Two judges have recently called out the federal Crown office in Brampton for failing to disclose evidence to the defence in a timely fashion in drug prosecutions, with one saying the Crown’s actions represent the “culture of complacency” in the legal system described by the Supreme Court in a landmark ruling last year.
Ontario court Justice Andras Schreck stayed drug charges against Andrew Stanley and Dilancan Unutkan in December after it took too long to get their case to trial.
His colleague on the bench, Justice Kathryn Hawke, stayed charges earlier this month against David McCready and Keith Rochon, finding there were similarities with the Stanley and Unutkan case with regards to the slow pace of disclosure by the Crown.
Last year in a landmark ruling, R v. Jordan, the Supreme Court found that cases in provincial court that take longer than 18 months to get to trial are considered presumptively unreasonable, and it falls on the Crown to prove that there were exceptional circumstances for the delay.
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Delays attributed to the defence can’t be used to justify staying a charge.
“The delay in this case was primarily the result of the Crown’s failure to fulfill its disclosure obligations in anything even approaching a timely fashion,” Schreck wrote in December. “In my view, this case exemplifies the ‘culture of complacency’ condemned in Jordan.”
While a move by the Ontario government last year to add more judges and provincial Crown attorneys was applauded as a first step at clearing the backlog of cases at risk of being thrown out, the two Brampton prosecutions highlight what lawyers say are other issues that cause delay, but get less attention.
In the Stanley and Unutkan case, the accused were charged with several counts of possessing drugs for the purpose of trafficking, the total value being about $500,000.
The judge found the delay in the case to be 25 months, once delay attributed to the defence was subtracted. As one reason for the delay, Schreck pointed out that it took eight months after the accused were arrested to provide their lawyers with the information to obtain (ITO), a document that contains information about a case sworn by police in order to get a search warrant.
Schreck said he found it hard to believe it took so long for the Crown to vet the ITO before it was disclosed to defence lawyers, because the document was nine pages and the only information censored was “two small portions on the second page” to protect the identity of a confidential informant.
“I find it difficult to accept that the Crown’s office was so short-staffed that it took eight months to vet nine pages,” he said. “Even if it was, the Crown’s failure to allocate sufficient resources to the prosecution of serious criminal offences cannot justify delay that is otherwise unreasonable.
“Even after the ITO was provided, it took another five months to provide the surveillance disclosure, which consisted of police notes that were created prior to the applicants’ arrest.”
Unutkan’s lawyer, Andrew Edgar, and Stanley’s lawyer, John Christie, said a major source of delay in drug cases in Brampton is that Peel Regional Police take too long to provide evidence to the Public Prosecution Service of Canada, the federal agency that handles drug crimes.
“It’s not uncommon in Peel drug cases for initial disclosure, which consists largely of photocopies of notebooks that can be prepared in a day, to take months before it is given out,” Edgar told the Star.
“These things don’t get done faster quite simply because some Peel officers don’t care to do them faster,” he said. “When serious charges are being stayed as a result of this culture, people will hopefully start to realize that there’s something wrong going on here.”
A spokesman for Peel police said only one instance of delay in the Stanley and Unutkan case was the result of police disclosure.
“We take the disclosure process seriously,” said Sgt. Josh Colley. “We have a directive that outlines the time frame within which disclosure is required to occur, and it applies to all areas of Peel Regional Police.”
A spokeswoman for the Public Prosecution Service of Canada didn’t reply specifically to questions about the judges’ criticism of the Brampton federal Crown office. Nathalie Houle said the prosecution service has issued a new guideline in the wake of Jordan to prosecutors on avoiding unnecessary or lengthy delays.
In the second Brampton drug case, Keith Rochon and David McCready were facing several drug possession and possession for the purpose of trafficking charges. After subtracting defence delay, Justice Hawke found it took just over 26 months to get the case to trial.
The judge said there was a “striking similarity” with the Stanley and Unutkan case, in that it took the Crown over seven months after the men’s arrest to disclose the ITO to the defence. She said there were “warning signs” relating to delay but no steps were taken to prioritize it over other federal prosecutions.
“Getting ITOs to counsel is part of your ‘bread and butter’ work if you are in the business of prosecuting drug cases,” Hawke wrote. “Lack of attention to this work does not, without further appropriate details, show complexity, rather it leads to the inferences drawn by Justice Schreck and the complexity argument fails.”
Lawyer Brian Crothers, who represented Rochon, and Dano Sahulka, a former federal Crown prosecutor who represented McCready, said more resources need to be allocated to the prosecution office by the federal government.
“Until that problem is fixed, then there will always be problems in providing full disclosure to an accused person in a timely fashion, which will continue to violate a citizen’s right to a trial in a reasonable time in this new post-Jordan era,” Crothers told the Star.
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