R. v. Gerassimou, 2016 ONCJ 378

ONTARIO COURT OF JUSTICE CITATION: R. v. Gerassimou , 2016 ONCJ 378 DATE: 2016·06·22 COURT FILE No.: Toronto 100970 BETWEEN: JOHN GERASSIMOU — AND — HER MAJESTY THE QUEEN Applications Pursuant to s. 8 and s. 11(

b) of the Canadian Charter of Rights and Freedoms Heard Before Justice of the Peace M.H. Conacher Ruling Orally: April 14 th , 2016 Written Reasons: June 22 nd , 2016 D. Knipe ..................... for the Provincial Prosecution/Respondent Y. Obouhov ........................................... for the Defendant/Applicant JUSTICE OF THE PEACE CONACHER: [ 1 ] These are the reasons for the decisions that were given orally on April 14 th , last. They relate to applications by Mr. Gerassimou for findings that his rights pursuant to s. 8 and s. 11 (

b) of the Canadian Charter of Rights and Freedoms had been violated. Mr. Gerassimou seeks the relief provided for by ss. 24 (1) of the Charter. [ 2 ] These applications were brought in the context of a trial of Mr. Gerassimou on several charges under the Highway Traffic Act. It was agreed by the parties to argue the applications for the apprehended s. 8 and s. 11 (

b) breaches jointly and to do so at that point in the trial proceedings when the Prosecution sought to introduce the evidence that Mr. Gerassimou was arguing was obtained as the result of a breach of his s. 8 right. [ 3 ] It is for the Applicant/Defendant to establish, on a balance of probabilities, that his Charter rights have been violated.

Section 8 Application [ 4 ] The Defendant raises two issues with respect to the allegation of a violation of his s. 8 right, those being: a. Did D.C. brown violate the right of the Applicant to be secure from unreasonable search and seizure guaranteed by

section 8 of the Canadian Charter of Rights and Freedoms , by obtaining a warrant to search based on misleading information, intentionally or otherwise; and b. Did the Justice of the Peace err in issuing a warrant to search with respect to the cellular telephone records of the Applicant? [ 5 ] If the answer is ‘yes’ to either or both of the above: c. Should the evidence obtained as a result of the violation of the rights of the Applicant under

section 8 be excluded pursuant to ss. 24 (1)?

Was the Information to Obtain Misleading? [ 6 ] In para. 8 of his

section 8 Charter application, Mr. Gerassimou asserts that Detective Constable Brown, in support of her application for a search warrant, “submitted an Information that can only be described as disingenuous, false and misleading.” He argues that the information as presented was slanted to obtain the issuance of the warrant, in other words that it was calculated to mislead. [ 7 ] The authority for issuing a search warrant under the POA is similar to the authority under the Criminal Code, s. 487 . The Provincial Offences Act provides: Search warrant 158.

(1) Where a justice is satisfied by information upon oath that there is reasonable ground to believe that there is in any building, receptacle or place, (

a) anything upon or in respect of which an offence has been or is suspected to have been committed; or (

b) anything that there is reasonable ground to believe will afford evidence as to the commission of an offence, the justice may at any time issue a warrant in the prescribed form under his or her hand authorizing a police officer or person named therein to search such building, receptacle or place for any such thing, and to seize and carry it before the justice issuing the warrant or another justice to be dealt with by him or her according to law. [ 8 ] There is no disagreement that there were offences that had been committed and that warranted further investigation.

On its face, it is established by the facts that have not been disputed so far that Mr. Gerassimou’s vehicle was involved in a collision at approximately 4 a.m. on January 25th, 2015, that a concrete barrier in the middle of the road had been driven through, that the car had then impacted a pole at the side of the road. The citizen who called 911 reported that they saw no one in the car or in the area.

When the police arrived there was no one in the car, no one in the vicinity, whoever was operating the vehicle had fled, the air bags had deployed, the car doors were locked, the glove compartment door was open and the compartment empty. So clearly, at a minimum, setting aside any issue of careless driving, the failure to remain and the failure to report were matters that warranted investigation. [ 9 ] The question resolves to whether the officer’s belief that Mr.

Gerassimou’s cell phone records would afford evidence of the commission of an offence was reasonable in the circumstances as they were known to her or reasonably and honestly believed by her at the time that she applied for the search warrant. Did she selectively present information in her application? Was there material information known to her that she failed to include that could have pointed away from Mr. Gerassimou as the operator of the vehicle? [ 10 ] Her belief, as set out in the I. T. O. was founded on a number of specific points. Subsequent to her interview with Mr.

Gerassimou on the afternoon of January 26 th , 2015, in short, her belief was that Mr. Gerassimou’s explanation did not “line up”. While not expressly stated in the Information to Obtain (I.T.O.), the clear inference is that she simply did not believe that Mr. Gerassimou was being truthful or fully candid with her in the interview. She did not believe his explanation of where he was at the time that the incident occurred. [ 11 ] He told her that he locked his vehicle when he parked it on January 24 th , that the only key to the vehicle was in his possession, that he never lent the vehicle to anyone.

The vehicle at the accident scene, as reported by P.C. Beckwith, had been locked, there were no signs of forced entry to the vehicle and the ignition did not appear to have been tampered with. When asked by D.C. Brown in the interview if he had any explanation how the vehicle went missing Mr. Gerassimou told her he had no idea. [ 12 ] On the one hand she had information that, in D.C. Brown’s experience, was not consistent with the vehicle having been stolen. [ 13 ] On the other hand she had the information provided by Mr.

Gerassimou concerning his whereabouts before and after the accident and how he came to learn of his car’s whereabouts. In that interview, Mr.

Gerassimou advised that he had parked the vehicle near his residence in the northwest sector of the city at about 2:00 p.m. on January 24 th , that he’d gone into his residence and relaxed and studied for the balance of the day, emerging at 9:00 a.m. the following morning and saw that his car was “missing”, that he contacted the police, police records show, at 10 a.m. that same day and was told at that time where his car was. [ 14 ] He had attended at the impound lot of A Towing, at approximately 1:00 p.m. the afternoon of January 26 th , a day after the accident.

He was advised by an individual named ‘Mike’ to contact D.C. Brown. Mr. Gerassimou did call D.C. Brown from a cell phone number that was subsequently the subject of the search warrant application. Mr. Gerassimou having been asked to attend Traffic Services did so several hours later in the day accompanied by a friend who identified himself as an articling law student. Mr. Gerassimou granted D.C. Brown and P.C. Stoker a cautioned interview. Mr. Gerassimou’s statements were given voluntarily. [ 15 ] Mr. Gerassimou, subsequent to the recorded portion of the interview, confirmed his cell phone number to D.C.

Brown and indicated to her that he had a Rogers account. D.C. Brown has testified in these proceedings that that was not information provided in the recorded portion of the interview but rather as she was escorting Mr. Gerassimou to the front counter of Traffic Services afterwards. The Defence has raised this as an issue of concern, that this information was not recorded in her notes but rather was recalled by D.C. Brown many months after the fact. Under cross-examination during the voir dire, D.C. Brown testified that she was able to recall the information from memory. I found this to be credible. D.C.

Brown had no reason to be deceptive on this point. She already had the cell number that Mr. Gerassimou had used to contact her earlier in the day. She was confirming that that was his personal cell number. She or a fellow investigator could, and did, obtain confirmation of the service provider through other inquiries. [ 16 ] From her investigation to that point and given what Mr. Gerassimou has said to her in the course of the recorded

interview, that there were only two keys to the vehicle, that the second set of keys was with his parents in Windsor, that he had left the vehicle locked when he had parked it on the January 24 th , that he never lent the vehicle to anyone, balanced against his assertion that he’d gone into his residence at 2 p.m. on the 24 th and only noticed the vehicle was missing the following morning it is understandable that the officer would wish to evaluate the veracity of his information. [ 17 ] The only further investigation that was conducted prior to the laying of the charges and prior to the application for the search warrant was to have P.C.s Peschier and Stoker attend the towing compound to inspect the vehicle.

They observed that the locks on the vehicle appeared not to have been tampered with, the ignition was intact and there was no visible sign of forced entry. This was information consistent with that provided by P.C. Beckwith. [ 18 ] It is to be noted that there is a discrepancy between D.C. Brown’s assertion at the bottom of page 7 of her I.T.O. that when P.C.s Peschier and Stoker inspected the vehicle, “the vehicle was still locked.” Office Peschier testified at trial that when he inspected the vehicle it was not locked. He stated he walked up to the vehicle and opened the door.

In the full context of the investigation that’s perhaps not surprising. Mr. Gerassimou had, in the interim, attended at the towing compound and the key to the vehicle was still in his possession. Is that how the vehicle had become unlocked? Also, the fire department at the accident scene had cut the cables to the battery to reduce the risk of fire. Did the fire department access the passenger compartment for that purpose? Whatever the explanation, it was a misstatement of fact by D.C. Brown in her application but, given the other information that she had it was not materially misleading.

She was relying on what she understood her colleagues to have observed. Whether the vehicle was locked or not at the time that her colleagues attended to inspect it did not affect the significance of the other facts that she had before her and that were placed before the Justice of the Peace. [ 19 ] Again, given that the information that D.C. Brown had about the state of the vehicle, balanced against the information from Mr. Gerassimou as to his whereabouts, she disbelieved his assertion about parking the vehicle and remaining in his residence until the next day. This formed the basis for her belief that Mr.

Gerassimou was the operator of the vehicle. In all the circumstances outlined above, there was a reasonable probability that he was the operator of the motor vehicle. [ 20 ] One of the areas of contention for the Defence was that the I.T.O. should have included the observation that, notwithstanding the severity of the collision as evidenced by the front end damage to the vehicle and the deployment of the airbags, there were no visible injuries on Mr.

Gerassimou when he attended Traffic Services one day later. [ 21 ] Was it misleading for her to not include information about something that she did not observe, the absence of any sign of injury? She did not observe injuries to Mr. Gerassimou during the course of her dealings with him and evidently her notes do not indicate if she made any observation about the absence of visible injury. Would it have been better if she did? It may, perhaps, have provided a more complete picture for the reviewing Justice of the Peace. It would have been a fuller explanation.

Was it information essential to the determination of the merits of the application? Would it have led to a different outcome? Given the provisions of s. 158 I do not think that it would have. Is it evidence of D.C. Brown being intentionally deceptive by withholding information? She had information from P.C. Beckwith that there was no evidence of injuries, no blood, found at the scene, that the air bags had deployed and all the windows on the vehicle were intact. It would not have been remarkable to her that there were not visible injuries on Mr. Gerassimou.

I do not find that the failure to comment on that issue is evidence of deception on the officer’s part as distinct from simply failing to notice and to note the lack of apparent injury. [ 22 ] As well, the Applicant raises the issue of the failure to account to the Justice of the Peace for the delay in bringing the application for the search warrant and the failure to note in the application that there was a forthcoming trial date. [ 23 ] The Applicant has not established the authority for the proposition that the status of related court proceedings, in this case the elapsed time since the taking of the immediately preceding investigative step is a factor to be considered in making the necessary determination that a reviewing justice must make, that is, whether there are reasonable grounds to believe that an offence has been committed and that there is in a place something that will afford evidence of that offence.

As noted above, s. 158 (1) provides, in part, “the justice may at any time [emphasis added] issue a warrant …” [ 24 ] The timing of the application within the investigative process and the state of any court proceedings are not, in the absence of any other factors, relevant considerations in reviewing the application. [ 25 ] The Applicant’s contention that the lengthy delay in applying for the search warrant is suggestive of bad faith on the part of D.C. Brown has greater cogency. D.C.

Brown, in the present trial proceedings, explained the delay on the basis of her workload, that her partner had suddenly retired and she was burdened with his caseload, that there were traffic accidents involving fatalities that took precedence, and that she was training two officers new to her unit. She testified that, “she always intended to apply for the search warrant,” that the file was always on her desk and that she frequently re-played the recorded interview with Mr. Gerassimou. Contrasting with that testimony are the statements by the Prosecutor on November 16 th , 2015 when arguing for an adjournment.

The transcript of his statements to the Court suggest that it was only after a Crown Pre-Trial in June, 2015 that it was apparent that more investigation needed to occur, that the investigation was “re-opened”. The only further investigation that appears to have then been done was the application for the search warrant. The Prosecutor also suggested that a reason that D.C. Brown was delayed in applying for the warrant was due to the Pan Am Games and the assignment of many officers during the summer months to those duties. D.C.

Brown in these trial proceedings did not, herself, proffer that explanation. [ 26 ] While there is a discrepancy between D.C. Brown’s testimony on the point and the Prosecutor’s submissions in support of the adjournment, is that discrepancy evidence that D.C. Brown’s delay in applying for the warrant was motivated by bad faith, that she intentionally sought to cause delay? [ 27 ] I believe it is fair to impute to D.C.

Brown, an experienced police officer, knowledge that delays in proceedings give rise to these types of applications for a stay of proceedings and that the typical period beyond which delay is increasingly difficult to justify is 8 to 10 months. The November 16 th trial date fell precisely within those parameters. Delay would jeopardize, as it has, not only Mr. Gerassimou’s s. 11 (

b) right but also the proceedings that were based upon her’s and her colleagues’ investigation. On a balance of

probability, I cannot find that the delay in bringing the application for the warrant was motivated by bad faith. [28] The Applicant asserts that the I.T.O. should have noted that there was no evidence of cell phone usage within thevehicle, that there was no nexus between what was being sought and the nature of the offences being investigated. [29] While the I.T.O. did not make that explicit statement, it was very clear in the I.T.O. the purpose for which theinformation was being sought and why the affiant believed it would afford evidence of an offence; that it would show that Mr.Gerassimou was in the vicinity of the accident at the time that it occurred, a location which is a considerable distance removed from hisresidence.

On page 8 of the application, the affiant stated, “Information such as incoming and outgoing calls, data transmissions, cellulartower positioning, and SMS text messaging will reveal that the registered owner was in the area at the time of the collision.” It is clearthat the affiant is tendering and relying upon the assumption that where you find the cell phone you find its owner. Whether that is areasonable assumption in the context of this matter is a judicial decision and I will comment further on that issue, below. [30] While there were the several errors as outlined above, they were ones for which D.C.

Brown had a reasonable, good faithbasis for believing them to be true. The omissions and the information that she may have elected to include, for example the lack ofcomment regarding the lack of apparent injuries to Mr. Gerassimou, were not unreasonable given the information she had from herfellow officers who examined the vehicle. [31] I do not find, on a balance of probabilities, that these several omissions can be said to stem from a determination to affectthe review of the application or that the nature of the application was disingenuous or misleading and false.

Nor do I find that theinformation that the Applicant argues should have been included would have materially affected the conclusion to be drawn by anindependent reviewer. [32] Justice M.G.J. Quigley, in R. v. Mahmood, CRIMJ(P) 0108/07, Applicants Book of Authorities, Tab 2, stated: [85] Our Courts have repeatedly held that “mere suspicion” does not amount to reasonable and probable grounds. It iscolloquially said that a warrant is not a fishing licence and it cannot authorize fishing expeditions: R. v. Serendip PhysiotherapyClinic, (ON CA),[2004] O.J.

No. 4653 (C.A.) at para. 35; leave to appeal to S.C.C. refused [2004] S.C.C.A. No.585. That evidence may be found in a particular location or in the possession of particular persons that could substantiate charges willnevertheless form an inadequate basis to justify the issuance of a search warrant in the absence of a reasonable belief or reasonableprobability [emphasis added] that amounts to more than mere possibility or hope of obtaining material evidence of the commission of acriminal offence: R v. Debot (1989), (SCC) [33] On March 5, 2015, D.C. Brown laid a

Part III Information before a Justice of the Peace alleging the three offencesagainst Mr. Gerassimou that form these proceedings. The Justice of the Peace, having received the Information and having heard, ex-parte, the information upon which the allegations were based, saw fit to issue a summons to Mr. Gerassimou to attend court to answer tothe charges. [34] The Provincial Offences Act, s. 24, provides: Procedure on laying of information 24.

(1) A justice who receives an information laid under

section 23 shall consider the information and, where he or she considers itdesirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and, (

a) where he or she considers that a case for so doing is made out, … (ii) issue a summons in the prescribed form, or (

b) where he or she considers that a case for issuing process is not made out, (

i) so endorse the information … [35] D.C. Brown had formed the objectively reasonable belief that Mr. Gerassimou was the operator of the motor vehicle andhad presented information to a judicial officer sufficient to persuade that official that a case for requiring Mr. Gerassimou to attend courthad been made out.

This reinforces her assertions in the Information to Obtain regarding the reasonableness of her belief that hecommitted the enumerated offences. [36] The Honourable Justice Watt on behalf of the Ontario Court of Appeal, in considering the appeal of Justice Quigley’sabove decision, made the observation, “Cell phone use is ubiquitous. Users and their phones become one, inseparable.” R. v. Mahmood,2011 ONCA 693, para. 1. In seeking to supplement her investigation and in anticipation of the Defence position at trial, the belief thatMr.

Gerassimou’s cell phone records showing usage and cell tower location would provide evidence of his whereabouts was reasonable. [37] It is my finding that D.C. Brown’s belief that the requested cell phone and cell tower records would provide evidence ofthe commission of the enumerated offences was based on more than mere hope or suspicion, that it was at a minimum a reasonableprobability, and that her belief was an honestly founded and held belief.

Did the Reviewing Justice of the Peace Err? [38] The Applicant argues that the Justice of the Peace, given the information before him, should not have issued the searchwarrant and that to have done so was an error. [39] Justice Quigley’s comments in outlining the standard of review is helpful:

[83] … The Crown and the Applicants agree that the standard of review on this application is whether the authorizing justicecould have granted the authorization to issue those warrants. [84] Prior to issuing a warrant under s. 487 of the Criminal Code, the issuing justice must be satisfied that there are reasonablegrounds to believe that the object of the search will afford evidence with respect to the commission of an offence.

Where a warrant isissued on the basis of an information that does not set out facts upon which a Justice, acting judicially, could be satisfied providesadequate grounds to support it, the warrant is invalid, and a search or seizure carried out under the aegis of the invalid warrant isnecessarily unreasonable[4]. Accordingly, the task at this stage of this application is to determine, based on the record that wasbefore the authorizing Justices as amplified on this review, whether the authorizing Justices could have granted the warrantsthat they did: [emphasis added] R. v.

Harris and Lighthouse Video Centres Ltd. (1987), (ON CA), 35 C.C.C. (3d) 1(C.

A) at p. 23, leave to appeal refused [1987] 2. S.C. vii ; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at paras. 52-56; R. v. Grant (1993), (SCC), 84 C.C.C. (3d) 173 at paras. 48-50. [40] Proceedings under

Part III of the Provincial Offences Act are akin to

summary conviction proceedings under theCriminal Code. Accordingly, Justice Quigley’s above outline of the standard of review is guiding. [41] As are the comments of Gorman, J. in R. v. Tallick, 2014 NLPC 1313A00226, in summarizing the principles guiding atrial justice in reviewing applications such as this: [32] In

summary, the following principles apply when a judge is reviewing a search warrant for facial validity: -the reviewing judge has a limited mandate; -the reviewing process commences with presumption of validity; -the burden is on the accused to establish the search warrant’s facial invalidity; -the reviewing judge must consider the totality of the evidence contained within the information to obtain the search warrant; -the reviewing judge must keep in mind the ability of the issuing judge to draw reasonable inferences from the evidence contained withinthe information to obtain the search warrant; and -the question for the reviewing judge is not whether she or he would have issued the warrant, but whether there was sufficient credibleand reliable evidence disclosed in the information to obtain upon which the issuing judge could have issued the warrant. [42] I refer to the information contained in the Information to Obtain as set out above.

It was the Applicant’s vehicle. Therewas no apparent sign of forced entry. There was no indication that the ignition had been tampered with. Whoever was in the vehicle atthe time of the accident had locked the doors to the vehicle before fleeing. The Applicant had the only key. The key had never been lostor stolen. He was asserting he never lent the vehicle to anyone. He has no explanation as to how the vehicle went missing. Whenmaking the call to the main Toronto Police non-emergency number he was not sure whether it had been stolen. He advised D.C. Brownhe had locked the vehicle when he last parked it.

As of the time of the interview with D.C. Brown he had not filed a stolen vehiclereport. He stated he had no idea of the area where the accident occurred. He’d never heard of it. [43] It is readily apparent from that synopsis of information that Mr.

Gerassimou would be a prime suspect and that hiswhereabouts at the time of the incident would be directly relevant to the investigation and to any defence to the charges. [44] While there may not have been information provided in the I.T.O. regarding whether or not there was any evidence ofcell phone usage, as stated above the affiant had tendered the inference that, where you find the cell phone you find its owner. Thequestion for the Justice of the Peace to resolve was whether that is a reasonable assumption. [45] In R. v. Gill, [2012] O.J.

No 2511, 2012 ONCJ 326, 34 M.V.R. (6th) 340, 101 W.C.B. (2d) 629, 2012 CarswellOnt 6936,Justice Ready described the “notorious nature of a cell phone”. At paragraph 10: This is, in this court’s estimation, this is the 21st century. Cell phones are virtually used everywhere in the world by young and by oldalike. Who doesn’t have a cell phone? You carry a cell phone with you everywhere to all parts of the world. You use it to communicatewith others and it is used virtually non-stop daily.” [46] A cell phone is capable of receiving or transmitting telephone communications, electronic data, and text messages.

Theyhave become personal assistive devices, are highly personalized and often password protected to ensure use exclusively by the owner. As cell phones often contain highly personal information the courts have attached significant weight to privacy interests and to Charterissues as they relate to the search of the contents of cell phones. Also see the observation by Watt, J.A. cited above. [47] I find, therefore, that it was reasonable for the Justice of the Peace to accept the inference that, prima facie, where youfind the cell phone, you find its owner.

While it is a rebuttable presumption, it is reasonable on its face. [48] Further, with one exception, the nature of the search being requested was minimally intrusive. While the informationbeing sought pertained to Mr. Gerassimou, these were the business records of Rogers Communications, not the property of Mr.Gerassimou. The information being sought was, again with one exception, with respect to locating the cell phone registered with Rogersat the time of the incident. The search was specific to Mr.

Gerassimou’s number, unlike the Mahmood case tendered by the Applicant,and was limited to a relatively narrow time parameter. [49] The exception to which I refer is with respect to the request for the actual text or content of any SMS messages. Thiscasts too broad a net and, in any event, goes beyond the parameter of seeking to determine the location of the cell phone around the timeof the incident. It seeks to capture private information personal not only to Mr. Gerassimou but also to other individuals not necessarily

involved in this matter. In my view this information is clearly outside the scope of the intended purpose of the search warrant andconstitutes an unreasonable breach of Mr. Gerassimou’s s. 8 right. To have permitted the warrant to authorize the seizure of suchinformation was, in my view, an error.

The inclusion of this information would, in the absence of any justifying arguments orsubmissions, bring the administration of justice into disrepute. [50] Otherwise, unlike in Mahmood, the warrant sought specific information for a specific cell phone number during a verycircumscribed period and for only those cell towers through which the cell phone number was communicating during that period. Inother words, the search was minimally intrusive.

It was a search for information around which the Applicant had a reasonableexpectation of privacy but it was information around which there would be a reduced expectation of privacy. It was information thatwould, in itself, be incapable of revealing a biographical core of information about Mr. Gerassimou. S. 8 Charter Breach - Conclusion [51] While finding that the search warrant application was not based on false or misleading information, I do conclude thatthe Justice of the Peace did err in issuing the warrant insofar as he required the production of “the actual text or content of all SMS textmessages”.

The request for that information was a clear overreach of the purpose of the application, to gather information about thewhereabouts of Mr. Gerassimou’s cell phone during the relevant times. Given the potential to breach the privacy interests of individualsother than Mr. Gerassimou, the admission of that evidence would tend to bring the administration of justice into disrepute and they willbe excluded pursuant to ss. 24 (2) of the Charter. [52] However, the Applicant has not satisfied me that the Justice of the Peace’s decision was otherwise unreasonable.

Icannot conclude that the Justice of the Peace erred in requiring the production of the remaining items listed in Appendix A. TheApplicant has not overcome the presumptive validity of the warrant. [53] The requirement for the production of those items was reasonable in the circumstances. The records produced by RogersCommunications consistent with Appendix A to the search warrant will be admitted except, per clause b in that Appendix, “the actualtext or content of all SMS text messages”. S. 11 (

b) Application [54] The Applicant relies, essentially, on the arguments outlined in his Factum to meet his onus, on a balance of probabilities,that his right to be tried within a reasonable time was violated. [55] In

summary, he argues that this matter started very simply, that the original time estimate of one tier, or 1 ½ hours wasreasonable for a relatively uncomplicated case. The trial was set within the guidelines for setting matters down for trial and was done soat counsel’s, Mr. Obouhov’s, first appearance. The delay that then occurred when the matter was adjourned on the first trial date wascaused by the investigating officer’s unreasonably delayed application for the search warrant in total disregard for Mr. Gerassimou’s s.11 (

b) right, given the looming trial date. [56] It was conceded by the Applicant that three adjournments occurred at Mr. Gerassimou’s behest in order for him to retaincounsel. Nevertheless, the Applicant argues this is a simple case and given that there is significant specific prejudice involved, asoutlined in Mr. Gerassimou’s affidavit, the remaining overall delay of 10 months and 5 days, as the Applicant calculates it, in aProvincial Offences matter is unreasonable. [57] It should be noted that, contrary to Mr.

Gerassimou’s assertion in paragraph 3 of his Affidavit (tab 3, Application Record) that he was arrested on February 6th, 2015 and charged with these offences, he was in fact never arrested. Following his interview with D.C. Brown on January 26th, 2015 for which he was neither under arrest nor detention, he was next served on March 6th,2015 with a Summons to appear to answer to the charges. [58] R. v Morin, (SCC), [1992] 1 S.C.R. 771, continues to be the guiding case for assessing s. 11 (b)applications.

The analysis to be undertaken for assessing delay as outlined in Morin continues to be the proper template to be applied tosuch applications.

At the same time, the very careful, thorough and authoritative decision by Justice Libman in City of Toronto andAndrade et al, 2011 ONCJ 470 is guiding when applying the Morin framework of analysis to matters governed by the ProvincialOffences Act, especially within this judicial region, especially as set out from paragraph 40 and onward in the Andrade decision. [59] I remind myself of the proper framework of analysis as outlined by Justice Libman at paragraph 25 of Andrade: The factors which require consideration in the s.11(

b) analysis are the following: 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. 26 In R. v. Donaldson, 2010 ONCJ 3 at para. 19 , Horkins J. made these observations as to the inter-relationship of the above factors: The history of a typical criminal case will have two major chapters, firstly, the intake period leading up to the assignment of a trial date and, secondly, a period of time simply waiting for the scheduled trial date to arrive. A reasonable intake period is inherent in all cases and so considered neutral time in the s. 11(

b) analysis. Once the intake process is complete, the case is theoretically ready for trial. The backlog of other "ready" cases already set down for trial dictates the waiting time for a trial date.

The period of time from the setting of the trial date to the earliest available trial date is systemic or institutional delay. 27 As for the means by which a reasonable intake period is to be assessed and evaluated, as well as the amount of constitutionally tolerable institutional delay, the Supreme Court in Morin provided the following guideposts. 28 With respect to the former, the Supreme Court observed that all offences have "certain inherent time requirements which inevitably lead to delay." (Morin, para. 41 ). The complexity of the trial is one such requirement.

All other factors being equal, the more complicated a case, the longer it will take for the parties to prepare for trial, and for the trial to be conducted. Thus, the inherent requirements of complex cases such as fraud or wiretap prosecutions with numerous documents or dozens of witnesses will justify longer periods of delay than for cases which are more simple and straightforward. Each case, in other words, brings about its unique set of facts which must be evaluated.

Length of Delay [ 60 ] In Andrade Justice Libman was considering two alleged offences that were amongst the simplest and most straightforward of matters. They were commenced by way of

Part I Certificates of Offence, the Offence Notices for which had been served on the defendants at the road side on the day of the alleged offences.

Part I of the Act provides a distinct manner of instituting proceedings from that in

Part III, which was the process governing the proceedings against Mr. Gerassimou. [ 61 ] In addition to the nature of the provisions of the POA that were employed in the present case, there was, unlike Andrade, the additional complication that the responsible party had fled the scene and had failed to report the collision to police. Proceedings in this matter were not instituted until March 5 th , 2015 when D.C. Brown laid her

Part III Information before a Justice of the Peace who then issued a Summons to Mr. Gerassimou to appear in court on April 23, 2015. That summons was served on Mr. Gerassimou on March 6 th , 2015. The trial ultimately commenced 364 days later on March 4 th , 2016. Given the Morin suggested guidelines, that period invites further analysis to determine the reasons for delay. Waiver of Time Periods [ 62 ] There has been no implicit or explicit waiver of Mr. Gerassimou’s s. 11(

b) right. While this matter was adjourned three times in the early stages at the Defendant’s request in order to permit him to retain legal counsel there is nothing in the record of those adjournment proceedings that could suggest that Mr. Gerassimou was waiving his s. 11(

b) right. In fact, on the November 16 th , 2015 court appearance counsel for Mr. Gerassimou strenuously objected to the Prosecution’s adjournment request. [ 63 ] At the same time, these applications were not brought until February 17 th , 2 months after the judicial pre-trial at which time the new trial date was identified and 1 month after the confirmation hearing.

Reasons for Delay [ 64 ] Following a review of the transcripts of the court appearances in this matter, I have apportioned the time periods as follows: Date: Event: Reason for Adjournm’t: Elapsed Time: Attributable to: January 25/15 Incident n/a 1 Day Investigation Jan. 26/15 Interview with Mr.

G. n/a 1.25 months Investigation March 4/15 Information Laid – Proceedings Commenced To First Appearance 1.5 months Inherent time req’mt (Neutral) April 23/15 1 st Appearance – disclosure provided To Retain Counsel 1.5 months Defence June 4/15 2 nd Appearance To Retain Counsel .75 months Defence June 25/15 3 rd Appearance To Retain Counsel .5 months Defence July 16/15 4 th Appearance To Trial Date 4 months Institutional

Nov. 16/15 1st Trial Date O.I.C. notavailable & forJudicial Pre-Trial 1 month Prosecution Dec. 14/15 JPT To ConfirmationHearing 1 month Prosecution Jan. 15/16 Conf.

Hearing To Trial Date 1.75 months InstitutionalMarch 4/16 2nd Trial Date [65] In Morin, the Court stated, “the period to be scrutinized is the time elapsed from the date of the charge to the end of thetrial. “ In this case, we are in the midst of the trial as this matter is being considered. [66] As can be noted by the above chart analysis, the overall delay from the commencement of proceedings, the receipt of theInformation by the Justice of the Peace to the date when the trial commenced was one year.

Of the intervening time 1.5 months was“intake” or the time to first appearance and the preparation of disclosure, 2.75 months was to afford Mr. Gerassimou additional time toretain and instruct counsel, 5.75 months was institutional delay needed to accommodate the trial time required, and 2 months due to the Prosecution’s request for an adjournment on the 1st scheduled trial date. [67] The period of particular concern to the Defence is that 3.75 months resulting from the adjournment on the first trial datethrough to the second trial date.

As noted in paragraph 24, above, the Defence would attribute that principally to what it wouldcharacterize as the officer’s unreasonable delay in bringing the search warrant application. [68] The period of elapsed time from charge date to trial date that is attributable to institutional delay and to delayattributable to the prosecution is 7.75 months.

Viewed another way, the time from the date when the parties were set for trial, July 16, 2015 to the trial date, March 4th, 2016, was a couple of days beyond 7.5 months. [69] In Andrade, Justice Libman stated at paragraph 73: Using this period of institutional delay as a guideline for a

summary conviction criminal trial in this Provincial Court building, a periodof 8 to 9 months is therefore the constitutionally tolerable limit of systemic or institutional delay. I see no reason to adjust thisadministrative range upward or downward for the provincial offences charges in question, having regard to the fact that they consist,essentially, of a one witness prosecution, and involve simple and uncomplicated issues, namely, whether or not the prosecution canestablish that Mr. Andrade drove his vehicle with an obstructed plate and made unnecessary noise, and that Mr.

Hariraj was speeding,the latter being an absolute liability offence for which no defence of lack of fault may be raised. In the words of Justice Bellefontaine inDurham (Regional Municipality) v.

Saeed, 2010 ONCJ 251 at para. 2, these kinds of trials "are scheduled for and usually completed tothe conclusion of judgment and sentencing in 15 minutes." The amount of permissible institutional or systemic delay for such casesshould reflect this fact. [70] The matter at bar is more complex than the Andrade and Hariraj matters were and required, amongst other additionalsteps, a longer intake period, a Crown pre-trial, ultimately a Judicial pre-trial. As noted, the parties were ready initially for trial on July 16th and the trial ultimately began 7.5 months later.

While it is acknowledged that a contributing factor for 2 months of that time was thebelated disclosure of the search warrant materials, nevertheless, this delay is still within the timeframe outlined in both Morin andAndrade. In any event, it is apparent from the current trial proceedings that, even without the issue of the search warrant materials, theoriginal 1 ½ hour time estimate, to which Mr. Gerassimou agreed, was overly optimistic, the evidence of the four witness officers requiring much more time than that. The matter would have been adjourned on November 16th for continuation in any event.

Further, itis clear from the transcript that the presiding Justice of the Peace both accepted the absence of the Officer in Charge of the investigationas unexpected and unavoidable and as sufficient reason to grant the adjournment and further, given the disclosure of the search warrantmaterial, to direct that a judicial pre-trial be conducted. Prejudice to the Defendant [71] While the adjournment on November 16th may have been unexpected, unwelcome, and subjectively disturbing to Mr.Gerassimou, as set out in his affidavit, this is not, from an objective perspective, an unusual event to occur in the course of a

summaryconviction trial under

Part III of the Provincial Offences Act. [72] Mr. Gerassimou did not testify as to the impact of the delay on him but I have reviewed his affidavit, Tab 3 of theApplication Record filed on his behalf. He asserts in paragraph 11 that he incurred “significant additional legal costs”. His legal costsare not quantified, most particularly he has not clearly identified what part of his legal costs were attributable to the period of additionaldelay.

Therefore, it is not possible to know what part of the “additional employment” he engaged in in order to finance his legalexpenses were attributable to that additional delay versus what additional work was required to be done to meet the expenses he wouldhave incurred in any event. [73] The heightened anxiety described in paragraph 12 and the attendant anxiousness about informing his parents and appearingin court resulted from being charged initially, not from any delay.

The anxiety at appearing in court, while understandable, is subjectiveand would have been encountered in any event again from having been charged initially. The Ontario Court of Appeal noted in R. v.Kovacs-Tibor, (ON CA), [2004] O.J. No. 4756 (O.C.A.): “There is a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising fromthe delay….The focus of prejudice under

section 11(

b) is the prejudice flowing from a situation prolonged by delay rather than the merefact of being charged with a criminal offence.”

[74] The sense of “panic” resulting from the adjournment granted on November 16, 2015 is, again, a subjective reaction. Hedoes not explain why he formed the expectation that this matter would be dealt with to completion on that date. It is not unusual formatters to not complete, for various reasons. His counsel had been given notice several days prior that the matter might not proceed.

Itis apparent, as mentioned above, that the time that had been allotted for the trial was clearly insufficient and the matter would have beenput over in any event, even if the trial had commenced. [75] In regulatory offences, as opposed to criminal offences, the stigma from conviction is very considerably diminished.Regulatory offences focus on the harmful consequences of otherwise lawful behaviour rather than any kind of moral turpitude. [76] In R. v. Omarzadah, [2003] O.J.

No. 5712 (O.C.J.), the Ontario Court of Appeal found that any stigma arising out of thedelay in the trial of charges like speeding is virtually non-existent. [77] Objectively, then, it is difficult to evaluate how the adjournment could have given rise to a sense of “panic”. [78] Furthermore, in R. v. Seegmiller, (ON CA), [2004] O.J. No. 5004 (O.C.A.) the Court of Appeal heldthat the Respondent: “experienced little prejudice from the delay in bringing him to trial. The degree of prejudice is an important factor in determining thelength of institutional delay that will be tolerated.” [79] In R. v.

Quereshi, (ON CA), [2004] O.J. No. 4711 (O.C.A.), the Court stated: “The marginal prejudice to the respondents caused by the delay must be weighed against the considerable prejudice to society’s interestcaused by the stay.” [80] Again in Omarzadeh, Doherty, J. noted that in allocating finite resources the State is entitled to give some priority to thespeedy resolution of more serious allegations. The Balancing of the Interests When Delay Occurs [81] In R. v. Herrington, (ON CA), [2003] O.J.

No. 4754 (O.C.A.) the Court held: “What constitutes an acceptable period of systemic or institutional delay will vary depending on the nature and circumstances of eachcase. There are no fixed or inflexible time limits.” [82] And in R. v. Kovacs-Tibor, the Court of Appeal reiterated its ruling that the guidelines should not be given the force of ajudicially developed limitation period. [83] Also, in Omarzadah, Doherty J.A. held that although the guidelines for

summary conviction criminal cases in Morinapplied to provincial offences, they should not be strictly applied. S. 11 (

b) Conclusion [84] Viewed through this lens, the prejudice as described by Mr. Gerassimou in his affidavit and as can best be discerned as arising from the delay from November 16th, 2015 to March 4th, 2016 does not constitute a basis for abbreviating the acceptable period ofinstitutional delay in this case. The 7.5 months that elapsed from the time the parties were first ready for trial to the actual trial date iswithin the Morin guideline as interpreted in Andrade. The period of delay is not unreasonable. [85] Accordingly I find that Mr. Gerassimou’s s. 11(

b) right has not been breached and therefore the remedy sought isrefused. Conclusion [86] Both of Mr. Gerassimou’s applications having been dismissed and the Prosecution having established the relevance ofinformation acquired pursuant to the search warrant, that material will be received in evidence in the trial proper and the trial willcontinue.