R. v. Pham, 2021 ONCJ 479

ONTARIO COURT OF JUSTICE CITATION: R. v. Pham, 2021 ONCJ 479 DATE: 2021 09 10 Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN PHAM, JONATHAN PHAM and DAVID PHAM Before Justice Newton-Smith Heard on August 13, 14, September 8, 17, October 5, 7, November 4, 2020 and January 28, 29, April 8, June 4, July 16 and 29, 2021 Reasons for Judgment released on September 10, 2021 I. Glasner and J. Mitschele.............................................................. counsel for the Crown R. Rusonik................................................................ counsel for the accused David Pham J.

Hershberg ............................................................. counsel for the accused John Pham N. Gorham.......................................................... counsel for the accused Jonathan Pham RULING ON CHARTER PPLICATION

Section 11(

b) NEWTON-SMITH J.: I. OVERVIEW [ 1 ] John, David and Jonathan Pham are charged with various offences arising out of the execution of several search warrants. The trial commenced before me on August 13, 2020 with an Application brought by the defence pursuant to sections 7 and 8 of the Charter . It was agreed at the outset that the

section 8 application, the “ Garofoli ”, would be determinative. Should the evidence ultimately be excluded the Crown would have no case to proceed with, and should the evidence be admitted findings of guilt would follow. [ 2 ] Over the course of the late summer and fall of 2020 litigation through the various Garofoli steps proceeded, including the calling of defence evidence and cross examination of the affiant and sub-affiant. On January 28 and 29, 2021 I heard argument on the

section 7 and 8 issues. [ 3 ] On April 7, 2021 I released my Ruling [1] on the Charter application and quashed the warrant. Section 24(2) had yet to be litigated.

[ 4 ] On June 4, 2020 the Crown advised that they would be seeking to lead further evidence on the section 24(2) hearing. Dates were then scheduled to litigate issues arising from the Crown’s proposed evidence (July 16, 2021), a

section 11(

b) Application (July 29, 2021), to hear the section 24(2) evidence (October 8, 15, 19, 21, 2021), and for final argument on the section 24(2) and any remaining issues (November 5, 2021). It was agreed that should the Crown not be permitted to call the further evidence on section 24(2), or choose not to, there would be no

section 11(

b) Application and final submissions would occur on July 29, 2021. [ 5 ] On July 19, 2021 I released an Endorsement permitting the Crown to call further evidence on section 24(2). On July 29, 2021 the

section 11(

b) was argued. [ 6 ] It is agreed that the presumptive ceiling for delay has been exceeded. It is the position of the defence that, once defence delay and the pandemic have been accounted for, the ceiling has been exceeded by 4 ½ months and a stay must follow. It is the position of the Crown that once defence delay and the pandemic have been accounted for the ceiling has been exceeded by 2 ½ months, which delay can be accounted for by a “discrete event” exceptional circumstance. [ 7 ] This is my ruling on the defence’s

section 11(

b) Application for a stay of proceedings. II. HISTORY OF THE PROCEEDINGS (

i) The Commencement of the Proceedings [ 8 ] On November 12, 2019, 4 months after the Phams were arrested and charged, a case management meeting was held. At that case management meeting the parameters of the trial were set. It was to proceed as a Garofoli hearing, the outcome of which would be determinative of the issues. Six days were set aside and confirmed on the record the next day. The trial was set to begin on April 29, 2020.

Throughout the course of further case management meetings and communications between counsel the position of the defence was made known. [ 9 ] As a result of the pandemic the trial did not begin on the scheduled date, and instead began on August 13, 2020. (ii) The Defence Position [ 10 ] The ITO rested largely on information from a CHS, and in part on conclusions drawn by the affiant arising from surveillance conducted of the Phams on March 27, 2019. [ 11 ] In the ITO the affiant stated that he believed that the Phams had travelled to a Whole Foods store on March 27, 2019 for the purposes of a drug transaction and had engaged in counter-surveillance driving.

The route driven by the Phams, as outlined by the affiant, involved sections of Eglinton Avenue. Amongst the conclusions drawn by the affiant was that a detour around the intersection of Mount Pleasant Road and Eglinton Avenue was evidence of counter-surveillance driving. [ 12 ] It was the position of the defence that the affiant’s claims about the driving that the police observed that evening were fabricated.

This was made clear in a disclosure request emailed to the Crown on January 16, 2020 in which defence counsel jointly wrote: By way of introduction, it is our position that the affiant and/or sub-affiants fabricated all of the claims set out in paragraph 26 which details an alleged counter-surveillance route followed by David and Jonathan Pham. [ 13 ] Defence counsel then listed several disclosure requests relating to their position including, “central notes for the surveillance and/or the surveillance report” and, “The GPS-generated record of the movement of the police vehicles/vehicles that allegedly followed the Pham vehicle through the alleged counter-surveillance route”. [ 14 ] Throughout the winter further disclosure requests were made by the defence attempting to get some form of record that would independently verify the counter surveillance driving claims.

In an email of March 3, 2020 the defence jointly wrote the following to the Crown: It is our position the counter-surveillance driving claim is the issue in this case. It is our position the whole defence and the constitutionality of the whole investigation rises and falls upon it. We need full and clear disclosure of the claim: Who are the specific officers making it? In other words, who are claiming to have observed the alleged driving? In what ways has(have) this(these) officer(

s) who is(are) claiming to have observed it recorded his(their) claim(s)? How was(were) the officer(

s) who are claiming to have observed the driving communicating with the other officers who are not making such claims? Without asking that it be disclosed at this point, have you determined the cell phone number(

s) of the officer(

s) who is(are) claiming to have observed the driving? This Garofoli application does not have to take even as long as it is currently scheduled if we can focus properly on this issue of the claimed counter-surveillance.

There remains a real danger this matter will not otherwise complete within a reasonable time even though we have already resolved the substantive issues post the Garofoli . [ 15 ] On July 26, 2020 in an exchange between counsel with respect to what witnesses the Crown would potentially be calling on the Garofoli , and in response to the Crown having written, “We do not know who we will call at this time, and will not until we hear from your client. Are you planning on filing an affidavit?”, the defence wrote:

Fair enough; we’ll apply to cross who you don’t call. In fact, our testimony will be for that purpose as well. Jonathan Pham, who was driving on the night of March 27, will be our witness. He will testify to the route actually taken home and what they actually did and purchased in the Whole Foods that night, which included purchasing a large quantity of a material used as a cutting agent in their manufacture of fentanyl.

To be clear, his testimony will form the basis for our submission that the “heat check” driving allegation and the attendance at the Whole Foods as a ruse are both deliberate fabrications, and the failure to preserve the video of their attendance at the Whole Foods that night an attempt to obstruct justice. I trust this will help you to prepare your answer to the application.

For the little it’s worth, the officers were truthful about the route the Pham twins took to the store. (iii) The Charter Litigation [ 16 ] When the Garofoli eventually proceeded over the course of the summer and fall of 2020 the focus of much of the litigation was on the claims made by the affiant with respect to the surveillance conducted on March 27, 2019, and in particular the counter- surveillance driving claims. [ 17 ] Jonathan Pham testified for the defence and gave evidence with respect to the route which he took that evening.

He testified that the route which he took to the Whole Foods was as the affiant had set out, but that a detour he took around the intersection of Mount Pleasant and Eglinton was as a result of construction and not counter-surveillance. The defence introduced into evidence a Metrolinx document which described the construction at that intersection and included photographs. The Crown consented to the document’s admissibility. Mr. Pham also gave evidence with respect to the route which he took home.

His evidence contradicted the affiant’s claims in the ITO. [ 18 ] I granted the defence request for cross-examination of the affiant and a sub-affiant in several areas including with respect to the surveillance in question [2] . The affiant and sub-affiant testified at the hearing and were cross-examined at length with respect to issues relating to the counter-surveillance driving, including the failure to include in the ITO any reference to the construction on Eglinton Avenue, and in particular at the intersection of Mt.

Pleasant and Eglinton. [ 19 ] The Crown did not call any further evidence. [ 20 ] In their written submissions, and during the course of oral argument, the defence maintained the position that the affiant had purposely misled the issuing justice. The route driven by the Phams on the evening of March 27, the construction along Eglinton Avenue, and what the affiant reported about the surveillance observations remained a significant focus of the litigation. (iv) The Charter Ruling [ 21 ] Final submissions on the

section 7 and 8 issues were made on January 28 and 29, 2021.

On April 7, 2021 I released my Ruling in which I found, at para 192: In considering the misrepresentations and omissions, the deliberate and purposive nature of some and the manner in which they unfolded, I find that the balance of the ITO which is left after excision and amplification cannot be relied upon to sustain the issuance of the warrant. [ 22 ] Among the findings on which my Ruling was based, and which led me to excise the conclusions drawn with respect to counter- surveillance driving and a thwarted “illicit drug transaction”, were the following at paras 145 and 171: [145] There is simply nothing unusual about the route that the Phams drove to Whole Foods that evening.

It was misleading of the affiant to characterise the bypassing of the intersection as “counter surveillance driving”, especially in light of his failure to include any reference to the construction on Eglinton Avenue and in particular the major construction at that intersection. [171] There is no chain of accountability for the narrative of the route home. Given the affiant’s complete failure to explain that the construction at the Mt.

Pleasant and Eglinton intersection would be an obvious reason to detour around the intersection en route to Whole Foods, I am left to question what other issues that may have accounted for the route home were ignored. I note also that it is hard to see how the affiant comes to the conclusion that the route home was calculated to disassociate the Phams from the Bay Street address when in fact what they did was to return directly to that address, albeit in an indirect route. (

v) The Crown’s Proposed Section 24(2) Evidence [ 23 ] After my Ruling was released, dates of May 6 and 7, 2021 were scheduled for the 24(2) litigation. On April 21, two weeks after receiving my Ruling, the Crown contacted Metrolinx looking for: ….information in the form of an Affidavit and possibly photos of that corner [Mt. Pleasant and Eglinton] on March 27, 2019? We are interested to know whether it was open to traffic and if so, how many lanes were open and were turns permitted at that time.

We are also interested to know if there was any construction going on on that corner on that specific date. [ 24 ] On April 30, 2020 the Crown received videos from Metrolinx. Those videos depict the state of the intersection at the time and are, the Crown concedes, consist with my Ruling. It is the position of the Crown that those videos also capture Jonathan Pham’s vehicle and the police surveillance vehicles travelling along portions of Eglinton Avenue that evening. [ 25 ] The Crown made the defence aware of their intention to introduce this evidence at the 24(2) hearing.

The defence objected to its admissibility taking the position that this was essentially a collateral attack on the

section 8 Ruling and added nothing to the 24(2) issues to be decided.

[26] Counsel agreed that the proposed evidence would require 4 court days, and that should the Crown be permitted to call theevidence the defence would bring a

section 11(

b) application. Seven further full court days were set aside. The first, July 16, was forargument with respect to the Crown’s ability to call the further evidence and recall the affiant. The second date, July 29, was set asidefor argument on the

section 11(

b) application. October 8, 15, 19 and 21 were set aside for the 24(2) evidence and November 5 for finalsubmissions on 24(2).

It was agreed that should I not allow the Crown to call further evidence final submissions on section 24(2) wouldoccur on July 29, 2020. [27] On July 16, during the course of argument on the admissibility of the proposed section 24(2) evidence, the Crown outlined theevidence it intended to call as follows: • A video showing portions of the route that police say they drove and that Pham’s vehicle drove back from the Whole Foods and to33 Bay Street on March 27, 2019; • Viva voce testimony of the affiant Detective Constable Mark Seto to discuss the video and explain his evidence from the

section 8hearing; • Viva voce testimony of Detective Brent Johnston, one of the officers whose vehicle was in the video as it followed the Pham’svehicle; • Viva voce testimony of Detective Constable Chris Marcos, another officer whose vehicle was in the video as it followed Pham’svehicle; • Viva voce testimony of Detective Andrew Teixeira, the officer in charge of the investigation, to assert investigative privilege overthe vehicles and to explain police practices and procedures regarding central notetaking.

The Crown will be asserting investigativetechnique privilege with respect to the make, model and license plates of the police vehicles. We have already set a date to litigate theprivilege on October 8 and when it comes time to do so, we will provide jurisprudence that assists. We do not expect to have any secrethearings or Basi style hearings. The Crown’s position is that there is plenty of precedent from the jurisprudence surrounding observationpost privilege. There are also other precedents related to the interplay between

section 8 and section 24(2) and how privilege issues maybe handled in such circumstances. [28] After hearing submissions I released a Ruling[3] allowing the Crown to call the evidence but finding: …the relevance of this evidence at this stage tenuous. It is also problematic in the sense that had the Crown called it during the

section 8hearing, it would have informed the issues being litigated which have now been ruled on. Additionally, it will cause further delay in thismatter. [29] Following the release of my Ruling the Crown maintained their intention to call the evidence, knowing that it would trigger thissection 11(

b) application. III. LAW AND ANALYSIS A. The Jordan Framework [30] In R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, the framework for determining applications for a stay of proceedingpursuant to

section 11(

b) of the Charter was set out. A presumptive ceiling of 18 months was set for cases going to trial in the provincialcourt. [31] Several steps were set out to determine whether a case has breached the presumptive ceiling. Those steps were summarised bythe Ontario Court of Appeal in R. v.

Coulter, 2016 ONCA 704, at paras 34-41: • Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, para. 47). • Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, para. 66). • Compare the Net Delay to the presumptive ceiling (Jordan, para. 66). • If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown mustestablish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan,para. 47).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan,para. 71). • Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determiningwhether the presumptive ceiling has been reached (Jordan, para. 75). • If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex suchthat the time the case has taken is justified and the delay is reasonable (Jordan, para.80). • If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable(Jordan, para. 48). [32] Once the presumptive ceiling has been breached, and the Crown cannot rebut the presumption of unreasonableness, the delay is

unreasonable and a stay must follow: Jordan , at para 47 . B. The Position of the Parties (

i) Calculation of the Delay [ 33 ] The Phams were arrested and charged on July 11, 2019. The anticipated end of the trial is now November 5, 2021. The total delay is 6 days shy of 28 months.

This is 10 months over the 18 month presumptive ceiling for provincial court delay. [ 34 ] It is agreed that there is a period of 5 ½ months, between February 28, 2020 and August 13, 2020, which is attributable to “defence action inextricably mixed with the exceptional circumstances of the pandemic”. [ 35 ] Once that delay is subtracted the ceiling has been exceeded by 4 ½ months. [ 36 ] It is the position of the defence that the ceiling has been exceeded by 4 ½ months, that there are no exceptional circumstances to justify this delay and a stay must follow. [ 37 ] It is the position of the Crown that there is further defence scheduling delay of approximately 2 months, which leaves the ceiling exceeded by 2 ½ months. [ 38 ] The Crown submits that the period of delay that exceeds the ceiling can be accounted for by an exceptional circumstance and thus a stay is not warranted. [ 39 ] Both parties agree that the case was not particularly complex.

The Crown relies upon the “discrete event” category of exceptional circumstances to account for the delay. (

i) The Crown’s Position [ 40 ] The Crown did not investigate the state of the intersection of Mount Pleasant and Eglinton and the construction along Eglington Avenue at the time of the surveillance on March 27, 2019 until after my Ruling in April of 2021. [ 41 ] It is the position of the Crown that it was the, “realisation that they had a breach to contend with and that they had to explain how this could have happened”, that led them to contact Metrolinx to inquire about the state of the intersection at the relevant time.

This in turn led the Crown to discover that Metrolinx had videos of Eglinton Avenue and the intersection from March 27, 2019.

Upon learning this the Crown decided to call this and other evidence, including recalling the affiant, in an attempt to “explain” how the affiant came to mislead the issuing justice, as I had found in my Ruling. [ 42 ] The Crown characterises this as a discrete event creating an exceptional circumstance which should be subtracted from the total delay. (ii) The Defence Position [ 43 ] It is the position of the defence that the issues relating to the surveillance on March 27, 2019, and the conclusions drawn by the affiant in the ITO relating to it, were front and centre of the

section 8 litigation. Further, it was always the position of the defence that the affiant misled the issuing justice, and one of the central aspects of this was the affiant’s failure to include, or account for, the construction along Eglinton Avenue on the evening of the surveillance. From the outset the defence had sought any disclosure relating to the surveillance that evening and had set out their position with respect to the affiant early on and well in advance of the trial. My Ruling on the

section 8 issues was not a reasonably unforeseeable event. [ 44 ] It is the position of the defence that the time to investigate the issues raised by the defence and litigated during the course of the

section 8 hearing was not after the

section 8 litigation and Ruling. The delay occasioned by the Crown’s failure to consider whether there was any evidence to substantiate or counter the claims made by the defence at the time that the issues were raised is purely Crown delay. C. Analysis [ 45 ] Exceptional circumstances were defined in Jordan as follows: Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably avoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. Jordan , at para. 70 [ 46 ] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. The Crown here concedes that this case is not particularly complex. In elaborating on what might constitute a discrete event, the majority in Jordan stated, “Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay.

For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change it’s case.”: Jordan , at paras 71-73 . [ 47 ] What is key to the discrete events category of exceptional circumstances is unpredictability and unavoidability. The example of a complainant recanting is qualified by the recantation being “unexpected”.

[ 48 ] A ruling on an issue that had been the subject of extensive and focussed litigation cannot be considered to be reasonably unforeseen. [ 49 ] The reliability of the affiant was central to the

section 8 litigation. It was the defence position from the outset of the litigation that the affiant had lied, fabricated and misled the issuing justice. That position was particularly focussed on the counter surveillance driving claims. While “good faith” is always a section 24(2) issue, in this case the affiant’s bona fides was the subject of the

section 8 litigation itself. [ 50 ] The Crown’s proposed 24(2) evidence was clearly relevant to the issues raised in the

section 8 litigation and would have been admissible at that hearing. It was exactly the kind of evidence that the defence had been seeking through disclosure requests from the outset. [ 51 ] The Crown made a tactical decision not to dispute the admissibility of the Metrolinx document and its contents at the hearing, and not to conduct their own investigation. The defence made the Metrolinx document an exhibit on September 17, 2020 during the examination of Jonathan Pham. Cross-examination of the affiant occurred on October 7, 2020. The evidence on the

section 8 hearing did not conclude until November 4, 2020 and final submissions occurred almost 3 months later on January 28 and 29, 2021. [ 52 ] There was nothing preventing the Crown from making that same inquiry of Metrolinx that they made in April of 2021 after the Ruling, back in the fall of 2020 when the issue was being litigated.

Instead, the Crown chose to wait until they, “had a breach to contend with”. [ 53 ] Had the Crown not chosen to pursue the evidence at this juncture final submissions could have occurred on July 16, 2021, 16 weeks prior to the now anticipated end of these proceedings on November 5, 2021. D. Conclusion [ 54 ] A ruling on issues which have been the subject of lengthy litigation cannot be considered unforeseeable. Nor can the decision to seek to mitigate a breach by calling evidence. [ 55 ] In this case the Crown could have made the inquiry that it made of Metrolinx early on in the litigation.

That the route taken by the Phams that evening, and the state of construction along Eglinton Avenue, were live and significant issues was clear from the outset of the litigation. [ 56 ] My Ruling on the

section 8 issues, followed by the Crown’s decision at that point in time to conduct an investigation into the state of the intersection, and then upon receiving video footage of part of the surveillance route that evening, to call further evidence on the 24(2) hearing, including recalling the affiant and three further officers, does not constitute a reasonably unforeseeable or unavoidable circumstance.

I do not find that there are any exceptional circumstances here, beyond what has already been accounted for by the pandemic, to rebut the presumption of unreasonable delay. [ 57 ] The defence submits that the ceiling has been exceeded by 4 ½ months. The Crown submits that it has been exceeded by 2 ½ months. Either way it has been exceeded without justification and a stay must follow. Released: September 10, 2021 Signed: Justice A. Newton-Smith