R. v. Prince, [2018] O.J. No.

2722
Ontario Judgments

Ontario Superior Court of Justice

S.A.Q. Akhtar J.
Heard: March 23, 2018.
Judgment: May 17, 2018.
Court File No.: CR-17-90000687-0000

[2018] O.J. No. 2722 | 2018 ONSC 3033

Between Her Majesty the Queen, and Patrick Prince

(62 paras.)

Counsel

R. Visca and F. Alibhai, for the Crown.

A. Weisberg, for Patrick Prince.

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

The Allegations

1 Patrick Prince stands charged with the offences of Possession of Proceeds of Crime
exceeding $5000, and possession of cocaine for the purposes of trafficking.

2 The events leading up to the charges began in January 2014 when police initiated "Project
Ream", an investigation into allegations of drug trafficking in the Toronto area. Their tools of
investigation included the use of warrants, assistance orders, and intercepted communications.

3 In June 2014, surveillance began on two residential addresses located at 117-325 South Park
Road and 108-273 South Park Road in Markham, Ontario. The applicant was seen going into
the buildings on 4, 6 and 9 June. Police observations also noted the applicant exercising control
over a black Jeep and grey Land Rover.
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4 Covert entries into the two addresses and the Land Rover led to the discovery of $22,050 in a
black knapsack and a safe containing USD $384,000 and CAD $85,000. In addition, when
searching the Land Rover, police discovered one kilogramme of cocaine in a knapsack on the
rear driver's side passenger seat.

5 As Project Ream was still ongoing, the applicant was not arrested, and no items were seized
in order to ensure the investigation remained secret.

6 The applicant was last seen on 12 June 2014. However, the investigation continued until 10
August 2014 when the police executed a series of warrants and arrested a number of suspects.

7 On 16 June 2014, the police received information suggesting the applicant had travelled to
Jamaica entering the country through Montego Bay. The police also observed contents from
South Park Road being placed into a moving van. Subsequently, the police received information
indicating the applicant had left Canada with his property.

8 On 16 September 2014, the police swore an information laying charges against the applicant
and a warrant of first instance was issued for the applicant's arrest.

9 On 10 June 2015, Jamaican authorities contacted the Canadian authorities informing them of
the applicant's presence in Jamaica, and expressing their desire to arrest the applicant on the
Canadian warrant. Shortly thereafter, the Public Prosecution Service of Canada (PPSC) began
proceedings to extradite the applicant.

10 On 25 July 2016, counsel for the applicant, Mr. Weisberg, wrote to the officer in charge of
the case to advise him that the applicant was aware of the charges against him and was
returning to Canada. Counsel notified the officer of the applicant's wish to surrender to the
authorities. The applicant was arrested when he arrived at Pearson International Airport and
taken to court for a bail hearing on 26 July 2016. The next day he was released on a
recognisance in an amount of $150,000 with sureties.

Position of the Parties

11 Mr. Prince alleges that his right to a trial within a reasonable time has been violated and
brings an application to stay the indictment pursuant to s. 11(b) of the Charter of Rights and
Freedoms. Mr. Weisberg, on behalf of the applicant, argues that the total delay in this case is
approximately 44 months, well above the presumptive ceiling of 30 months set in R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631. He further argues that in the circumstances of this case, the
Crown cannot justify the delay by arguing the existence of exceptional circumstances or through
reliance on the transitional exception described in Jordan.

12 In response, Crown counsel, Mr. Visca, submits that the delay in this case was caused by
the applicant's departure from Canada. He argues that the period between charge and arrest
falls at the feet of the applicant, relying on evidentiary inferences that the applicant knew of the
charges and deliberately refrained from returning to Canada to avoid arrest. Alternatively, Mr.
Visca argues that the time period in which the applicant was absent from the jurisdiction is a
"discrete event" which should be deducted from the total period of time.

Legal Principles
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13 The Jordan decision set out a new landscape for analysing s. 11(b) claims, discarding the
guidelines previously prescribed in R. v. Morin, [1992] 1 S.C.R. 771. A new presumptive ceiling
amounting to 30 months - for offences tried by indictment - was imposed as the benchmark for
reasonable delay.

14 In determining whether the ceiling has been breached, a court calculates the total length of
delay and applies deductions that may apply, for example, delay caused solely by the actions of
defence. This leaves a "net delay" figure: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433. A
"net delay" greater than 30 months shifts the onus to the Crown to justify the excessive delay
due to exceptional circumstances: Jordan, at paras. 47, 68-75. Finally, for cases that began
prior to Jordan, the Crown may rely on the "transitional period exception", using the Morin
standards to determine unreasonable delay.

15 In Coulter, the Court of Appeal for Ontario, provided guidelines for determining the manner
in which periods of delay should be analysed and deducted, as necessary. At paras. 34-41, the
following approach was suggested:

(1) Calculate the total delay, which is the period from the charge to the actual or
anticipated end of trial
(2) Subtract defence delay from the total delay, which results in the "Net Delay"
(3) Compare the Net Delay to the presumptive ceiling
(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively
unreasonable. To rebut the presumption, the Crown must establish the presence
of exceptional circumstances. If it cannot rebut the presumption, a stay will follow.
In general, exceptional circumstances fall under two categories: discrete events
and particularly complex cases
(5) Subtract delay caused by discrete events from the Net Delay (leaving the
"Remaining Delay") for the purpose of determining whether the presumptive
ceiling has been reached
(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider
whether the case was particularly complex such that the time the case has taken
is justified and the delay is reasonable
(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the
defence to show that the delay is unreasonable

The Chronology

16 The relevant timeline in this case is set out as follows:

* 14 June 2014 - Police receive information that the applicant has travelled to
Montego Bay.
* 16 September 2014 - Information laid against the applicant with issuance of
warrant for arrest.
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* 10 June 2015 - Jamaican authorities contact Det. Douglas Backus and indicate
their wish to arrest him on the Canadian warrant. Backus contacts the Public
Prosecution of Canada (PPSC) to discuss steps to return the applicant to Canada.
PPSC considers extradition request.
* 20 July 2015 - First internal memorandum regarding extradition completed by
PPSC.
* 10 August 2015 - The applicant is served with an order restraining his assets by
the Jamaican authorities.
* 24 August 2015 - The applicant files affidavit in Jamaican proceedings. The PPSC
and TPS are notified of this development the next day.
* 25 September 2015 - Revised memorandum completed by PPSC lawyer, Faiyaz
Alibhai.
* 22 October 2015 - Ontario Regional Office gives permission to seek extradition
and PPSC begins work on affidavits.
* 18 November 2015 - Draft affidavits for police officers and Affidavit of Law
completed by Mr. Alibhai. Consultation period begins.
* 23 February 2016 - Mr. Alibhai seeks information about the discovery from police
about the discovery of the applicant's location.
* 8 March 2016 - Det. Backus provides the information requested in the form of a
will state.
* 2 May 2016 - File received by International Assistance Group (IAG) for approval of
extradition request.
* 30 May 2016 - IAG approves the final drafts which require execution and return to
IAG.
* 3-5 June 2016 - Affidavits sworn.
* 14 June 2016 - IAG sends the extradition request to Global Canada.
* 25 July 2016 - The applicant's counsel sends an email to the Toronto Police
Service indicating that he will return to Canada.
* 26 July 2016 - The applicant is arrested.
* 23 August 2016 - Disclosure provided to applicant.
* 12 September 2016 - Judicial pre-trial date is set.
* 11 October 2016 - Judicial pre-trial held and preliminary inquiry date set.
* 21 July 2017 - Preliminary inquiry commences.
* 21 September 2017 - Preliminary inquiry completes and matter is committed for
trial to the Superior Court of Justice.
* 14 May 2018 - Scheduled Trial Date.

WAS THERE UNREASONABLE DELAY?

Defence Delay
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17 The parties agree that the total delay in this case equals 1336 days or 43.9 months. Of this
amount, the defence concedes that approximately two months is attributable to the actions of
the defence. In Jordan, at paras. 61-3, the court defined defence delay as any period of delay
explicitly waived by the defence and any delay "caused solely by the conduct of the defence".

18 Mr. Weisberg concedes two blocks of time where delay should be accorded to the defence.

19 First, he agrees that 39 days should be deducted from the total delay as the defence were
not available on 12 June 2017, the first date that the court and Crown were available to begin
the applicant's preliminary inquiry. As a result, the matter was adjourned to 21 July 2017. Mr.
Weisberg therefore concedes that the period between 12 June 2017 and 21 July 2017 must be
considered as defence delay and that 39 days is to be deducted from the total delay. The Crown
agrees.

20 Mr. Weisberg's second estimated block of time is, however, contested.

21 On 27 September 2017, when the matter had reached the Superior Court of Justice, two trial
dates were offered: 12 - 23 March 2018, and the weeks of 7 and 11 May 2018. However,
defence counsel were not available in these two time periods. The trial was therefore set to start
on 14 May 2018. Mr. Weisberg argues that only the total of these two periods of time of
unavailability, 21 days, rather than the entire period between 12 March and 14 May, should be
added to the amount to be deducted. On Mr. Weisberg's calculations defence delay would
amount to a reduction of 63 days from the total period of delay.

22 Mr. Visca, for the Crown, on the other hand, argues that the defence submission does not
accord with the principles set out in Jordan and that the whole period between 12 March 2018
(the date on which both the court and Crown were ready to proceed) and 14 May 2018 (the next
date on which the court and Crown were available) provides the correct amount to be removed
from the total delay.

23 I accept the Crown's submission. In Jordan, at para. 63, the court identified the setting of
dates and defence unavailability as being a source of defence delay. In doing so, it identified the
parameters of that delay in the following manner:

As another example, the defence will have directly caused the delay if the court and the
Crown are ready to proceed, but the defence is not. The period of delay resulting from
that unavailability will be attributed to the defence. However, periods of time during which
the court and the Crown are unavailable will not constitute defence delay, even if defence
counsel is also unavailable. This should discourage unnecessary inquiries into defence
counsel availability at each appearance. Beyond defence unavailability, it will of course
be open to trial judges to find that other defence actions or conduct have caused delay
(see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [Emphasis
added]

24 In R. v. Mallozi, 2018 ONCA 312, the defence was not available for a preliminary inquiry on
the original dates offered by the court resulting in a delay of 87 days to accommodate defence
counsel's schedule. At trial, the judge failed to allocate that period of time to delay caused by the
defence and ultimately stayed the charges. On appeal by the Crown, the defence argued that
this should not count as defence delay because they were available on dates earlier than those
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originally offered. The court disagreed. At para. 7, it noted that:

Jordan is clear that defence delay will arise where the Crown and the court are ready to
proceed, but the defence is not. Read contextually, and having regard to the trial
verification form, the Crown and the court were ready to proceed. Defence counsel was
not. The trial judge erred in failing to consider these 87 days as defence delay.

25 For these reasons I find that the whole period between 12 March and 14 May - 63 days -
constitutes delay wholly caused by the defence.

26 I find the total amount of defence delay in this case amounts to 102 days or 3 months, 10
days. The net delay is therefore 1234 days or 40 months and 18 days.

The Extradition

27 Both parties agree that after the applicant's arrest, matters proceeded expeditiously and that
there are no discrete events during this period of time.

28 The central issue in dispute in this case is the period of time between the laying of the
information and applicant's return to Canada.

29 Mr. Weisberg argues that during this period of time, approximately 22 months and 10 days,
the Crown and police "did nothing" to bring the applicant to trial.

30 He relies on a series of cases which resulted in stays for delay following prosecutorial
inaction over extradition.

31 In R. v. Macintosh, 2011 NSCA 111, 281 C.C.C. (3d) 291 aff'd, 2013 SCC 23, [2013] 2
S.C.R. 200, the accused was charged in 1995 with multiple charges of sexual assault that had
allegedly occurred two decades earlier. At the time of the charges, the accused was working in
India, having been transferred there by his employer the previous year. Although the RCMP
knew the accused's location from the outset, an extradition package was not readied until 2003
and the request was not made until 2006. The Court of Appeal for Nova Scotia quashed the
convictions and stayed proceedings finding that the 14 year delay in bringing the accused to trial
violated his s. 11(b) rights. The Supreme Court of Canada agreed.

32 In R. v. Burke, 2017 ONSC 3261, 383 C.R.R. (2d) 189, the accused was charged with
multiple counts of kidnapping and sexual assault and fled to the United States in 1986, in breach
of his bail conditions. He changed his name to avoid detection but was arrested in California for
serious charges including kidnapping and robbery. As a result, he was sentenced to a lengthy
period of incarceration from 1988 to 2015. Until 2003, the accused could not be legally
extradited by Canada. However, amendments to the extradition treaty between the two
countries permitted his return to Canada to face trial, despite his imprisonment in an American
institution. In 2015, the accused returned to Canada and was arrested. At trial, the judge found
that the delay from 2003 fell at the feet of the Crown and breached the accused's s. 11(b) rights.
Accordingly, the charges were stayed.

33 In R. v. Arsenault, 2013 ONSC 5675, 291 C.R.R. (2d) 145, the court stayed proceedings in
which the accused was charged with attempted murder. The prosecution alleged that the
accused had wired a spark plug from the victim's car into his gas tank. In 2001, the Crown
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became aware that the accused was looking into the possibility of leaving the country to work
abroad. He left Canada in November 2001 to reside in South Korea. In May 2002, after
receiving forensic evidence implicating the accused, police laid charges. Thinking that the
accused would return to Canada, the police decided not to extradite him. The accused was
ultimately arrested in December 2009 on his return to Canada. The court found that his s. 11(b)
rights had been breached.

34 The authorities disclose a set of principles that must be adhered to in analysing the
existence of a legitimate s. 11(b) violation. First, there is no obligation on an accused person
who has left the jurisdiction to surrender themselves to the authorities or otherwise facilitate their
return to Canada. Second, if the authorities are fully aware of an accused's location outside
Canada, it is incumbent upon them to act as expeditiously as possible to bring the accused to
trial. Third, if an accused person deliberately flees the jurisdiction and makes attempts to
conceal his whereabouts or otherwise frustrate the Crown's ability to extradite him or her their
actions are counted as defence delay in the s. 11(b) context. Fourth, where delay is caused by
the need to extradite an accused, this may constitute a discrete event: Jordan, at paras. 72, 81.

The Disputed Period I - 16 September 2014 - 10 June 2015

35 As noted, the entire period between 16 September 2014 (the laying of the information) and
26 July 2016 (the arrest of the applicant) is the subject of dispute. Two separate analyses apply.
These analyses split the time period into two segments with the call to Det. Bacchus by
Jamaican authorities acting as the severance point.

36 The Crown argues that this period of time should be treated as a discrete event because the
police did not know with any certainty where the applicant was located. Mr. Weisberg, on the
other hand, claims that even if the police did not know the applicant's whereabouts, the police
were under an obligation to attempt to locate him.

37 For the following reasons, I reject the defence submission.

38 The critical difference between the case at bar and the authorities relied upon by Mr.
Weisberg is that in those cases the police knew where each accused was and deliberately
chose not to take any action to extradite him.

39 In MacIntosh, the Canadian authorities knew of the accused's location in India, and in Burke,
they knew that the accused had been incarcerated in an American prison. It would have been
very easy for the authorities in those cases to begin extradition proceedings and serve a request
notice on the appropriate authorities, once they knew of the targets' location. The court found
that in MacIntosh, there was no attempt to even begin the extradition process until two years
later. In Burke and Arsenault, there was no attempt at extradition. Moreover, in MacIntosh, even
though the extradition package was complete in July 2003, the request was not forwarded until
three years later.

40 The applicant's case is very different. As per his affidavit, Detective Backus knew that the
applicant had travelled to Montego Bay but did not know if he was still in Jamaica or if he had
travelled elsewhere. He had information that the applicant regularly returned to Canada. In
short, the police did not know how or where to find the applicant.

41 Although it may, in hindsight, have been preferable to continue inquiries to ascertain whether
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the applicant was in Jamaica, the failure to do so does not mean that the Crown cannot
discharge its burden to justify a delay that exceeds the ceiling. The police have a limited budget
and resources. Imposing an obligation that would require them to conduct international searches
for an accused who has gone missing is both impractical and undesirable.

42 I find support for this view in R. v. Singleton, 2014 BCCA 232, 310 C.C.C. (3d) 534, where
the argument mounted by the defence bears strong similarities to that advanced by the
applicant. There, the accused was charged with defrauding an estate of which he was the
executor. He was charged in 1997 but was, by then, living in the US. Police had information
connecting the accused to a city in Texas but were told that that the accused had moved. The
officer in charge of the case turned his attention to another file, leaving the case untouched for
four years. When that officer returned to the case, he was able to track down the accused
through his daughter in 2004. The accused was extradited two years later and convicted at trial.
He argued that the case should have been stayed because his s. 11(b) rights had been
breached. The main plank of his delay argument was the four year period of inactivity where no
effort had been made to locate him.

43 The British Columbia Court of Appeal dismissed his appeal, acknowledging that trying to
locate someone in a country as vast as the US was a monumental task. As Frankel J.A. pointed
out, "[a]lthough the police could have located Mr. Singleton earlier had they known where to
look, they did not know where to look until [the officer] spoke with Ms. Singleton. There is
nothing in the evidence to suggest that Mr. Singleton could have been located before [the
officer] learned of his possible connection to Peck, Kansas".

44 Significantly, Frankel J.A., at para. 101, discussed where the burden of proof lay when the
question of whether police inquiries might have led to a speedier discovery:

I appreciate that in R. v. Smith, [1989] 2 S.C.R. 1120 at 1132-1133, Mr. Justice Sopinka
stated that although the ultimate or legal burden of proof is on the accused who raised s.
11(b) of the Charter, it is seldom necessary to evaluate the reasonableness of any delay
on the basis of the burden of proof. As well, he indicated there will be circumstances
where an evidentiary or secondary burden will be placed on the Crown, for example, to
explain why the Crown requested an adjournment. However, in a case where an accused
who was located in a foreign country pleads, in effect, "the police could have found me
sooner", I consider it appropriate to place the burden of establishing that fact on the
accused. The police should not be faulted for failing to pursue a possible avenue of
inquiry unless it is shown that doing so would have provided useful information.
[Emphasis added]

45 The question is not whether the police "did nothing" but whether they acted with reasonable
diligence: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 54; R. v. Thind, 2018 ONSC
1337, at para. 76. Here, the police did not know where the applicant was or even what country
he was in.

46 Nor do I accept the police did "nothing". They quickly sought and obtained an arrest warrant
that would permit the applicant's detention if found by other authorities, and which ultimately led
to the applicant's discovery. Ironically, the pre-requisite for obtaining the warrant was the laying
of charges which set the s. 11(b) clock ticking.
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47 Once they became aware of the applicant's whereabouts, the PPSC immediately initiated
the extradition process.

48 In the circumstances of this case, with no exact knowledge of the applicant's location, the
police action was not unreasonable.

The Disputed Period II: 10 June 2015 - 26 July 2016

49 The second segment of time that is criticised by Mr. Weisberg is the period subsequent to
the Jamaican authorities' contact with Detective Backus which occurred on 10 June 2015.
Almost immediately thereafter, the Crown began the extradition process.

50 Mr. Weisberg, argues that the extradition was not a discrete event and that, even if it were,
the Crown has failed to establish that it acted with reasonable diligence in pursuing its goal. At
most, says Mr. Weisberg, only four months should be deducted from the time that the applicant
was out of the country.

51 As noted, the court in Jordan, at paras. 72 and 81, explicitly referred to extradition as a
matter which may constitute a discrete event. I find that to be the case here. As I have already
made clear, the police could not identify, with any certainty, the location or whereabouts of the
applicant prior to being contacted on 10 June 2015.

52 In R. v. Barra, 2017 ONSC 6008, Labrosse J. accepted a 19 month delay in proceedings so

that the accused could be extradited as a discrete event. However, he undertook an analysis in
determining whether the Crown had acted speedily enough to return the accused to Canada. He
concluded that four months of the process should be counted as part of the total delay as the
Crown had not shown itself to be reasonably diligent in pursuing the application.

53 In R. v. Lee, 2015 SKCA 53, 323 C.C.C. (3d) 313, the court took the same view, adding that
even though the Crown must exercise reasonable diligence, it is not required to immediately
initiate extradition proceedings.

54 Like Labrosse J., I find the extradition process in this case constitutes a discrete event.
Where I differ from my colleague, however, is the scrutiny applied to the process. I do not find
that it is a proper application of Jordan to parse each and every period belonging to the
extradition process to attribute periods of delay. Once extradition is found to be a discrete event,
it should not be micro-managed to determine whether a "faster" extradition was possible.

55 Extradition is a complex procedure involving international treaties and requirements. It is

clear that the Crown began the attempt to extradite the applicant immediately after receiving his
location and their efforts continued throughout a year-long period involving foreign jurisdictions,
multiple investigative agencies and prosecuting authorities; and provide a basis in law for the
extradition through affidavit and other evidence.

56 Nor is it clear what period of time should be considered as a reasonably diligent extradition
period. Extradition cases are distinct legal creatures involving different countries and different
facts. It is noteworthy that in Barra, Labrosse J. found a period of 15 months to be reasonable in
the delay context.
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57 I qualify these comments with the observation that there may be periods of time in
extradition where a delay is apparent from the facts. For example, if the Crown had received
approval for extradition but delayed the filing of the extradition request for an inordinate length of
time, a finding of a lack of reasonable diligence would be justified.

58 For these reasons, I find that the period between the laying of the information and the arrest
of the applicant to be a discrete event.

59 Once the period constituting a discrete event (22 months and 10 days), is deducted from the
net delay of 40 months and 18 days, the remaining delay amounts to 18 months and 8 days, a
total well within the 30 month limit set by Jordan.

60 If the defence wish to argue, in any particular case, that the Crown could have taken less
time in extraditing an accused, it is still open to them to do so. If, as in this case, the extradition
proceeding qualifies as a discrete event and thereby reduces the total delay below the
presumptive ceiling, the defence may still seek to demonstrate that even though it took steps to
expedite the case, it still took markedly longer than it should have: Jordan, at para. 82. In these
circumstances, however, the burden of doing so, however, falls upon them.

61 In light of the foregoing, it is unnecessary to consider the Crown's alternative arguments.

62 For the above reasons, the application is dismissed.

S.A.Q. AKHTAR J.

End of Document