The Ministry of the Attorney General is arguing that Superior Court Justice Ian Nordheimer made numerous legal errors when he stayed charges against six Toronto police officers because of unreasonable delay by the Crown.
The Notice of Appeal filed on Feb. 8 by the Crown lists 18 grounds of appeal of the decision by Nordheimer to grant the 11(b) application by the officers, who were charged in 2004 following what has been called the largest police corruption investigation in Canadian history.
“The trial judge seriously misapprehended the relevant facts and misapplied the relevant legal principles in his 11(b) analysis,” states the Crown in the appeal document.
The Notice of Appeal is unusually long for a preliminary appeal document and it was filed only eight days after Nordheimer stayed the charges on Jan. 31.
Virtually every finding in the 54-page-ruling issued by Nordheimer was in error, the Crown argues in its appeal.
One of the main appeal grounds appears to be delay attributed to the Crown before the start of the preliminary hearing in January 2006. The defence agreed to the preliminary hearing date in December 2004, but Nordheimer found that was because of the state of disclosure by the Crown.
“Had an earlier date for the preliminary hearing been set, it is obvious to me that the case would have been even less ready for that inquiry than it was in January 2006,” wrote Nordheimer.
“If the state of disclosure was ultimately unsatisfactory when the preliminary hearing began, as it clearly was, it was not going to be any less so if the preliminary inquiry had commenced earlier,” he observed. The filing of the appeal appears to rule out any chance of an independent inquiry into why it took more than four years to bring the case to trial after charges were filed, following a 30-month probe by a Toronto police internal task force.
Attorney General Chris Bentley spoke only to the Toronto Star and Toronto Sun after the appeal was filed late on a Friday afternoon and ruled out a general inquiry into the justice system in Ontario.
Defence lawyers who originally made the corruption allegations in 1999 against members of a now disbanded drug squad, were seeking an inquiry into this prosecution and not a systemic review of the justice system.
Bentley has refused to comment on any of the criticisms of the Crown made by Nordheimer.
The experienced and respected Superior Court judge laid the blame squarely on the Crown in his comprehensive ruling.
“The largest portion of the delay in this case results from the actions of the Crown relating to the manner and timing of the disclosure,” said Nordheimer. “I have strived to find any sense of urgency on the part of the prosecution in his case, or any apparent recognition that this case was teetering on the precipice of unreasonable delay,” he added.
The three-member prosecution team was led by Milan Rupic, director of the Special Prosecutions Unit within the Ministry of the Attorney-General.
The judge observed that the normal R v. Morin timelines in the 11(b) analysis “have little application” in this case. “The delay here is not the direct result of any lack of institutional resources. The Morin guidelines were designed to make an allowance for administrative delay, not for delay caused by the parties or for other reasons,” he wrote.
While there was a large volume of evidence, Nordheimer rejected the Crown’s argument the case was especially complex.
The charges against the officers stemmed from five separate incidents with allegations of theft, assault, obstruction of justice and perjury, relating to arrests of suspected drug dealers and seizures of narcotics between 1997 and 2002.
Apart from one conspiracy charge, “most if not all of the other counts on the indictment reflect relatively straightforward accusations that are commonly heard in this court, for example, counts of assault and theft,” said Nordheimer.
The preliminary hearing began two years after the officers were charged. By that time, the prosecution had provided the defence with just over 60 per cent of the 330,000 pages it eventually disclosed.
The first Toronto police internal investigation of the officers was launched in 1998. It led to relatively minor charges that were stayed when a special Toronto police task force was created in 2001, headed by RCMP Assistant Commissioner John Neily.
In March 2003, Neily wrote to the Crown and said the task force had reasonable and probable grounds that 173 criminal offences had been committed by nine officers.
“My task force is nearly ready to proceed [with charges],” wrote Neily, asking the Crown to begin to have the necessary disclosure ready upon arrest. “We cannot continue to wait for months and months for action on your part,” Neily said.
The letter from Neily was described by Nordheimer as a “stinging condemnation” of the approach that had been taken up to that point by the Crown. The judge said he could find no evidence the Crown even responded to Neily’s letter.
Nordheimer stressed that there is a greater obligation on the Crown for prompt disclosure when there has been a lengthy pre-charge investigation.
“The Crown has available to it enormous resources,” wrote Nordheimer. “Once the investigators decided that they were going to lay certain charges against certain accused,” he said, “there is no reason why someone could not have been tasked with beginning the preparation of the disclosure relating to those charges.”
Toronto defence lawyer Heather McArthur says the ruling sends a clear signal to the Crown about its disclosure obligations in large-scale prosecutions.
“Once it is clear during an investigation that there are going to be charges, the Crown needs to start to get organized. The prosecution can’t sit on its hands until the charges are laid,” says McArthur, who was not involved in the Schertzer proceeding.
In her experience, the timeliness of disclosure has depended on the individual Crown, says McArthur. “Sometimes it is quick and remarkably organized. But there does not appear to be a uniform understanding of disclosure obligations,” she notes.
In his ruling, Nordheimer rejected an argument that Schertzer should bear responsibility for some of the delay because his former lawyer brought an unsuccessful motion to challenge a disclosure-related undertaking required by the Crown.
The Crown could have relied on the normal obligations under the common law and the Rules of Professional Conduct, the judge observed.
“Given the admittedly unusual nature of the request, I believe that the time reasonably necessary for a determination of the legitimacy of that request, is more fairly treated as part of the inherent time requirements of the case,” said Nordheimer.