COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2013
    ONCA 169

DATE: 20130320

DOCKET: C54526

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Tat Nguyen

Respondent

James Clark, for the appellant

Kim Schofield, for the respondent

Heard:  October 5, 2012

On appeal from a stay of proceedings entered by Justice
    J. Getliffe of the Ontario Court of Justice on October 6, 2011.

Watt J.A.:

[1]

Law
    enforcement agencies become interested in international trade when they suspect
    the commerce involves contraband.  Like guns and drugs.

[2]

The
    respondent Nguyen was one of more than three dozen individuals charged with gun
    and drug offences at the conclusion of a lengthy investigation involving
    several Canadian and American law enforcement agencies.

[3]

Two
    years after his arrest, the respondent appeared for trial in the Ontario Court
    of Justice on a new information that charged only him with three drug offences
    and a single count of possession of the proceeds of crime. The presiding judge
    concluded that the Crown had not brought the respondent to trial within a
    reasonable time and ordered that the proceedings against the respondent be
    stayed.

[4]

The
    Crown appeals. The reasons that follow explain why I conclude that the trial
    judge erred in his decision to stay the proceedings. I would allow the appeal,
    set aside the stay, and order a new trial before a different judge of the
    Ontario Court of Justice.

THE BACKGROUND FACTS

[5]

A
    brief overview of the underlying investigation, followed by a trudge through
    its procedural sequents, suffices in assessing the correctness of the trial
    judges decision to order a stay of proceedings.

The Investigation

[6]

Project
    Ulverston was an investigation involving several Canadian police forces, the
    Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Canadian Border
    Services Agency. The investigation continued for nine months and included
    execution of more than five dozen judicial authorizations, warrants, and
    production orders.  Investigators conducted electronic, video, and physical
    surveillance, executed search warrants and production orders, and intercepted
    in excess of 60,000 telephone calls and text messages.

[7]

The
    project concluded on October 5, 2009, when several search warrants were
    executed and more than three dozen persons arrested on drug, firearm, proceeds
    of crime, and criminal organization charges.

The Search of the Respondents Home
    and Vehicle

[8]

On
    October 5, 2009, investigators executed search warrants at the respondents
    home. There, they found crack cocaine, hashish and marijuana, along with a
    money counter, digital scales and more than $7500 in cash.  The crack cocaine
    was being dried a few feet away from the respondents bed.  Components essential
    for the production of crack cocaine were also found in the respondents home. A
    warranted search of the respondents car yielded $8,000 in bundled currency.

[9]

The
    estimated street value of the drugs found at the respondents residence was
    about $63,000. The estimated street value of all the drugs seized at the
    conclusion of Project Ulverston exceeded $3 million.

The Early Appearances and Prosecution
    Disclosure

[10]

The respondent
    first appeared in court on October 6, 2009, the day following his arrest. Although
    he had retained counsel before October 7, 2009, duty counsel appeared on the
    respondents behalf on the first four occasions on which the respondent
    appeared before a justice of the peace.

[11]

Counsel for the
    respondent, who has represented him throughout these proceedings including on
    appeal, and counsel for the Crown at trial (who was not Mr. Clark) agreed on
    the terms of the respondents release from custody. The respondent was released
    on a recognizance with sureties and a deposit. His release was subject to
    several conditions including a specified place of residence as well as a
    prohibition against possession of non-prescribed drugs, cell phones,
    Blackberries and pagers. The recognizance did not contain any house arrest or
    curfew conditions.

[12]

The trial Crown
    anticipated that disclosure would be provided to the respondent on November 20,
    2009. A case management judge was appointed and counsel for the respondent
    filed a designation under s. 650.01 of the
Criminal Code
prior to
    November 20. However, no disclosure was made on that date.

[13]

On November 27,
    2009, an agent appeared as counsel for the respondent, along with the trial
    Crown. The trial Crown advised the case management judge that a problem with
    the server at the police department would delay disclosure until December 18,
    2009. The case management judge advised all counsel that on December 18, 2009
    he would be assigning a series of dates over consecutive weeks in May, June,
    July, and August, 2010 for preliminary inquiries to be held. He directed all
    counsel to resolve any potential conflicts before December 18th and directed
    that any changes of counsel would require 45 days notice.

[14]

The case management
    judge encouraged the trial Crown to follow the procedure detailed in s. 540(7)
    of the
Criminal Code
at the preliminary inquiry and instructed counsel
    for the accused to provide a list of witnesses and their anticipated evidence at
    counsels next appearance on December 18, 2009.

[15]

On December 18,
    2009, the case management judge provided several available dates in June, July,
    and August, 2010 for the parties to hold preliminary inquiries.  The trial
    Crown provided most but not all of the disclosure to defence counsel that day
    and stated that he anticipated that there will be more [disclosure] coming
    within the next approximately a month.  The December 18, 2009 disclosure
    included officers notes, surveillance videos, and informations to obtain
    various search warrants, some of which remained sealed and required editing
    before disclosure could be made.

[16]

Counsel for the
    respondent did not appear before the case management judge on December 18,
    2009.  An agent appeared on her behalf.

[17]

The case
    management judge fixed February 5, 2010 as the date for electing a mode of
    trial after counsel had reviewed the disclosure provided by the Crown.

Severance and Setting a Trial Date

[18]

On February 5,
    2010, the trial Crown reported that the hard drive I expected to have here
    today is not finished burning yet. It should be ready in the next couple
    days.  He then continued:

but theres still a good deal of information that I think
    counsel are going to need to look at before theyd be in a position to do that.

[19]

The case management
    judge noted that a month had been lost because of the Crowns inability to
    provide disclosure. The trial Crown indicated that he expected the outstanding
    disclosure would be provided during the following week.  He added that:

[the disclosure is] going to be voluminous, and I would
    expect that its going to take about a month for counsel to get a grip on it.

[20]

The case
    management judge indicated that the Crowns conduct might violate s. 11(b) of
    the
Charter
, but neither the agent for counsel for the respondent nor
    counsel for any co-accused said anything in response. The case management judge
    adjourned the proceedings to April 9, 2010 and noted:

This means I want elections, this means resolution meetings.
    Im also prepared to entertain any guilty pleas at that time for what I would
    still treat as an extremely early guilty plea worthy of all consideration that
    should be given for a guilty plea at earliest possible opportunity.

[21]

In advance of
    the April 9, 2010 proceedings, counsel for the respondent, the trial Crown, and
    the case management judge participated in a focus hearing by telephone. The
    trial Crown indicated that he expected to remove the respondent from the joint
    information and lay a new information charging only the respondent before the
    court on which the Crown would proceed.

[22]

The Crown made
    three appearances before the case management judge in May 2010 and confirmed
    that he would be proceeding on a separate information against the respondent
    alone. Counsel for the respondent did not attend at any of these appearances.  A
    judicial pre-trial conference occurred on June 14, 2010 and proceedings were
    adjourned to July 27, 2010, to permit counsel to propose an agreed statement of
    fact for trial proceedings in the Ontario Court of Justice.

[23]

On July 27,
    2010, the trial Crown and an agent for the respondents counsel appeared before
    the case management judge. Trial dates of March 10 and 11, 2011 were fixed.
    Trial dates in early February 2011 had been offered, but counsel for the
    respondent was unavailable that month. A further pre-trial was directed by the
    case management judge because the earlier pre-trial had been conducted on the
    basis that proceedings in the Ontario Court of Justice would be a focus hearing
    or a preliminary inquiry.

[24]

In the period
    between the respondents first appearance on October 6, 2009 and July 27, 2010
    when the trial date was set, counsel for the respondent had yet to appear personally
    on her clients behalf. None of the agents who did appear on counsels behalf remarked
    upon the pace of proceedings. A designation was filed on the respondents
    behalf in October, 2010 relieving him of the obligation to appear personally on
    each of the several occasions on which his case was before the court.

The Adjournment Application

[25]

On March 10,
    2011, the first day of the scheduled two-day trial, counsel for the respondent
    sought an adjournment. The basis of the request was that, two days earlier,
    counsel had been served with a substantial volume of casino records as
    further disclosure. Investigators had made a FINTRAC request on November 12,
    2010 and received a reply 10 days later. They obtained a production order for
    the casino records on January 19, 2011. The records were available on January
    31, 2011, picked up a week later, turned over for duplicating, and provided to
    Crown counsels office on February 22, 2011.

[26]

Counsel for the
    respondent submitted that the casino records were relevant to the respondents
    defence (on the proceeds count) and bruited the prospect of an application to
    challenge the validity of the production order. She also considered abandoning
    a
Charter
motion she had filed earlier and proceeding directly to
    trial.

[27]

Trial counsel
    for the Crown suggested that the allotted time for trial, two days, could be
    used to introduce evidence on other aspects of the case, for example, the
    warranted drug search and seizure on October 5, 2009.  Counsel for the
    respondent opposed this suggestion. The trial judge added that she was retiring
    on May 31, 2011. She was concerned that she would be unable to complete the
    proceedings during her tenure if they were heard in instalments as the trial
    Crown proposed.

[28]

The trial judge
    granted the respondents request for an adjournment and counsel discussed
    available dates to continue proceedings with the trial co-ordinator. Counsel
    for the respondent was not available for dates in early April 2011 or
    mid-November of the same year. Counsel agreed on trial dates of November 24 and
    25, 2011.

[29]

The trial judge
    asked about the issue of 11(b). Her inquiry and the response of counsel for
    the respondent is in these terms:

THE COURT:        Youre welcome.  With respect to the issue of
    11(b), do you wish me to just leave it for both of you to decide what you do
    with as time goes by?  I wont sing that, but .

MS. SCHOFIELD:  Well, it is a potential issue. My friend, in
    light of that I think, has agreed to vary Mr. Nguyens bail to delete the
    curfew, which, Im not sure of the logistics in the building but well discuss
    that.

[30]

During the
    following month the trial Crown and counsel for the respondent discussed
    earlier trial dates. Counsel for the respondent rejected the available dates in
    July, August, and September 2011, as well as the suggestion that the author of
    the ITO testify by videotaped discovery in order to complete the trial at an
    earlier date.  The trial was rescheduled for October 6-7, 2011.

The Application under s. 11(b)

[31]

On October 6,
    2011, the first of two days scheduled for trial, counsel for the respondent
    sought an order staying proceedings on the information on the basis that the
    respondents right to a trial within a reasonable time had been infringed. In
    her application of September 5, 2011, counsel for the respondent relied upon
    the respondents affidavit (to demonstrate prejudice), the transcript of
    various court appearances, and synopses compiIed by another police force in
    relation to another accused. In response, the trial Crown adduced affidavits
    from one of the lead investigators, a proceeds of crime investigator who
    described Project Ulverston. Specifically, the affidavit detailed the assembly
    of the materials in connection with the proceeds of crime count.

[32]

On the hearing
    of the s. 11(b) application, Corp. Jennifer Asbury, a Proceeds of Crime
    investigator with the RCMP, testified that she was unaware of discussions on
    May 28, 2010 about severing the respondent from the joint information and
    proceeding against him alone on a separate information. She did not know when
    she had been advised of the respondents trial date. She acknowledged that she
    could have moved more quickly to obtain the financial records had she been
    aware of the respondents trial date. On November 12, 2010, Corp. Asbury completed
    her FINTRAC inquiry. Ten days later, the FINTRAC response advised the officer
    of several transactions made by the respondent at various casinos. Four months
    later, the officer provided disclosure disks to the trial Crown.

[33]

The respondent
    testified that he had not been employed for the two-year period during which he
    awaited trial. He had been fired from his previous job due to low energy and
    misbehaviour. It was a very stressful period, during which he had fallen apart.
    His mood had changed, big time. In late August, 2010, about two weeks after his
    arrest in connection with a 300 plant marijuana grow operation, the respondent
    was referred for a psychiatric assessment at the insistence of his girlfriend.
    He was prescribed sleeping and other medication. He testified that because of
    the charges he faced, people looked down on him and thought he was an
    embarrassment. He was found not guilty on the marijuana charges on July 6, 2011.

The Trial Judges Ruling

[34]

Immediately
    after counsel had concluded their submissions, the trial judge gave his reasons
    for staying proceedings against the respondent.

[35]

The trial judge
    acknowledged that the respondent first appeared as one of a large number of
    accused arrested and brought before the court to answer several charges originating
    in Project Ulverston. In the trial judges view, however, very quickly after
    the respondent was charged, the matter became quite simple if not focussed on
    him due to the seizures made at the respondents home. Disclosure issues were
    or became fairly simple, and most of the disclosure was promised in a
    reasonably appropriate period of time.

[36]

The trial judge derided
    the casual pace at which the prosecution had proceeded under the case
    management judge, as well as the failure of investigators to provide timely
    disclosure of the materials, causing an adjournment of the first trial date. He
    rejected the trial Crowns earlier proposal of a bifurcated hearing on the
    first trial date, especially in light of the imminent retirement of the [then]
    trial judge and the prospect that the case might not be completed.

[37]

The trial
    judges ultimate conclusion appears in two passages at the end of his reasons:

So that on all of the material before me and that Ive looked
    at and I have considered the math here, I am satisfied that with the Crown and
    the institutional delay thats been set out in the material filed by Ms.
    Schofield, the Application is successful.

The problem here is perhaps Justice Pockele has some
    involvement in this matter, because it was assigned to him as Project
    Ulverston, there were a number of lawyers, there were a number of accused, but
    very quickly, in my view, looking at all the transcripts, the matter could very
    easily have been moved ahead more quickly. We shouldnt have been in March of
    2011 looking to deal with a case that started in October of 2009.

THE GROUNDS OF APPEAL

[38]

The Crown
    appeals from the order staying proceedings and advances several grounds of
    appeal. At root, the Crown submits that the trial judge failed to conduct a
    proper analysis of the relevant periods of proceedings and, as a consequence, erred
    in concluding that the delay was unreasonable.

[39]

It is
    unnecessary to elaborate upon the chronology of events described above. However,
    it is helpful to recapture the positions advanced by counsel in their written
    submissions and oral argument.

The Arguments on Appeal

[40]

For the
    appellant, Mr. Clark begins his arguments by recalling the standard of review.
    Characterization of the various periods of delay on a s. 11(b) application, as
    well as the ultimate decision about whether the delay is unreasonable, is
    reviewed on a standard of correctness. Underlying findings of fact are subject
    to review on a standard of palpable and overriding error.

[41]

Mr. Clark submits
    that the trial judge erred by not providing reasons for his allocation of the
    periods of delay. The trial judge simply adopted the respondents allocations
    of Crown and institutional delay. The trial judge failed to examine the
    proceedings entire history, identify relevant time periods within it, and
    explain how and why he allocated the various delays. Mr. Clark further submits
    that the trial judge failed to adequately consider the inherent time
    requirements of the case. The trial judge failed to take into account the need for
    several pre-trial conferences to address the procedural and substantive issues
    associated with complex cases involving several accused and multiple charges
    and the use of a wide variety of investigative procedures, all of which may be subject
    to challenge and may also be interdependent.

[42]

Mr. Clark
    contends that the trial judge failed to consider the conduct of the defence and
    its possible role in the delay. Defence counsel sought further pre-trial
    hearings even after severance had taken place. Moreover, the trial judge made
    no specific finding that the respondent had been prejudiced by the delay, nor
    did he balance any inferred prejudice to the accused against societys interest
    in an adjudication on the merits.

[43]

For the
    respondent, Ms. Schofield acknowledges that the appellant correctly
    characterizes the governing standards of review. She submits that, even if the
    trial judge failed to analyze the relevant time periods and assign
    responsibility for them as the authorities require, and even if the trial
    judges reasons are insufficient to permit meaningful appellate review, the
    trial judge correctly concluded that s. 1(b) was infringed. The delay was
    presumptively unreasonable. The Crown failed to rebut the presumption of
    unreasonableness in a case that began as a complex matter but soon developed
    into a manageable, potentially expeditious trial.

[44]

Ms. Schofield submits
    that the trial judge appreciated the complexity of the case when it first
    entered the criminal justice system and recognized that a lengthier intake
    period was required. He was also alive to the inferred and actual prejudice
    suffered by the respondent and properly balanced it against societys interest
    in an adjudication of the case on its merits. In sum, the respondent submits
    that the trial judge reached the correct conclusion in determining that s.
    11(b) had been breached and staying the proceedings against him.

THE GOVERNING PRINCIPLES

[45]

In order to
    assess the correctness of the trial judges decision to stay proceedings for
    infringement of the respondents right to be tried within a reasonable time, it
    is necessary to review, to some extent at least, some of the legal principles
    that govern applications under s. 11(b) of the
Charter
.

The Crowns Right of Appeal

[46]

I begin by
    reviewing the scope of the Crowns right to appeal from the trial judges
    order. Section 676(1)(c) grants the Crown the right to appeal against an order
    made by a trial court staying proceedings on an indictment. Leave to appeal is
    not required. Unlike under s. 676(1)(a), the Crowns right of appeal under s.
    676(1)(c) is not restricted to grounds of appeal involving questions of law
    alone.  Section 686, which enumerates the powers of the court of appeal, makes
    no express reference to the dispositive authority on appeals taken under s.
    676(1)(c).

The Standard of Review and Analysis under s. 11(b)

[47]

It is common
    ground between the parties that on appeal, the trial judges characterization
    of the various periods of delay on s. 11(b) applications, as well as the
    ultimate decision concerning whether the delay is unreasonable, is reviewable on
    a correctness standard:
R. v. Tran
, 2012 ONCA 18, at para. 19;
R.
    v. Khan
, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 18; and
R. v.
    Schertzer
, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71. The underlying
    findings of fact are subject to review on a standard of palpable and overriding
    error:
Tran
, at para. 19;
Khan
, at para. 18; and
Schertzer
,
    at para. 71.

[48]

In allocating
    delay, trial judges should give sufficient reasons to permit the parties and
    the reviewing court to understand the time that has been allocated and the
    reasons underpinning it:
R. v. Cranston
, 2008 ONCA 751, 244 OAC 328,
    at para. 33. Reasons that reveal no real attempt to examine the time periods or
    to explain allocation of the delay are flawed for failure to permit meaningful
    appellate review:
Cranston
, at para. 33.

[49]

For the purposes
    of unreasonable delay under s. 11(b) of the
Charter
, the relevant period
    of assessment is the overall period beginning at commencement of the
    proceedings to the end of the trial. In querying whether delay has been
    unreasonable, the trial judge must consider the length of the delay
    (subtracting any periods waived by the accused), taking into account the
    reasons for the delay, any prejudice suffered by the accused, and the interests
    that s. 11(b) seeks to protect:
R. v. Godin
, 2009 SCC 26, [2009] 2
    S.C.R. 3, at para. 18;
Tran
, at para. 20; and
Khan
, at para.
    20. This assessment of the period of delay must eschew the application of any
    mathematical or administrative formula and instead adopt a judicial
    determination that balances the interests s. 11(b) protects against factors
    that either inevitably lead to delay or otherwise cause delay:
Godin
,
    at para. 18;
Khan
, at para. 21; and
R. v. Morin
, [1992] 1
    S.C.R. 771, at p. 787.

[50]

To assist in
    assessing the reasonableness of systemic delay, the
Morin
court
    suggested a guideline of eight to ten months from the start of proceedings to
    trial as an acceptable delay in the provincial courts:
Morin
, at p.
    799; and
Khan
, at para. 22. However, guidelines are not fixed
    limitation periods and should not be applied in a mechanical way as though they
    were limitation periods. In individual cases, guidelines will yield to other
    factors:
Morin
, at p. 797. The presence or absence of prejudice also
    influences the application of guidelines:
Morin
, at p. 798.

[51]

In its analysis
    and determination of an application for a stay under s. 11(b), a court must
    consider, among other factors, the reasons for the delay:
Tran
, at
    para. 20. Factors a court must consider in assessing the delay include:

i.

the inherent time requirements of the case;

ii.         the actions of the accused;

iii.        the actions of the Crown;

iv.        limitations on institutional
    resources; and

v.         other reasons for the delay.

Morin
, at pp. 787-788; and
Tran
, at
    para. 22.

[52]

The inherent
    time requirements of a case vary.  Prosecutions differ in their complexity.
    Some are simple and straightforward. A single accused and count.  A handful of
    witnesses. Others entail many more variables. A complex property offence.
    Several accused and counts. Electronic surveillance. Experts. Complaints of
    unreasonable searches and other constitutional infringements. The inherent time
    requirements of the proceeding include the time needed to retain and instruct
    counsel, to conduct bail hearings, to comply with disclosure obligations: in
    short, the time required to get the parties ready to set dates for trial:
Cranston
,
    at paras. 37-38; and
Khan
, at para. 32.

Pre-Hearing Conferences and their Use

[53]

Section 625.1(1)
    of the
Criminal Code
authorizes pre-hearing conferences to be held
    before trial or other proceedings (for example, a preliminary inquiry) to
    consider the matters that, to provide a fair and expeditious hearing, would be
    better decided before the start of the proceedings and other similar matters.
    Where a case is set to be tried by a court composed of a judge and jury, a
    pre-hearing conference to consider any matters that would promote a fair and
    expeditious trial is mandatory under s. 625.1(2).

[54]

Pre-hearing
    conferences are an essential feature of our criminal procedure. Whether
    required by s. 625.1(2) or permitted by s. 625.1(1), pre-hearing conferences
    are and have proven to be an invaluable ally in the struggle to promote a fair
    and efficient criminal trial process. The conferences are of particular
    assistance in complex cases involving multiple accused and counts arising out
    of lengthy investigations where investigative procedures are likely to be
    tested for
Charter
compliance.  Pre-hearing conferences, particularly where
    proceedings follow a lengthy investigation, sometimes add several weeks to the
    intake period in a case, but may well result in an earlier trial date, a
    shorter and more focused trial, or a reduction in the number of counts and
    accused going to trial. The time required to schedule, prepare for, and conduct
    pre-hearing conferences should be considered an inherent time requirement of
    the case, both generally and specifically for the purposes of a s.11(b)
    analysis:
Khan
, at para. 53;
Tran
, at paras. 36-37; and
Cranston
,
    at para. 46.

[55]

As mentioned earlier,
    s. 625.1 of the
Criminal Code
permits and, in some cases, stipulates
    pre-hearing conferences between the prosecutor and the accused or counsel for
    the accused. In cases to be tried by a judge sitting alone, pre-hearing
    conferences are discretionary and may be requested by the prosecutor, the
    accused, or on the motion of a judge of the court. The conferences are held
    prior to the proceedings (whether a trial or a preliminary inquiry) and are presided
    over by a judge of the court. At the conference, the participants are required
    to consider anything that, to promote a fair and expeditious hearing, would be
    better decided before the start of the proceedings.

[56]

The case
    management judge may help the parties to identify the issues to be resolved at
    the various stages of our criminal procedure and the nature and extent of the
    evidence required for the resolution of those issues.

[57]

The case
    management judge may help the parties to make admissions and reach agreements
    about uncontroversial issues, thereby reducing the length and complexity of
    contested proceedings.

[58]

The case
    management judge may hear guilty pleas and impose sentences on various
    participants, thus reducing the number of accused and counts that must proceed
    to trial. For those remaining, the case management judge may assist in making arrangements
    for tiered prosecutions, hearings to determine issues common to several
    accused, and, in general, setting a schedule for filing materials and argument
    on issues that remain outstanding.
[1]

[59]

Pre-hearing and
    case management conferences are justified and necessary tools in busy judicial
    centres designed to ensure effective and efficient use of available court
    resources and to protect not only the
Charter
rights of the persons
    charged, but also societys interest in determining allegations of serious criminality
    and their merits:
Tran
, at para. 34; and
Khan
, at para. 82.

[60]

To conclude this
    discussion of pre-hearing conferences, I emphasize that barring cause to do so,
    courts tasked with deciding whether an accuseds rights under s. 11(b) have
    been infringed should be slow to second-guess the need for or number of such
    conferences.

[61]

Large, complex
    prosecutions involving multiple accused and counts require concerted efforts on
    the part of investigators and prosecutors to ensure timely disclosure and trial.
    Amongst those charged, the involvement of some will be less than others: peripheral
    not central, discrete, perhaps disconnected from the principals and the core of
    the case. In some instances, the minor players can be tried separately,
    efficiently, and more expeditiously. But these decisions about how to proceed,
    against whom, upon what charges, and on what evidence, for that matter, whether
    or when to do so or to withdraw charges, are contingent upon interdependent
    circumstances and factors far removed from the knowledge of presiding judges.
    Courts should be hesitant to scrutinize the Crowns decisions absent clear
    reason to do so:
Khan
, at para. 30.

[62]

Finally, an
    accused, by agreement or other conduct, may waive his or her rights to complain
    about delay in whole or in part. Waiver can be explicit or implicit, but must
    be clear and unequivocal, made with full knowledge of the rights the procedure
    was enacted to protect and of the effect the waiver will have on those rights:
Morin
,
    at p. 790. To be implicit, there must be something in the conduct of the
    accused sufficient to support an inference that the accused has understood that
    she or he has the right to be tried within a reasonable time, understood the
    nature of that right, and has waived it:
Morin
, at p. 790. Conduct
    falling short of waiver may nonetheless be relevant to the s. 11(b) analysis as
    actions of the accused:
Morin
, at p. 790.

THE PRINCIPLES APPLIED

[63]

The reasons of
    the trial judge, read as a whole, disclose no attempt to identify and analyze relevant
    time periods between the respondents first appearance in the Ontario Court of
    Justice and the entry of a stay of proceedings. Nor do the reasons explain to
    whom the trial judge allocated the delay or why he did so. In the end, the
    reasons do not provide an adequate basis for informed appellate review.

[64]

The absence of
    sufficient reasons leaves it to this court, at one remove from the proceedings,
    to identify and analyze the relevant time periods, allocate the delay,
    determine whether the respondent has suffered prejudice, and balance the
    respondents rights against societys interest in having those persons accused
    of crime be adjudicated upon fairly and expeditiously.

[65]

Proceedings
    began when the original information was laid and process issued on October 5,
    2009. Proceedings ended, so far as the respondent is concerned, when the trial
    judge entered a stay on October 6, 2011. The parties agree that this period of
    two years warrants an inquiry under s. 11(b) of the
Charter
.

The First Period: October 6, 2009 to March 27, 2010

[66]

The first period
    that warrants examination commenced on October 6, 2009, when the respondent
    first appeared in answer to the charges, and concluded on March 27, 2010, when
    counsel agreed on trial dates of March 10 -11, 2011. The entire period
    aggregates about 9.75 months.

[67]

Several factors
    inform the allocation of various time periods within this overall expanse and lead
    me to conclude that this entire period is properly characterized as intake or
    inherent time requirements.

[68]

First, the
    inherent time requirements must take cognizance of the nature of the case
    involved. A more complex case that involves more extensive requirements demands
    and will serve to excuse longer periods of delay:
Khan
, at para. 32.

[69]

These
    proceedings began as a result of evidence gathered during a nine-month joint
    forces investigation involving Canadian and United States law enforcement
    agencies and police forces. The investigation focussed on international traffic
    in guns and drugs. The investigative techniques and procedures included the
    issuance of 62 warrants and authorizations that permitted the seizure of
    substantial volumes of evidence, including the interception of more than 63,000
    private communications. Drugs with a street value of $5 million were seized.
    Thirty-seven persons were arrested. Among the 139 charges were allegations of
    criminal organization and proceeds of crime offences.

[70]

Prosecutions
    originating in lengthy investigations require significant time for
    investigators to prepare and deliver disclosure to the Crown for provision to
    the defence. In many cases, investigators are (or should be) in a position to
    provide disclosure to the Crown very soon after the charges have been laid,
    thus permitting the Crown to provide disclosure to the defence with equivalent
    to dispatch. But this is not an ordinary case. The scope of disclosure
    materials includes both the substantive evidence to be led against those
    charged as well as the underlying materials upon which the enabling orders,
    warrants, and authorizations that produced the evidence to be relied upon by
    the Crown were granted. In some instances, editing and vetting of the
    disclosure materials may be required.

[71]

Nothing documented
    in the record of proceedings suggests that the investigative and prosecutorial
    decision to undertake prosecution of the joint accused constituted an
    inappropriate exercise of prosecutorial discretion or amounted to an abuse of process.
    The allegations concerned a joint enterprise carried out by members of a
    criminal organization for gain. In such cases, the Crowns
prima facie
route of proceeding is one of joint venture, joint indictment, and joint trial.
    It is commonplace that the roles of the alleged participants may differ. We
    should be reluctant to second-guess prosecutorial decisions about joinder, both
    with regards to whether and when to remove some accused from the larger
    prosecution and to proceed against them separately:
Khan
, at para. 30.

[72]

Second, the
    inherent time requirements of a case include the period required to retain
    counsel, arrange and conduct judicial interim release hearings, provide and
    review disclosure, schedule and prepare for judicial pre-trials: in sum, to get
    the case ready to set trial dates:
Tran
, at para. 32; and
Cranston
,
    at paras. 37-38.

[73]

The prosecutions
    originating in joint forces projects such as the present case often result in
    informations which include multiple accused and counts, some alleging criminal
    organization and proceeds of crime offences. Challenges to the
    constitutionality of the manner in which investigators have obtained crucial
    evidence, and the admissibility of such evidence in the proceedings against
    some or all of the persons charged, are commonplace. The nature and extent of
    the participation by individual accused varies.

[74]

In project
    prosecutions it has become routine that the pre-hearing conference judge or
    another judge will be assigned to manage the case as it makes its way from
    early appearances to trial.

[75]

Pre-hearing and
    case management conferences are only meaningful if counsel participating in
    those conferences are fully informed of and authorized to take binding
    positions on the issues in contention. It is notable that counsel for the
    respondent first appeared on March 10, 2011, seeking an adjournment of the
    trial because she had been served only days before with disclosure relating to
    the proceeds of crime count. On many interim appearances, the agents who
    appeared on her behalf were not fully informed about the matter nor about
    counsels availability for trial.

[76]

The respondent
    acknowledges that the first four months of the period between October 5, 2009
    and July 27, 2010 represents inherent delay, but apportions the balance of the
    period, about  5.75 months, to neutral (3.5 months), Crown (1 month),
    institutional (1 month), and defence (8 days).

[77]

Leaving aside
    the eight-day period for which the respondent acknowledges responsibility, I consider
    the balance of the period from February 6 until July 27, 2010 to constitute part
    of the inherent time requirements of the case.

[78]

During this
    period, the parties were engaged in pre-trial discussions. The respondent had yet
    to elect a mode of trial. Defence counsel sought to persuade the Crown to sever
    his case from those of the co-accused by laying a new information. The new
    information was put before the court on July 23, 2010 and the respondent
    indicated an intention to have a trial on that information in the Ontario Court
    of Justice.  Counsel estimated that the trial would take two days.

The Second Period: July 27, 2010 to March 10-11, 2011

[79]

The next time
    period that requires examination is from July 27, 2010, when the first trial
    date on the new information was set, until the trial date of March 10-11, 2011.

[80]

On July 27, 2010
    the parties agreed on March 10
th
and11th, 2011 as the dates for what
    was anticipated to be a two-day trial in the Ontario Court of Justice. Counsel
    for the respondent was not present. Trial dates of February 7-8, 2011 were
    available, but counsel for the respondent was not available.

[81]

The failure of
    the respondents counsels agent to advise the presiding judge of counsels
    availability makes it difficult, if not impossible, to determine with precision
    how the delay between the setting of the trial date and the date selected for
    trial should be allocated. It is a reasonable to infer, however, from
    respondents counsels unavailability for a two-day trial in February 2011 that
    she would not have been available earlier than March, 2011. It was also clear
    that respondents counsel was required to prepare, serve, and file any
Charter
motions she intended to bring at trial. Counsels agent offered no insight into
    the claims of constitutional infringement to be advanced at trial.

[82]

The judge
    presiding on July 27, 2010 was the judge who had managed the proceedings that
    had originated in Project Ulverston. He pointed out that a further pre-hearing
    conference prior to trial was likely, since management of the case had
    proceeded on the basis that what was being scheduled would be a preliminary
    inquiry.

[83]

I would
    apportion three months of this period to institutional delay, a further three
    months to neutral time requirements, and the remaining month to defence delay.

The Third Period: The Disclosure Problem and the Second Trial
    Date

[84]

Counsel for the
    respondent appeared on the first date scheduled for trial, March 10, 2011. She
    sought and obtained an adjournment following Crown counsels disclosure of a
    substantial volume of information relating to the proceeds of the crime charged
    two days earlier. Most of the disclosure provided related to information
    obtained after the respondents arrest.

[85]

In her
    submissions to the presiding judge, counsel for the respondent indicated that
    she was considering perhaps abandoning the
Charter
and just going on
    the merits of the case this morning. Later, counsel mentioned filing a
Charter
application to challenge the production order in accordance with which the new
    disclosure had been obtained. As detailed above, Crown counsel then proposed that
    the scheduled trial time could be utilized by introducing evidence relating to
    the seizures made on the date of the respondents arrest, but this suggestion
    was not accepted by the presiding trial judge, who was set to retire at the end
    of May, 2011.

[86]

Once again, the
    record is barren about the earliest availability of counsel for the respondent
    to conduct the trial. She declined two proposed dates in early April, 2011 and
    others in mid-November of the same year. The dates of November 24-25, 2011,
    were selected as the new trial dates and later advanced to October 6-7, 2011.

[87]

In my view, it
    is appropriate to assign responsibility for the seven month delay between the
    first and second trial dates to the Crown. That said, the second trial date
    upon which counsel agreed was over eight months after the first trial date. The
    expected length of trial, notwithstanding the further disclosure, remained at
    two days. While defence counsel are not expected to hold themselves in a state
    of perpetual readiness when trials do not proceed as planned, counsel for the
    respondent did not propose any available dates for a two-day trial and did not
    press for any earlier dates.

The Length of and Responsibility for the Delay

[88]

I would
    apportion the total period of delay in this case as follows:

Neutral and
    Inherent: 13 months 23 days

Institutional: 3
    months 9 days

Crown: 6 months
    26 days

The total period of Crown and institutional delay is
    10 months 5 days, only slightly beyond the
Morin
guidelines.

Prejudice to the Respondent

[89]

The presence or
    absence of prejudice can justify deviations of several months in either
    direction from the
Morin
guidelines:
Morin
, at p. 807; and
Tran
,
    at para. 63. Yet the trial judge made no finding of prejudice, nor mention of
    prejudice in his reasons staying proceedings against the respondent.

[90]

The respondent
    gave evidence that he experienced overwhelming stress and anxiety as a result
    of these charges. The stress intensified as the trial date approached. His
    family and friends in the Asian community shunned him because of the stigma
    associated with trafficking in crack cocaine. At the urging of his girlfriend,
    the respondent sought psychological counselling and was prescribed medication
    in August, 2011, about six weeks before proceedings were stayed.

[91]

The respondent
    gave inconsistent accounts about how long he had worked at a restaurant/karaoke
    bar during his release pending trial. He attributed his firing there to a loss
    of energy due to his depression over the crack cocaine and related charges.
    About four months prior to his arrest on these charges, the respondent had been
    arrested on a gaming house charge and, in August, 2010, while on bail on the
    charges, he was arrested again on charges of production of marijuana. He was
    acquitted of marijuana charges in July, 2011.

[92]

The respondent
    was granted judicial interim release about 10 days after his arrest. His
    recognizance did not include a term of house arrest or a curfew,  even though
    he had a previous conviction for a related drug offence. From an early stage,
    counsel filed a designation under s. 650.01 of the
Criminal Code
relieving the respondent of appearing in person each time his case was before
    the court.

[93]

In his affidavit
    filed in support of his application to stay proceedings, the respondent insisted
    that throughout the entire period presently under review he pressed for the
    earliest possible trial date, electing trial by a provincial court judge to
    give effect to these wishes. Yet, nowhere in the proceedings does respondents
    counsel, or any agent acting on her behalf, make any such statement on the
    record. The first mention of s. 11(b) is by the presiding judge on March 10,
    2011, when the respondents adjournment application succeeded. It seems
    reasonable to infer that the respondent was satisfied with the pace of the
    litigation because it resulted in his severance from the co-accused in the original
    information.

[94]

Finally, no one
    gainsays the societal interest in having this case involving the commercial
    production of crack cocaine tried on its merits. It is an interest that trumps
    the minimal prejudice suffered by the respondent.

CONCLUSION

[95]

For the above reasons,
    I would allow the appeal, set aside the stay of proceedings, and order a new
    trial, in accordance with the respondents election, before a different judge
    of the Ontario Court of Justice.

David
    Watt J.A.

I
    agree Robert J. Sharpe J.A.

I
    agree E.E. Gillese J.A.

Released: March 20, 2013  RJS

[1]
See now the statutory scheme of Part XVIII.1,
Case Management Judge
, which came into
    force on August 15, 2011.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peltier, 2013
    ONCA 141

DATE: 20130308

DOCKET: C55065

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Peltier

Appellant

Daniel Santoro, for the appellant

Peter M. Campbell, for the respondent

Heard: January 17, 2013

On appeal from the sentence imposed by Justice Joseph G.
    Quinn of the Superior Court of Justice on July 29, 2011.

MacPherson J.A.:

[1]

The appellant, Adam Peltier, was convicted of three criminal offences
    following a six-day trial before J.G. Quinn J. of the Superior Court of Justice
     possession of crack cocaine for the purpose of trafficking, producing crack
    cocaine, and possession of marijuana.

[2]

The trial judge imposed a sentence of six years imprisonment less 18
    months credit for pre-trial custody for possession of crack cocaine for the
    purpose of trafficking for a net sentence of 54 months.  He also imposed 54
    months concurrent for producing crack cocaine and three months concurrent for
    possession of marijuana.

[3]

The appellant appeals his sentence.

[4]

The facts giving rise to the convictions can be briefly stated. In the
    early morning hours of April 3, 2009, Windsor Police Services received a
    telephone tip from a confidential informant that the informant had purchased a
    quantity of cocaine from the appellant in room 12 of the Bestway Motel. The
    informant also advised that he had observed a Cadillac parked in front of room
    12 and that the appellant had used that vehicle in the past. After confirming
    the appellants registration at the hotel and the presence of a grey Cadillac
    parked outside room 12, Windsor police continued surveillance outside room 12
    and began to prepare a warrant application for the room. In the meantime,
    officers of the Emergency Services Unit were instructed to stop the Cadillac if
    it left the motel before a warrant was signed.

[5]

At 11:20 a.m., the appellant was arrested while driving the Cadillac
    approximately five minutes after leaving the Bestway Motel. On his person, the
    police found cocaine and $930 cash. In a subsequent search of the motel room,
    police seized more cocaine, as well as 28 grams of marijuana and $1075 cash.
    The total amount of crack cocaine seized, according to the trial judge, was
    421.5 grams. Expert evidence established that the crack cocaine was worth about
    $21,000 when purchased at the kilogram level and $42,000 when sold at the gram
    level.

[6]

The appellants trial was limited to an application to exclude evidence
    under s. 24(2) of the
Charter of Rights and Freedoms
as a result of
    alleged breaches of ss. 7 and 8. Crown and defence counsel agreed that
    admissible evidence adduced during the
Charter
application would form
    the trial evidence. After a five-day hearing, the
Charter
application
    was dismissed. The Crown filed an expert report on consent, and the appellant
    elected to call no evidence. The trial judge convicted the appellant of the
    three offences set out above.

[7]

The appellant makes three submissions in support of his position that
    the six-year sentence was too high.

[8]

First, the appellant submits that the trial judge did not take proper
    account of his youthfulness as an indicator of his potential rehabilitation. This
    failure, says the appellant, puts the judge offside of what this court said in
R.
    v. Borde
(2003), 63 O.R. (3d) 417, at para. 36:

The length of a first penitentiary sentence for a youthful
    offender should rarely be determined solely by the objectives of denunciation
    and general deterrence.  Where, as here, the offender has not previously
    been to penitentiary or served a long adult sentence, the courts ought to
    proceed on the basis that the shortest possible sentence will achieve the
    relevant objectives.

[9]

The appellant couples this submission with the submission that since his
    longest period of incarceration for his previous offences was two months in
    custody, a six-year sentence for these offences is too much of an increase.

[10]

I
    do not accept these submissions. The trial judge recognized that the sentence
    imposed had to take account of denunciation, deterrence and rehabilitation, and
    he found that these objectives would not be met by a shorter penitentiary
    sentence. In a case involving the production and sale of crack cocaine, he was
    entitled to emphasize, as he did, the need to express the communitys
    denunciation of the sale of crack cocaine to its citizens. He also stated the
    obvious on the issue of deterrence:

The sale of drugs is a for profit crime. The deterrence must be
    such that it would cause a potential drug seller to think seriously about the
    penalty.

[11]

The
    trial judge also specifically addressed rehabilitation and considered the
    principles described in
Borde
. The appellant was 25 years old when he
    committed this set of crimes, whereas the appellant in
Borde
was 18
    when he committed his crimes. The appellant has a long (ten years stretching
    back to 1999), fairly extensive (13 other convictions), and related (two previous
    convictions for drug offences) criminal record. He was charged with and pled
    guilty to another drug-related crime while facing these charges. Taking these
    factors together, it is hard to quarrel with the trial judges observations
    that [t]hese facts do not demonstrate that Mr. Peltier has changed his
    ways.... Mr. Peltiers prospects for rehabilitation are not good.

[12]

Second,
    the appellant contends that the trial judge failed to consider the mitigating fact
    that the appellant kept his trial limited to the
Charter
application
    and, through counsel, invited the trial judge to enter convictions once the
    application was dismissed.

[13]

I
    would reject this submission. The appellant did not plead guilty to the charges.
    The
voir dire
on the
Charter
application involved 11
    witnesses testifying over four days. This was not a mitigating factor.
    Moreover, when the
Charter
application was dismissed, the convictions
    that followed were inevitable, as defence counsel properly recognized.

[14]

Third,
    the appellant submits that a six-year sentence was outside the range of
    sentences imposed for similar offences and similar offenders.

[15]

I
    disagree. The appellant produced crack cocaine, a very dangerous substance. He
    had a substantial amount for sale to the public. In
R. v. Bajada
(2003), 169 O.A.C. 226, at para. 13, this court noted that sentences of five to
    five and one-half years imprisonment are not uncommon for possession of a
    substantial amount of cocaine for the purpose of trafficking following an
    accuseds plea of guilty or where the accused has no prior record. Here, the
    appellant had a previous record for drug offences. He committed another drug
    offence while facing these charges. The appellant was 25 years old  an adult,
    not a youthful offender. The six-year sentence was within the appropriate range
    of sentences and, in these circumstances, was fit.

[16]

I
    note that the trial judge made one small error in his reasons for sentence. He
    said that [t]he defence position is that Mr. Peltier should receive a sentence
    of four years and a pre-trial custody credit of 18 months. In fact, the
    defence position was that a three and one-half year sentence and pre-trial
    custody credit of 18 months would be appropriate. In my view, nothing turns on this
    minor error.

[17]

In
    summary, the trial judge made no error in principle nor did he fail to
    consider, or give inappropriate weight to, any relevant factor. The sentence he
    imposed was fit.

[18]

I
    would dismiss the appeal.

Released: March 8, 2013 (J.C.M.)

J.C. MacPherson J.A.

I agree. E.A. Cronk J.A.

I agree. S.E. Pepall J.A.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Quesnelle, 2013
    ONCA 180

DATE: 20130326

DOCKET: C53116

Rosenberg, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Quesnelle

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Janet MacEachen, as
amicus curiae

Christine Bartlett-Hughes, for the respondent

Heard:  December 21, 2012

On appeal from the conviction entered on June 4, 2010 by
    Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury,
    and from the sentence imposed on July 27, 2010, with reasons reported at 2010
    ONSC 3713.

MacFarland
    J.A.:

A.

OVERVIEW

[1]

The appellant appeals
    his conviction on two counts of sexual assault and two counts of assault,
    entered after his trial before a judge and jury.  He also appeals his sentence.

[2]

The critical question
    raised by this appeal is whether, in the context of a prosecution of an alleged
    sexual assault, an occurrence report prepared by police on an unrelated
    incident involving a complainant is subject to the disclosure regime set out in
    s. 278.2 of the
Criminal Code
, R.S.C. 1985, c. C-46
.
The answer
    to this question turns on whether such an occurrence report can be
    characterized as a record within the meaning of s. 278.1  namely, one that
    contains personal information for which there is a reasonable expectation of
    privacy but was not made by persons responsible for the investigation or
    prosecution of the offence.

B.

THE FACTS

[3]

The appellant was
    charged with assault, sexual assault, sexual assault with a weapon, robbery,
    threatening to kill, and threatening serious bodily harm.  The charges stem
    from two separate incidents involving two complainants:  T.R., on December 29,
    2006, and L.I., on March 5, 2007.

[4]

There are many
    similarities between the evidence given by T.R. and L.I. about the alleged
    assaults. Both complainants were addicted to drugs. They each gave similar
    descriptions of the appellant in their trial testimony. The appellant drove
    both complainants in a dirty, beige or copper-coloured van to the rear entrance
    of a laundry facility in a shopping plaza. The appellant led them both
    downstairs to a basement containing a dirty mattress. He used drugs and encouraged
    them both to use drugs prior to the assaults. The appellant also punched both
    women, and then forced anal intercourse on them. He told both women that he was
    a member of the Hells Angels, and expressed a preference for sexual activity
    by force.  Finally, he dropped both women off at a bus stop in the same general
    neighbourhood after he committed the assaults.

[5]

The appellant denied all
    charges against him. This clearly was a case that turned on credibility. The
    versions of events attested to by the complainants bore little resemblance to
    the version of events described by the appellant. He says the sex with L.I. was
    consensual, although there was a disagreement on the price after the fact. He
    denies having sex of any description with T.R. on December 29, 2006.

[6]

At the conclusion of
    his trial, the jury convicted the appellant of two charges of simple assault and
    two charges of sexual assault. He appeals his conviction and his sentence.

C.

ISSUES

[7]

The appellant raises three
    grounds of appeal with respect to his conviction.

1.

The
    trial judge erred in allowing the Crowns application to adduce similar fact
    evidence and in disallowing the appellants severance application;

2.

The
    trial judge erred in admitting into evidence a statement made by the appellant
    to the police that was made without first speaking to counsel;

3.

The
    trial judge erred in holding that access to occurrence reports and related
    materials is governed by the production regime set out under s. 278.1 to 278.9
    of the
Criminal Code
.

[8]

The Crown was called
    upon to respond only to the second and third grounds of appeal.

D.      ANALYSIS

(1)

Did the trial judge err in allowing the Crowns
    application to adduce       similar fact evidence and in disallowing the
    appellants severance      application?

[9]

The first ground of
    appeal can be dealt with summarily. Prior to the trial, the Crown joined the counts
    involving T.R. and L.I. and applied to have the evidence of each complainant
    admitted as similar fact evidence. The defence opposed the application and
    applied to sever the counts. The trial judge allowed the similar fact
    application and denied the severance application. The appellant argues that she
    erred in doing so.

[10]

I
    disagree. The arguments raised on the similar fact and severance applications were
    matters for the trial judges discretion, based on the evidence before her. In
    her careful reasons, the trial judge considered the law in relation to similar
    fact evidence and applied it to the facts before her. She thoughtfully weighed
    the risk of prejudice to the accused against the probative value of the
    evidence.  She concluded that:

the Crown has discharged the onus of establishing on a
    balance of probabilities that [the similar fact evidences] probative value
    outweighs its undoubted prejudice. The acts complained of and the surrounding
    circumstances leading to and following those acts contain a high degree of
    similarity such that the likelihood of coincidence is objectively improbable.

[11]

Similarly,
    on the appellants severance application, the trial judge referenced the appropriate
Criminal

Code
provisions and the authorities on severance and
    applied them to the evidence before her. She concluded that, although there was
    a risk of prejudice to the accused, there were compelling countervailing
    reasons for having a joint trial.

[12]

A
    trial judges decision to admit similar fact evidence is owed substantial
    deference by an appellate court:
R. v. Handy
, 2002 SCC 56, [2002] 2
    S.C.R. 908, at para. 153. Deference is likewise afforded to a trial judges
    ruling on severance, so long as he or she acts judicially and the ruling does
    not result in an injustice:
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R.
    146, at para. 14. In light of the applicable standards of review, it is my view
    that there is no basis for this court to interfere with the trial judges decisions.

(2)

Did the trial judge err in admitting into
    evidence a statement made by     the appellant to the police that was made without
    first speaking to  counsel?

[13]

Prior
    to trial, the appellant brought an application seeking to exclude a videotaped
    statement he gave to police on March 5, 2007. The trial judge denied his
    application. The appellant now argues that she erred in doing so. He says that
    his statement to police was involuntary, that it was the product of
    inducements, that the police denied him his right to consult with counsel at
    the station, and that his statement ought not to have been admitted into
    evidence.

[14]

The
    parties positions on the original application are aptly summarized by the
    trial judge in her reasons for denying the appellants application:

The Appellant says that, while he had been advised four times
    of his right to counsel and cautioned that anything he did say could be used
    against him in court, he asked to speak to counsel twice before giving his
    statement and was denied the opportunity to exercise that right. He submits
    that police encouraged him to speak to them before he had a chance to speak to
    a lawyer. They suggested that they did not believe the Complainants story and
    that if he spoke to the Lead Detective and gave his version of events, he would
    be home by supper that day and would not be charged. Officer Dizon told him
    that if he lawyered up he would go to jail.

The Crown submits that the Applicants statement to police was
    voluntary as the Applicant had been read his right to counsel and cautioned
    four times before giving his videotaped statement. Before arriving at the
    station, the Applicant had indicated he wanted to speak to a lawyer. However,
    once at the station, after being told by the Sergeant that he could speak to a
    lawyer, he shrugged his shoulders and said he just wanted to speak to the
    Detective as he had done nothing wrong.  He was fully aware that any statement
    could be used against him in court. He confirmed the waiver of his right to
    counsel at the outset of the videotaped statement to police.

[15]

The
    trial judge carefully considered the evidence before her. She rejected the
    appellants evidence, and accepted the evidence of the interrogating officers.  She
    concluded that neither officer told the appellant to speak to them without
    counsel, or used promises or inducements to compel the appellant to make a
    statement. Her conclusion in this regard is amply supported by the evidence she
    accepted.

[16]

The
    trial judge also concluded that the appellant was well-aware of his right to
    speak to counsel before he said anything to police. It is worth noting that the
    appellant was videotaped saying he did not need to speak to a lawyer so long as
    he had only been arrested, not charged. The relevant exchange between the
    appellant and the interrogating officers is as follows:

Officer: I am gonna caution you again weve already, we did
    this, I just want to make sure just to get it on the record that is.

Appellant: I have the right to a lawyer.

Officer: Yes exactly.

Appellant: That I am waiving it.

Appellant: If Ive just been arrested for this crime, just a
    minute, I mean, I have no problems talking with, if youre charging me with it
    I want to speak to a lawyer please.

Officer: At this stage of the game youve just been arrested.

Appellant: Okay.

Officer: Okay, depending on the results here.

Appellant: Thats fine.

Officer: That will make the determination here, okay and oh do
    you wish to call a lawyer now?

Appellant: No.

Officer: Okay Im just going to tell you, you dont have to
    say anything to us. Anything you say I can use against you in court.

Appellant: Thats fine.

[17]

In
    my view, the trial judges determination was based on the evidence before her
    and there is no basis on which this court should interfere.
The determination of whether a statement is voluntary
    is a question of fact, or mixed fact and law, and is thus owed deference,
    provided the trial judge considers all of the relevant circumstances and
    properly applies the law: see
R. v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R.
    3, at para. 22;
R. v. Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500,
    at paras. 16-17
.
I would not give effect
    to this ground of appeal.

(3)

Did the trial judge err in holding that access
    to occurrence reports is      governed by the production regime set out under
    s. 278.2 of the
Criminal Code
?

(a)

Facts and the decision below

[18]

The
    issue relating to the occurrence reports arose from a radio documentary created
    about T.R. and the prosecution of certain alleged assaults against her. It was
    aired after the incident but before the trial. As part of the documentary,
    radio personnel interviewed both T.R. and one of the detectives who assisted in
    her case. In the broadcast, the detective says that she reviewed T.R.s police
    file in preparation for the trial. She says she came across four or five
    occurrences in relation to sexual assaults. She said all were violent and
    involved weapons or being punched in the face.

[19]

When
    the defence learned from the radio documentary of the occurrence reports
    involving T.R., it brought a disclosure application to obtain them from the
    Crown. The central issue raised by that proceeding, and again in this appeal,
    is whether police-made occurrence reports that are unrelated to the specific
    offence being prosecuted but involve witnesses ought to be disclosed in
    accordance with s. 278.2 of the
Criminal Code
or, alternatively, with
    the regime set out in
R. v. Stinchcombe
, [1991] 3. S.C.R. 326.

[20]

In
    its application, defence argued that production of occurrence reports should be
    made in accordance with the
Stinchcombe
disclosure regime, which in
    essence requires the Crown to produce all relevant non-privileged information
    over which there is no privacy interest. The Crown argued that
Stinchcombe
did not apply because the information sought was personal information of a
    complainant in a proceeding wherein a sexual assault is alleged. Thus, the
    Crown submitted, the disclosure application should have been brought in
    accordance with the statutory protections set out in s. 278.2 of the
Criminal
    Code
.

[21]

The
    trial judge concluded that the occurrence reports were records within the
    meaning of s. 278.1 and were subject to the disclosure regime in s. 278.2.  In
    her reasons, she noted:

In this case, the police occurrence reports contain recorded
    information about the Complainant, including her knowledge or involvement in
    criminal activity. Such documents contain personal information protected by
    provincial legislation. As such, there is a privacy interest in those
    documents.

Record as defined in s. 278.1 of the
Criminal Code
does not include records made by persons responsible for the investigation or
    prosecution of the offence. Toronto Police Services is a person pursuant to
    section 2 of the
Code
in which person is defined to include Her
    Majesty and an organization. As such, a record does not include records made
    by the Toronto Police Service for the investigation of this offence. The
    exclusion does not extend to all records in the possession of the person
    responsible for the investigation but only records for the investigation of the
    offence in question.

The words records made by persons responsible for the
    investigation or prosecution of the offence must be limited by the offence
    at issue.

She concluded:

In my view, the wording of section 278 is clear. The Application
    must be brought pursuant to section 278.2 of the
Criminal Code
, as in
    this case, there is a reasonable expectation of privacy and the only exception
    is for records pertaining to the offence in question.

[22]

As
    the Crown has noted in her factum, the trial judges interpretation suggests
    that any records made by the investigating police service that are not made in
    relation to the offence are covered under s. 278, even if they are accessed by
    the investigating officer and made part of the fruits of the investigation.

(b)

The trial judge erred in holding that access to
    occurrence    reports is governed by s. 278.2

[23]

In
    my view, whether or not these occurrence reports are subject to disclosure
    pursuant to s. 278.2 is a matter of statutory interpretation. The
Criminal
    Code
provides a definition of a record for the purposes of ss. 278.2 to 278.9:

278.1 For the purposes of sections 278.2 to 278.9, record
    means
any form of record that contains personal
    information for which there is a reasonable expectation of privacy
and
    includes, without limiting the generality of the foregoing, medical,
    psychiatric, therapeutic, counselling, education, employment, child welfare,
    adoption and social services records, personal journals and diaries, and
    records containing personal information the production or disclosure of which
    is protected by any other Act of Parliament or a provincial legislature,
but does not include records made by persons
    responsible for the investigation or prosecution of the offence
.
    [Emphasis added].

[24]

I
    recognize that the preponderance of trial level decisions on this point adopts
    the view that police occurrence reports involving a complainant or a witness
    which are unrelated to the particular offence at issue are records for which
    there is a reasonable expectation of privacy. Such authorities have, in
    general, held that the exclusionary phrase at the end of the definition in s.
    278.1  but does not include records made by persons responsible for the
    investigation or prosecution of the offence  relates only to occurrence or
    investigation reports made in relation to
the offence at issue
. The
    courts have held that this phrase does not include police investigations or
    occurrence reports prepared in relation to unrelated matters involving the
    complainant or witnesses: see, for example,
R. v. McAdam
(2008), 172
    C.R.R. (2d) 27.

[25]

As a matter of statutory
    interpretation, I cannot agree with the trial judges conclusion or the weight
    of the judicial authority to this point. In my view, the object of s. 278.2 and
    the intention of Parliament, as well as the words of s. 278.1 read in their
    grammatical and ordinary sense, indicate that police-made occurrence reports
    are excluded from the application of the s. 278 regime.

[26]

The
    Supreme Court of Canada instructs us that today there is but one principle of
    statutory interpretation:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.
[1]

[27]

In
    considering the scheme of the Act, the object of the Act, and the intention of
    Parliament, it is helpful to reference the preamble of the Bill adding the new
    disclosure regime to the
Criminal Code
: see Bill C-46,
An Act to
    amend the Criminal Code (production of records in sexual offence proceedings)
,
2nd. Sess, 35th Parl. 1997 (assented to
    25 April 1997).

[28]

In
    the preamble, Parliament recognizes that the compelled production of personal
    information in accordance with ordinary disclosure principles may deter victims
    of sexual offences from reporting and seeking necessary treatment,
    counselling, or advice. It also acknowledges that such unconstrained
    disclosure may detrimentally affect the work of those who provide services and
    assistance to complainants of sexual offences.

[29]

In
R. v. Mills
, [1999] 3 S.C.R. 668, the Supreme Court of Canada further elaborated
    on the nature of the personal information and the reasonable expectation of
    privacy contemplated by s. 278.1.
Mills
involved a constitutional
    challenge to ss. 278.1 to 278.9 of the
Criminal Code
. The accused in
Mills
was charged with the sexual assault of a thirteen-year old. Prior to trial, the
    accused sought disclosure of certain therapeutic records, including records
    held by a psychiatrist and an adolescent services association. In the interim,
    the
Criminal Code
was amended to include ss. 278.1 to 278.9. Upon
    learning of the amendment, the accused challenged the validity of the new
    provisions, claiming that they violated his rights under the
Canadian
    Charter of Rights and Freedoms
.

[30]

The
    majority of the Supreme Court of Canada ultimately upheld the constitutionality
    of the new disclosure regime. In doing so, the majority considered the important
    privacy interests at stake in the production of private records in the context
    of a trial for sexual assault. Discussing the fundamental aspects of privacy, at
    para. 81, the majority cited with approval Sopinka J.s statement in
R. v.
    Plant
, [1993] 3 S.C.R. 281, at p. 293:

...[I]t is fitting that s. 8 of the
Charter
should
    seek to protect a biographical core of personal information which individuals
    in a free and democratic society would wish to maintain and control from
    dissemination to the state. This would include information which tends to
    reveal intimate details of the lifestyle and personal choices of the
    individual.

[31]

The
    majority also stressed the importance of the protection of personal information
    to maintaining relationships of trust and confidentiality, at para. 89:

The values protected by privacy rights will be most directly at
    stake where the confidential information contained in a record concerns aspects
    of ones individual identity or where the maintenance of confidentiality is
    crucial to a therapeutic, or other trust-like, relationship.

[32]

The
    important thing to note about the scheme of the Act and intention of Parliament
    as evidenced in the preamble to Bill C-46 and the majoritys discussion in
Mills
is the nature of the privacy interest being discussed. The personal
    information and expectation of privacy in s. 278.1 is framed in reference to
    intimate information about ones identity and lifestyle, of the type disclosed
    in the context of a trust-like, confidential, or therapeutic relationship. It
    is, in the words of Sopinka J., the type of information an individual would
    seek to withhold from the state.

[33]

When
    a victim of a sexual assault speaks to police about the attack, he or she is
    not doing so in the context of a trust-like, confidential, or therapeutic
    relationship. Nor is that individual seeking to withhold that information from
    the control or dissemination of the state. Indeed, an individual speaking to a
    police officer in this context is expressly sharing information with the state,
    for the purpose of having the assault investigated and addressed.

[34]

More
    specifically, a complainant cannot reasonably expect that the information,
    personal though it is because of the nature of the complaint, will remain a
    private matter between her and the officer. The complainant will know that the
    information she provides will be the basis for charges against and the prosecution
    of the person who assaulted her, and that the information will, in the usual
    course, come out at a public trial. In my view, there can be no reasonable
    expectation of privacy in information a complainant provides to police and
    which the police record in one form or another. Similar reasoning would apply
    to information provided to police by a witness.

[35]

With
    the nature of the privacy interest contemplated by s. 278 in mind, I will now
    turn to the the words of [the] Act  read in their entire context and in their
    grammatical and ordinary sense. The actual words used in s. 278.1, omitting
    only the language of example, read:

record means any form of record that contains personal
    information for which there is a reasonable expectation of privacy  but does
    not include records made by persons responsible for the investigation or
    prosecution of the offence.

[36]

The
    records excluded under this definition are those made by persons responsible
    for the investigation or prosecution of the offence. They are not records made
    by other persons which may be held by the police or the prosecution; the
    excluded records are only those made by those responsible for the
    investigation or prosecution of the offence.

[37]

Further,
    there is no language which limits the word records to only those records made
    in relation to the specific offence in issue. Had it been Parliaments
    intention to limit the exclusion to only those records prepared in relation to
    the specific offence in issue, it could easily have employed language to
    accomplish that purpose.  It did not.

[38]

Considering
    both the intention of Parliament in enacting Bill C-46 and the words of s.
    278.1 read in their grammatical and ordinary sense, I must therefore respectfully
    disagree with the trial judges conclusion that occurrence reports qualify as
    records for the purposes of s. 278.2.  In my view, occurrence reports do not fall
    within the realm of private records Parliament intended to target in enacting
    ss. 278.1 to 278.9.

[39]

The
    discussion above about the nature of the privacy interest at stake supports
    this view. Passages from
Mills
also support this view. At the outset
    of the majoritys judgment, at para. 50, it states:

Bill C-46 begins by defining records to which it applies: any
    form of record that contains personal information for which there is a
    reasonable expectation of privacy,
excluding investigatory or
    prosecutorial records
..
.
    [Emphasis added.]

[40]

This
    statement reflects that police-made occurrence reports and investigative
    records are different in kind from the type of records contemplated by s. 278.1
    or at issue in
Mills
. The types of records specifically referenced in
    s. 278.1 are medical, psychiatric, therapeutic, counselling, education,
    employment, child welfare, adoption and social service records, personal
    journals and diaries and records containing personal information which is
    protected by legislation.

[41]

In
Mills
, the court was considering therapeutic records and notes that
    were in the possession of a counselling organization, and records held by a
    psychiatrist and by a child and adolescent services organization  private
    records, as the court referred to them throughout its judgment. For the
    reasons I have explained above, I do not accept that occurrence reports created
    by police implicate the types of privacy interests envisioned in s. 278.1 or in
Mills
.

[42]

More
    importantly, as a result of the plain wording of s. 278.1, it does not matter whether
    an occurrence report contains personal information for which there is a
    reasonable expectation of privacy or not. So long as a record was made by
    persons responsible for the investigation or prosecution of the offence, it is
    excepted from the definition of record by the language of s. 278.1. Even if
    such records should contain personal information for which there is a
    reasonable expectation of privacy, they are, by the concluding words of s.
    278.1, excluded from its reach.

[43]

Here,
    it was clear that the detective featured in the radio documentary reviewed
    four or five occurrence reports relating to T.R in preparation for the trial
    of this case. Those reports are part of the fruits of the investigation, and
    are producible under
Stinchcombe
as part of the Crowns first party
    disclosure obligations. If, as here, the defence seek copies of other occurrence
    reports relating either to T.R. or L.I., they must make a further request to
    the prosecuting Crown and the Crown is required to produce those records in
    accordance with its
Stinchcombe
disclosure obligation.

[44]

Because
    the occurrence reports were not produced to the appellant, we cannot know what
    effect, if any, the use of such records may have had on the appellants case.
    In such circumstances, the curative proviso under s.
686(1)(b)(iii) of
the
Criminal Code
cannot be applied and, regrettably, there must be a new trial.

D.

Conclusion

[45]

In
    the result, the appeal is allowed and a new trial is ordered.

[46]

Because
    there will be a new trial, it is unnecessary to deal with the sentence appeal.

Released:
March 26, 2013  MR

J.
    MacFarland J.A.

I
    agree M. Rosenberg J.A.

I
    agree Robert J. Sharpe J.A.

[1]
Rizzo and Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21, adopting with approval the statement of Elmer
    Dreidger in
Construction of Statutes,
2nd ed. (Toronto: Butterworths,
    1983), at p. 87.