In two recent cases in Brampton court, prosecutors were criticitized for the
time it took to disclose critical information to the defence. (Peter
Edwards / Toronto Star file photo)
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
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Delays attributed to the defence can’t be used to justify staying a
“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
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
“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
“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.