R. v. Zamani, 2017 ONCJ 616

CITATION: R. v. Zamani , 2017 ONCJ 616 DATE: August 21, 2017 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- KAMBIZ ZAMANI REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with importing opium, possession for the purpose of trafficking in opium and conspiracy to do both. The information was sworn on December 10 2015. 2 . He has elected to be tried in this court. His trial is scheduled before me for five days commencing August 21 2017.

An 11b application, brought in advance of trial in accordance with practice in this court, was heard and reserved on June 19. 3 . I am told that the basic alleged facts of the case are as follows: In early December 2015 a FedEx package was intercepted by U.S. Customs agents in Indianapolis. It contained 6.6 Kilograms of opium, sent from Istanbul Turkey and destined to a sewing machine company with a business address in Markham Ontario.

American authorities alerted their Canadian counterparts and the package was sent on to Canada where the RCMP obtained a general warrant authorizing a controlled delivery with the terms usually included in such orders. On December 9 th , the package was delivered to the Markham address and received by the defendant who was waiting there in a car. He signed for the package, put it in his trunk, drove a short distance and was then stopped and arrested. The 11b application:

4 . The chronology relevant to the 11b application can be very briefly outlined: The defendant was arrested December 9 2015; the information sworn on December 10. The trial is scheduled to begin August 21 2017 and run for 5 days. The elapsed time period is 20.5 months – over the presumptive ceiling.

This total period can be divided into four segments: • December 9 2015 – Aug 26 2016 – arrest to date when disclosure complete. (261 days or just short of 9 months) [1] • Aug 26 – October 21 – time required to set and conduct a Crown pre-trial. (56 days or just short of 2 months) • October 21 – November 16 – Time to set and conduct Judicial pretrial. (28 days or about one month) • Nov 18 – Aug 21 2017 – Set date to anticipated start of trial (276 days or about 9 months) Defence delay: 5 . Defence delay must be deducted from the total delay of 20.5 months.

Defence delay is divided into two categories: 1) delay waived by the defence and 2) delay that is caused solely by the defence. ( Cody para 26). In this case only the second category is in issue. First segment – Disclosure period: 6 . The Crown does not contend that there was any defence delay in this period (9 months). Second segment – Crown pretrial period (2 months) 7 . The Crown submits that this second segment (56 days) is defence delay [2] . Its purpose was to set and conduct a Crown pre-trial, usually a necessary pre-requisite to scheduling a judicial pre-trial.

But the Crown argues that a CPT at this point was unnecessary because one had already been held. 8 . I can’t agree. While two earlier Crown pre-trials by telephone had been set and conducted - in a sense - they were both unsatisfactory and incomplete: • March 30 –Neither side had significant disclosure items. The Crown needed to review the file [3] • July 27 – Crown had the wrong file with him/her – substantial disclosure was still lacking [4] 9 .

In my view, as of August 26 when disclosure was finally completed, it was not unreasonable for defence counsel to consider that no meaningful Crown pre-trial had been held and that one should/must be held before proceeding to set a JPT. It is significant that the Crown seemed to agree in that, when the case was in court on August 26, September 9, and September 30 and was being adjourned for the purpose of holding a CPT, the Crown took no issue with the need for such a step. 10 .

Another point: After disclosure was complete, counsel had arranged a telephone CPT for September 26 but on that date was stood up by the Crown who did not return counsel’s call any time that day or the next. [5] Even if I considered that it was defence delay to seek another Crown pre-trial, (which I don’t), it is difficult to see how the defence should be held solely responsible for any delay after September 26 when that step should have been completed but for the action or inaction of the Crown. 11 .

In the result, it is my view that there is no defence delay in this second segment to be deducted from the total delay. Third segment – Judicial pre-trial period (one month)

12 . No suggestion is made of defence delay in this period. Fourth segment – set date to trial date: 13 . In my view the characterization of what occurred at and immediately following the judicial pre-trial is pivotal in this case. It is therefore necessary to go into some detail. The following

summary is taken from the Crown’s factum (para 9): A Judicial Pre-Trial was held on November 16, 2016. At that point in time, Counsel for the Applicant indicated that he was going to bring an 11(

b) application. Other Charter Applications were canvassed and ultimately, a five day trial estimate was arrived at. Realizing the possible delay issues at play, Crown Counsel telephoned the trial coordinator’s office immediately following the JPT, and inquired about possible trial dates. The trial coordinator (TC) communicated that, if the matter could be shortened to four days, it could be heard as early as April of 2017. However, should the estimate for the matter remain at five days, it would likely be heard much later.

As a result of receiving this information, Crown Counsel then made contact with Counsel for the Applicant. She advised Counsel for the Applicant of the information, which had been provided by the trial coordinator. Moreover, Crown Counsel suggested streamlining the prosecution, including employing continuity affidavits for less contentious evidence. Crown Counsel was of the view that, if Crown and defence were able to work together, it was possible to shorten the time estimate to four days. Unfortunately, Counsel for the Applicant was out of the office, and did not have access to his file.

As such, he asked that five days for trial be scheduled, and if Crown and defence were able to agree on a shorter time estimate, the matter could be brought forward. Counsel for the Applicant made no further contact with Crown counsel prior to the filing his 11(

b) materials. This, notwithstanding the dates scheduled for trial fell outside the R. v. Jordan guidelines. 14 . The email exchange referred to is set out in Appendix A. [6] It can be seen that the result of this exchange was that defence counsel Mr. Fox was not prepared at that time to make the suggested concessions and/or reduce the trial time estimate and allocation to four days from five. He made this decision knowing that this position could or would result in his getting trial dates “much later”.

However he was open to discuss it further and if agreement could be reached, to bring the case forward and re-schedule it for four days. No such discussions ever took place. 15 . The next day, neither lawyer attended to set the trial date. Paralegal assistants for both sides set a five day block for trial commencing August 21 and an 11b application, promised at the judicial pre-trial, was set for June 19. Ironically, had a four day block in April been taken (both counsel were available) and June 19 booked as a continuation date if needed, the case would have been completed almost exactly at the 18 month mark.

No one appears to have suggested doing that. [7] 16 . The circumstances described in the above paragraphs gave rise to difficult questions that were strenuously argued before me at the 11b hearing. The Crown argued that the defendant could have had his trial in April had he been more reasonable and flexible. If he was really interested in an early trial he would have made the concessions requested, grabbed the April dates or at least followed up with subsequent correspondence and discussion with the Crown.

In response, defence counsel argued that it would not have been reasonable for him to then make concessions to reduce the trial time since he was at home, in the evening when he received the email and his file was not with him. He pointed out that he did not reject the proposal out of hand but rather made an offer to discuss and possibly reduce the number of witnesses and time required. He contended that it was up to the Crown to follow up. 17 . This is how the issues stood at the end of the 11b hearing when judgment was reserved. Then things got complicated. 18 .

The next day I retrieved the notes from the Judicial Pre-trial (they are logged into a computer database in the Judges’ office). Presiding Justice Hawke had noted the number of witnesses (5), that there would be an 11b application and wrote “5 day trial”. She also noted that she “sent an email to Janet (trial coordinator) re prosecution will try to get early date & override other cases”. That email is reproduced here: Hawke, Kathryn L. Justice (OCJ) From: Hawke, Kathryn L. Justice (OCJ) Sent: November 16, 2016 8:14 PM To: Janet Fayolle [email address redacted]) Subject: R. v.

Zamani – Feds setting trial date of Nov 18th Janet: I did a JPT on this case today. The prosecutor from PPSC was Jennifer Campitelli and the defence lawyer is Barry Fox. The charge is importing opium (6.6 kg, $450,000ish value). The offence date is Dec 3/15.

In a rare move the defence wants an OCJ trial. We have estimated it at 5 days. This includes two Charter issues. Defence has raisedwanting to bring an 11(

b) and the prosecution is likely to show up on the TC doorstep willing to prioritize this case over others in orderto get an early date. I don’t expect this approach works well with the current system but I am writing to let you know that for my

part Iapprove of the prosecution doing what they can to prioritize this case above the other things they have booked, given the charge.[bolding added] KH 19. I disclosed this note and email to the parties and invited further submissions. Both sides responded with supplementary affidavitsfrom the paralegal assistants who attended the date-setting. The Crown paralegal also attended before me at defence request for a briefcross-examination on her affidavit.

She testified that when setting the date she had asked the defence representative if they could“narrow it down” and set four days that were available in April - but the suggestion was rejected. The option of setting 4 days without concessions and a 5th non-consecutive date then or later if needed was not discussed.[8] 20. The very experienced Crown paralegal also swore in her affidavit that she had general authority to prioritize cases when settingdates and had been given specific authority from Crown counsel to do so in this case. This included adding a case to a trial list or“jumping” other scheduled matters.

Justice Hawke’s email to the trial coordinator had cleared the way to do just that – to override. However when the dates were being set, no attempt to prioritize by override was made. In her evidence, the paralegal had no explanationfor this. 21. In the result, there being no agreement to further compress the case and there being no attempt to override, the trial was set for thefirst available vacant five day block starting August 21, over 20 months after the prosecution began. …….. 22.

Defence delay includes periods for which the defence is solely responsible, including unavailability and periods that have beenwaived by the defence. Defence delay can be based on inaction as well as actions: Cody para 33: As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend toomissions as well as acts (see, for example in another context, R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, at para. 37).Accused persons must bear in mind that a corollary of the s. 11(

b) right "to be tried within a reasonable time" is the responsibility toavoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within areasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138). 23.

The Crown in its supplementary written submissions contends that failure of the defence to “make concessions and accept a fourday trial in April 2017 … goes to the heart of the matter”, that is to say, I take it, that the defence should be considered responsible forany delay after April. 24. I disagree. The four day invitation made in the Crown’s email was tied to and contingent upon the defence making furtherconcessions. It was not suggested in Crown counsel’s email that the case, as it stood could be shoe-horned into four days. The sameposition was taken by the paralegal at the time of setting the date.

And the same position is taken in the Crown’s supplementarysubmission bolded above. 25. I am not prepared to hold that the defence should be forced to either make admissions or be considered to have waived its right totrial within a reasonable time or otherwise be held responsible for ensuing delay. 26. Having said that, clearly there were things that the defence could have done. For one thing, being aware of the available April dates,he could have come to court himself [9] or instructed his agent to try to make those April dates work - even without concessions.

He, asmuch as the Crown, could have proposed the shoe-horn or four plus one options. While he left matters open for discussion, his opting“at this time” to set a distant five days rather than a much earlier four, put the case on track for constitutional infringement.

27 . However, the Crown could have done or explored all or most of these things as well, rather than treating the situation as a matter of either getting further concessions or nothing. 28 . But the most significant feature in my view is the Crown’s inexplicable failure to prioritize this case by override. The Crown in its supplemental written submissions suggests that there was nothing it could do – it was dependent on the trial coordinator to have available and offer a 5 day block of time and she apparently didn’t do so possibly because there may not have been a judge available for five straight days.

This hardly seems likely but in any event there is no evidence that that was the case. The Crown paralegal’s evidence makes no such claim and in fact suggests that there was no attempt at all made to exercise the override option. The more general submission that the Crown is constrained by what the trial coordinator offers ignores the Crown’s acknowledged ability to prioritize. In short, the Crown was not limited to vacant spaces in the trial coordinator’s calendar. 29 . The Crown was in a position to set the trial within a constitutionally acceptable period, regardless of what the defence did.

It had the trump card, but didn’t play it. It had the opportunity to then revisit and correct the situation, but didn’t do that either. 30 . In conclusion on this point, in my view the responsibility for this case not being set and heard in April (or some other reasonable date) cannot be said to lie solely in either the actions or inactions of the defence. To the contrary the Crown is at least equally responsible. Accordingly, there is no defence delay within the meaning of Jordan in this fourth segment of the case history either. Conclusion re defence delay: 31 . There was no defence delay in this case.

The net delay is the same as the total delay – 20.5 months. This exceeds the presumptive ceiling. Exceptional circumstances: 32 . The Crown relies on exceptional circumstances – discrete unforeseen and uncontrollable events or complexity – to respectively either bring the remaining delay below the presumptive ceiling or to justify the ceiling’s extension. 33 . It is argued that the complexity of this case makes it exceptional. There were 20 police officers involved including customs officers in the United States; a general warrant had to be unsealed, vetted and disclosed. 34 .

In my view no plausible claim for complexity can be made here. The facts outlined above speak for themselves. While there were a lot of potential witnesses, they were all police or border or customs agents. All were presumably local, (but for some potential American Customs officers) and would have or should have completed their involvement and their notes shortly after arrest. The notes should all have been available and disclosed in the initial package. The Americans were a phone call and a fax or email away and, being law enforcement officers, would presumably be co-operative.

The warrant unsealing, vetting and disclosure was a common and routine procedure and likely particularly simple in this case given the brevity of the investigation and the facts which suggest that there would not likely be any C.I. issues. 35 . I don’t see how this argument can succeed, particularly in view of the rejection of exceptional status in the far more complex case of Cody. Transitional exception: 36 . This is a transitional case. The transitional exception recognizes that the parties’ behavior cannot be judged against a standard that has not yet been declared and of which they have had no notice.

Further, change takes time and flexibility is appropriate for the parties and the system to adjust to the new standard ( Jordan paras 94-97).

37 . When considering the transitional exception, there is a distinction in focus between pre and post Jordan periods. Cody para 71 : When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan , the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice.

For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt ( Jordan , at para. 96). 38 . The onus is on the Crown to establish and persuade that the transitional exception should operate in its favour. In respect of the pre - Jordan period it can meet that onus by showing that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed ( Jordan para 96).

With respect to the post- Jordan period it can meet that onus by showing that there was insufficient time to adapt to the new regime. 39 . In this case, the pre- Jordan period corresponds almost exactly with what I have called the first segment above and would be referred to as the intake/disclosure period under Morin . The dominant characteristic of this period here is the unusually long delay in completing disclosure – a period of about 9 months (December to end of August).

The Crown contends that under Morin the complexity of the case would justify an expanded neutral disclosure/intake period of an additional 90 days and hence a total of 5 months. [10] 40 . The short answer, as discussed above in the Jordan analysis, is that the case is not complex and the disclosure tasks were not unusually onerous or exceptional. The disclosure involved police officer notes and notes of Customs officers in Canada and the US plus the ITO and relevant videos. None of these items was exotic, unusual or difficult to obtain. 41 .

If the Crown’s submission claiming a further 90 days is based on a contention that the disclosure request letter of March 31 imposed new and additional disclosure obligations, I respectfully disagree. Notes of police officers involved in the case and the ITO for the warrant are items of first-tier disclosure and should have been provided spontaneously without the necessity of a request from the defence at all.

The disclosure letter – and the many follow up letters – merely served as a reminder of what should have been disclosed anyway and, far from imposing new or additional disclosure burdens, did the Crown the favour of organizing and identifying what disclosure was outstanding . [11] 42 . Again, the Crown must establish that it relied on the law as it previously existed. But such delay as occurred here was no more countenanced under Morin than it is under the new framework.

I am far from satisfied that the slight complexities of this case (number of witnesses, U.S. aspect) would have justified a five month intake/disclosure period under Morin. However, for the purpose of this analysis, I am prepared to accept that some minor expansion might be appropriate (see below). 43 . As for the post Jordan period, as per the above passage from Cody, the focus should be on the extent to which the parties had sufficient time to adapt to the new regime. In this case there can really be no claim of insufficient time.

In particular, by the time the trial date was set, the pivotal point, Jordan was several months old and the parties had ample opportunity to be familiar with it and to take steps and make decisions accordingly. 44 . To continue with the Morin analysis for the three segments in the post- Jordan period: The Morin analysis characterized time expended in steps that are necessary or required by court Rule or directive as institutional delay. For the reasons given above, I consider the second segment (Crown pre-trial) to fall within this characterization.

Alternatively , again for reasons given above (Crown no show on Sept 26), no more than half of the two month period should be considered to have been caused by actions of the accused; the other half should be considered Crown delay. 45 . The third segment (judicial pre-trial) is conceded to be institutional delay under Morin. 46 . In the fourth segment (set date to trial), the Crown first seeks to carve off 60 days as Lahiry time – neutral time for the parties to get ready for trial. I question whether such a concept should continue to be applied in the post- Jordan period of a transitional case Morin analysis.

But in any event, assuming it is correct to do so, the simplicity of the present case would require no more than 30 days for this purpose. 47 . Finally, in this segment, with respect to the setting of the trial date; the Crown argues that the set date to trial time (November to August, 9 months) should be split with more than half of the time assessed as defence delay. [12] This argument is premised on placing responsibility for the time after April on the defence. For the reasons given above I disagree with that characterization. This was a case that had been estimated to take five days.

No agreement had been reached and incomplete steps had been taken to change that 5 day

estimate. The dates for trial in August were the first offered by the Court. Under Morin, the time to those dates is therefore classified asinstitutional delay. 48. In

summary, I would consider that the best-case scenario for the Crown on a Morin analysis would be: • Neutral time: - Add an additional 30 days for disclosure/intake -3 months- plus one month for Lahiry trial readiness = 4 months • Defence delay: – Delay re Crown pretrial = 1 month • Crown delay: – Delayed disclosure - 6 months; plus one month for Crown pre-trial = 7 months • Institutional delay – Time to JPT – 1 month; plus 8 months (9 mo. less 1 mo. Lahiry) set date to trial = 9 months • Total Crown and Institutional delay 7 plus 9 = 16 months 49.

In a transitional case, I am required to determine whether such delay coupled with considerations of prejudice and public interestwould have resulted in a stay under Morin: R v McManus 2017 ONCA 188; R v Gordon 2017 ONCA 436 , 2017 348 CCC (3d)426 (Ont. CA). In the very recent decision of R v Payne 2017 ONCJ 517 Monahan J. of this Court described the state of the pre-Jordanlaw on tolerable delay in this jurisdiction. He wrote: [37] The Morin framework set out guidelines for institutional and Crown delay of 8 to 10 months. How was Morin being appliedpre-Jordan in Brampton?

To answer that question, I note that for a straightforward case in Peel, the 8 to 10 month Morin guidelines hadbeen revised downwards to 8 to 9 months (see R. v. Rego (2005), (ON CA), 204 O.A.C. 281 (C.A.) at para. 4). I notefurther that in the Ontario Court of Justice in Brampton prior to Jordan, stays were often issued under the Morin framework where theinstitutional and Crown delay was in the range of 10 to 13 months and the overall delay was under or above 18 months. The number ofstays granted in these circumstances are too numerous to mention and in some cases are unreported.

By way of example only from thereported cases, I note that stays were granted under s.11(

b) in the following Brampton cases prior to Jordan: R. v. Barnes, [2003] O.J.3217 (overall delay of 16 months and institutional delay of 13 months); R. v. Kielo, 2015 ONCJ 72 (overall delay of 14 monthsand institutional delay of 10.5 months); R v. Trocki , 2014 ONCJ 693 , (overall delay of 13 months and institutional delay of 10months); R. v. Neave, [2014] O.J. 6023 (overall delay of 17 months and 12 months institutional and Crown delay); R. v. Cai, [2014] O.J. 6586 (14 months delay overall and 12 months institutional delay); R. v.

Lalani (2014), 62 M.V.R.(6th)159 (22 months overall delay and12.5 months institutional and Crown delay); R. v. Tobin (2013), 281 C.R.R. (2d) 210 (overall delay of 17 months and 11.5 months ofinstitutional and Crown delay); and R. v. Ramon, [2011] O.J. 6644 (overall delay of almost 13 months and institutional delay of 10months and 19 days). I note as well that the Ontario Court of Appeal upheld a s.11(

b) stay granted in Brampton where there was 14months overall delay and 12 months institutional delay: see R. v. Rego, supra. I do not say that stays were always granted where theinstitutional delay and Crown delay was 10 to 13 months. In some cases they were not granted: see for example R. v. Apolinario (2007),59 M.V.R. (5th) 241 (17 months overall delay and 11.3 months institutional delay); R. v. Purewal (2014), 313 C.R.R. (2d) 128 (17months overall delay and 11.5 months institutional delay); R. v. Lof, [2004] O.J.

No. 4963 affirmed 28 M.V.R. (5th) 150 (19 monthsoverall delay and 9.5 months institutional and Crown delay); and R. v. Zieba, [2014] O.J. 5557 (overall delay of 17 months andinstitutional and Crown delay of 11.5 months). Where the institutional and Crown delay was in the range of 10 to 13 months, thequestion of a stay would often turn on the issue of prejudice and the other Morin balancing factors including the seriousness of thecharge. 50.

In transitional cases the seriousness of the offence and presence or absence of prejudice to the accused still have a role to playwhereas, in a non-transitional case they do not: (Cody para 70: Jordan para 81). It is argued that this case is one to extend flexibilitysince the time period is not greatly beyond the Jordan ceiling, the charge is very serious and while there is prejudice, it is not over-whelming. 51. But I don’t think that position can be accepted. First it must be said that transitional flexibility is tied to its rationales – reliance onformer law or insufficient time to adjust.

Neither applies here. Further, the delay when measured on the Morin scale is significantly inexcess of the standards in this Court before Jordan, as the above excerpt from Payne demonstrates. In addition, in this case there is asignificant component of Crown delay, an aggravating feature: see Payne para 43. Finally, while the prejudice here is largely of thestandard variety suffered by most accused – anxiety, sense of uncertainty about the future, disruption of sleep, concentration and productivity – its significance to any particular accused is not diluted just because it is a misery that has company.

It is surely the“exquisite agony” memorably identified in Askov. Unreasonable delay in the proceedings prolongs and compounds this agony even if itoriginates with being charged. 52. It must be recognized that the effect of Jordan for this Court has been to presumptively expand what had become the normaltolerance for delay. It gave the Crown a break – some breathing room, as it were. But this case fails even the extended period. In myview the weight to be given to the seriousness of the offence is considerably diminished by the fact that much of the delay here waswithin the Crown’s control to avoid or alleviate.

In these circumstances this case, being beyond both the Morin and Jordan limits andaugmented by prejudice cannot be saved.

Conclusion: 53 . I am satisfied that the defendant’s right to trial within a reasonable time has been infringed or denied. The proceedings are stayed. August 21, 2017 B Duncan J B. Fox for the defendant J. Campitelli for the Crown Appendix A: e-mails From: “Campitelli, Jennifer” – [email address redacted] : November 17, 2016 at 4:52:43 PM AST To: [Barry Fox – email address redacted] Subject: Mr. Zamani Hi Barry, I have made contact with the trial coordinators office. I have learned that they have dates as early as April for 4 day matters; however, 5 day matters are currently being set much later.

I have reviewed the file, and if we are able to come to agreement with respect to the less contentious evidence, I imagine this matter could definitely be completed in 4 days. There is certainly a

section 7 issue with respect to the US customs notes not being in existence, and I imagine you might have a

section 10 argument with respect to the inculpatory statement Mr. Zamani makes when he is picking up his property. However, once those issues are decided, the triable issues are likely knowledge (and perhaps continuity). Again, if Crown and Defence work together, utilizing tools such as continuity affidavits for the less contentious evidence, I feel we could complete the matter within the four days available. However, I wanted to get your take on the issue? I have corresponded with our Paralegal Ms. Tanti, who will be there tomorrow to set dates. She will give Mr. Zamani’s matter priority.

Let me know what you think, Jennifer Jennifer Campitelli …………............... From: barry fox Sent: Thursday, November 17, 2016 9:22 PM To: Barry Fox; Campitelli, Jennifer

Subject: Re: Mr. Zamani Hi Jennifer, since I’m not in the officer (sic) at this time and won’t be there until Monday night I’m unable (at this time) to agree to a revised time estimate based on the concessions that you’ve suggested in your email. I suggest that we set at least five days for trial and motions at this trial time and if we can agree on a reduced trial estimate then we can bring it forward and get an earlier date. Thx, Barry Appendix B:

Summary of Disclosure History [13] • December 9 – arrest • February 12 – third court appearance –some disclosure given to the defence – “a small amount of paper” a DVD and 2 cd’s – said to be “phase one” of disclosure • Feb 23 – letter from defence counsel requesting all videos and DVDs including cell video and also seeking return of seized property • March 4 – fourth court appearance – defence mentions the outstanding request for video disclosure – Crown refers to disclosure given February 12 as including the accused’s statement and suggests that any further video disclosure requested should not prevent the case from moving forward.

Defence agent said that the matter would be discussed between counsel at the Crown pre-trial that he was about to book. • March 18 – fifth court appearance – defence has not yet been able to book Crown pre-trial ( see affidavit of defendant sworn May 10 2017 para 11g- App record Tab 4 ) • March 30 – Crown pre-trial held – Crown required time to review file – disclosure lacking – no notes of Canada Customs officers, American Customs officers and other items (see affidavit of defendant sworn May 10 2017 para 11h- App record Tab 4 ) • March 31 – letter from defence counsel following up on pre-trial listing 13 outstanding disclosure items – all videos, the ITO for the search/general warrant , and notes of 13 named police officers and un-named Customs officers in Canada and US.

The letter also repeated the request for return of property [14] • April 25 – same disclosure request letter sent for second time • May 9 – same disclosure letter sent for third time – three items have check marks beside them possibly indicating already received • May 27 – eighth court appearance – first reference to any additional disclosure being provided since February 12 • June 17 – ninth court appearance – DVDs provided – reference made by Crown to disclosure request letters – Crown says action about to be taken to respond to items re American customs officers and ITO – Crown requests a further month

• June 20 – substantially same disclosure letter sent for fourth time – except defence now wants confirmation that he has now been given all videos – officer notes less one (Nebbs) again requested – return of property again requested • July 15 – tenth court appearance –defence agent says still waiting for ITO and notes of 12 officers and agents – Crown has no additional disclosure to give • July 19 – defence counsel sends substantially same disclosure request letter for 5 th time • July 30 – Crown pre-trial attempted – Crown could not locate its brief but suggested that there be no further Crown pre-trials (see comments of defence agent to court Aug 5 transcript) • August 5 – eleventh court appearance – defence says it now has the ITO but is still waiting for the other items – the Crown for first time identifies a named Crown counsel who will be following up on the disclosure.

Crown requests a further short remand • August 11 – substantially the same disclosure letter sent though with some items checked off, presumably received • August 26 – twelfth court appearance – disclosure delivered in court – it is said to be substantially complete though there is some later correspondence from defence counsel to clarify some points [6] Note that the Crown’s email was sent at 4:52 pm on November 17; the defence response was at 9:22 that same evening.

The trial dates were to be set the next day. [8] In her affidavit the defence paralegal maintained that there was never any mention by the Crown paralegal or the trial coordinator about 4 days being available in April or any suggestion that 4 days be set. Though the defence paralegal was not cross-examined, I accept the Crown paralegal’s version of what occurred as it is more consistent with the email exchange between counsel from the previous evening.