thus permitting the Crown to provide disclosure to the defence with equivalent
    to dispatch. But this is not an ordinary case. The scope of disclosure
    materials includes both the substantive evidence to be led against those
    charged as well as the underlying materials upon which the enabling orders,
    warrants, and authorizations that produced the evidence to be relied upon by
    the Crown were granted. In some instances, editing and vetting of the
    disclosure materials may be required.

[71]

Nothing documented
    in the record of proceedings suggests that the investigative and prosecutorial
    decision to undertake prosecution of the joint accused constituted an
    inappropriate exercise of prosecutorial discretion or amounted to an abuse of process.
    The allegations concerned a joint enterprise carried out by members of a
    criminal organization for gain. In such cases, the Crowns
prima facie
route of proceeding is one of joint venture, joint indictment, and joint trial.
    It is commonplace that the roles of the alleged participants may differ. We
    should be reluctant to second-guess prosecutorial decisions about joinder, both
    with regards to whether and when to remove some accused from the larger
    prosecution and to proceed against them separately:
Khan
, at para. 30.

[72]

Second, the
    inherent time requirements of a case include the period required to retain
    counsel, arrange and conduct judicial interim release hearings, provide and
    review disclosure, schedule and prepare for judicial pre-trials: in sum, to get
    the case ready to set trial dates:
Tran
, at para. 32; and
Cranston
,
    at paras. 37-38.

[73]

The prosecutions
    originating in joint forces projects such as the present case often result in
    informations which include multiple accused and counts, some alleging criminal
    organization and proceeds of crime offences. Challenges to the
    constitutionality of the manner in which investigators have obtained crucial
    evidence, and the admissibility of such evidence in the proceedings against
    some or all of the persons charged, are commonplace. The nature and extent of
    the participation by individual accused varies.

[74]

In project
    prosecutions it has become routine that the pre-hearing conference judge or
    another judge will be assigned to manage the case as it makes its way from
    early appearances to trial.

[75]

Pre-hearing and
    case management conferences are only meaningful if counsel participating in
    those conferences are fully informed of and authorized to take binding
    positions on the issues in contention. It is notable that counsel for the
    respondent first appeared on March 10, 2011, seeking an adjournment of the
    trial because she had been served only days before with disclosure relating to
    the proceeds of crime count. On many interim appearances, the agents who
    appeared on her behalf were not fully informed about the matter nor about
    counsels availability for trial.

[76]

The respondent
    acknowledges that the first four months of the period between October 5, 2009
    and July 27, 2010 represents inherent delay, but apportions the balance of the
    period, about  5.75 months, to neutral (3.5 months), Crown (1 month),
    institutional (1 month), and defence (8 days).

[77]

Leaving aside
    the eight-day period for which the respondent acknowledges responsibility, I consider
    the balance of the period from February 6 until July 27, 2010 to constitute part
    of the inherent time requirements of the case.

[78]

During this
    period, the parties were engaged in pre-trial discussions. The respondent had yet
    to elect a mode of trial. Defence counsel sought to persuade the Crown to sever
    his case from those of the co-accused by laying a new information. The new
    information was put before the court on July 23, 2010 and the respondent
    indicated an intention to have a trial on that information in the Ontario Court
    of Justice.  Counsel estimated that the trial would take two days.

The Second Period: July 27, 2010 to March 10-11, 2011

[79]

The next time
    period that requires examination is from July 27, 2010, when the first trial
    date on the new information was set, until the trial date of March 10-11, 2011.

[80]

On July 27, 2010
    the parties agreed on March 10
th
and11th, 2011 as the dates for what
    was anticipated to be a two-day trial in the Ontario Court of Justice. Counsel
    for the respondent was not present. Trial dates of February 7-8, 2011 were
    available, but counsel for the respondent was not available.

[81]

The failure of
    the respondents counsels agent to advise the presiding judge of counsels
    availability makes it difficult, if not impossible, to determine with precision
    how the delay between the setting of the trial date and the date selected for
    trial should be allocated. It is a reasonable to infer, however, from
    respondents counsels unavailability for a two-day trial in February 2011 that
    she would not have been available earlier than March, 2011. It was also clear
    that respondents counsel was required to prepare, serve, and file any
Charter
motions she intended to bring at trial. Counsels agent offered no insight into
    the claims of constitutional infringement to be advanced at trial.

[82]

The judge
    presiding on July 27, 2010 was the judge who had managed the proceedings that
    had originated in Project Ulverston. He pointed out that a further pre-hearing
    conference prior to trial was likely, since management of the case had
    proceeded on the basis that what was being scheduled would be a preliminary
    inquiry.

[83]

I would
    apportion three months of this period to institutional delay, a further three
    months to neutral time requirements, and the remaining month to defence delay.

The Third Period: The Disclosure Problem and the Second Trial
    Date

[84]

Counsel for the
    respondent appeared on the first date scheduled for trial, March 10, 2011. She
    sought and obtained an adjournment following Crown counsels disclosure of a
    substantial volume of information relating to the proceeds of the crime charged
    two days earlier. Most of the disclosure provided related to information
    obtained after the respondents arrest.

[85]

In her
    submissions to the presiding judge, counsel for the respondent indicated that
    she was considering perhaps abandoning the
Charter
and just going on
    the merits of the case this morning. Later, counsel mentioned filing a
Charter
application to challenge the production order in accordance with which the new
    disclosure had been obtained. As detailed above, Crown counsel then proposed that
    the scheduled trial time could be utilized by introducing evidence relating to
    the seizures made on the date of the respondents arrest, but this suggestion
    was not accepted by the presiding trial judge, who was set to retire at the end
    of May, 2011.

[86]

Once again, the
    record is barren about the earliest availability of counsel for the respondent
    to conduct the trial. She declined two proposed dates in early April, 2011 and
    others in mid-November of the same year. The dates of November 24-25, 2011,
    were selected as the new trial dates and later advanced to October 6-7, 2011.

[87]

In my view, it
    is appropriate to assign responsibility for the seven month delay between the
    first and second trial dates to the Crown. That said, the second trial date
    upon which counsel agreed was over eight months after the first trial date. The
    expected length of trial, notwithstanding the further disclosure, remained at
    two days. While defence counsel are not expected to hold themselves in a state
    of perpetual readiness when trials do not proceed as planned, counsel for the
    respondent did not propose any available dates for a two-day trial and did not
    press for any earlier dates.

The Length of and Responsibility for the Delay

[88]

I would
    apportion the total period of delay in this case as follows:

Neutral and
    Inherent: 13 months 23 days

Institutional: 3
    months 9 days

Crown: 6 months
    26 days

The total period of Crown and institutional delay is
    10 months 5 days, only slightly beyond the
Morin
guidelines.

Prejudice to the Respondent

[89]

The presence or
    absence of prejudice can justify deviations of several months in either
    direction from the
Morin
guidelines:
Morin
, at p. 807; and
Tran
,
    at para. 63. Yet the trial judge made no finding of prejudice, nor mention of
    prejudice in his reasons staying proceedings against the respondent.

[90]

The respondent
    gave evidence that he experienced overwhelming stress and anxiety as a result
    of these charges. The stress intensified as the trial date approached. His
    family and friends in the Asian community shunned him because of the stigma
    associated with trafficking in crack cocaine. At the urging of his girlfriend,
    the respondent sought psychological counselling and was prescribed medication
    in August, 2011, about six weeks before proceedings were stayed.

[91]

The respondent
    gave inconsistent accounts about how long he had worked at a restaurant/karaoke
    bar during his release pending trial. He attributed his firing there to a loss
    of energy due to his depression over the crack cocaine and related charges.
    About four months prior to his arrest on these charges, the respondent had been
    arrested on a gaming house charge and, in August, 2010, while on bail on the
    charges, he was arrested again on charges of production of marijuana. He was
    acquitted of marijuana charges in July, 2011.

[92]

The respondent
    was granted judicial interim release about 10 days after his arrest. His
    recognizance did not include a term of house arrest or a curfew,  even though
    he had a previous conviction for a related drug offence. From an early stage,
    counsel filed a designation under s. 650.01 of the
Criminal Code
relieving the respondent of appearing in person each time his case was before
    the court.

[93]

In his affidavit
    filed in support of his application to stay proceedings, the respondent insisted
    that throughout the entire period presently under review he pressed for the
    earliest possible trial date, electing trial by a provincial court judge to
    give effect to these wishes. Yet, nowhere in the proceedings does respondents
    counsel, or any agent acting on her behalf, make any such statement on the
    record. The first mention of s. 11(b) is by the presiding judge on March 10,
    2011, when the respondents adjournment application succeeded. It seems
    reasonable to infer that the respondent was satisfied with the pace of the
    litigation because it resulted in his severance from the co-accused in the original
    information.

[94]

Finally, no one
    gainsays the societal interest in having this case involving the commercial
    production of crack cocaine tried on its merits. It is an interest that trumps
    the minimal prejudice suffered by the respondent.

CONCLUSION

[95]

For the above reasons,
    I would allow the appeal, set aside the stay of proceedings, and order a new
    trial, in accordance with the respondents election, before a different judge
    of the Ontario Court of Justice.

David
    Watt J.A.

I
    agree Robert J. Sharpe J.A.

I
    agree E.E. Gillese J.A.

Released: March 20, 2013  RJS





[1]
See now the statutory scheme of Part XVIII.1,
Case Management Judge
, which came into
    force on August 15, 2011.


