



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lopez-Restrepo, 2018 ONCA 887

DATE: 20181107

DOCKET: C61617, C62879, C63241

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Lopez-Restrepo

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Visar Mehmeti

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Estifanos Tsegaye

Appellant

Aaron Prevost and Jenny Prosser, for Mr. Lopez-Restrepo

Robert Sheppard, for Mr. Tsegaye

James E. Dean, for Mr. Mehmeti

Andrew Choat and Brian G. Puddington, for the respondent

Heard: September 27, 2018

On appeal from the conviction entered on October 2, 2015
    by Justice Marc A. Garson of the Superior Court of Justice, on appeal from the
    conviction entered on June 9, 2016 by Justice Bruce G. Thomas of the Superior
    Court of Justice; and on appeal from the conviction entered on April 12, 2016
    by Justice Bruce G. Thomas of the Superior Court of Justice, sitting without
    juries.

Trotter J.A.
:

A.

introduction

[1]

This appeal arises from a large drug prosecution in the City of London. Following
    a joint forces investigation known as Project OBunker, 31 people, including
    the appellants, were charged with over 100 offences.

[2]

The appellants and six other individuals applied for stays of
    proceedings based on infringements of s. 11(b) of the
Charter
. The
    applications were heard by Justice Andrew J. Goodman (the application judge)
    who did not preside over any of the appellants trials. Some of the
    applications succeeded; however, the appellants were unsuccessful. They were
    subsequently convicted of drug offences.

[3]

The appellants challenge the s. 11(b) ruling. Mr. Lopez-Restrepo also appeals
    his conviction on the ground that it was not proved that he was in possession
    of the drugs found in the home where he lived.

[4]

For the following reasons, I would dismiss all three appeals.

B.

unreasonable delay

(1)

Introduction

[5]

It took about 40 months to get the appellants from arrest to trial. Applying
R. v. Morin
, [1992] 1 S.C.R. 771, the application judge dismissed the
    s. 11(b) applications, over a year prior to the Supreme Courts decision in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.
[1]
Consequently, this is a transitional case.

[6]

Based on the concession of the Crown, the application judge found that
    there had been no waiver by the defence, nor any defence-created delay. He characterized
    17 months as institutional or Crown delay, which was within the
Morin
guidelines. After considering all of the circumstances, including the
    appellants claims of prejudice, the application judge dismissed their
    applications (and the claims of two others, not under appeal). He allowed the
    applications of four other accused persons (not the subject of a Crown appeal).

[7]

The appellants main argument is that the application judge erred by
    classifying the prosecution as complex. Alternatively, they contend that, if
    the case were complex, it was because of unreasonable joinder decisions taken
    by the Crown. In my view, there is no merit to these arguments.

(2)

The Investigation: Project OBunker

[8]

Project OBunker involved 72 police officers from the London Police
    Service and the RCMP. In addition to many search warrants, two wiretap
    authorizations were obtained under Part VI of the
Criminal Code
. The application
    judge described the investigation as follows, at paras. 7 and 8:

Ultimately, evidence was gathered against a total of 30 adults
    and one young offender. This evidence included a total of 34,675 captured
    telephone calls with 584 calls deemed pertinent, as well as 25,170 captured SMS
    messages with 1,783 calls [sic] deemed pertinent.

Throughout the summer and fall of 2012, a series of
Controlled
    Drugs and Substances Act
warrants were executed at various residences in
    London and a total of 109 charges were laid primarily relating to trafficking
    in cocaine, marijuana and oxycodone.

As discussed below, these factors led the application
    judge to conclude that the case against the appellants was complex.

(3)

Procedural Background and the Application Judges Ruling

[9]

The application judge detailed the many court appearances of the nine
    applicants who applied for relief under ss. 11(b) and 24(1) of the
Charter
.
    Given the issues on appeal, it is not necessary to reproduce all of that
    information here.

[10]

The
    application judge calculated the total delay for each appellant (from arrest to
    their projected trial dates) as follows: Mehmeti  1211 days (40 months); Tsegaye
     1175 days (39 months); and Lopez-Restrepo  1174 days (39 months).
[2]
In terms of pre-trial detention, Mr. Lopez-Restrepo and Mr. Tsegaye were
    released within days of their arrests.
[3]
Mr. Mehmeti was detained for seven months, until being released after a bail
    review.

[11]

There
    was considerable delay in the Ontario Court of Justice (OCJ). Initially, all
    accused were charged individually, or in small groups. On February 15, 2013, seven
    months after the proceedings were underway, the Crown joined all accused in one
    information (the omnibus information).

[12]

It
    took a long time before all search warrant and wiretap materials were
    disclosed, despite many court appearances. On September 4, 2013, when
    disclosure was still not complete, the case management judge forced the Crown
    to set preliminary inquiry dates, irrespective of the availability of defence
    counsel. Two weeks were obtained (and used) in March 2014. However, it was not
    until January 2014 that all disclosure was complete.

[13]

During
    the preliminary inquiry, Mr. Tsegaye conceded committal and was ordered to
    appear in the Superior Court of Justice (SCJ) on April 15, 2014. The
    preliminary inquiry judge committed Mr. Lopez-Restrepo and Mr. Mehmeti to stand
    trial on June 19, 2014.

[14]

Applying
    the
Morin

framework to the appellants (and to the other two
    unsuccessful applicants), the application judge classified 10 ½ months as
    institutional or Crown delay while the case was in the OCJ. This assessment was
    based largely on the complexity inherent in the wiretap evidence that related
    to these accused persons. However, the application judge found that the other
    applicants, whose cases were not connected in any tangible way to the wiretap evidence,
    had their cases unnecessarily delayed by being joined with the others. Delay
    was assessed at 13 ½ months for this group.

[15]

Things
    moved much faster in the SCJ. On July 22, 2014, the Crown advised a judge that
    it would sever some of the accused into smaller prosecutions. The application
    judge classified 6 ½ months as institutional or Crown delay while the case was
    in the SCJ. This delay applied to all applicants.

[16]

The
    application judge concluded that the total delay of 17 months for the
    appellants (and two others) did not amount to an infringement of s. 11(b). Their
    applications were dismissed. However, for the non-wiretap applicants, the total
    delay of 23 months was sufficient to establish a breach of s. 11(b), resulting
    in stay of proceedings. As the application judge said, at para. 166, these
    individuals were simply caught in the dragnet of the overall project
    investigation and a decision was made to join them in an omnibus information
    that perpetuated specific delay for their uncomplicated individual cases.

[17]

Mr.
    Lopez-Restrepo was tried separately and found guilty of possession of cocaine
    for the purpose of trafficking, contrary to s. 5(2) of the
Controlled Drugs
    and Substances Act

(
CDSA
). Mr. Mehmeti and Mr. Tsegaye
    were tried together. After one day of evidence, Mr. Tsegaye entered a plea of
    guilty to one count of conspiring to traffic in cocaine, contrary to s. 5(1) of
    the
CDSA
and s. 465(1)(c) of the
Criminal Code
. A charge of
    trafficking in cocaine was withdrawn. At the end of the trial, Mr. Mehmeti was
    found guilty of two counts of conspiracy to traffic in cocaine, and one count
    of trafficking in cocaine, contrary to s. 5(1) of the
CDSA
.

(4)

Analysis

(a)

Is Mr. Tsegaye Entitled to Appeal the s. 11(b)
    Ruling?

[18]

The
    Crown raises a preliminary issue on Mr. Tsegayes appeal. Whereas Mr. Mehmeti
    and Mr. Lopez-Restrepo were found guilty after their trials, Mr. Tsegaye pled
    guilty. The Crown relies on this courts decision in
R. v. Faulkner
,
    2018 ONCA 174 and argues that, by virtue of his guilty plea, Mr. Tsegaye is
    prevented from appealing the s. 11(b) ruling.

[19]

It
    is necessary to briefly set out the facts and holding in
Faulkner
. Faulkner
    was charged with 17 offences. His s. 11(b) application was dismissed. The next
    day he pled guilty to 5 charges. He received a non-custodial sentence. After
    achieving this very favourable resolution, involving the withdrawal of 12
    charges, Faulkner appealed the s. 11(b) ruling. There had been no discussion of
    an appeal at the time of his guilty plea.

[20]

Writing
    for the court, Watt J.A. applied this courts decision in
R. v. Fegan
(1993), 13 O.R. (3d) 88 (C.A.) and concluded that the waiver inherent in
    Faulkners guilty plea disentitled him to appeal the underlying s. 11(b) ruling.
    Notably, Faulkner did not attempt to withdraw his guilty plea on appeal.

[21]

On
    this appeal, Mr. Tsegaye attempts to withdraw his guilty plea, claiming that it
    was not fully informed. In an affidavit he contends that he was not advised by
    his trial counsel (not Mr. Sheppard) that his guilty plea would prevent him
    from appealing the s. 11(b) ruling. He said, that would have been a factor
    that I would have considered in deciding whether to change my plea to guilty.
    Mr. Tsegayes trial counsel swore an affidavit in which he said that he was not
    aware that a guilty plea would preclude an appeal of the s. 11(b) ruling.
[4]


[22]

Given
    my conclusion on the s. 11(b) issue, it is unnecessary to decide whether Mr.
    Tsegayes situation is distinguishable from
Faulkner
and whether he
    should be permitted to withdraw his guilty plea. Nevertheless, I make the
    following observations which may assist in future cases.

[23]

It
    is well-known that a guilty plea may have profound and far-reaching
    consequences. A guilty plea involves a broad waiver, sometimes extending beyond
    an admission of criminal responsibility. In
R. v. T.(R.)
(1992), 10
    O.R. (3d) 514 (C.A.), Doherty J.A. said, at p. 519:

A guilty plea is a formal admission of guilt. It also constitutes
    a waiver of both the accused's right to require
the
    Crown to prove its case beyond a reasonable doubt
and the related procedural
    safeguards, some of which are constitutionally protected
:
Korponay v.
    Canada (Attorney General)
, [1982] 1 S.C.R. 41 at p. 49, 65 C.C.C. (2d) 65
    at p. 74;
Brady v. United States
, 397 U.S. 742 (1970), at p. 748,
    Fitzgerald,
The Guilty Plea and Summary Justice
(1990) at pp. 192-203.
    [Emphasis added.]

See also
R.
    v. Parris
, 2013 ONCA 515, at para. 121. The
    constitutionally protected procedural safeguards that are waived include the right
    to make constitutional claims at trial, as well as the ability to appeal
    unsuccessful constitutional challenges that were made (including rulings under s.
    8 of the
Charter (Fegan)
and s.
    11(b) (
Faulkner
)).

[24]

Because
    of the broad scope of this waiver, a cautious approach is warranted when an
    accused person expresses the intention to plead guilty following the dismissal
    of pre-trial applications, constitutional or otherwise. In these circumstances,
    the trial judge may wish to enlarge the plea comprehension inquiry under s.
    606(1.1) of the
Criminal Code
to determine whether the accused person
    understands that, by pleading guilty, he or she will forfeit the right to
    appeal all previous rulings associated with the case. The inquiry need not be
    extensive. It may only involve an additional question or two. However, it will
    ensure that the plea is truly informed, preventing misunderstandings down the
    road.

[25]

Moreover,
    there is a way to preserve a right to appeal short of having a full-blown
    trial. In
Faulkner
, Watt J.A. commended the procedure discussed in
Fegan
,
    whereby an accused person pleads not guilty, accepts the case for the Crown
    (perhaps based on an Agreed Statement of Facts), and calls no defence evidence.
    A finding of guilt inevitably follows. As Watt J.A. said in
Faulkner
,
    at para. 92: This procedure would preserve the accuseds right of appeal
    against conviction on the real issue in dispute without imposing the additional
    burden of setting aside the guilty plea.

[26]

This
    procedure is utilized regularly in Ontario. With appropriate safeguards, it is
    an efficient method of dealing with cases in which
Charter
issues play
    a crucial, if not determinative, role in a prosecution: see
R. v. Tran
,
    2017 ONCA 329;
R. v. G. (D.M.)
, 2011 ONCA 343; and
R. v. P. (R.)
,
    2013 ONCA 53. See also the helpful discussion of this issue in Michael Shortt,
    Preserving Appeal Rights When Your Clients Only Defence is a (Failed)
Charter

Motion (2018), 65 C.L.Q. 443.

[27]

This
    procedure is not without its potential hazards. Before going down this path, a
    trial judge should engage in an exercise approximating a plea-comprehension
    inquiry to confirm that the accused person understands precisely what is at
    stake by participating in this procedure:
P. (R.)
, at para. 60.

[28]

Returning
    to Mr. Tsegayes situation, the trial judge cannot be faulted for the scenario
    that unfolded in this court. When Mr. Tsegaye changed his plea, there was no
    discussion of an appeal. I recognize that the guilty plea proceedings occurred two
    years before this courts decision in
Faulkner
; however, it had been more
    than two decades since
Fegan
was decided. Nevertheless, defence
    counsel took the initiative and advised the trial judge, I want you to know
    Ive been through the plea inquiry with Mr. Tsegaye very carefully and I
    feel, as his counsel, that hes fully aware of the consequences of his.and the
    ramifications of his change of plea.
[5]
This may not have been the case. But, in light of my conclusion on the merits
    of s. 11(b) issue, it is unnecessary to determine whether Mr. Tsegayes plea
    was fully informed.

(b)

Section 11(b): The Merits

[29]

The
    application judge applied the
Morin
framework and found that s. 11(b)
    was not infringed. However, this appeal must be decided in accordance with
Jordan
.
    Given the fundamentally different methodologies employed in
Morin
and
Jordan
,
    reviewing
Morin
rulings through the lens of
Jordan
can be
    challenging:
Faulkner
, at para. 147.

[30]

The
    application judge accepted the Crowns concession that there was no defence
    delay, nor any defence waiver of time periods. The Crown does not retreat from
    this position on appeal. Consequently, for
Jordan
purposes, the net
    delay in this case is equal to the total delay, which is 39-40 months. This exceeds
    the presumptive ceiling of 30 months established in
Jordan
, later
    confirmed in
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659. It is
    presumptively unreasonable.

[31]

However,
    in my view, the delay in excess of the presumptive ceiling is justified by
    exceptional circumstances, driven by the fact that this prosecution was
    particularly complex: see
Jordan
, at para. 71;
Cody
, at para.
    64.

[32]

The
    delay is also justified by the transitional exceptional circumstance, based
    on the parties reasonable reliance on the previous state of the law (
i.e.
,
    the
Morin
framework): see
R. v. Williamson
, 2016 SCC 28, [2016]
    1 S.C.R. 741, at para. 24;
R. v. Gopie
, 2017 ONCA 728, 140 O.R. (3d)
    171, at para. 119;
R. v. Baron
, 2017 ONCA 772, at paras. 42-43; and
Faulkner
,
    at paras. 174-183.

(i)

Complexity

[33]

The
    appellants arguments before the application judge were narrow. As he said, at
    para. 111: The nub of this application is whether the delay giving rise to a
    remedy arose from the delayed disclosure, the laying of the omnibus information
    and indictments and the subsequent severing of accused from the main action led
    to unreasonable delay. The appellants renew these arguments on appeal but rely
    more heavily on the complexity issue. They point to their straightforward
    trials in support of the position that the case was not complex.

[34]

In
    his thorough reasons, the application judge discussed the concept of case complexity,
    drawing on the previous decisions of this court in
R. v. Schertzer
,
    2009 ONCA 74, at para. 126; and
R. v. Nguyen
, 2013 ONCA 168, at para.
    72. As he said, at para. 121:

The investigation implicated more than 30 accused with numerous
    intercepted communications. The nature of this investigation was long and
    arduous and the disclosure was voluminous. While some of the substantive counts
    concern discrete events, there were several conspiracy counts alleged between
    various accused, many of whose charges where subsequently joined and
    interrelated. The complexity of the matter is also reflected in the length of
    the preliminary inquiry that required 10 days to complete despite the Crown
    proceeding via the expedited process provided for by s. 540 of the
Criminal

Code
.

[35]

This approach gels well with
Jordan
, decided more than a year later. Moldaver, Karakatsanis and Brown JJ.
    described complexity in the following way, at para. 77:

Particularly complex cases are cases that,
    because of the nature of the evidence or the nature of the issues, require an
    inordinate amount of trial or preparation time such that the delay is
    justified. As for the nature of the evidence, hallmarks of particularly complex
    cases include voluminous disclosure, a large number of witnesses, significant
    requirements for expert evidence, and charges covering a long period of time.
    Particularly complex cases arising from the nature of the issues may be
    characterized by, among other things, a large number of charges and pre-trial
    applications, novel or complicated legal issues, and a large number of
    significant issues in dispute. Proceeding jointly against multiple co-accused,
    so long as it is in the interest of justice to do so, may also impact the
    complexity of the case.

[36]

The
    appellants concede that the application judges definition of a complex case is
    not deficient in any way, especially in light of
Jordan
. Instead, they
    argue that he erred in finding that this case was complex. They say that their
    brief trials demonstrate that this was nothing more than a run-of-the-mill drug
    prosecution.

[37]

I
    disagree. Case complexity must be considered more broadly, over the course of
    the entire proceedings. In
R. v. Picard
, 2018 ONCA 692, 137 O.R. (3d)
    401, leave to appeal refused, [2018] S.C.C.A. No. 135, Rouleau J.A. held, at
    para. 62:

A case can be complex in the earlier stages
    and require extensive disclosure, the compiling of expert evidence and numerous
    witness statements, only to be made simpler and more straightforward when it
    comes time for trialThese kinds of complexity in the early stages may result
    in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry
    and so on, although the case is simple by the time of trial.

[38]

This case should be viewed in the same light. All
    counsel conceded before the application judge that, because of the complexity
    of the case at the early stages, the acceptable intake period was seven months.
    In accepting this concession, the application judge said, at para. 122: Even
    for minor players attached to larger prosecutions, the initial complexity of
    the matter will justify longer periods of inherent delay:
R. v. Khan
, 2011 ONCA 173, at para. 79.

[39]

The appellants argue the Crown made this case
    complex when it joined all of the accused in the omnibus information. The
    application judge did not find this decision (or the later decision to separate
    accused persons into smaller groups) to be an unreasonable exercise of
    prosecutorial discretion. The application judge found, at paras. 158 and 166,
    that the joinder decisions were not impactful on the appellants, whose cases
    were tied to the use of wiretap evidence. However, for those accused whose
    cases were not tied to the wiretap evidence, their inclusion in the omnibus
    information caused unnecessary and avoidable delay.

[40]

I see no error in this nuanced approach. The
    complexity of this large project-based prosecution justifies the delay in
    excess of the presumptive ceiling. The total delay was not unreasonable.

(ii)

Transitional Exceptional Circumstance

[41]


I would also rely upon the transitional
    exceptional circumstance to justify the delay involved in completing the
    proceedings against the appellants. At the core of this factor is the prevention
    of unfairness to the parties caused by their reasonable reliance on the
Morin
framework. As Moldaver, Karakatsanis and Brown JJ. said in
Jordan
, at para. 102: Ultimately, for most cases that are already in the
    system, the release of this decision should not automatically transform what
    would previously have been considered a reasonable delay into an unreasonable
    one.

[42]

In
Gopie
,
    Gillese J.A. referred to
Williamson
and
    identified the criteria involved in applying this exception. As she said at
    para. 178, these include: (i) the complexity of the case; (ii) the period of
    delay in excess of the
Morin
guidelines; (iii)
    the Crown's response, if any, to any institutional delay; (iv) the defence
    efforts, if any, to move the case along; and (v) prejudice to the accused. A
    consideration of these factors justifies the delay that occurred in this case:
    see
Faulkner
, at para. 175; and
R.
    v. Jurkus
, 2018 ONCA 489, at para. 75.

[43]

The application judge properly applied the
Morin
framework and concluded that the period of institutional and/or
    Crown delay fell within the guidelines that were operable at the time. This
    entailed a finding that the case was complex, which I have found to be
    reasonable in light of this courts past jurisprudence, and the approach
    prescribed in
Jordan
.

[44]

In terms of the Crowns response to
    institutional delay, it cannot be said that this prosecution was a model of
    efficiency. Mr. Puddington (who was not Crown counsel at first instance) does
    not suggest otherwise. However, any missteps that the Crown may have taken was
    rightly allocated as Crown delay in the application judges analysis.

[45]

Moreover, the intervention of the OCJ case
    management judge in forcing the Crown to set preliminary inquiry dates had the
    salutary effect of containing further delay while disclosure issues remained
    unresolved. Once the case arrived in the SCJ, the Crown acted on the suggestion
    to sever accused persons. This allowed the case to move very quickly and, to a
    degree, compensated for the slow pace of the proceedings in the OCJ.

[46]

Lastly, the application judge made careful
    findings about the appellants claims of prejudice. He essentially found that
    there was none. There is no basis to disturb this finding on appeal.

[47]

Cumulatively, a consideration of these factors
    leads to the conclusion that the parties were acting reasonably in their
    reliance on
Morin
. This case is not reflective
    of a culture of complacency. Instead, the record reflects the significant
    efforts of counsel and judges to respond to the challenges posed by this large
    project-based prosecution.

[48]

In all of the circumstances, this is an
    appropriate case to apply the transitional exceptional circumstance.

(5)

Conclusion

[49]

I would dismiss this ground of appeal.

C.

Mr. Lopez-Restrepos APPeal from conviction

[50]

Mr.
    Lopez-Restrepo was found guilty of possession of cocaine for the purposes of
    trafficking. The case against him included an Agreed Statement of Facts and the
    testimony of two police officers.

[51]

The
    police executed a search warrant at a house where Mr. Lopez-Restrepo was one of
    three tenants on the lease. The other two were Project OBunker accused. The
    police found the cocaine in a kitchen cupboard. They found scales in a drawer,
    which tested positive for cocaine. The lease, which included the signature of
    Mr. Lopez-Restrepo, was found in the kitchen.

[52]

In
    the living room, the police found another set of scales, also containing
    cocaine residue, in addition to a marijuana grinder, 6.6 grams of marijuana, a
    debt list, and a functioning money counter. In a bedroom containing Mr.
    Lopez-Restrepos identification, the police found $3,310 in cash. When he was
    arrested, he had $1,533 on his person.

[53]

The
    trial judge reviewed the evidence thoroughly. He stated the correct legal
    principles relating to possession under s. 4(3) of the
Criminal Code
.
    He reached his ultimate conclusion, at para. 50:

Simply put, the inescapable conclusion on the evidence before
    me is of a common enterprise to traffic cocaine of which the defendant was a
    knowing and willing participant. The defendants access to all of the common
    areas of the residence satisfies me beyond a reasonable doubt that he jointly
    and constructively possessed the 18 grams of cocaine found in the kitchen.

[54]

I
    see no error in the trial judges factual findings or in the inferences that he
    drew from the evidence. The only reasonable inference for the trial judge to
    draw in these circumstances was that Mr. Lopez-Restrepo jointly or
    constructively possessed the cocaine found in the house that he leased.

D.

Conclusion and disposition

[55]

I
    would dismiss the appeals.

Released: DW NOV 07 2018

G.T. Trotter J.A.

I agree. H.S LaForme
    J.A.

I agree. David Watt
    J.A.





[1]
The appellants were all convicted before the judgment in
Jordan
was
    released on July 8, 2016. Mr. Lopez-Restrepo was sentenced before this date, on
    January 20, 2016. Mr. Tsegaye was sentenced on July 29, 2016. Mr. Mehmeti was
    sentenced on October 5, 2016.



[2]

Through no fault of the application judge, some of the
    projected trial dates turned out to be inaccurate. However, this was not an
    issue on appeal.



[3]
Mr. Tsegaye was subsequently re-arrested, but he was re-released after about
    five weeks in custody.



[4]
Mr. Tsegaye makes no claim of ineffective assistance of counsel.
In his affidavit, Mr. Tsegaye referred to his trial lawyers
    representation and said: I do not take any issue with the quality of his
    representation of me.



[5]
Before proceeding,
the trial judge followed up with questions
    concerning the voluntariness of the plea.


