R. v. Carreiro, 2011 ONCJ 166

COURT FILE No.: Region of Durham 998 08 26826 DATE: 2011·03·23 Citation: R. v. Carreiro , 2011 ONCJ 166 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Tony Carreiro Before Justice J. De Filippis Heard on January 10, 2011 Reasons for Judgment released on March 23, 2011 Mr. D. Barrison ........................................................................................................ for the Crown Mr. J.

Erickson ........................................................................................................ for the accused De Filippis, J.: Introduction [ 1 ] The applicant is charged with offences under three statutes: Possession for the purpose of trafficking in a variety of drugs contrary to the Controlled Drugs and Substances Act; possession of a prohibited weapon and failure to comply with probation, contrary to the Criminal Code ; and possession of tobacco products not stamped in accordance with the provisions of the Excise Tax Act. [ 2 ] The Applicant seeks an order, pursuant to Section 24(1) of the Charter of Rights and Freedoms that these proceedings be stayed on the basis that his right to be tried within a reasonable time has been infringed, contrary to

section 11(

b) of the Charter . The total delay between arrest and the start of trial is 30 months and 5 days. After considering written and oral argument I stated that, although concerned by reasons for delay, given the length of delay, nature of prejudice, and societal interest in a trial on the merits, the motion is dismissed for written reasons to follow. These are the reasons. History of Proceedings [ 3 ] The Applicant was arrested, along with two others, on July 4, 2008 by the Durham Regional Police Service. Soon after, Cst. Cameron applied for a Telewarrant to search the Applicant’s residence and vehicles.

Although his first application was denied, a second one was granted at 4:45 a.m. on July 5, 2008. It is alleged that police seized the following items in the Applicant’s residence: 439 grams of cocaine, 1,236 grams of marihuana, 137 oxycodone tablets, 66 percocet tablets, 736 morphine tablets, brass knuckles, digital scales, several cell phones, a “large quantity” of Canadian currency, and “drug packaging material”. The Crown claims he was trafficking from his home. [ 4 ] The Applicant was held for a bail hearing and released on July 7, 2008 upon entering into a $5,000 recognizance with his mother as surety.

The conditions of his bail require him, among other things, to: (

a) reside with his mother at her residence in Toronto and be amenable to the rules and discipline of her household; (

b) remain away from his own residence at in Oshawa, except on one occasion when, in the company of a uniformed officer of the Durham Regional Police Service, for the purpose of obtaining his personal belongings; and (

c) not possess any cellular telephones and pagers. [ 5 ] On August 6, 2008, the Applicant appeared in court, in answer to the Code and CDSA offences, with a letter from his lawyer, Mr. Klumak. The Applicant was provided with some initial disclosure and told to have his lawyer write to the Crown for additional disclosure. This disclosure did not contain the notes of all the investigating officers, the Telewarrant, and the two Informations to Obtain which had been submitted by Cst. Cameron. On August 27, the Applicant attended for his second appearance and was provided with further disclosure.

Some officer notes, the Telewarrant and the two Informations to Obtain, were still outstanding. Subsequently, the Applicant was charged with the Excise Act offences. [ 6 ] On September 12, the Applicant attended for his third appearance, and his first for the Excise Act charge, at which time the Provincial Crown advised that it was delegating prosecution of the Code offences to the Federal Crown. On September 26, the Applicant appeared again and indicated his counsel had asked him to keep remanding the matter two weeks at a time. As of this date, the Crown

had not provided additional disclosure nor, it seems, had the Defence pursued it. The Applicant was remanded to October 10 to be “married up” with his two co-accused who had been appearing on others dates. The Applicant did not appear on that date until 12:11 PM, by which time his co-defendants had been dealt with. He was taken into custody by virtue of a bench warrant and released the next day on the same recognizance. He was ordered to appear on October 21 to join his co-accused. On October 21, the Applicant’s sixth appearance, a Judicial Pre-Trial (or “JPT”) for all parties was set for December 10.

On November 23, the Crown sent the notes of the remaining two officers to the Applicant’s counsel. Disclosure of the Telewarrant and Informations to Obtain remained outstanding. [ 7 ] On December 10, 2008, a JPT was conducted before Justice Devlin at which time outstanding disclosure issues were discussed. The Crown stated that disclosure of the officers’ notes was being made in a “piecemeal” fashion because that is how they were being provided to him.

He also stated that he had received a copy of the Telewarrant and the second Information to Obtain that morning and had not had an opportunity to vet it for disclosure. The matter was adjourned to allow the Crown to review the Telewarrant and the Information to Obtain and for Mr. Klumak to obtain instructions from the Applicant about potential resolution of the case.

The co- defendants were also remanded to that same so the Crown investigate information provided by their lawyers which might exonerate them. [ 8 ] On December 19 the Applicant appeared in court and was provided with the Telewarrant and second Information to Obtain (but not the first) and he was remanded to January 16, 2009. The co-defendants were remanded to December 22, 2008 at which time their charges were stayed at the request of the Crown. [ 9 ] On January 16, 2009, the Applicant appeared in court and advised he had discharged Mr. Klumak and obtained an adjournment to retain Mr. Erickson.

On January 30, the case was adjourned again to permit Mr. Erickson to receive the disclosure material from previous counsel and to review it. On February 19, Mr. Erickson appeared in court with the Applicant and the case was set down for a continuing JPT with Justice Devlin on March 11. This JPT was adjourned at the request of the Defence. On April 14, JPT was conducted: The Crown elected to proceed by Indictment on the drug and weapons offences and summarily on the Excise Act charges.

The Applicant elected trial by judge and jury and the matter was set for a 1-day preliminary hearing, to proceed on September 4, 2009. A Confirmation Hearing set for June 26. The Defence requested disclosure of the first (unsuccessful) Information to Obtain. [ 10 ] At the Confirmation Hearing, the parties advised that, in light of the correspondence which they had exchanged since the JPT, an additional day would be required for the preliminary hearing so that the Defence could bring a “Dawson Application”.

Accordingly, the September 4 date was fixed for the Dawson Application and the preliminary hearing was set to continue on October 1, 2009. The case did not proceed as scheduled on September 4 because the Applicant had not received disclosure of the first Information to Obtain (i.e. the one which had been rejected). In responding to this application to stay proceedings, Crown counsel acknowledged that it had been requested by the Defence at the April JPT but the matter had “slipped through the cracks” at his office. Crown counsel added that since April the Defence had not pursued the disclosure request.

In any event, the affiant was not available on that day to be cross examined pursuant to the Dawson Application. Defence counsel advised that committal for trial would be conceded and that the only purpose of the preliminary hearing was discovery; that is, to hear from the affiant and certain other officers. Justice Bellefontaine, who was scheduled to preside at the preliminary hearing, suggested that the case start with the discovery of the other witnesses.

This offer was not taken up; given the Defence interests in the preliminary hearing, the parties agreed to adjourn the case to October 1 in the expectation it would be completed that day. [ 11 ] On October 1, the preliminary hearing did not proceed because Defence counsel had just received disclosure of the first Information to Obtain that morning. Although referred to in the second Information to Obtain, the first had not been disclosed with the second on the previous court date.

Soon after that date the Crown obtained an order from the court to unseal the Information in question so that it could be reviewed and disclosed. For reasons that are not clear, it took three weeks for court staff to act upon the order and give the document to the Crown. The court offered October 7 and 8 to for the preliminary hearing but Defence counsel was not available. Thus, it was fixed for March 5, 2010.

The parties would later learn that the affiant would not have been able to testify on October 1. [ 12 ] On March 1, the Crown advised Defence counsel that he would seek an adjournment as he had been informed the affiant, Cst. Cameron, had been charged with firearms offences on September 30, 2009. The Crown had also received the following email from Sgt Wilson of the Professional Standards Unit: Please be advised that the Durham Regional Police has received a doctor’s report regarding Ian Cameron. The report advised that Ian Cameron cannot attend court as required due to medical issues.

The report also advised that he may be able to appear after April 3, 2010 but that date is subject to review. During argument on this application to stay proceedings, the Crown advised that as a result of the charges laid on September 30, Cst. Cameron plead guilty to assault and faces continuing disciplinary hearings pursuant to the Police Act. [ 13 ] The case was adjourned to March 18, 2010, to be spoken to, so the Crown could provide “McNeil Disclosure” in relation to the officer. Disclosure was provided on March 16, but Defence counsel claimed it was insufficient.

The case was adjourned to April 8 for the Crown to look into the matter further. On April 6, the Crown advised the Defence that it considered the McNeil Disclosure to be complete. [ 14 ] Due to a misunderstanding, neither the Applicant nor his counsel appeared on April 8 and the matter was eventually adjourned to May 6. Meanwhile, the Defence advised it wished to re-elect trial in the provincial court. This was done and a trial was fixed for January 10-12, 2011 with a half-day disclosure motion to be heard on November 4, 2010.

The latter was resolved by the parties and did not proceed. [ 15 ] On January 4, 2011 the Crown was provided with a copy of a letter received that day by the Durham Regional Police from Dr. O’Brien. It reads, in part, as follows: I am PC Cameron’s treating psychologist. I am writing to confirm that he has been undergoing a lengthy period of psychological treatment for a serious posttraumatic stress disorder. Unfortunately, PC Cameron’s condition has recently intensified secondary to his

exposure to a high level of psychological stress. ….In my opinion…his participation in any Court proceedings should be avoided….Hiscondition will be reassessed in the next six to eight weeks… [16] On January 10, 2011 the trial commenced with the present motion to stay proceedings. Assertion of Prejudice [17] The Applicant, who has no prior criminal record, asserts that the delay in this case has caused him stress and anxiety thathas worsened over time. Consequently, he has had difficulty sleeping and concentrating.

In cross-examination he stated that when hesaw his doctor about these symptoms, he was not prescribed medication. He also testified that his bail requirement to live with hisparents in Toronto and to remain away from his own residence in Oshawa means he has been unable to deal with acts of vandalism at hishome. In this regard, he maintains that the Durham police have failed to respond to his reports of vandalism. [18] The Applicant claims he is the subject of police harassment because officers have been attending at his parents’ home onthe “pretext” of seeing whether or not he still resides there.

On each occasion, the Applicant has complained to the officers that they areshowing little or no regard for his and his parents’ privacy or how their visits are perceived by their neighbours, some of whom now shunhim and his family. This has aggravated his feelings of shame and embarrassment at being charged with the offences. The Applicantalso testified that since these charges were laid he has been stopped and searched “on almost a daily basis” by police and forced to exitthe vehicle and lie on the pavement.

The Applicant stated that this constant harassment makes him fearful that through amisunderstanding or false allegation, he will be charged with breaching his bail terms. When challenged about these claims, thedefendant conceded that these events did not occur almost daily, but insisted they were numerous. [19] The Applicant is worried that the delay may affect his memory of the events as well as the memory of any witness hemight call to testify, thereby affecting his ability to defend himself.

In cross-examination, he admitted that this arrest was a significantevent in his life that one would not likely forget, but he remains worried that he will remember it “in bits and pieces”. Finally, he alsoasserts that the delay has caused unnecessary expense and forced him to re-elect to have a trial in the provincial court and not takeadvantage of a preliminary inquiry and subsequent trial in the superior court. Test for Unreasonable Delay [20]

Section 11(

b) of the Charter provides that “any person charged with an offence has the right … to be tried within areasonable time.” In R. v. Morin (SCC), [1992] S.C.J. No. 25, the majority of the Supreme Court of Canada held that theprimary purpose of the provision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speakingfor the majority, Justice Sopinka (at para 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 to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh. Justice Sopinka recognized a secondary societal interest that is protected by

section 11(b), namely, that those accused of crimes bebrought to trial and dealt with according to law. [21] The decision as to whether s. 11(

b) has been infringed is not to be made 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. Some delay is inevitable. The question is when is itunreasonable? That question is to be answered in light of the following (Morin, para 31): 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 the delay; 4. prejudice to the accused. [22] A waiver of delay must be clear and unequivocal. Consent to a trial date without any comment or explanation mayamount to waiver but not if it merely acknowledges the inevitable. All prosecutions have certain inherent time requirements which lead todelay; these include the first appearance, retaining counsel, disclosure, and the resolution meeting. In R v Meisner [2003] O.J. No. 1948

at para 32, Justice Hill held that a period of two months is a normal feature of a case entering the Ontario Court of Justice. This period isto be considered neutral. Inherent time requirements may be extended in complex cases. The actions of the parties that cause delay mayalso be relevant (Morin, para’s 33 – 46). The failure to provide timely disclosure is Crown delay. [23] The time period for delay due to limitation of institutional resources starts to run when the parties are ready for trial butcannot be accommodated.

In this regard, Justice Sopinka stated that an appropriate period of institutional delay in the provincial courtsis eight to ten months and, for cases in the superior courts, a further six to eight months from the preliminary hearing to trial (Morin, para55). [24] The fact that the right to be tried within a reasonable time has been enshrined in the Charter implies, in and of itself, thataccused persons suffer prejudice when their trials are delayed and that prejudice can be inferred from prolonged delay even in instanceswhere no actual or direct evidence of prejudice is presented by the accused.

In R v Askov (SCC), [1990] S.C.J. No. 106at para 46, Justice Corey noted that “There could be no greater frustration imaginable for an innocent person charged with an offencethan to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in theirtrial”. [25] In R. v. K.G., 2009 ONCA 131 the Court of Appeal for Ontario cited with approval its earlier decision in R. v. Qureshi(2004) (ON CA), 190 C.C.C. (3d) 453 at para. 14: Two kinds of prejudice are relevant [on a s. 11(

b) application]. First, the court may infer prejudice from the delay itself and is more likelyto do so the longer the delay. On the other hand, an accused’s action or inaction that shows a desire to avoid a trial on the merits maynegate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice oran absence of prejudice. [26] The significance of actual or additional prejudice was highlighted by in R v Malcom [2008] O.J. No. 4665 at para’s 33-34,in which Justice MacDonnell made the following observations: Given that the primary purpose of s. 11(

b) is to protect the right of the accused to a fair trial, liberty, and security of the person, theprimary focus of the inquiry into whether the right has been infringed should be on whether the accused has suffered any real andsubstantial prejudice to one or more of those interests. In the absence of such proof “the basis for the enforcement of [s. 11(b)] isseriously undermined”: R. v. Morin, supra, at paragraph 61; R. v. Cranston et al, 2008 ONCA 751, at paragraph 73.

A failure toapproach the analysis in this manner risks trivializing a constitutional right and eroding public confidence in the proper administration ofjustice. [27] Prejudice may be inferred from the length of delay and, at some point, may be such that a stay of proceedings is requiredwithout proof of actual prejudice. In other cases, the application of

section 11(

b) of the Charter invites a balancing of delay andprejudice. In such cases, evidence of actual prejudice, suffered because of the delay, is important. Proof of significant actual prejudicewill inevitably lead to stricter adherence to the guidelines. Analysis [28] The total delay in this case, between arrest and trial, is 30 months and 5 days. This length of time warrants an inquiry bythe Court. The Applicant submits that 25 months and 9 days of the delay in this case is attributable to limits on institutional resources andthe actions of the Crown.

In this regard, it is argued that the 15 month, 9 day period from October 1, 2009 to January 10, 2011 is Crowndelay caused by the multiple adjournments of the Applicant’s preliminary inquiry, first by failing to provide disclosure of the firstInformation to Obtain (i.e. the one that was rejected) and then by failing to advise the Defence in a timely fashion that Cst. Cameronwould not be available for the Dawson Application which had been set for March 5, 2010. [29] I do not agree with the Applicant’s calculation of delay. Before dealing with that, I will address the issue of prejudice.

The Applicant has experienced the prejudice inherent in delay. I accept that as real but there is nothing exceptional about it in this case. He is naturally nervous and concerned about the ongoing proceedings, but has not otherwise suffered physical or emotional harm. Moreover, his claims of additional actual prejudice are exaggerated and speculative. He has not been constantly harassed by police andany interest the latter had in him is due to the charges. There is nothing to support the assertion the Applicant will forget his arrest orversion of events with respect to the allegations.

Finally, having regard to those allegations, his bail order is not unduly restrictive. [30] The five month period from July to December 2008 encompassed the arrest, initial appearances, disclosure (of allinformation except the Telewarant and the two Informations to Obtain) and the first J.P.T. It should be noted that the investigation ofthis matter was largely complete upon arrest. The Applicant argues that most of this delay is attributable to the Crown because of thepiecemeal and incomplete disclosure.

The Crown submits that this period includes the normal intake process with the remainderattributed to institutional delay because of the requirement in Durham Region for a JPT in cases such as this.

The Crown also notes thatthe Defence “did not appear to in a hurry” – a reference to the Applicant’s statement to the court that his (first) lawyer had told him toApplicant keep adjourning the case for two weeks at a time. [31] It is agreed that the 3.5 month period of delay from early January to mid-April 2009 is attributable to the Defencebecause the Applicant changed counsel and the latter set a new JPT At that JPT the Defence requested disclosure of the Telewarrant andInformation to Obtain.

It is also agreed that the following 5.5 month period until September 4, the date fixed for the preliminaryhearing, is institutional delay. I also consider the following month (i.e. to October 1) to be institutional delay, as this second day for thepreliminary hearing was set to permit the Defence to proceed with a Dawson Application. [32] The Applicant submits that the five month period from October 2009 to March 2010 is Crown delay because of thefailure to disclose the requested search warrant material before the date fixed for the preliminary hearing.

The Crown concedes thisadministrative error but points out that during the previous five months that the Defence did not follow up on the disclosure request and,

more importantly, it is now known the Dawson Application could not proceed due to the absence of the material witness. Having regard to the latter, the Crown submits this delay is neutral. I note that neither party took up the court’s offer to begin the preliminary hearing with other witnesses. [ 33 ] It is agreed that the two month delay between March and May 2010 is due to the Defence request and Crown inquiries with respect to McNeil Disclosure arising from the fact that the affiant had been charged with offences.

I note, however, that those charges were laid in September 2009 and the Crown was only advised shortly before the new date for the preliminary hearing. [ 34 ] The Crown submits that the eight month period from May 2010 to the start of the present trial should be considered neutral because the affiant remains unavailable to testify.

In this regard, I note that it is clear from the record on this motion, as well as the submissions of counsel, that the principal issue at his trial is the pending Charter motion to exclude the evidence obtained as a result of the Telewarrant; that is, the drugs, drug paraphernalia, money, tobacco and weapon. As such, the affiant, Cst. Cameron, is the essential witness at trial. [ 35 ] The affiant was not an essential witness at the preliminary hearing. The Crown could have proceeded without him on March 5, 2010.

However, it was understood, as of September 2009, that the Applicant wished to proceed with the Dawson Application before hearing other witnesses and he later conceded committal for trial. Thus, discovery of the affiant was necessary from the defence perspective. Discovery is a secondary purpose of the preliminary hearing. In R v Tilden 2009 SKQB 495 , it was held that delay due to the illness of an essential witness is presumptively neutral. [ 36 ] The Applicant did not waive delay. However, while represented by his first lawyer, he seems to have not been unduly concerned by it.

I also note that in the five months leading up to the first preliminary hearing the Defence did not renew its request for disclosure of the outstanding Information to Obtain. Moreover, as of the second preliminary hearing date in March 2010, the Defence had still not filed a Dawson Application. [ 37 ] The Crown cannot be proud of how it has managed this prosecution, especially with respect to the provision of disclosure.

Errors in office administration will occasionally arise and can be forgiven, but the real problem in this case seems to be the relationship between the local Federal Crown Agent and the Drug Enforcement Unit of the Durham Regional Police Service. A review of the record in this matter, including the transcripts of the relevant court appearances, and the written and oral submissions of counsel leads to the conclusion that the Crown was not in control of the disclosure process. The Crown gave the Defence copies of officer notes as it received them, in “a piecemeal fashion”.

In addition, the police did not provide the Telewarrant and Informations to Obtain to the Crown in a timely manner. The fact that the latter were ordered sealed by the issuing Justice should not prevent a meaningful exchange of information between prosecutor and police so that disclosure could be prepared. In any event, the Telewarrant should have been immediately given to the Crown and an early application made by the prosecutor to unseal the Informations to Obtain for vetting and disclosure. In making these comments I note that this was not an unduly complex investigation and it concluded with the arrest.

It is obvious that, at no time, did the police prepare a proper disclosure package for the Crown. [ 38 ] It has been almost 20 years since the report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (the “Martin Report”). That report set out the obligations of Crown, Defence and Police with respect to disclosure. The local drug squad and Federal prosecutor would be well advised to re-read that important document. It seems necessary for me to point out that the duty to disclose falls upon the Crown and cannot be controlled by others.

The police will want to ensure that disclosure does not compromise confidential sources, ongoing investigations, certain police techniques and similar matters. A proper relationship between Crown and police and appreciation of their respective duties, as set out in the Martin Report, will address such issues. It is not appropriate for the Crown to simply await receipt of information from the police so that disclosure can be made to the Defence. [ 39 ] To repeat, some delay in getting to trial is inevitable. The question is when is it unreasonable?

In applying the Morin criteria, I find the periods of delay to be as follows; Intake: Two months (July-September, 2008) Institutional: Six months (December, 2008-January, 2009; April-September, 2010) Neutral: 10 months (March-May, 2010 for McNeil disclosure; May 2010-January 2011 because essential witness ill) Defence delay: 3.5 months (January-April, 2009 for change of counsel) Crown delay: Nine months (for delay in disclosure of officer notes and search warrant material from September 2008-January 2009 and continuing delay with respect to the search warrant material from October 2009-March 10.

The latter five months of this delay is actually due to both the failure of the Crown to disclose and the unavailability of an essential Defence witness, but having regard to my comments about disclosure in this case, it is appropriate that the Crown be held responsible). [ 40 ] The total period of institutional and Crown delay is 15 months. Ironically, that is within the guidelines for a trial in the superior court, after a preliminary hearing (i.e. 14 to 18 months).

I make that point because, in one sense, this case proceeded in a similar fashion: The case was initially set down for a preliminary hearing, committal for trial was later conceded (with a focus on discovery of the affiant who obtained the search warrant) and followed by a re-election to have a trial in the same court. Conclusion [ 41 ] The fact remains that this case never left the provincial court and the institutional and Crown delay exceeded the guidelines. The reasons for that delay are a matter of concern. I accept that the Applicant has experienced stress while awaiting trial.

However, he has not persuaded me he suffered the additional prejudice pleaded and testified to. Moreover, the delay has not compromised the fairness of the trial or materially affected the Applicant’s liberty and security. Finally, the serious nature of the allegations heightens the societal interest in a trial on the merits. This is a close call but in all the circumstances, I am not persuaded that

section 11(

b) has been infringed and that these charges should be stayed. [ 42 ] The application is dismissed. Released: March 23, 2011 Signed: “Justice Justice J. De Filippis”