



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morash, 2021 ONCA 335

DATE: 20210518

DOCKET: C67187, C67906, C67907 & C67977

Doherty, Zarnett and Coroza JJ.A.

DOCKET:
    C67187

BETWEEN

Her Majesty the Queen

Respondent

and

Jansen Morash

Appellant

DOCKET:
    C67906

AND BETWEEN

Her Majesty the Queen

Respondent

and

Nikola Pavlovich

Appellant

DOCKET:
    C67907

AND BETWEEN

Her Majesty the Queen

Respondent

and

Peter Pavlovich

Appellant

DOCKET: C67977

AND BETWEEN

Her Majesty the Queen

Respondent

and

Filippo Acciaioli

Appellant

Ian Carter, for the appellant, Jansen Morash

Bruce Engel, for the appellant, Nikola Pavlovich

Alan D. Gold and Laura Metcalfe, for the appellant,
    Peter Pavlovich

Michel Davies and Meaghan McMahon, for the appellant, Filippo
    Acciaioli

James D.M. Clark, for the respondent

Heard: January 6, 2021 by videoconference

On appeal from the convictions entered on January 9, 2019
    and March 19, 2019 by Justice Célynne S. Dorval of the Ontario Court of
    Justice.

On appeal from the conviction entered on May 10, 2019 by
    Justice Mathew C. Webber of the Ontario Court of Justice.

REASONS FOR DECISION

A.

INTRODUCTION

[1]

In 2015 and 2016, the Ottawa Police Service investigated drug
    trafficking in
an operation known as Project Step. The investigation
    yielded charges against, among others, the appellant Jansen Morash (Morash)
[1]
and, on a separate
    information, against the appellants
Peter Pavlovich (Peter), Nikola
    Pavlovich (Nikola) and Filippo Acciaioli (Filippo).
[2]

[2]

Morash was charged on December 13, 2016, with drug
    trafficking, firearm offences, and possession of the proceeds of crime, and on
    January 6, 2017, with conspiracy to traffic marijuana.

[3]

Morash brought an application to stay the charges against him on the
    basis that there was unreasonable delay in bringing them to trial, in violation
    of his rights to be tried within a reasonable time under s. 11(b) of the
Charter
.
    The application was dismissed by Dorval J. and Morash was subsequently
    convicted and sentenced to four years in prison.

[4]

Peter, Nikola, and Filippo were each charged with various drug and
    firearm offences on an Information sworn January 16, 2017.

[5]

They also brought an application to stay the charges against them under
    s. 11(b). Their application was dismissed by Webber J. They were subsequently
    convicted. Peter was sentenced to 8 years in custody, Filippo to 42 months, and
    Nikola to 3 years.

[6]

Both application judges held that the net delays in each case (25.5
    months in the case of Morash and 26 months in the case of Peter, Filippo, and
    Nikola) were above the presumptive 18-month ceiling set out in
R. v. Jordan
,
    2016 SCC 27, [2016] 1 S.C.R. 631, that the defence had not waived any period of
    the delay, and that any delay that might be attributable to the defence was
    neither significant nor central to the s. 11(b) issue.

[7]

Both judges dismissed the s. 11(b) applications. They
    each found that the Crown had met its burden of showing that the complexity of
    the case justified the amount of delay beyond the 18-month ceiling, and
    therefore the delay was not unreasonable in the circumstances.

[8]

The appellants appeal, arguing that each of the application judges erred
    in failing to find a breach of their s. 11(b) rights. They concede that the
    cases were complex, but argue that each of the judges made reversible errors in
    finding that the Crown had developed and followed a concrete plan to minimize
    the delay caused by this complexity.

[9]

The appeals were heard together. At the conclusion of the appellants
    arguments, we indicated it was unnecessary to hear oral argument from the Crown
    and we dismissed the appeals with reasons to follow. These are those reasons.

B.

ANALYSIS

(1)

The Crowns Burden in a Complex Case

[10]

These
    appeals focus on whether the courts below were right to find that the Crown had
    met its burden of rebutting the presumption that the delay in bringing the
    appellants to trial was unreasonable.

[11]

A
    net delay (total delay less defence delay) of more than 18 months between
    charge and verdict is presumptively unreasonable. The Crown can rebut the
    presumption if it shows exceptional circumstances, that is, circumstances
    outside the control of the Crown because they are reasonably unforeseen or unavoidable,
    that give rise to delays that the Crown cannot reasonably remedy once they arise:
Jordan,
at paras. 46, 69.

[12]

In a
    case where the Crown relies on exceptional circumstances, the Crown must show
    it took reasonable steps to avoid and address problems before the delay exceeds
    the presumptive ceiling:
Jordan
, at para. 70.

[13]

Where
    the Crown contends that the exceptional circumstances are that the case is particularly
    complex, its burden has an additional feature; the judge dealing with a s.
    11(b) application will also want to consider whether the Crown, having
    initiated what could reasonably be expected to be a complex prosecution,
    developed and followed a concrete plan to minimize the delay occasioned by such
    complexity. Where it has failed to do so, the Crown will not be able to show
    exceptional circumstances, because it will not be able to show that the
    circumstances were outside its control (citations omitted):
Jordan
,
    at para. 79.

(2)

The Standard of Review

[14]

The ultimate
    decision as to whether there has been an unreasonable delay is subject to a
    correctness standard, but the trial judges findings of fact relevant to that
    analysis are entitled to deference:
R. v. Bulhosen
, 2019 ONCA 600, 377
    C.C.C. (3d) 309 at para. 73, leave to appeal refused, [2019] S.C.C.A. No. 423. A
    conclusion that a case is complex is subject to deference:
Bulhosen
,
    at para. 6. A finding that a delay was reasonable in light of the complexity of
    a case is within the expertise of the trial judge:
Jordan
, at para.
    71.

(3)

The Morash Appeal

[15]

In
    dismissing the s. 11(b) application by Morash, the application judge found that
    the case embodies almost every factor which defines a particularly complex
    case. She then found that [f]rom the outset, the Crown had proceeded to
    avoid any unnecessary delays. She referred, among other things, to the Crown
    having delayed arrests in order to have time to organize proper disclosure and
    division of the charges. She accepted the Crowns submission that it could not
    have done more to avoid the delay incurred in this case.

[16]

Morash
    argues that the application judges reasons reflect an application of the wrong
    test because she focused only on whether the Crown took steps to avoid delays
    once they occurred, as opposed to whether it developed and followed a plan that
    had been formulated in advance to head off delays.

[17]

We reject
    this argument. Although it would have been preferable if the application judge
    had used the term plan, there is little doubt that that is what she meant. Her
    findings that the Crown had proceeded from the outset to avoid unnecessary
    delays and that no more could have been done, are both consistent with the
    existence of a proactive plan to avoid delays. As well, she specifically
    referred to the Crown delaying arrests in order to have time to organize proper
    disclosure and permit the proper division of charges, which also speaks to the
    formulation and implementation of a plan, rather than to simply reacting after
    delays occurred.

[18]

Morash
    also argues that the Crowns initial disclosure was deficient, in that it did
    not include source documents for the ITOs (which were disclosed). This led to
    delays in the defence review of the disclosure and then in the Crown compliance
    with the request for those documents. This deficiency, it is argued, indicated
    that there was no plan to reduce or avoid delays, or at least, not one that was
    reasonably formulated and implemented.

[19]

The application
    judge considered this argument. She characterized what had been omitted from disclosure
    as evidence that would not have automatically been included in the initial
    disclosure, and found that the Crown responded expeditiously to the requests
    for additional disclosure. These findings are entitled to deference.

[20]

Moreover,
    as this Court stated in
Bulhosen
, at para. 84, delays resulting from
    deficiencies in Crown disclosure must be considered in context. Here, the Crown
    notes in its factum that the request for source documents pertained to one
    paragraph of one affidavit in a case that had 94 judicial authorizations
    including 4 wiretap authorizations. This context fortifies the conclusion that
    there was no reversible error in the manner that the application judge dealt
    with this issue.

[21]

Third,
    Morash argues that the application judge erred by treating the six-month period
    from the completion of the investigation to the laying of charges in a way that
    benefitted the Crown. He submits that given the problems with the initial disclosure;
    the application judge erred in effectively giving the Crown credit for using
    that time to organize disclosure. Since this was  a period when Morash had been
    subject to personal detention, a search of a residence, the seizure of personal
    items, and had the prospect of charges looming over him, it should have been
    considered as exacerbating the delay.

[22]

We
    reject the premises of this argument. First, as indicated above, the
    application judge was entitled to find a reasonable Crown plan to minimize and
    manage delays, and that this was not contradicted by the fact that the defence
    had to make the request it did for further disclosure. Second, despite the
    existence of looming charges, the reasonableness of delay is calculated from
    the time of the actual charge:
R. v. K.E.
, 2013 ONCA 175, 106 W.C.B.
    (2d) 298, at paras. 22-23.

(4)

The Appeal of Peter, Nikola and Filippo

[23]

In
    dismissing the applications of Peter, Nikola, and Filippo, the application judge
    found that this prosecution is properly characterized as a complex case. He
    accepted the Crowns submission that it put together and executed a plan to
    manage delay. He stated:

I am satisfied that the Crown did in fact have a concrete plan
    in place to address delay issues. Further, a review of the record confirms that
    with the exception of the single disclosure misstep discussed above, the Crown
    at no time caused, or in any way exacerbated, the delay in this case.

[24]

The
    application judge gave a detailed history of the progress of the case and the
    matters cited by the Crown to him that supported a finding of complexity and
    were illustrative of a plan to manage delay. We refer to two in the latter
    category, as they are central to the appellants contentions.

[25]

First,
    the application judge referred to the fact that search warrants were executed
    in June 2016, the appellants were arrested in December 2016, and they made
    their first post-bail court appearance on January 11, 2017. This staged
    approach to search and arrest had allowed the Crown and police to collect and
    organize disclosure, so that the appellants received the lions share of
    total disclosure, amounting to over 75,000 pages, before February 1, 2017. The
    first defence request for additional disclosure  for aspects of surveillance
    that had not been included  was made in May 2017 and responded to by June 23,
    2017.

[26]

He
    concluded that the failure to disclose all relevant surveillance was an
    oversight or misstep that was quickly corrected, and that this was the only
    moment in the disclosure process that could be characterized as a misstep.
    Otherwise, the process unfolded very smoothly; the misstep had only marginally
    contributed to the delay.

[27]

Second,
    the application judge also referred to the Crowns position that it sought and
    accomplished the assignment of a case management judge at a very early stage of
    the proceeding.

[28]

The
    appellants argue that the application judge did not actually calculate or
    consider the net delay. We disagree. In our view, fairly read, it was clear
    that the application judge was focussed on the delay that the Crown had to
    justify.

[29]

The
    appellants also argue that the application judge erred in finding that the
    Crown had a reasonable plan to minimize or avoid delays.

[30]

They
    maintain that the application judges finding of a plan was not based on any
    affidavit evidence of the Crown that described when the plan was formulated and
    of what it consisted; rather, the application judge simply inferred the
    existence of the plan from counsels submissions and the way events in the
    prosecution had played out. Moreover, they say that the inference of a
    reasonable plan was unjustified. In a complex case with voluminous disclosure, in
    a case where the Crown had a six-month head start to get its disclosure ready, a
    reasonable plan would include the Crowns disclosure being organized in a
    manner that made it accessible and easy to navigate for the defence  something
    they say was lacking in this case. Additionally, a reasonable plan would not
    require further disclosure requests after defence had undertaken a
    time-consuming review of the material.

[31]

Nor,
    according to the appellants, was the application judge right to give the Crown
    credit for the prompt seeking of a case management judge, since there was
    nothing effective that could happen through case management until the defence
    had slogged through the disclosure and received the additional requested
    disclosure. The time it took for all of that to occur was attributable to the
    lack of a proper plan by the Crown.

[32]

We
    do not agree. The argument that the Crown was required to prove its plan by
    affidavit was not made before the application judge, who was permitted to
    proceed as the parties put the case to him, and to draw inferences from
    submissions as well as from matters that were already part of the record.

[33]

Similarly,
    the argument in this court that the initial disclosure was disorganized or
    difficult to access, if made below, does not appear to have been accepted; it
    is inconsistent with the application judges findings that other than one
    misstep that marginally contributed to delay, the initial disclosure was prompt
    and  the disclosure process unfolded smoothly. We were not referred to any
    requests, by the defence, for organizational assistance with the initial disclosure
    after the Crown had provided it.

[34]

The
    application judge was not prepared to draw the inference that the disclosure misstep
    contradicted the existence of a reasonable Crown plan. This finding is entitled
    to deference. Nor, in light of this, did the application judge err in correctly
    noting that the Crowns invocation of case management at an early date spoke to
    taking pre-emptive steps to deal with and manage delay.

[35]

Decisions of a judge of first instance on matters such as complexity,
    the existence of a reasonable plan, and the way the Crown implemented the plan
    and attempted to minimize delays, are subject to deference from this court. We
    see no basis on which to interfere with these findings.

C.

CONCLUSION

[36]

For
    these reasons, the appeals are dismissed.

Doherty J.A.

B. Zarnett J.A.

S. Coroza J.A.





[1]
Morash was charged on an information with others who are not parties to this
    appeal.



[2]
Peter, Nikola, and Filippo were also charged on an information with others who
    are not parties to this appeal.


