R. v. Gill Date:, 2014 BCPC 208

Citation: R. v. Gill Date: 20140919 2014 BCPC 0208 File No: 157205-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARPINDER SINGH GILL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown : M.S. Loda Counsel for the Defendant: A.D. Gold and M.R. Shapray Place of Hearing: Vancouver , B.C. Dates of Hearing: June 16, 17, 2014

Date of Judgment: September 19, 2014 A Corrigendum was released by the Court on September 29, 2014 . The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] On July 23, 2004, the applicant, Arpinder Singh Gill (“Gill”), was charged with conspiring with others to, between January 1, 2003, and July 31, 2003, at Vancouver, British Columbia, and elsewhere in Canada and the United States, import a controlled substance, being cocaine, into Canada, contrary to the Controlled Drugs and Substances Act . [ 2 ] On July 23, 2004, a Canada-wide arrest warrant was issued for the arrest of Gill.

The warrant was entered into the Canada Police Information Centre (CPIC), where it remained until the arrest of Gill on August 1, 2013. [ 3 ] At the time the Information was sworn Gill was residing in India. He had departed Canada for India in September of 2003. In correspondence filed in this application, communications were exchanged between Canadian police authorities and police authorities in India concerning activities of Gill as early as January of 2004. [ 4 ] Through 2004 and into February 2005, the whereabouts of Gill in India were known to police authorities in India.

This information was relayed to Canadian police authorities who were investigating Gill’s involvement in the alleged conspiracy. Notwithstanding this information, no steps were ever taken by the respondent (the Crown ) to request the extradition of Gill from India to Canada. [ 5 ] On August 1, 2013, Gill was arrested after having returned to Canada one week earlier on July 26, 2013, to attend his eldest son’s engagement celebrations in Ontario. Gill’s trial is now scheduled to commence on September 29, 2014. [ 6 ] Gill submits that when he left Canada for India he faced no charges.

He further asserts that when he left Canada the Crown and police authorities were well aware of his whereabouts in India. Gill lived openly in India and continued to travel abroad using his Canadian Passport, renewing that same passport on two occasions. Gill asserts that as a result of the inaction or indifference of the Crown and police authorities that they are responsible for the unreasonable delay in bringing him to trial. [ 7 ] As a consequence, Gill seeks a stay of proceedings pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms (“the Charter ”).

Gill submits that his right to be tried within a reasonable period of time, and his right to be informed without unreasonable delay of the offence of conspiracy, were violated contrary to s. 11(

b) and s. 11(

a) of the Charter . [ 8 ] The Crown concedes that the length of the delay from the date the conspiracy charge was laid until the trial date in September 2014 is “considerable.” The Crown also concedes that the cause of the post-charge delay to the date of the arrest of Gill is a result of the Crown’s failure to request Gill’s extradition from India. [ 9 ] However, the Crown resists the stay application, in large measure asserting that Gill has not established any actual prejudice and that any inferred prejudice is rebutted.

In addition, the Crown asserts that the seriousness of the charge, when balanced against the lack of prejudice, would not make the delay unreasonable. [ 10 ] The Crown further takes the position that Gill has failed to establish that the Crown did not comply with its informational obligation under s. 11(

a) of the Charter . [ 11 ] I will deal with the two Charter issues in my analysis in the order they were advanced by Gill.

OVERVIEW OF THE ALLEGED CONSPIRACY [ 12 ] The conspiracy charge arises out of a five-month police investigation known as “Project Longhaul.” Between January and July 2003, the Organized Crime Agency of British Columbia (OCA) targeted Gill as the head of a cocaine and marijuana transportation network. [ 13 ] The Crown alleges that Gill was involved as a principal in a large-scale drug trafficking conspiracy involving the exportation of hundreds of pounds of marijuana going south into the United States and the importation of multiple kilograms of cocaine moving north into Canada.

The Crown alleges that Gill was the transportation network expert who arranged all aspects respecting the pickup and delivery of the drugs in Canada and the United States. [ 14 ] The Crown alleges that this conspiracy resulted in millions of dollars changing hands. In one instance in April 2003, a tractor- trailer rig associated with Gill’s activities was surveilled from Vancouver to Québec. This tractor-trailer rig was searched pursuant to a general warrant, and located within the tractor-trailer was 726 pounds of marijuana with an approximate market value of $1.8 million.

Also located within the tractor-trailer rig was a large cache of the precursor ephedrine with an approximate market value of $2.4 million. Lastly, a further cache of 4000 ecstasy pills was located with an approximate market value of $80,000. [ 15 ] The Crown further alleges that between June 11 and June 22, 2003, based on intercepted telephone calls, photographs, other police surveillance and exhibits that were seized, Gill was also involved as the “transportation network expert” in relation to the

importation of 91 kg of cocaine from California in two shipments. [16] The Crown alleges that as a result of further police investigations a search was conducted of a residence (stash house) inMississauga, Ontario. Located in the stash house were 36 kg of cocaine, as well as $26,416 in both Canadian and United States currency.The Crown alleges that this 36 kg of cocaine was part of the two cocaine shipments coordinated by Gill. [17] On July 29, 2003, police investigators executed a search warrant at Gill’s residence in Brampton, Ontario.

During the course ofthe search, two handguns were located along with 49 rounds of ammunition. Eight cell phones were also seized. Police investigators alsolocated a cavity in a wall at Gill’s residence which contained $2,481,515 in Canadian currency and $1,239,344 in United States currency. [18] A forensic accounting of the financial resources linked to Gill and his family at that time determined that approximately$5,095,878 of total funds could not be traced to any known sources.

The Crown alleges that the only rational conclusion that can bedrawn is that Gill was involved in illegitimate drug trafficking. [19] At the time that “Project Longhaul” was underway, police authorities in the United States were also investigating Gill, andothers, in relation to an alleged conspiracy that involved the importation of marijuana from Canada, and the exportation of cocaine backto Canada.

It was alleged that Gill would arrange for the transportation of marijuana from Canadian suppliers, in return for which Gillwould arrange for transportation of cocaine from the United States back into Canada. [20] Two grand jury Indictments were filed in the United States District Court, Eastern District of Michigan and Southern Division.The first Indictment was filed on April 29, 2004, with a second superseding Indictment filed on June 20, 2006.

Those Indictments allegethat Gill, and others, conspired to possess with intent to distribute and to distribute marijuana and cocaine between December 2002through July 2003 in the District of Michigan, and elsewhere in the United States. [21] Police authorities involved in “Project Longhaul” in Canada were aware at all times that Gill was being investigated by policeauthorities in the United States.

Indeed, it would appear that police authorities in both Canada and the United States were sharinginvestigation information relating to each jurisdiction’s investigations into Gill’s alleged drug trafficking activities. [22] Though District Attorneys in the United States had considered requesting the extradition of Gill from India to the United States,no such request was ever pursued. Indeed, as of the date of argument on June 17, 2014, it would appear that the United States has nopresent intention to request the extradition of Gill from Canada to the United States. PRINCIPLES APPLICABLE TO UNREASONABLE DELAY [23]

Section 11(

b) of the Charter states: Proceedings in criminal and penal matters 11. Any person charged with an offence has the right … (

b) to be tried within a reasonable time; [24] In R. v. Morin, (SCC), [1992] S.C.J. No. 25, Sopinka J. for the majority established the framework for theassessment of unreasonable delay in applying s. 11(

b) of the Charter. [25] Morin established that the primary purpose of s. 11(

b) is the protection of the individual rights of an accused person. Thesecondary interest is that of society as a whole (at paragraph 26). [26] The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and(3) the right to a fair trial (at paragraph 27). [27] Morin defined the purpose of the right to security of the person as protected by s. 11(

b) at paragraph 28, as follows: 28 The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. [28] Morin defined the purpose of the secondary societal interest component of s. 11(

b) at paragraph 29, as follows: 29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing thatthe least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy theconfidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73 (Ont. C.A.):"Trials held within a reasonable time have an intrinsic value.

The constitutional guarantee enures to the benefit of society as a whole and,indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society'sinterest will not parallel that of the accused.

[29] As the seriousness of the offence increases, so does the societal demand that an accused be brought to trial (paragraph 30). [30] Morin has made it clear that the approach to assessing unreasonable delay is not done by some arithmetic or mathematicalformula, but by a “judicial determination balancing the interests which the

section is designed to protect against factors which eitherinevitably lead to delay or are otherwise the cause of the delay” (paragraph 31). [31] The factors to be considered in determining “how long is too long” are listed in Morin at paragraph 31, as follows: The Approach to Unreasonable Delay -- The Factors 31 The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case,(

b) actions of the accused,(

c) actions of the Crown,(

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. [32] In R. v. Ghavami, 2010 BCCA 16, the Court, at paragraphs 43 and 44, discussed the approach that should be taken indetermining a remedy pursuant to s. 24(1) in the event there has been a breach of s. 11(

b) as follows: [43] On an application by an accused for a remedy under s. 24(1) of the Charter, a court must first determine the total length of delayfrom charging to the end of trial. From this number should be deducted any waiver of time periods by the accused. Such waiver can beexplicit or implicit, but it must be clear and unequivocal (Morin at 789). Once the length of delay is determined, only if the "period is ofsufficient length to raise an issue as to its reasonableness" should the s. 11(

b) inquiry be undertaken (Morin at 789, 810-11). 44 It then falls to the court to inquire into the reasons for delay. The Supreme Court in Morin divided the potential reasons into fivecategories: a. Inherent time requirements b. Actions of the accused c. Actions of the Crown d. Limits on institutional resources e. Other reasons for delay The delay must be apportioned amongst these categories.

This is not an exercise in assigning blame, but an attempt to identify the causesof delay. [33] Ghavami also established that once a court has determined the reasons for the delay, the court must then turn to the issue ofprejudice. Prejudice can be either actual or inferred from the fact of delay, but s. 11(

b) cannot be allowed to become an offensive weaponin the hands of an accused (paragraph 50). [34] In applying the above considerations, a court is required to balance the factors to determine whether the delay is unreasonable.In reaching a balance, Cromwell J. in R. v. Godin, 2009 SCC 26 , [2009] S.C.J No. 26, at paragraph 18, directed the approach tobe taken as follows: 18 The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89.

Whether delay has been unreasonable isassessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account thereasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect. This often and inevitably leads tominute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important,however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination

balancing the interests which [s. 11 ( b )] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay." PRINCIPLES APPLICABLE TO THE INFORMATIONAL COMPONENT OF

SECTION 11(a) [ 35 ]

Section 11(

a) of the Charter states: Proceedings in criminal and penal matters 11. Any person charged with an offence has the right (

a) to be informed without unreasonable delay of the specific offence; [ 36 ] The Ontario Court of Appeal has recently summarized the law on s. 11(

a) in R. v. Cisa r, [2014] O.J. No. 952 . In Cisar , the Court of Appeal identified two forms of constitutional protection. First, the Court of Appeal noted that the “primary protection is notice of the specific offence. Without notice of the specific offence an accused may be deprived of the ability to make full answer and defence. Accused have the right to know with what they are charged so they can make decisions about their defence, assemble evidence and prepare to meet the prosecution case” (paragraph 11). [ 37 ] The second right protected by s. 11(

a) is the right to be informed without unreasonable delay. In this analysis, the Court of Appeal identified that the “object of the protection against unreasonable delay is also primarily to protect the right to make full answer and defence” (paragraph 12). [ 38 ] In addition, the Court of Appeal held that delay under s. 11(

a) should be analyzed using the same factors as under s. 11(b), namely: “the length of the delay, waiver of time periods, the reasons for the delay and prejudice to the accused” (paragraph 15). POSITION OF THE PARTIES

(1) Submissions of Gill in Relation to

Section 11(b) [ 39 ] Gill submits that the length of the delay in bringing him to trial on September 29, 2014, some 11 years and nine months after the investigation into Gill commenced, and 10 years and two months after the Information was sworn, amounts to unreasonable delay and a stay of proceedings ought to be directed by the Court. [ 40 ] Gill submits that it is fundamental to his s. 11(

b) right that the Crown bears the obligation to bring him to trial. Gill has no duty to bring himself to trial. [ 41 ] Gill submits that the nine-year period of delay between the time the Information was sworn and the arrest warrant issued in July 2004, to the time Gill was apprehended in Canada in August 2013, is a consequence of the inaction or indifference of the Crown and police authorities. (

A) The Length of the Delay (

i) Pre-Charge Delay [ 42 ] Gill submits that pre-charge delay may influence the overall determination as to whether post-charge delay is reasonable.

While noting that judicial authority normally considers pre-charge delay to be outside the scope of s. 11(b), Gill submits that there are special circumstances in this case and that the total 17 months of pre-charge delay is a factor to be taken into consideration in assessing the delay as a whole. [ 43 ] Gill submits that the total pre-charge delay in the context of the overall delay in this case is relevant as it bears upon his right to a fair trial. [ 44 ] Gill submits the Crown ought to be accountable to explain the inordinate pre-charge delay in his written submissions as follows: In Gill’s case, while the investigation into Gill clearly began as early as January 2003, which ultimately culminated in the execution of a search warrant on his residence five months later in July 2003, Gill was not charged until a year later, in July 2004.

The timeframe of the allegations span January to July 2003, and are the result of intercepted private communications obtained during that period. That the police elected to wait until July 2004, a full year after the expiry of the

Part Vl authorization to intercept private communications and after the execution of the warrant on his home, to charge Gill, also begs explanation (paragraph 68). (ii) Delay from Time Information Sworn until Arrest of Gill and Trial

[ 45 ] Gill submits that the time between July 23, 2004, and August 1, 2013, results in a delay of over nine years to effect his arrest. [ 46 ] Gill submits that the period of time between the date of his arrest and the anticipated end of the trial on November 27, 2014, results in a delay of nearly 16 months. [ 47 ] Gill submits that when one breaks down this delay component from when the first trial date was set on February 27, 2014, to the last day of trial, that portion in itself is nine months. [ 48 ] Gill submits that this case is of moderate complexity, involving intercepted communications spanning several months along with physical surveillance, and photographs and evidence obtained as a result of warrant seizures. [ 49 ] While conceding that the post-arrest delay is of lesser significance, Gill submits that this time period, when balanced against the prolonged period preceding his arrest, should also be taken into consideration when assessing Gill’s fair trial interests. (

B) Waiver of Delay [ 50 ] Gill submits that there has been no waiver of delay, either explicit or implicit. (

C) Reasons for the Delay [ 51 ] In addressing the reasons for the delay in this case, Gill in his written submission states the following: In this case, the vast majority of the delay can be characterized as being the inaction of the Crown and its agents in bringing Gill to trial. This is not a case in which the police had no idea of Gill’s whereabouts as a fugitive from justice. To the contrary, the authorities were well aware of it.

The position taken by the Department of Justice in deciding not to seek extradition of Gill to stand trial on the serious charge now before this court speaks volumes of the lack of interest in prosecuting Gill. Be it a tactical decision at the time, in light of the interest of the United States in pursuing Gill, or not, the Crown must now bear the consequences of that decision (paragraph 74). [ 52 ] Gill further submits that the lack of action by the police authorities and the Crown to take any reasonable steps to request his extradition from India amounted to indifference.

Gill submits that while the warrant for arrest remained outstanding, his risk of suffering actual or inferred prejudice aggravated the circumstances of the delay. [ 53 ] On this point Gill relies upon numerous decisions, including R. v. Arsenault , [2013] O.J. No. 4470 , a decision of the Ontario Superior Court of Justice. In Arsenault , the accused was under investigation in relation to a charge of attempted murder. [ 54 ] Various warrants were executed on the home of the accused, so it would appear that clearly the accused knew that he was, at the very least, a “person of interest” to the police.

However, charges were not laid until two years after the last warrant was executed. [ 55 ] In the meantime, the Crown became aware that the accused was exploring possibilities to leave Canada to work elsewhere. The accused ultimately did leave Canada to teach in South Korea and six months later the accused was charged with attempted murder. [ 56 ] The accused remained in South Korea for eight years. No request for extradition was advanced as police authorities believed the accused’s return to Canada was imminent.

The accused did not return to Canada until 2009 at which point he was arrested, as his passport had been revoked. [ 57 ] Gill notes that in Arsenault the Court found that the length of time from the date of the laying of the Information until the first day of trial was more than 11 years.

The Court in Arsenault went on to assess the remaining Morin guidelines and concluded that the accused’s fair trial interests had been significantly prejudiced, principally as a result of the failure of the Crown to request the extradition of the accused. [ 58 ] The Court in Arsenault determined that the societal interest concerns in pursuing the attempted murder charge were outweighed by the Charter -infringing actions of the Crown .

A stay of proceedings was directed. [ 59 ] Gill further submits that the police authorities, and ultimately the Crown , failed to make any efforts to execute the warrant for the arrest of Gill contrary to the requirements set out in s. 511(1) (

c) of the Criminal Code ,which reads as follows: 511

(1) A warrant issued under this Part shall … (

c) order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division, to be dealt with according to law. [ 60 ] Gill submits that the only step taken by the police authorities to execute the warrant “forthwith” was to post the warrant on the CPIC system with no follow-up periodic checks. [ 61 ] On this point, Gill submits that police authorities, and the Crown , failed to exercise their responsibility in ensuring that the warrant was executed forthwith.

Gill made reference to the decision of R. v. Chan , [2008] B.C.J. No. 590 wherein Watchuk, PCJ (as she then was), in addressing the responsibility upon the Crown and its agents to execute arrest warrants, had this to say at paragraph 43:

43 It is the Crown's responsibility, through its agents, the police, to find an accused and either execute an arrest warrant or serve asummons compelling an individual to come to court to answer charges. An accused has no obligation to make himself available to thepolice or authorities for the execution of an arrest warrant: R. v. Lopes, [2008] O.J. No 573 (Sup. Ct.) at para. 16-17.

In cases where theaccused was unaware of the charges against him or her, such as this case, the matter can be further distinguished, as the obligations onpersons in the community do not extend to contacting the police and the courts on a regular basis to see if he or she might be chargedwith a criminal offence: see Wright at para. 27. It is the responsibility of the state to bring him or her to trial within a reasonable time: R.v. Ram, [1993] B.C.J.

No. 1492 at para. 7. [62] Gill further submits that the police authorities and the Crown knew the whereabouts of the accused in India at all materialtimes, yet failed to exercise any due diligence to bring him to trial or deliberately delayed his apprehension. Accordingly, Gill submitsthat the delay while Gill remained in India must be attributable to the Crown. [63] Gill submits that this failure to exercise due diligence weighs heavily against the Crown in assessing the reasons for the delay.On this point, Gill relies upon two decisions where extradition issues arose in a s. 11(

b) analysis. [64] First was a decision of the Nova Scotia Court of Appeal in R. v. Macintosh, 2011 NSCA 111 , [2011] N.S.J. No. 660(leave to appeal dismissed 2013 SCC 23 , [2013] S.C.J. No. 23). Second, was a decision of the British Columbia Court ofAppeal in R. v. Singleton, 2014 BCCA 232 , [2014] B.C.J. No.1213. [65] Gill submits that both Macintosh and Singleton support his position that the Crown and their agents had a constitutional duty tomake a diligent good-faith effort to locate and apprehend him and to bring him to trial.

This they failed to do, and in the context of thecircumstances of this case, Gill contends that the extraordinary delay in bringing him to trial must also weigh heavily against the Crown. (

D) Prejudice to Gill [66] Gill submits that the prejudice to his fair trial rights can be both presumed and inferred from the extraordinary delay in this case.Gill submits that this case involves allegations from over 11 years in the past. He submits he is now forced to “attempt to reconstructmemories of what he was doing or saying at a particular time, to assist in his own defence.” [67] Gill further notes that the Crown elected not to cross-examine him in relation to his affidavit, which was affirmed and filed inthese proceedings.

In that affidavit, Gill affirms that he was not aware of any pending criminal charge when he left Canada in 2003. Inaddition, he affirms that he was never informed that there was any criminal charge against him or that there was a warrant outstandingfor his arrest. [68] Gill affirms that he renewed his Canadian passport twice while overseas.

Cancelled copies of his two passports are attached asexhibits to his affidavit. [69] Gill also affirms that he never retained counsel or gave instructions to counsel to negotiate with the Crown on his behalf whenhe was in India. [70] Gill affirms that as a result of the passage of time, he can no longer remember details of events and conversations which he mayhave had in 2003.

He is unable to recall contact information of potentially relevant witnesses, and any documents that he may havetendered in support of his defence have been lost or destroyed. [71] Gill submits that this evidence stands as unchallenged and supports his position that he has suffered actual prejudice to his rightto a fair trial. [72] Gill submits that it is overly simplistic for the Crown to take the position that Gill need only review the disclosure package torefresh his memory of events in 2003.

As a result of the extraordinary passage of time, Gill submits he cannot be expected to havesufficient recall to make full answer and defence to the allegations that he faces. [73] Gill submits that while there may not be time limits, or statute of limitations, on prosecutions in general, where the actions ofthe Crown and its agents or the justice system fail to live up to Charter standards, then the consequences may include a stay ofproceedings.

In his written submission Gill frames his approach as follows: … There are innumerable cases in which prosecutions proceed following lengthy delays as a result of circumstances beyond the controlof the investigators and the Crown. However, when the police and Crown act unreasonably in neglecting to take all available andappropriate steps to execute an outstanding warrant and bring the accused to trial within a reasonable period of time, that must countagainst the Crown in deciding whether a stay should be entered. As the United States Supreme Court stated in Doggett v.

U.S., quoted bythe Nova Scotia Court of Appeal in MacIntosh: Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simplyencourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority. The Government,indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feebleinterest in bringing an accused to justice; the more weight the Government attaches to security a conviction, the harder it will try to getit. [Doggett v.

U.S., 112 S.Ct. 2686, at pp. 2692-2693, cited with approval in R. v. MacIntosh, supra, at para. 92 R. v. Ghavami, supra, atparagraph 92}

[ 74 ] Gill submits that he has suffered both actual and inferred prejudice as a result of the delay in this case. Gill submits that the Crown is unable to account for or provide evidence to rebut the inferred or actual prejudice, and notwithstanding the serious charge of conspiracy, s. 11(

b) still operates as a protection to individuals who may be charged with serious offenses.

(2) Submissions of Gill in Relation to

Section 11(a) [ 75 ] Gill submits that his right to be informed of the offence of conspiracy pursuant to s. 11(

a) has likewise been infringed. [ 76 ] Gill submits that as a result of the passage of nine years after the charge of conspiracy was laid, the failure to inform him of that charge when the police authorities were fully capable of doing so impacted his right to a fair trial. In particular, the failure to inform him of the conspiracy charge impacted his memory and hence his ability to advance his defence at an early stage. [ 77 ] Gill submits that as a result of this alleged breach of his right to be informed of the charge of conspiracy, he has suffered prejudice in the form of the adverse impact upon his right to make full answer and defence.

(3) Submissions of Crown in Relation to

Section 11(b) [ 78 ] The Crown submits that in relation to the s. 11(

b) Charter issue, Gill has failed to establish any actual prejudice.

In relation to any inferred prejudice, the Crown submits that in the context of this case it has been rebutted. [ 79 ] The Crown submits that it is the lack of prejudice, and the serious nature of the conspiracy charge, which are the principal factors to justify a finding that there has not been unreasonable delay in bringing Gill to trial. [ 80 ] In relation to the length of the delay, the Crown concedes that it is “considerable.” With respect to the cause of the delay, the Crown further concedes that it was the “Crown’s failure to seek Gill’s extradition from India.” [ 81 ] The Crown concedes that it is the “responsibility of the state to bring an accused to trial.

When an accused leaves Canada before charges are laid, and their whereabouts become known to Canada, it is Canada’s responsibility to take steps to bring to the accused to trial by seeking their extradition, if possible. Otherwise, the delay in reaching trial is delay attributable to the Crown” (paragraph 23, written submissions). [ 82 ] The Crown further concedes that it has neither knowledge nor any explanation why Canada failed to request the extradition of Gill from India when his whereabouts were always known to police investigators.

However, the Crown takes the position that it is impermissible of the Court to make any inquiry into this explanation failure because of “prosecutorial and ministerial protection.” [ 83 ] The Crown submits that should Gill be convicted of this offence, he would be facing a potential sentence of between 14 and 20 years in prison due to the serious nature of the allegations. When asked by the Court that if this case was so serious with the potential of a significant jail sentence upon conviction, then why would Canada take no actions to request the extradition of Gill.

The Crown again relied upon the shield of “prosecutorial and ministerial protection.” [ 84 ] The Crown submits that extradition considerations are complex and any final decisions are “first-level decisions” which must be made by the Crown and its agents.

The discretion to request extradition or not request extradition requires an exercise of a discretion that is not subject to review by a court, absent findings of improper motive or bad faith in relation to Crown conduct. [ 85 ] The Crown submits that while the Court cannot look behind the decision-making of the Crown and its agents in relation to whether to request or not request the extradition of Gill, the Crown concedes “… that is not to say that the Crown does not wear the consequences of the delay.

The Crown clearly does wear the consequences of the delay” (Transcript, June 16, 2014, page 69, lines 9-13). [ 86 ] The Crown submits that the main purpose of the s. 11(

b) right to be tried within a reasonable time is to “minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge.” The Crown further submits that the focus of the prejudice which s. 11(

b) is concerned is the “prejudice arising from the delay in processing or disposing of the charges against an accused, and not the impairment or prejudice arising from the fact of the charge.” [ 87 ] The Crown submits that the protection interests of s. 11(

b) are the right to liberty, the right to security of the person and the right to make full answer and defence. The Crown submits that none of those protection interests have been compromised in this case. In particular, the Crown submits that the nature of the evidence in this case has not been impacted by the passage of time and is highly reliable. [ 88 ] The Crown submits that the nature of the wiretap evidence, photographs and search warrants have not deteriorated over the passage of time and amounts to evidence of an “enduring form” as discussed by the Court of Appeal in R. v. Bains , 2010 BCCA 178 at paragraph 64 . (

A) The Length of the Delay [ 89 ] The Crown submits that the determination of the cause of the delay is a “straightforward exercise.” The Crown submits there are two time periods that are relevant, being the pre-arrest period from July 23, 2004, until July 31, 2013, and the post-arrest timeframe from August 1, 2013, until the trial date. [ 90 ] In relation to the pre-arrest period, the Crown submits that both Canada and the United States had outstanding arrest warrants for the apprehension of Gill. As of May 6, 2004, it was the belief of Canadian authorities that the United States would be actively seeking the extradition of Gill.

(

B) Waiver of Time Periods [ 91 ] The Crown concedes that Gill did not waive any of the time in which he was absent from Canada. As well, despite the belief of Canadian authorities that the United States would pursue extradition first, it is also conceded that Canada remained responsible to request the extradition of Gill so he could be brought to trial. [ 92 ] As noted earlier, the Crown submits that this failure to request extradition of Gill is delay that falls at the feet of the Crown and therefore the pre-arrest delay should be assigned to the Crown. (

C) The Reasons for the Delay [ 93 ] The Crown submits that the only Morin factor of significance in the analysis of the reasons for the delay turns on the actions of the Crown. [ 94 ] The Crown accepts responsibility for not requesting the extradition of Gill from India. However, the Crown submits this failure to request extradition of Gill in a timely manner has not impacted his fair trial interests, as he has not suffered actual prejudice and any inferred prejudice has been rebutted. (

D) Prejudice [ 95 ] The Crown submits that Gill “lived an open, free and unfettered life in India between 2004 and 2013, when he returned to Canada.” He travelled the world unaware of any criminal charges in Canada.

Therefore, the Crown submits that Gill could not have suffered any “anxiety, stress, or cloud of suspicion” which normally accompanies a criminal charge. [ 96 ] The Crown submits that the affidavit of Gill, in which he affirms that he has suffered from actual prejudice as a result of a loss of memory, loss of records and a loss of potential witnesses, is vague in detail and falls short of establishing any specific actual prejudice. [ 97 ] The Crown concedes that in relation to inferred prejudice, the amount of inferred prejudice is “significant.” Notwithstanding, the Crown submits that the inferred prejudice has been rebutted and Gill remains able to make full answer and defence due to the enduring nature of the evidence. [ 98 ] This evidence includes intercepted communications, photographs, surveillance records, surveillance videos and seized drugs and money.

The passage of time has not eroded this evidence, all of which has been disclosed to Gill. [ 99 ] The Crown further submits that this is a case in which credibility will not be in issue. Rather, the evidence in this case consists of real, enduring and unchanged evidence. (

E) Balancing of Gill’s and Society’s

Section 11(

b) Interests [ 100 ] The Crown submits that in balancing the s. 11(

b) interests, the effect of a stay of proceedings if no prejudice can be established would not be in the interests of society. [ 101 ] The Crown submits that the fair trial rights of Gill have not been compromised and the evidence remains intact and fresh. [ 102 ] The Crown submits that the conspiracy allegation is a serious allegation involving the importation and exportation of large amounts of illicit drugs. The Crown submits that the moral culpability of Gill is high, and in the event of a conviction, he would receive a significant federal sentence.

(4) Submissions of Crown in Relation to

Section 11(a) [ 103 ] The Crown submits that it complied with respect to the informational obligation of s. 11(

a) of the Charter, as the Crown believed in December 2004 that Gill was represented by a “well-respected member of the defence bar in British Columbia, Chris Johnson.” [ 104 ] The Crown submits that ethically it could not go behind retained counsel, or the belief that there was retained counsel, as doing so would be contrary to

Chapter 4, Rule 1.1 of the Law Society of British Columbia Professional Conduct Handbook . [ 105 ] In short, the Crown submits that in the circumstances of this case, there was compliance with s. 11(

a) of the Charter . ANALYSIS AND APPLICATION OF THE MORIN FACTORS IN RELATION TO

SECTION 11(b)

(1) Determination of the Total Length of Delay [ 106 ] Overall delay is the threshold. Where there is no unreasonable delay, an inquiry under s. 11(

b) of the Charter is not necessary. [ 107 ] In addition, pre-charge delay is not to be included in any s. 11(

b) inquiry, unless the pre-charge delay prejudiced Gill’s ability to either mount a defence or to receive a fair trial: R. v. Fagan (1999), 115 BCCA 106, at paragraph 32. [ 108 ] The Information was sworn on July 23, 2004. Gill returned to Canada on July 26, 2013, and was arrested on August 1, 2013. The trial is scheduled to commence on September 29, 2014, and conclude on November 27, 2014. I find that the total length of time from the swearing of the Information to the projected conclusion of trial is 124 months or 10 years and four months. [ 109 ] I find that the time from the swearing of the Information until the arrest of Gill is nine years and eight days.

[110] As Gill has raised issues in relation to his ability to make full answer and defence within the context of his right to a fair trial, Ishall also determine the total length of the passage of time from the commencement of the investigation until the commencement of thetrial. [111] The “Project Longhaul” investigation commenced in January of 2003. On July 29, 2003, search warrants were executed at Gill’sresidence.

This timeframe encompasses seven months. [112] The post investigation but pre-charge timeframe from July 29, 2003, until July 23, 2004, totals just short of 12 months or oneyear. [113] The total length of time from commencement of the “Project Longhaul” investigation until commencement of the trial is 141months, or 11 years and 9 months.

(2) Waiver of Time Periods [114] The Crown concedes that Gill has not waived any delay from July 23, 2004, until the commencement of trial on September 29,2014. The Crown further concedes that Canada had the responsibility to bring Gill back to Canada once his whereabouts in India wereknown to police authorities. [115] The Crown submits that this responsibility was not so much a legal obligation but could result instead in the delay beingassigned to the Crown.

The Crown addressed this point in the following submission: Now, I'm going to pause there to say that it's not a legal obligation in the sense that there's some kind of statutory requirement to bringthem to Canada, but it's the responsibility associated with the assignment of cause of delay related to the Crown's responsibility to bringan accused to trial, meaning that if they do not do that, then the cause of delay is an assignment of delay to Crown (Transcript, June 16,2014, Page 51, Lines 7-15). [116] I accept the position taken by Gill that he did not waive any of the time that elapsed from July 23, 2004, until thecommencement of his trial scheduled for September 29, 2014. [117] The Crown was fully able to request the extradition of Gill from India.

For reasons which remain unexplained, the Crown failedto take any appropriate steps to request the extradition of Gill. This finding weighs against the Crown.

(3) Reasonableness of the Delay [118] The amount of time from the swearing of the Information on July 23, 2004, until the commencement of Gill’s trial on September29, 2014, is exceptional, and raises an issue as to its reasonableness. This requires an inquiry to determine the reasons for the delay. (

A) Inherent Time Requirements [119] The time taken to get an individual tried with a criminal offense to trial always involves certain inherent time requirements.These requirements will vary from case to case.

These time requirements will include, but are not limited to, time taken to retain counsel,prepare disclosure, conduct bail hearings, and to hear applications. [120] In this case, following the arrest of the Gill, the time requirements to retain counsel, seeks disclosure, conduct a bail hearing, andbail review, along with preparation for this application and for trial, fall into the inherent time requirements that are normally required toprocess a case. This period of time that is attributable to inherent time requirements is neutral: R. v. MacDougall, (SCC), [1998] S.C.J. No. 74 at paragraph 44. (

B) Actions by Gill [121] The purpose of this factor in the Morin analysis is not to assign blame, but rather, the issue is the attribution of time. Thequestion to be answered is whether or not there were any actions by Gill which may have caused delay. [122] Those actions may include attacks on wiretap packets, attacks on search warrants or adjournments which do not amount towaiver: Morin at paragraphs 44 and 45. [123] I do not find that there were any actions by Gill which contributed to the delay in this case and accordingly I conclude that this isa neutral factor. (

C) Actions of the Crown [124] The purpose of this factor in the Morin analysis is again, not to assign blame.

It is this factor which serves as a means wherebyactions of the Crown which delay the trial may be investigated: Morin at paragraph 49. [125] Inaction on the part of the Crown may be properly considered in this factor in the Morin analysis because the Crown in this case,at all times, had the responsibility and obligation to diligently bring Gill to trial. [126] In the Application Record filed by Gill, there is a series of facsimile communications between the R.C.M.P Liaison Officer(RCMP L.O.) in New Delhi, India, and the OCA in which information was shared concerning the whereabouts of Gill and his activitiesin India.

Many of these communications are marked as “Urgent.” [127] The exchange of facsimile communications ranged over a timeframe of January 2004 through to February 2005. In some of thecommunications the OCA investigators considered going to India to interview Gill.

[128] Communications confirm that OCA investigators were aware at all times that Indian police authorities also knew where Gill wasand that Gill could be available for questioning (Facsimile - from RCMP L.O.

Delhi to OCA dated February 29, 2004). [129] As well, communications between OCA investigators and Indian police authorities establish that the OCA investigators wantedto ensure that the Indian police authorities did not disclose to Gill particulars concerning pending Indictments in the United States.Concurrently, those same communications establish that through 2004 the Crown in Canada was in the “process of deciding the bestavenue of prosecution” (Facsimile - OCA to RCMP L.O. Delhi March 5, 2004). [130] In a further facsimile communication dated April 30, 2004 between the RCMP L.O.

India and the OCA investigators, it issuggested that the extradition of Gill should not be a problem as Canada enjoyed “more success with extraditions than our partners. Itshould not be a problem to locate him, as several sources know his whereabouts.” [131] On February 16, 2005, there was a facsimile communication from the OCA to the RCMP L.O. in which there is reference toIndictments in the United States involving Gill and others.

This facsimile was designed to keep the RCMP L.O., and the Director of theAsian Desk, informed of the “latest developments.” [132] It was also in this communication that the OCA investigator made reference to the status of extradition proceedings by stating:“at this point, it does not appear that Canada will be seeking extradition of our Arpinder Gill from India to Canada.” [133] In a Synopsis headed “Attempts to arrest Arpinder Singh Gill” contained in the Application Record, one of the OCAinvestigators in Canada provided a brief review of the status of the Gill conspiracy investigation.

In relation to the status of extraditionproceedings, the following was noted by the investigator: Although charges were laid in Vancouver against Gill and some of his associates, DOJ was not looking at extradition for Gill. In 2005,the US DOJ Detroit, in conjunction with the Homeland Security (U.S. Customs) made several attempts to have Gill arrested andextradited from either India or England. [134] Other than OCA investigators periodically checking CPIC to determine whether or not the arrest warrant was still outstanding,there were no other steps taken to bring Gill back to Canada.

There were no steps taken by OCA investigators to have Gill arrested inIndia, due to the position that the Department of Justice would not be requesting extradition of Gill from India to Canada. [135] The Crown takes the position that they are not subject to any statutory obligation to request the extradition of any individual.The Crown further submits that the “failure to seek extradition is not a breach of anyone’s Charter rights, period” (Transcript, June 17,2014, p. 18, l. 37 - 41). [136] The Crown submits that complex decision-making in relation to the extradition process is shielded from judicial scrutiny,subject to improper motive or bad faith, by operation of prosecutorial or ministerial discretion.

The Crown submits that this discretion is afirst level decision-making process lying at the core of prosecutorial discretion. [137] In relation to an explanation or reason for the failure of the Crown to request the extradition of Gill from India to Canada, theCrown in oral submissions had this to say: … if there was a good -- my friend said if there was a good reason for not seeking Mr. Gill's extradition, the Crown would give it -- tothat I simply say no, the Crown -- the Federal Crown in this office guards its prosecutorial discretion and the reasons for its exercise veryclosely.

We are not an office that gives good reasons and guards the bad ones. We don't do that and I would not be up here spouting my goodreason if I had one or if the Crown had one. I simply disagree with what my friend said. Prosecutorial discretion is protected in ouroffice. (Transcript, June 17, 2014, p. 19, l. 2 - 14) [138] I have difficulties with the position taken by the Crown that it is impermissible of the Court to call on the Crown to provide anexplanation or reason, or lack thereof, for the failure of the Crown to request the extradition of Gill from India to Canada.

In the contextof this case, as noted by the Crown, there is no explanation or reason given. This lack of any explanation ultimately results in this Courtbeing unable to determine if the Crown exercised any improper motive or bad faith. [139] As such, what exactly is the prosecutorial or ministerial discretion that is being shielded from examination? For example, noinvestigative strategy has been advanced that would require protection. No third party safety interests have been advanced. There do notappear to be international protocols with India or the United States which may require protection.

Canadian national security interests donot appear to be in play. [140] It must be remembered that it is the duty of the Crown to bring Gill to trial. It is the Crown who is responsible for the provisionof facilities and staff to ensure that Gill is tried within a reasonable time.

However, where the course of action is inaction or indifference,and absent any justifiable explanation, then the Crown must be expected to bear the consequences. [141] Crown vigilance in bringing persons to trial within a reasonable time is an obligation of fundamental importance in relation tothe guaranteed right of an individual to be tried within a reasonable time. This need for vigilance was addressed by the Ontario Court ofAppeal in R. v. Kporwodu, (ON CA), [2005] O.J.

No. 1405 at paragraph 4 as follows: In order to ensure that charges are not stayed for delay, the Crown must be vigilant in bringing accused persons to trial within areasonable time, especially when the charges are serious. Constant attention must be paid to the s. 11(

b) clock. Matters should not be

allowed to get out of hand. Crises should be managed efficiently and effectively and with all reasonable dispatch. Flexible approachesand resourceful solutions may be needed to move the case along.

In sum, the Crown must take all reasonable steps to ensure compliancewith s. 11(b). [142] Specifically, in relation to extradition cases, the Crown has an obligation, having regard to the totality of the circumstanceswhich may exist on a case-by-case basis, to exercise reasonable diligence to locate and then to take appropriate steps to request theextradition of an individual charged with a criminal offense on Canadian soil. [143] In this particular case, the inaction or indifference of the Crown to request the extradition of Gill from India to Canada is directlyresponsible for a delay of just over nine years from the date the conspiracy Information was laid until the arrest of Gill. [144] There were investigative avenues available to the Crown to request the extradition of Gill from India to Canada.

It appears to bethe case that the OCA investigators, and the Crown, decided to do nothing in relation to the extradition of Gill from India to Canada, asthey appeared to rely on the United States to take appropriate extradition steps to request the extradition of Gill to the United States. [145] In Singleton, Frankel, J.A. reviewed three significant extradition cases. They included the Macintosh decision out of NovaScotia, along with R. v. White, (1997), (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), leave ref’d [1997] 3 S.C.R. xv andR. v. Terk, 2011 QCCA 390.

Frankel, J.A. in Singleton identified the principle established in those three decisions at paragraph 96 asfollows: The principle I extract from the abovementioned decisions is that while the state has an obligation to act with reasonable diligence tobring an accused who is outside of Canada to trial within a reasonable time, whether that obligation has been met is to be determinedcontextually, considering the investigative avenues available to the police force or investigating agency involved.

When an accused is ina foreign country from which he or she can be extradited and his or her whereabouts are known, Canadian prosecution officials areobligated to pursue extradition in a reasonable and timely manner. If they fail to do so then, as in MacIntosh, the ensuing delay will beattributed to the Crown. That, however, is not this case. What must be determined here is whether, having regard to the totality of thecircumstances, a reasonably diligent effort was made to locate Mr. Singleton after charges were laid. [Emphasis added] [146] The Crown failed to request the extradition of Gill from India to Canada.

The Crown was obliged to do so in a reasonable andtimely manner. The Crown failed to act in a vigilant manner to ensure that Gill’s right to be tried within a reasonable time was protected.The resulting delay is significant and serious, and is wholly attributable to the Crown. (

D) Limits on Institutional Resources [147] In this case, limits on institutional resources was not advanced by Gill. I find, having regard to the available resources at theMain Street courthouse, that this factor in the Morin analysis is a neutral factor.

(4) Prejudice to Gill [148]

Section 11(

b) of the Charter protects both individual and societal interests. The individual rights that this

section protects are:(1) the right to liberty, (2) the right to security of the person, and (3) the right to make full answer and defence. [149] The right to security of the person is protected by seeking to minimize the anxiety, concern, and the stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to restrictions on liberty which result from pre-trial incarceration or restrictive bail conditions.

The right to make full answer and defence is protected by attempting to ensure thatproceedings take place while the evidence is available and fresh: Morin, paragraph 28. [150] Prejudice may manifest itself in each of these three areas. In this context, prejudice was discussed by the Supreme Court ofCanada in Godin at paragraph 30 as follows: Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custodyor bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminalcharge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. [151] Prejudice may be inferred from overly long delay: Morin, paragraph 61. The longer the delay, the stronger the inference. In R. v.Askov, (SCC), [1990] S.C.J.

No. 106 at paragraph 67, Cory J. said this in relation to very long and unreasonable delay: The different positions taken by Members of the Court with regard to the prejudice suffered by an accused as a result of a delayed trialare set forth in Mills and Rahey. Perhaps the differences can be resolved in this manner. It should be inferred that a very long andunreasonable delay has prejudiced the accused. As Sopinka J. put it in Smith, supra, at p. 1138: Having found that the delay is substantially longer than can be justified on any acceptable basis, it would be difficult indeed to conclude

that the appellant's s. 11(

b) rights have not been violated because the appellant has suffered no prejudice. In this particular context, the inference of prejudice is so strong that it would be difficult to disagree with the view of Lamer J. in Mills and Rahey that it is virtually irrebuttable. Nevertheless, it will be open to the Crown to attempt to demonstrate that the accused has not been prejudiced. This would preserve the societal interest by providing that a trial would proceed in those cases where despite a long delay no resulting damage had been suffered by the accused.

Yet, the existence of the inference of prejudice drawn from a very long delay will safely preserve the pre-eminent right of the individual. Obviously, the difficulty of overcoming the inference will of necessity become more difficult with the passage of time and at some point will become irrebuttable. Nonetheless, the factual situation presented in Conway serves as an example of an extremely lengthy delay which did not prejudice the accused.

However, in most situations, as Sopinka J. pointed out in Smith, the presumption will be "virtually irrebuttable". [ 152 ] In cases where there are very long delays, and where fault does not fall at the feet of an accused, an irrebuttable presumption of prejudice to an accused could result from the passage of time unless the Crown can demonstrate there was no prejudice to the accused flowing from the delay.

It is also open to an accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay: Askov , paragraph 69 . [ 153 ] In this case, Gill has filed affidavit evidence in which he affirms the delay in this case has resulted in actual prejudice.

In addition, the nine-year delay from the date when the conspiracy Information was laid until the arrest of Gill approaches, if not exceeds, the point at which the inference of prejudice is irrebuttable. [ 154 ] As such, there is an onus on the Crown in the face of the inferred and asserted actual prejudice to demonstrate that the degree of prejudice suffered by Gill is not such as to require that a Judicial Stay of Proceedings be directed: Arsenault , paragraph 76. (

i) Security and Liberty Interests of Gill [ 155 ] On September 25, 2013, following a Judicial Interim Release Hearing, Gill was detained in custody on the primary ground. A review was taken from that order and in reasons found at 2013 BCSC 2450 , the Supreme Court Justice found that there was no error in principle made at the original bail hearing that would significantly affect the outcome of the initial bail application.

The Justice also was not satisfied that the circumstances heard at the original bail hearing had changed in any material respect at the time of the review application. [ 156 ] In its submissions before the Provincial Court Judge, the Crown took the position that Gill was involved in high-level drug trafficking activity in the United States and that the United States was seeking the extradition of Gill. [ 157 ] The Crown also submitted that Gill was “faced with incredibly serious drug offenses for which he faces double digit penitentiary sentences and extradition to the United States for likewise serious offenses…” (Transcript, September 17, 2013, p. 3, l. 39-43). [ 158 ] The Crown also submitted that Gill was well aware that there was law enforcement action against him because of executed warrants on his residence, and elsewhere, as a result of which he took flight.

In addition, the Crown submitted that there was a clear indication that Gill had retained legal counsel, Mr. Johnson, in Vancouver in 2004 and, as such, Gill was aware of the conspiracy charge which strengthened the fugitive theory. [ 159 ] At the bail hearing, the Crown submitted the following in relation to the prospect of extradition of Gill to the United States: … I have spoken to the authorities in the U.S. including the prosecutor who does intend to seek Mr.

Gill’s extradition for these various charges upon the conclusion of this matter here. … [ 160 ] In detaining Gill, the Provincial Court Judge, in part, noted that the United States would be making application for extradition of Gill on conspiracy Indictments sworn in the United States. In addressing the primary ground under s. 515(10) (

a) of the Criminal Code , the learned Judge at paragraph 27 of his decision said this: On the primary ground, Gill has not satisfied the onus to establish that he can be released. Given the strength of the Crown ’s case, that he left Canada for up to 10 years, and that he now knows, if he did not know before, that he faces serious charges in Canada and the United States which, if convicted and/or extradited, could mean spending the rest of his life in jail.

He has a very good reason to leave the country once again. [ 161 ] At the time that the delay argument was advanced by Gill in June of this year, there were several significant changes of circumstances. First, I understand that the United States is no longer interested in requesting the extradition of Gill to the United States.

No explanation was advanced by the Crown as to when or why the United States was no longer requesting extradition of Gill, other than two of the co-conspirators had received “meagre” sentences in the United States for their involvement in the alleged conspiracy. [ 162 ] In addition, Gill affirms in his affidavit that when he departed Canada in September 2003 for India, he was unaware of any pending criminal charges.

Gill also deposed that while he was away from Canada, he was never informed of any criminal charge against him or the existence of any outstanding warrant, thus denying he was a fugitive. [ 163 ] Gill further affirms that after his arrest, he became aware of an exchange of correspondence between the Crown and an unknown recipient in which Mr. Johnson was identified as his counsel. On that point Gill affirms as follows: THAT I have been advised that in 2004, there was an exchange of correspondence between the Crown and Mr. Christopher Johnson, a

criminal defense lawyer in British Columbia, regarding the laying of the charge. I do not know Mr. Johnson and have never met or communicated with him in any way, directly or indirectly. I did not retain him, nor did I give him any instructions to negotiate with the Crown on my behalf. I had no knowledge of the charge being laid or that there were any discussions for my proposed surrender and release on conditions at that time. I first learned of this exchange of correspondence through my counsel, after I was arrested in 2013. [ 164 ] Michael R.

Shapray, barrister and solicitor, also filed an affidavit in relation to the delay argument sworn May 27, 2014. In his affidavit, Mr. Shapray swears that he contacted Mr. Johnson in October 2013 and was told by Mr. Johnson that he had no recollection of being retained by Gill in 2004. [ 165 ] In addition, Mr. Shapray swears that, in a further interview with Mr. Johnson, he was advised as follows: that Mr.

Johnson had no recollection of ever speaking to Gill; that he was never formally retained by Gill in either 2004 or 2005; that he assumed that he was likely contacted by someone connected to Gill and was asked to make some inquiries; if that was the case, he would have spoken to the Crown to determine their position on the matter, but he would not have advised the Crown that he was retained to represent Gill; and that he has no notes of speaking with anyone about this matter at the time, and if he had made any such notes in 2004 or 2005 they would have since been destroyed, as it is beyond the time period for storing such records. [ 166 ] Unfortunately, the Crown lawyer, Mr.

Mark Krotter, who was dealing with this matter in 2004, has since died. The Court was not advised if Mr. Krotter left any note or record which may explain what occurred at the time court appearances were first scheduled at Main Street. [ 167 ] Gill has now spent over one year in custody awaiting trial. Since his original bail hearing, the United States appears to have lost interest in requesting the extradition of Gill. As a result, his legal jeopardy has been greatly reduced and the likelihood of a prison sentence for life unlikely.

It would also appear to be the case that the strength of the Crown submission at the initial bail hearing that Gill was a fugitive has been significantly undermined by the unchallenged affidavit evidence provided by both Gill and Mr. Shapray.

While Gill can seek a further review of his detention order, the fact remains that Gill will never be able to regain the time lost since the pronouncement of the detention order. [ 168 ] The Crown , in addressing Gill’s allegations of prejudice to his security and liberty interests, submits as well that Gill was able to travel the world and to renew his Canadian passport on two occasions without any hindrance.

This submission fails to acknowledge the fact that it was wholly within the power of the Crown to revoke or refuse to issue a passport to Gill when his passport came up for renewal. [ 169 ] Canadian Passport Order SI/81-86 (effective June 28, 2006), s.9 and s. 10(1) reads as follows: 9. Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse to issue a passport to an applicant who … (

b) stands charged in Canada with the commission of an indictable offence; (

c) stands charged outside Canada with the commission of any offence that would, if committed in Canada, constitute an indictable offence; 10.

(1) Without limiting the generality of subsections 4(3) and (4) and for the greater certainty, the Minister may revoke a passport on the same grounds on which he or she may refuse to issue a passport. [ 170 ] The Crown submits that Gill is a “kingpin” in a major cocaine distribution network, yet as a result of Crown inaction or indifference permits this purported kingpin to travel the world on his twice-renewed Canadian passport. [ 171 ] In addition, though a warrant was in place for the arrest of Gill, other than entering the warrant on CPIC, the Crown failed to take any steps to execute the warrant while Gill was out of the country, as required by s. 511(1) (

c) of the Criminal Code . I note that in relation to the entered warrant that Peace Officers in British Columbia were bound to arrest Gill forthwith. The wording of the warrant is explicit and directs Peace Officers in the following language: You are commanded, in her Majesty’s name, forthwith to arrest the accused and to bring him/her before any Justice/Judge in and for the Province of British Columbia to be dealt with according to law. [ 172 ] In R. v. Wright , 2003 ABQB 1003 , the Accused was before the Court on a three count Information alleging an assault with a weapon, harassment and uttering threats.

There was a 40-month delay between the time that the Information was sworn to the date when the accused surrendered to the police. [ 173 ] The Court found that the police essentially did nothing other than record the warrant of arrest on the CPIC system. As to whether or not this strategy was acceptable in the face of a Charter delay argument, the Court, at paragraph 30, had this to say: In this case, no evidence was presented as to why the police adopted the passive strategy they did, and whether limited institutional resources played a role or not.

In the absence of any such evidence, the 40-month delay in this case is prima facie unreasonable. Since the Crown did not attempt to justify any policy (if there be such a policy) of using a passive strategy to execute warrants, it is not possible to conclude that any limitations on institutional resources justified the delays in this case.

[174] I find that Crown’s inaction or indifference towards Gill’s passport renewal and the inaction or indifference of the Crowntowards executing the outstanding warrant where no institutional resource issues were in play suggests the adoption of a lethargicstrategy that is inconsistent with the Crown’s present assertion that this case is very serious, that Gill’s criminal culpability is at the upperend, and that he must now be brought to trial as soon as possible. [175] The Crown further submits that Gill faces the potential of a significant prison sentence in the event of a conviction.

Since theconspiracy Information was sworn on July 23, 2004, more than 10 years have now passed. Gill was approximately 37 years old when theInformation was sworn. He is now 47 years old. [176] Had the Crown been diligent in taking reasonable steps to bring Gill to trial in Canada, he would have been a much youngerman. In addition, if convicted, he would have been a much younger man facing a potential prison sentence of some length. The wordingcontained in s. 11(

b) of the Charter clearly establishes that this guaranteed right requires that the Crown must ensure that individualscharged with criminal offences are dealt with in a timely manner. [177] The policy underlying the constitutional guarantee of a trial without unreasonable delay was discussed by Martin J.A. in theOntario Court of Appeal decision in R. v. Beason, (ON CA), [1983] O.J. No. 3151.

Martin J.A. identified that thispolicy was not only based upon the various forms of prejudice or anxiety caused by unreasonable delay, but also identified the intrinsicvalue this policy addresses when trials are held within a reasonable time. On this point, Martin J.A., at paragraph 60, had this to say: … Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a wholeand, indeed, to the ultimate benefit of the accused, even though he may wish to put off the confrontation which a trial involves.

Ifinnocent, the accused should be cleared with a minimum disruption of his social and family relationships. If guilty, he should be foundguilty and an appropriate disposition made without unreasonable delay. His interest is best served by having the charge disposed ofwithin a reasonable time so that he may get on with his life.

A trial at some distant date in the future when his circumstances may havedrastically changed may work an additional hardship upon the accused, and adversely affect his prospects for rehabilitation. [Emphasisadded] [178] Gill’s liberty interests in having his trial without unreasonable delay, and any potential prison disposition which may result fromthe trial if found guilty, have been impacted by the 10 years that have gone by since the swearing of the Information.

As noted by MartinJ.A. in Beason at paragraph 64: … The right of an accused to be tried within a reasonable time is fundamental. (ii) Full Answer and Defence [179] The “Project Longhaul” investigation commenced in January of 2003. On July 29, 2003, search warrants were executed at theresidence of Gill. The conspiracy Information was sworn on July 23, 2004. That timeline totals 19 months. The post-charge but pre-arresttimeline totals 108 months or nine years.

The post-arrest but pre-trial time line totals 14 months. [180] The total length of time from the commencement of the investigation to trial is 11 years and nine months. The total length oftime from the date the conspiracy Information was sworn until trial is 10 years and two months. [181] Gill affirms in his affidavit that his memory of events in 2003 has been impacted due to the passage of time. He detailed thisimpact on his ability to make full answer and defence as follows: THAT I am unable to remember the details of events and conversations that I might have had in 2003, due to the passage of time.

I amunable to recall the contact information of many relevant witnesses with whom I would have been interacting in 2003. I am also unable tolocate these witnesses due to the fact that I have had no contact with them since I left Canada.

In addition to this, all business records,invoices, and other documents that I would have tendered in support of my defence have been lost or destroyed, given the number ofyears that have elapsed. [182] In his written submissions, Gill explains the impact of the prejudice on his fair trial interests at paragraph 90 as follows: The risk of prejudice to an accused’s fair trial rights may be presumed or inferred from delay. In this case, the prejudice to the Applicantis obvious, in the form of the impact upon his fair trial interests.

The Applicant’s matter is one which involves events and allegationsfrom over 11 years ago. More specifically, the crux of the case will come down to the

interpretation of the intercepted privatecommunications in conjunction with the rest of the case, including surveillance and seizures of cocaine on certain dates. Eleven yearslater, the Applicant is forced to attempt to reconstruct memories of what he was doing or saying at a particular time, to assist in his owndefense. Records and supporting documents that might corroborate his story are no longer available. Memories have grown dim, if notnow completely non-existent, of conversations and what the Applicant might have been doing on a given date.

The Applicant cannot beexpected to have an accurate recollection or any recollection at all, of events that took place over 11 years ago. [183] The Crown submits that credibility cannot be a significant issue in this case and that further, the substance of the evidenceconsists of “real, unchanged evidence, uneroded by the passage of time.” It was submitted Gill would be able to make full answer and

defence from a review of the uneroded evidence disclosed by the Crown. [ 184 ] The Crown further submits that any inferred prejudice has been rebutted and any actual prejudice has not been established when one examines the nature of the Crown evidence in this case.

The reliability of the evidence of the wiretaps, surveillance evidence, photographs and the like would not deteriorate over the passage of time. [ 185 ] In particular, the Crown relies upon the Bains decision where at paragraph 64 the Court commented on the impact of the passage of time with respect to otherwise enduring evidence as follows: The circumstances of this case were significantly different in terms of prejudice. Godin involved prejudice from the nature of the evidence which would likely deteriorate over time and from the late disclosure of exculpatory evidence.

The nature of the evidence in this case was from authorized wiretap and search warrants that were in an enduring form. The passage of time would not have affected the reliability of the evidence, and if admissible, would likely result in a conviction. [ 186 ] I note that in the Bains decision, the total delay was 45 months, of which the trial judge found that Bains had implicitly waived seven months of the delay.

In addition, the Court expressly noted at paragraph 65 that the trial judge made no finding of actual prejudice which was not challenged on appeal. [ 187 ] It may well be that the Crown ’s case has been uneroded by the passage of time. The same cannot be said for the human memory. Gill has affirmed that as a result of the length of the delay in this case, his memory has been impacted and he is unable to make full answer and defence. [ 188 ] It is well accepted that the passage of time normally hinders, not helps, the ability of a witness to recall past events.

Witness recall can be aided through the making of notes and other aids, but that is not the case in relation to Gill. When Gill returned from India to Canada in July 2013, that was the first time, he affirms, that he was ever aware that he was facing a serious conspiracy to import allegation. [ 189 ] The Arsenault case closely reflects the situation facing Gill.

In Arsenault , the Court commented on witness’s memory loss over an extended period of time, and of the danger of that memory loss to fair trial interests, at paragraph 90 as follows: The Crown says that the frailties that emerge in a witness's memory over time enure to the Crown's detriment and to the accused's benefit because the Crown has the burden of proof at trial. I disagree. Exculpatory evidence is forgotten just as easily as inculpatory evidence.

The potentially harmful effect of a wrongful conviction upon an accused, and upon the administration of justice, arising as a result of a witness's poor memory is much greater than the effect upon the Crown of an acquittal arising from the same cause. [ 190 ] It is clear that proof of actual prejudice to the right to make full answer and defence is not always required to establish a s. 11(

b) violation ( Godin , paragraphs 37 and 38 ). Even the risk of prejudice to Gill’s ability to make full answer and defence as a result of the lengthy delay in this case is enough to establish the violation. [ 191 ] I find in this case that Gill has established an actual risk to his ability to make full answer and defence arising from the long delay of 10 years and two months from the date the conspiracy Information was sworn until trial.

The actual prejudice is all the more worrisome when factoring in the total time from investigation commencement to trial of 11 years and nine months. [ 192 ] I accept the affidavit evidence filed by Gill and Mr. Shapray. I find that the affidavit evidence does establish that Gill has suffered from actual prejudice from the delay in bringing him to trial.

I also find that the Crown has not rebutted the inferred prejudice which arose from the length of the delay. [ 193 ] I find that the Crown ’s description of the delay in this case as being “considerable” and “substantial” does not fairly characterize the nature of the delay. I conclude the delay in this case is extraordinary. The extraordinary delay in this case has impacted Gill’s fair trial interests. I conclude that the Crown has failed to demonstrate that Gill has not been prejudiced by either inferred or actual prejudice. [ 194 ] In

summary, I conclude that Gill has suffered from significant prejudice to his liberty interests and to his right to make full answer and defence. Of those two protected areas of individual interest, the one of the gravest concern is in relation to Gill’s ability to make full answer and defence. The Crown has failed to demonstrate otherwise with respect to both of those protected areas of individual interest. ANALYSIS AND APPLICATION OF THE MORIN FACTORS IN RELATION TO

SECTION 11(a) [ 195 ] The determination of the total length of the delay, waiver of time periods, reasonableness of the delay, inherent time requirements, limits on institutional resources and actions by Gill were analysed, and findings were made in relation to the s. 11(

b) issue advanced by Gill. [ 196 ] That analysis and the findings that were made on those factors relating to s. 11(

b) apply to the s. 11(

a) i

[…]