



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Locknick, 2019 ONCA 625

DATE: 20190725

DOCKET: C64954

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Anthony Locknick

Appellant

Kenneth Grad and Karen Heath, for the appellant

Christopher Walsh, for the respondent

Heard: June 28, 2019

On appeal from the conviction entered by Justice Gregory
    J. Verbeem of the Superior Court of Justice on March 21, 2017.

Lauwers
    J.A.:

[1]

While the appellant was incarcerated on unrelated charges, he conspired
    to smuggle drugs into the Windsor Jail and Joyceville Penitentiary. The police
    intercepted the appellants telephone conversations with his alleged
    co-conspirators. Twenty-three individuals were charged collectively on a
    65-count information. About 41.5 months later, the appellant was convicted of two
    counts of conspiracy to traffic in a controlled substance.

[2]

The appellant appeals his conviction on two grounds. First,
    he argues that the trial judge erred in refusing to stay the prosecution for
    undue delay pursuant to s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
, under the principles set by
the Supreme Court of Canada in
R. v. Jordan
,

2016 SCC 27, [2016] 1 S.C.R. 631, and
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659.

[3]

Second, the appellant contends that the trial judge erred in refusing to
    exclude evidence obtained from a wiretap authorization, predicated on
    information gathered pursuant to several earlier dial number recorder warrants.
    The initial warrant was issued in circumstances that gave rise to a reasonable
    apprehension of bias. The issuing justice gave correspondence to the police officer
    seeking the warrant, in which he requested clarification and more specifics on
    several points in the Information to Obtain (ITO). The appellant submits that
    the issuing justice effectively advised the officer on how to prepare the ITO, which
    raised a reasonable apprehension that the justice was biased against the appellant.
    The appellant asserts that his rights under s. 8 of the
Charter
were
    breached and the evidence obtained should have been excluded under s. 24(2).

[4]

I would dismiss the appeal for the following reasons.

A.

Did the delay in the prosecution breach the appellants
    rights under s. 11(b) of the
Charter
?

[5]

The first issue in this appeal is whether the trial judge
    was correct in his attribution of the delay in the
Jordan
analysis. The
    structure of that analysis and the need to apply it on an individual basis, even
    in the context of a multi-party, multi-count trial, was outlined by this court
    in
R. v. Gopie
, 2017 ONCA 728,
140 O.R. (3d) 171,
at para. 128.

[6]

The trial judges
    reasons for dismissing the appellants application for a stay
under
    s. 11(b)
consume 45 pages
    and 231 paragraphs of text, and are reported at 2017 ONSC 3563.
His
    detailed analysis regrettably belies the expectation expressed in
Jordan
, at para. 111, that the new
    framework reduces, although does not eliminate, the need to engage in
    complicated micro-counting.

[7]

The trial judge was
    intimately familiar with the context, the facts, the people involved and the
    numerous moving parts engaged in the complex pretrial and trial process.
While
    his decision must be reviewed on a correctness standard, I note that the
    underlying facts are to be reviewed on the standard of palpable and overriding
    error:
R. v. Jurkus
, 2018 ONCA 489,
    363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No.
    325. I note as well the point made in
Jordan
, at para. 71, that the
    analysis will depend on the trial judges good sense and experience, both of
    which are evident in his reasons. I do not intend to repeat the trial judges
    detailed and laborious analysis.

[8]

It is common ground that the total delay from the date of the charge to
    the anticipated end of the trial was 41.5 months, in excess of the 30-month presumptive
    ceiling set for cases going to trial in the Superior Court of Justice:
Jordan
, at
para. 47.

[9]

The trial judge made several adjustments that reduced the delay from
    41.5 months to 29.25 months, which is below the 30-month ceiling, before
    accounting for the complexity of the case or for transitional exceptional
    circumstances. In his view, both of these considerations would have justified the
Jordan
delay even if it had exceeded the presumptive ceiling. (I note
    that the actual delay, calculated using the actual date of the trials
    completion rather than the anticipated end date, was about two weeks longer,
    and several cases have suggested that the actual delay should be used:
R. v.
    Williamson
,

2016 SCC 28, [2016] 1 S.C.R. 741;
R. v. Gordon
,
    2017 ONCA 436, 137 O.R. (3d) 776; and
R. v. Faulkner
, 2018 ONCA 174, 407
    C.R.R. (2d) 59.)

[10]

The
    trial judge raised three separate grounds for reducing the total delay.

[11]

First,
    I agree with the trial judge that 1.5 months must be counted as defence delay
    in scheduling the
Garofoli
application (named after
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421) for all the accused jointly. The court and the Crown were
    ready to proceed but the defence was not. The appellant has not established
    that the trial judge was incorrect in this determination. This reduces the
Jordan
delay to 40 months.

[12]

Second,
    the trial judge deducted three months to account for the unexpected, unforeseen
    and unavoidable delay caused by the preliminary inquiry judges desire to
    review the content of each intercept separately. As this court noted in
R.
    v.
Antic
, 2019 ONCA 160, at
    para. 11, application for leave to appeal to S.C.C. filed, 38605 (
April 25, 2019),
there are some events that no
    one can anticipate and those events should simply be removed from the delay
    analysis. See
Jordan
, at paras. 73-75. The Crown had taken all
    reasonable steps to mitigate the delay. The appellant has not established that the
    trial judge was incorrect in making this deduction. This reduces the
Jordan
delay to 37 months.

[13]

Third,
    and most significantly, the trial judge deducted 7.75 months to account for the
    mistrial that occurred. If this deduction is correct, it reduces the
Jordan
delay to 29.25 months, below the presumptive ceiling. Adding an additional two
    weeks, to account for the actual end of the trial, would bring the total delay
    to 29.75 months, also below the ceiling. Justice King, the judge previously
    assigned to the case, declared himself to be in conflict of interest about two months
    after he reserved his ruling on the standing issue in the original
Garofoli
application. The parties agree that the conflict event constituted a discrete
    exceptional circumstance.

The trial judges assessment of the mistrial delay

[14]

The
    trial judge held that the discrete exceptional delay caused by King J.s conflict
    began on February 1, 2016, which was the first day of the original proceeding,
    and terminated on September 20, 2016, the first date after the conflict arose
    that the appellant and Crown were ready to proceed, but the court was not.

[15]

The
    trial judge rejected the co-accuseds argument that the delay started on April
    8, 2016, the first assignment court date after the conflict that gave rise to
    the mistrial arose. As a result of the conflict and the related mistrial, there
    was no meaningful progress at all on the
Garofoli
application between
February 1, 2016, when the
    application commenced, and April 8, 2016
. The parties were required to
    embark on trial scheduling anew.

[16]

The
    first date offered for the parties one-week fresh
Garofoli
application was September 13, 2016. Mr. Locknicks counsel
    was not available on that date but was available on September 20, 2016. The
    court was not available on September 20, 2016. The trial judge agreed with the
    appellant that because the court could not accommodate the parties until
    December 5, 2016, the time between September 20, 2016 and December 5, 2016
    should not be deducted. The trial judge acknowledged the unusual difficulty in
    the courts availability caused by six out of twelve judges having some sort of
    conflict in presiding over this matter. He noted that not being able to offer
    the parties more than one week in a nine-month period does not accord with the
    justice systems duty to mitigate delay resulting from a discrete exceptional
    circumstance or the necessity to prioritize cases that have faltered due to an
    unforeseen event.

[17]

This
    led the trial judge to conclude, at para. 149, that he would attribute 7.75
    months (February 1, 2016 to September 20, 2016) to the discrete exceptional
    circumstance, bringing the delay for s. 11(b) purposes to 29.25 months, under
    the
Jordan
presumptive ceiling
    of 30 months. I agree with the trial judges conclusion.

[18]

The
    trial judge also considered two additional factors that, in the event that he
    erred in concluding that the remaining delay fell below the 30-month ceiling, would
    have nevertheless justified the delay: complexity and transitional
    circumstances.

Complexity

[19]

This
    was a particularly complex case. The trial judge acknowledged that the accused
    were charged on a multi-count conspiracy indictment involving an alleged drug
    trafficking network. He noted there were three distinct conspiracies, all
    involving the appellant and various combinations of the co-accused and
    unindicted co-conspirators. He set out other details about complex features at
    paras. 178-182 of his reasons.

[20]

The
    trial judge found that, from an evidentiary perspective, the proceeding was
    moderately complex: the evidence primarily consisted of intercepted
    communications, potentially the results of the execution of number recorder
    warrants, tracking warrants and production orders, together with observations
    made during physical surveillance; given the nature of the counts, the
    co-conspirators exception to the hearsay rule would likely be engaged; and there
    was voluminous disclosure, an anticipated two-week trial, and an unknown number
    of witnesses to be called by the Crown. He further held that the legal issues
    in the context of the
Garofoli
application
    are of moderate to marked complexity, and the nature of the offences, the
    nature of the evidence, and the legal issues involved on the pretrial
    applications made this case above moderate in its complexity. In
Jordan
,
    the court noted, at para. 79, that such determinations fall well within the
    trial judges expertise.

[21]

The
    trial judge found that it was in the interests of justice to structure the
    prosecution as the Crown did. He found that the Crown proposed and executed a
    concrete plan to minimize the impact of a joint prosecution on the overall
    delay, while the matter was before the Ontario Court of Justice. Similarly, he
    held it was in the interests of justice to have a single trial on the
    three-count conspiracy indictment, as it represented an efficient manner of
    dealing with the charges that promoted judicial economy. At the Superior Court of
    Justice the Crown took steps designed to mitigate and minimize delay to all of
    the accused every time the matter was before an assignment court.

[22]

The
    inference is that there was a margin for
Jordan
purposes. In my view
    this reasoning was sound.

Transitional circumstances related to
Morin

[23]

This
    case originated in a time covered by

the delay guidelines specified by
    the Supreme Court of Canada in

R.
    v. Morin
,
[1992] 1 S.C.R.
    771. The trial judge adverted to several circumstances that he found to be
    exceptional in a transitional sense, since the parties had been proceeding
    under the guidance of
Morin
for 33 months and 19 days from the date the
    information was sworn to the date
Jordan
was released and the rules
    changed.

[24]

Considering
    the
Morin
guidelines,

the
    trial judge calculated seven months of institutional delay in the Ontario Court
    of Justice and 5.5 months of institutional delay in the Superior Court of
    Justice. The total institutional delay of 12.5 months did not exceed the acceptable
    range of 14 to 18 months permitted under the
Morin
guidelines.

[25]

The
    trial judge elaborated on two points related to neutral delay. First, 2.5
    months of delay between the last day of the originally scheduled preliminary
    hearing on November 7, 2014 and the first continuation date on January 22, 2015
    was neutral. The transcripts revealed that the difficulty in scheduling the
    continuation dates resulted from competing defence counsel schedules. Second,
    5.5 months of delay between March 30, 2016, when counsel were notified that
    King J. had declared a conflict, and September 13, 2016, the first date offered
    by the court for rehearing the
Garofoli
application, was neutral. The
    mistrial resulted from an unforeseeable event not attributable to the court or
    Crown. He held that such events necessarily increase the inherent time
    requirements of the case.

[26]

The
    trial judge noted that even if the 2.5 months between November 7, 2014 and
    January 22, 2015 was found to be institutional delay, and the neutral period
    after April 8, 2016 was limited to three months (resulting in a further 2.25
    months of institutional delay), the total institutional delay would be 17.25
    months, still within the
Morin
guidelines.

[27]

In
    the trial judges view, the Crown made good faith efforts to minimize delay
    throughout the proceedings: at paras. 217-220. He took no issue with defence
    efforts to move the case along: at paras. 221-222.

[28]

Finally,
    the trial judge acknowledged that the appellant experienced prejudice because
    his liberty was restricted, having been in custody at the time of the charges
    and having remained in custody until he applied for bail in December 2015.
    Nevertheless, since the total institutional delay was within the
Morin
guidelines,
    the trial judge concluded that, under the previous state of the law, the appellants
    s. 11(b) rights were not infringed. Even if there had been an infringement, the
    appellants interests in a speedy trial were outweighed by societys interest
    in having the matter tried on the merits, particularly given the seriousness of
    the offences.

[29]

The
    appellant has not established that the trial judge made any error in assessing
    the complexity of the case or in his assessment of the application of the
Morin
guidelines.

[30]

For
    these reasons, I would not give effect to the argument that delay led to a
    breach of s. 11(b) of the
Charter
under the principles
set by the Supreme Court in
Jordan
and
Cody
.

B.

Was the trial judge correct in ruling
that
    the justice who issued the DIAL NUMBER RECORDER warrants was not biased?


[31]

This
    is the second issue in this appeal. As noted, the appellant argues that the
    justice who issued the initial dial number recorder warrant had effectively
    advised the police on how to repair the corresponding ITO in a memo given to
    the officer seeking clarification and more specifics on several points in the ITO.
    The appellant asserts that this raised a reasonable apprehension that the
    issuing justice was biased against the appellant. The appellant argues that
    this breached his s. 8
Charter
rights and the evidence obtained should
    have been excluded under s. 24(2).

[32]

To
    obtain the dial number recorder warrants, an officer applied for judicial
    authorization. The first application for the initial warrant was declined, after
    which the issuing justice provided correspondence to the officer. The entire
    text of the issuing justices memorandum is set out at para. 108 of the trial
    judges reasons:

Hoffman J. did not issue the warrant at that time. Instead, he
    directed correspondence to P.C. Hamlin dated April 9, 2013, stating:

Attention P.C. Hamlin WPS

April 9/13 10:45 PM

Re Warrant request J306

If you decide to make any
    alterations and resubmit this please include a copy of this document as well as
    the original warrant submitted today. For security reasons I do not keep copies
    of either.

As well add a note indicating which
    paragraphs have been altered to assist me in my re-review.

1)

Paragraph (Par) 15  I
    do not understand what the sentence I have summarized the aspects of the
    informants means.

a.

Par. 15  crimes
    of dishonesty must include at least all theft related offences, fraud related offences,
    perjury related offences, personation related offences as well as obstruct
    police and obstruct justice.

b.

Par 15 re
    reliability of Informant #1  (a); best to differentiate if possible between
    information obtained from direct contact with persons involved and other
    sources if this can be done and if it does not jeopardize revealing Informants
    ID.

c.

Par 15 re
    reliability of Informant #1  (f); best to differentiate between direct and
    indirect contact and explain how information can be obtained by indirect
    contact if this can be done and if it does not jeopardize revealing Informants
    ID.

2)

Pars 17-18; Is Wayne
    Locknick the same person as Wayne Anthony Locknick but used different named
    query on different systems. If so please clarify?

3)

Pars 19-20: same
    question as above for Mike Stiller and Michael Stiller.

4)

Par 58 -- Is Source A
    the same person as Informant 1 in par 15? Either way please clarify and if
    different nothing about reliability of Source A?

5)

Par 59 a)  best to
    differentiate if possible between information obtained from direct contact with
    persons involved and other sources if this can be done and if it does not
    jeopardize revealing Informants ID.

a.

Par 59 c) 
    Additional detail regarding how it has been verified may be more helpful.

b.

Par 59 re
    negative consideration for Informant 2; crimes of dishonesty include
    ---------------- please standardize definition as outlined in par 15.

6)

Par 60 a)  f): Did
    Informant #2 receive this information directly from Locknick or some other
    means if this can be revealed without jeopardizing the Informant identity?

7)

Par 61  How do you
    know Brown is a high level drug dealer?

8)

Par 65  Again is
    Source A the same person as Informant 1?

a.

Re a), and b);
    Approximately when did this take place, even what year or within what period of
    time?

9)

Par 67  69; Update
    these pars with any new information added further to these requests

[33]

The
    second application was also declined. Eventually, the third application for the
    warrant was granted. Three other dial number recorder warrants were eventually
    issued as well. Later, the police successfully applied for judicial
    authorization for intercepts. In seeking the wiretap authorization, the police
    relied on information gathered pursuant to the dial number recorder warrants.

[34]

The
    trial judge dismissed the appellants application to exclude evidence (reasons
reported at 2017 ONSC 4833)
.
    He concluded that the appellant failed to demonstrate serious grounds to
    rebut the strong presumption of judicial impartiality, and failed to establish
    reasonable apprehension of bias.

[35]

The
    trial judge found that, in all the circumstances, the purpose and effect of [the
    issuing justices] correspondence was to obtain clarity and specificity with
    respect to certain aspects of the content of the April 9, 2013 ITO [filed in
    support of the first application], in an effort to assess the reliability of
    elements of the information already set out therein, and to determine whether
    that information was sufficient to satisfy the requisite grounds to issue the
    warrant sought: at para. 127. The trial judge pointed out that there was no
    evidence of additional correspondence between the issuing justice and the
    officer after the first application.

[36]

The
    trial judge said the issuing justices questions about the informants prior
    convictions for crimes of dishonesty sought to elicit information that was necessary
    and directly relevant to his assessment of the reliability of the information
    provided by the informants. The trial judge held that instead of directing or
    advising the officer about the specific wording or substance of a subsequent
    ITO, the issuing justice identified the categorical nature of the information
    he needed to assess whether the warrant should issue. Further examples of
    benign clarification included the issuing justice requesting that the officer
    differentiate between information obtained from direct contact with persons
    involved and other sources to the extent that it could be done without risking
    exposure of the informants identity. The trial judge noted this clarification
    was appropriate because it was potentially relevant to the issuing justices
    assessment of the reliability of that information. Overall, the trial judge found
    that the issuing justice did not effectively draft the content of the ITO, nor
    did his inquiries impair his ability to act objectively and neutrally when
    considering subsequent warrant applications.

[37]

The
    trial judge found that the issuing justice had not inserted himself into the
    ITO drafting process in a manner designed to ensure the warrant would issue, by
    vetting and editing an unsworn draft ITO, or otherwise: at para. 128. Instead,
    the issuing justice fulfilled his duty in accordance with the principles
    articulated in
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, by not being reluctant to ask questions or to
    require more information. The issuing justice never suggested what the
    substantive content of the responses to his inquiries should be. He did not
    indicate that a warrant would necessarily issue if he received particular
    responses to his inquiries in a subsequent ITO, or at all. The issuing justice
    sought clarification with respect to certain aspects of the information already
    provided in the April 9, 2013 ITO, to give him a greater appreciation of the
    reliability of that information so that he could make an impartial
    determination of the merits of the application.

[38]

In
    the context of the issuing justices duty as outlined in
Araujo
, the trial judge found that an
    informed person, viewing the matter realistically and practically, and having
    thought the matter through, would not view the conduct as giving rise to a
    reasonable apprehension of bias
.
A reasonable person would conclude that
    the issuing justice was engaged in appropriate efforts to fully appreciate the
    evidence relied upon in support of the warrant police sought to be issued.

[39]

I
    agree with the trial judges assessment. I would not give effect to this ground
    of appeal.

[40]

Finally,
    since there were no
Charter
breaches, a review of the impact of the alleged breaches under s. 24(2) of the
Charter
is not required.

C.

Disposition

[41]

I
    would dismiss the appeal.

Released: D.W. July 25, 2019

P. Lauwers J.A.

I agree. David Watt
    J.A.

I agree. M. Tulloch
    J.A.


