IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On July 23, 2004, the applicant, Arpinder Singh Gill (“Gill”), was charged with conspiring with others to, between January 1, 2003, and July 31, 2003, at Vancouver, British Columbia, and elsewhere in Canada and the United States, import a controlled substance, being cocaine, into Canada, contrary to the Controlled Drugs and Substances Act.

[2]           On July 23, 2004, a Canada-wide arrest warrant was issued for the arrest of Gill. The warrant was entered into the Canada Police Information Centre (CPIC), where it remained until the arrest of Gill on August 1, 2013.

[3]           At the time the Information was sworn Gill was residing in India.  He had departed Canada for India in September of 2003.  In correspondence filed in this application, communications were exchanged between Canadian police authorities and police authorities in India concerning activities of Gill as early as January of 2004.

[4]           Through 2004 and into February 2005, the whereabouts of Gill in India were known to police authorities in India. This information was relayed to Canadian police authorities who were investigating Gill’s involvement in the alleged conspiracy. Notwithstanding this information, no steps were ever taken by the respondent (the Crown) to request the extradition of Gill from India to Canada.

[5]           On August 1, 2013, Gill was arrested after having returned to Canada one week earlier on July 26, 2013, to attend his eldest son’s engagement celebrations in Ontario. Gill’s trial is now scheduled to commence on September 29, 2014.

[6]           Gill submits that when he left Canada for India he faced no charges. He further asserts that when he left Canada the Crown and police authorities were well aware of his whereabouts in India. Gill lived openly in India and continued to travel abroad using his Canadian Passport, renewing that same passport on two occasions. Gill asserts that as a result of the inaction or indifference of the Crown and police authorities that they are responsible for the unreasonable delay in bringing him to trial.

[7]           As a consequence, Gill seeks a stay of proceedings pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms (“the Charter”).  Gill submits that his right to be tried within a reasonable period of time, and his right to be informed without unreasonable delay of the offence of conspiracy, were violated contrary to s. 11(b) and s. 11(a) of the Charter.

[8]           The Crown concedes that the length of the delay from the date the conspiracy charge was laid until the trial date in September 2014 is “considerable.” The Crown also concedes that the cause of the post-charge delay to the date of the arrest of Gill is a result of the Crown’s failure to request Gill’s extradition from India.

[9]           However, the Crown resists the stay application, in large measure asserting that Gill has not established any actual prejudice and that any inferred prejudice is rebutted. In addition, the Crown asserts that the seriousness of the charge, when balanced against the lack of prejudice, would not make the delay unreasonable.

[10]        The Crown further takes the position that Gill has failed to establish that the Crown did not comply with its informational obligation under s. 11(a) of the Charter.

[11]        I will deal with the two Charter issues in my analysis in the order they were advanced by Gill.

[12]        The conspiracy charge arises out of a five-month police investigation known as “Project Longhaul.” Between January and July 2003, the Organized Crime Agency of British Columbia (OCA) targeted Gill as the head of a cocaine and marijuana transportation network.

[13]        The Crown alleges that Gill was involved as a principal in a large-scale drug trafficking conspiracy involving the exportation of hundreds of pounds of marijuana going south into the United States and the importation of multiple kilograms of cocaine moving north into Canada. The Crown alleges that Gill was the transportation network expert who arranged all aspects respecting the pickup and delivery of the drugs in Canada and the United States.

[14]        The Crown alleges that this conspiracy resulted in millions of dollars changing hands. In one instance in April 2003, a tractor-trailer rig associated with Gill’s activities was surveilled from Vancouver to Québec. This tractor-trailer rig was searched pursuant to a general warrant, and located within the tractor-trailer was 726 pounds of marijuana with an approximate market value of $1.8 million. Also located within the tractor-trailer rig was a large cache of the precursor ephedrine with an approximate market value of $2.4 million. Lastly, a further cache of 4000 ecstasy pills was located with an approximate market value of $80,000.

[15]        The Crown further alleges that between June 11 and June 22, 2003, based on intercepted telephone calls, photographs, other police surveillance and exhibits that were seized, Gill was also involved as the “transportation network expert” in relation to the importation of 91 kg of cocaine from California in two shipments.

[16]        The Crown alleges that as a result of further police investigations a search was conducted of a residence (stash house) in Mississauga, Ontario. Located in the stash house were 36 kg of cocaine, as well as $26,416 in both Canadian and United States currency. The Crown alleges that this 36 kg of cocaine was part of the two cocaine shipments coordinated by Gill.

[17]        On July 29, 2003, police investigators executed a search warrant at Gill’s residence in Brampton, Ontario. During the course of the search, two handguns were located along with 49 rounds of ammunition. Eight cell phones were also seized. Police investigators also located a cavity in a wall at Gill’s residence which contained $2,481,515 in Canadian currency and $1,239,344 in United States currency.

[18]        A forensic accounting of the financial resources linked to Gill and his family at that time determined that approximately $5,095,878 of total funds could not be traced to any known sources. The Crown alleges that the only rational conclusion that can be drawn is that Gill was involved in illegitimate drug trafficking.

[19]        At the time that “Project Longhaul” was underway, police authorities in the United States were also investigating Gill, and others, in relation to an alleged conspiracy that involved the importation of marijuana from Canada, and the exportation of cocaine back to Canada. It was alleged that Gill would arrange for the transportation of marijuana from Canadian suppliers, in return for which Gill would arrange for transportation of cocaine from the United States back into Canada.

[20]        Two grand jury Indictments were filed in the United States District Court, Eastern District of Michigan and Southern Division. The first Indictment was filed on April 29, 2004, with a second superseding Indictment filed on June 20, 2006. Those Indictments allege that Gill, and others, conspired to possess with intent to distribute and to distribute marijuana and cocaine between December 2002 through July 2003 in the District of Michigan, and elsewhere in the United States.

[21]        Police authorities involved in “Project Longhaul” in Canada were aware at all times that Gill was being investigated by police authorities in the United States. Indeed, it would appear that police authorities in both Canada and the United States were sharing investigation information relating to each jurisdiction’s investigations into Gill’s alleged drug trafficking activities.

[22]        Though District Attorneys in the United States had considered requesting the extradition of Gill from India to the United States, no such request was ever pursued. Indeed, as of the date of argument on June 17, 2014, it would appear that the United States has no present intention to request the extradition of Gill from Canada to the United States.

[23]        Section 11(b) of the Charter states:

[24]        In R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25, Sopinka J. for the majority established the framework for the assessment of unreasonable delay in applying s. 11(b) of the Charter.

[25]        Morin established that the primary purpose of s. 11(b) is the protection of the individual rights of an accused person. The secondary interest is that of society as a whole (at paragraph 26).

[26]        The individual rights which the section seeks to protect are:  (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial (at paragraph 27).

[27]        Morin defined the purpose of the right to security of the person as protected by s. 11(b) at paragraph 28, as follows:

[28]        Morin defined the purpose of the secondary societal interest component of s. 11(b) at paragraph 29, as follows:

[29]        As the seriousness of the offence increases, so does the societal demand that an accused be brought to trial (paragraph 30).

[30]        Morin has made it clear that the approach to assessing unreasonable delay is not done by some arithmetic or mathematical formula, but by a “judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay” (paragraph 31).

[31]        The factors to be considered in determining “how long is too long” are listed in Morin at paragraph 31, as follows:

[32]        In R. v. Ghavami, 2010 BCCA 16, the Court, at paragraphs 43 and 44, discussed the approach that should be taken in determining a remedy pursuant to s. 24(1) in the event there has been a breach of s. 11(b) as follows:

[33]        Ghavami also established that once a court has determined the reasons for the delay, the court must then turn to the issue of prejudice. Prejudice can be either actual or inferred from the fact of delay, but s. 11(b) cannot be allowed to become an offensive weapon in the hands of an accused (paragraph 50).

[34]        In applying the above considerations, a court is required to balance the factors to determine whether the delay is unreasonable. In reaching a balance, Cromwell J. in R. v. Godin, 2009 SCC 26 (CanLII), [2009] S.C.J No. 26, at paragraph 18, directed the approach to be taken as follows:

[35]        Section 11(a) of the Charter states:

[36]        The Ontario Court of Appeal has recently summarized the law on s. 11(a) in R. v. Cisar, [2014] O.J. No. 952.   In Cisar, the Court of Appeal identified two forms of constitutional protection. First, the Court of Appeal noted that the “primary protection is notice of the specific offence. Without notice of the specific offence an accused may be deprived of the ability to make full answer and defence. Accused have the right to know with what they are charged so they can make decisions about their defence, assemble evidence and prepare to meet the prosecution case” (paragraph 11).

[37]        The second right protected by s. 11(a) is the right to be informed without unreasonable delay. In this analysis, the Court of Appeal identified that the “object of the protection against unreasonable delay is also primarily to protect the right to make full answer and defence” (paragraph 12).

[38]        In addition, the Court of Appeal held that delay under s. 11(a) should be analyzed using the same factors as under s. 11(b), namely:  “the length of the delay, waiver of time periods, the reasons for the delay and prejudice to the accused” (paragraph 15).

[39]        Gill submits that the length of the delay in bringing him to trial on September 29, 2014, some 11 years and nine months after the investigation into Gill commenced, and 10 years and two months after the Information was sworn, amounts to unreasonable delay and a stay of proceedings ought to be directed by the Court.

[40]        Gill submits that it is fundamental to his s. 11(b) right that the Crown bears the obligation to bring him to trial. Gill has no duty to bring himself to trial.

[41]        Gill submits that the nine-year period of delay between the time the Information was sworn and the arrest warrant issued in July 2004, to the time Gill was apprehended in Canada in August 2013, is a consequence of the inaction or indifference of the Crown and police authorities.

[42]        Gill submits that pre-charge delay may influence the overall determination as to whether post-charge delay is reasonable. While noting that judicial authority normally considers pre-charge delay to be outside the scope of s. 11(b), Gill submits that there are special circumstances in this case and that the total 17 months of pre-charge delay is a factor to be taken into consideration in assessing the delay as a whole.

[43]        Gill submits that the total pre-charge delay in the context of the overall delay in this case is relevant as it bears upon his right to a fair trial.

[44]        Gill submits the Crown ought to be accountable to explain the inordinate pre-charge delay in his written submissions as follows:

[45]        Gill submits that the time between July 23, 2004, and August 1, 2013, results in a delay of over nine years to effect his arrest.

[46]        Gill submits that the period of time between the date of his arrest and the anticipated end of the trial on November 27, 2014, results in a delay of nearly 16 months.

[47]        Gill submits that when one breaks down this delay component from when the first trial date was set on February 27, 2014, to the last day of trial, that portion in itself is nine months.

[48]        Gill submits that this case is of moderate complexity, involving intercepted communications spanning several months along with physical surveillance, and photographs and evidence obtained as a result of warrant seizures.

[49]        While conceding that the post-arrest delay is of lesser significance, Gill submits that this time period, when balanced against the prolonged period preceding his arrest, should also be taken into consideration when assessing Gill’s fair trial interests.

[50]        Gill submits that there has been no waiver of delay, either explicit or implicit.

[51]        In addressing the reasons for the delay in this case, Gill in his written submission states the following:

[52]        Gill further submits that the lack of action by the police authorities and the Crown to take any reasonable steps to request his extradition from India amounted to indifference. Gill submits that while the warrant for arrest remained outstanding, his risk of suffering actual or inferred prejudice aggravated the circumstances of the delay.

[53]        On this point Gill relies upon numerous decisions, including R. v. Arsenault, [2013] O.J. No. 4470, a decision of the Ontario Superior Court of Justice. In Arsenault, the accused was under investigation in relation to a charge of attempted murder.

[54]        Various warrants were executed on the home of the accused, so it would appear that clearly the accused knew that he was, at the very least, a “person of interest” to the police. However, charges were not laid until two years after the last warrant was executed.

[55]        In the meantime, the Crown became aware that the accused was exploring possibilities to leave Canada to work elsewhere. The accused ultimately did leave Canada to teach in South Korea and six months later the accused was charged with attempted murder.

[56]        The accused remained in South Korea for eight years. No request for extradition was advanced as police authorities believed the accused’s return to Canada was imminent. The accused did not return to Canada until 2009 at which point he was arrested, as his passport had been revoked.

[57]        Gill notes that in Arsenault the Court found that the length of time from the date of the laying of the Information until the first day of trial was more than 11 years. The Court in Arsenault went on to assess the remaining Morin guidelines and concluded that the accused’s fair trial interests had been significantly prejudiced, principally as a result of the failure of the Crown to request the extradition of the accused.

[58]        The Court in Arsenault determined that the societal interest concerns in pursuing the attempted murder charge were outweighed by the Charter-infringing actions of the Crown. A stay of proceedings was directed.

[59]        Gill further submits that the police authorities, and ultimately the Crown, failed to make any efforts to execute the warrant for the arrest of Gill contrary to the requirements set out in s. 511(1)(c) of the Criminal Code,which reads as follows:

[60]        Gill submits that the only step taken by the police authorities to execute the warrant “forthwith” was to post the warrant on the CPIC system with no follow-up periodic checks.

[61]        On this point, Gill submits that police authorities, and the Crown, failed to exercise their responsibility in ensuring that the warrant was executed forthwith. Gill made reference to the decision of R. v. Chan, [2008] B.C.J. No. 590 wherein Watchuk, PCJ (as she then was), in addressing the responsibility upon the Crown and its agents to execute arrest warrants, had this to say at paragraph 43:

[62]        Gill further submits that the police authorities and the Crown knew the whereabouts of the accused in India at all material times, yet failed to exercise any due diligence to bring him to trial or deliberately delayed his apprehension. Accordingly, Gill submits that the delay while Gill remained in India must be attributable to the Crown.

[63]        Gill submits that this failure to exercise due diligence weighs heavily against the Crown in assessing the reasons for the delay. On this point, Gill relies upon two decisions where extradition issues arose in a s. 11(b) analysis.

[64]        First was a decision of the Nova Scotia Court of Appeal in R. v. Macintosh, 2011 NSCA 111 (CanLII), [2011] N.S.J. No. 660 (leave to appeal dismissed 2013 SCC 23 (CanLII), [2013] S.C.J. No. 23). Second, was a decision of the British Columbia Court of Appeal in R. v. Singleton, 2014 BCCA 232 (CanLII), [2014] B.C.J. No.1213.

[65]        Gill submits that both Macintosh and Singleton support his position that the Crown and their agents had a constitutional duty to make a diligent good-faith effort to locate and apprehend him and to bring him to trial. This they failed to do, and in the context of the circumstances of this case, Gill contends that the extraordinary delay in bringing him to trial must also weigh heavily against the Crown.

[66]        Gill submits that the prejudice to his fair trial rights can be both presumed and inferred from the extraordinary delay in this case. Gill submits that this case involves allegations from over 11 years in the past. He submits he is now forced to “attempt to reconstruct memories of what he was doing or saying at a particular time, to assist in his own defence.”

[67]        Gill further notes that the Crown elected not to cross-examine him in relation to his affidavit, which was affirmed and filed in these proceedings. In that affidavit, Gill affirms that he was not aware of any pending criminal charge when he left Canada in 2003. In addition, he affirms that he was never informed that there was any criminal charge against him or that there was a warrant outstanding for his arrest.

[68]        Gill affirms that he renewed his Canadian passport twice while overseas. Cancelled copies of his two passports are attached as exhibits to his affidavit.

[69]        Gill also affirms that he never retained counsel or gave instructions to counsel to negotiate with the Crown on his behalf when he was in India.

[70]        Gill affirms that as a result of the passage of time, he can no longer remember details of events and conversations which he may have had in 2003. He is unable to recall contact information of potentially relevant witnesses, and any documents that he may have tendered in support of his defence have been lost or destroyed.

[71]        Gill submits that this evidence stands as unchallenged and supports his position that he has suffered actual prejudice to his right to a fair trial.

[72]        Gill submits that it is overly simplistic for the Crown to take the position that Gill need only review the disclosure package to refresh his memory of events in 2003. As a result of the extraordinary passage of time, Gill submits he cannot be expected to have sufficient recall to make full answer and defence to the allegations that he faces.

[73]        Gill submits that while there may not be time limits, or statute of limitations, on prosecutions in general, where the actions of the Crown and its agents or the justice system fail to live up to Charter standards, then the consequences may include a stay of proceedings. In his written submission Gill frames his approach as follows:

[74]        Gill submits that he has suffered both actual and inferred prejudice as a result of the delay in this case. Gill submits that the Crown is unable to account for or provide evidence to rebut the inferred or actual prejudice, and notwithstanding the serious charge of conspiracy, s. 11(b) still operates as a protection to individuals who may be charged with serious offenses.

[75]        Gill submits that his right to be informed of the offence of conspiracy pursuant to s. 11(a) has likewise been infringed.

[76]        Gill submits that as a result of the passage of nine years after the charge of conspiracy was laid, the failure to inform him of that charge when the police authorities were fully capable of doing so impacted his right to a fair trial. In particular, the failure to inform him of the conspiracy charge impacted his memory and hence his ability to advance his defence at an early stage.

[77]        Gill submits that as a result of this alleged breach of his right to be informed of the charge of conspiracy, he has suffered prejudice in the form of the adverse impact upon his right to make full answer and defence.

[78]        The Crown submits that in relation to the s. 11(b) Charter issue, Gill has failed to establish any actual prejudice. In relation to any inferred prejudice, the Crown submits that in the context of this case it has been rebutted.

[79]        The Crown submits that it is the lack of prejudice, and the serious nature of the conspiracy charge, which are the principal factors to justify a finding that there has not been unreasonable delay in bringing Gill to trial.

[80]        In relation to the length of the delay, the Crown concedes that it is “considerable.” With respect to the cause of the delay, the Crown further concedes that it was the “Crown’s failure to seek Gill’s extradition from India.”

[81]        The Crown concedes that it is the “responsibility of the state to bring an accused to trial. When an accused leaves Canada before charges are laid, and their whereabouts become known to Canada, it is Canada’s responsibility to take steps to bring to the accused to trial by seeking their extradition, if possible. Otherwise, the delay in reaching trial is delay attributable to the Crown” (paragraph 23, written submissions).

[82]        The Crown further concedes that it has neither knowledge nor any explanation why Canada failed to request the extradition of Gill from India when his whereabouts were always known to police investigators. However, the Crown takes the position that it is impermissible of the Court to make any inquiry into this explanation failure because of “prosecutorial and ministerial protection.”

[83]        The Crown submits that should Gill be convicted of this offence, he would be facing a potential sentence of between 14 and 20 years in prison due to the serious nature of the allegations. When asked by the Court that if this case was so serious with the potential of a significant jail sentence upon conviction, then why would Canada take no actions to request the extradition of Gill.  The Crown again relied upon the shield of “prosecutorial and ministerial protection.”

[84]        The Crown submits that extradition considerations are complex and any final decisions are “first-level decisions” which must be made by the Crown and its agents. The discretion to request extradition or not request extradition requires an exercise of a discretion that is not subject to review by a court, absent findings of improper motive or bad faith in relation to Crown conduct.

[85]        The Crown submits that while the Court cannot look behind the decision-making of the Crown and its agents in relation to whether to request or not request the extradition of Gill, the Crown concedes “… that is not to say that the Crown does not wear the consequences of the delay. The Crown clearly does wear the consequences of the delay” (Transcript, June 16, 2014, page 69, lines 9-13).

[86]        The Crown submits that the main purpose of the s. 11(b) right to be tried within a reasonable time is to “minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge.” The Crown further submits that the focus of the prejudice which s. 11(b) is concerned is the “prejudice arising from the delay in processing or disposing of the charges against an accused, and not the impairment or prejudice arising from the fact of the charge.”

[87]        The Crown submits that the protection interests of s. 11(b) are the right to liberty, the right to security of the person and the right to make full answer and defence. The Crown submits that none of those protection interests have been compromised in this case. In particular, the Crown submits that the nature of the evidence in this case has not been impacted by the passage of time and is highly reliable.

[88]        The Crown submits that the nature of the wiretap evidence, photographs and search warrants have not deteriorated over the passage of time and amounts to evidence of an “enduring form” as discussed by the Court of Appeal in R. v. Bains, 2010 BCCA 178 at paragraph 64.

[89]        The Crown submits that the determination of the cause of the delay is a “straightforward exercise.” The Crown submits there are two time periods that are relevant, being the pre-arrest period from July 23, 2004, until July 31, 2013, and the post-arrest timeframe from August 1, 2013, until the trial date.

[90]        In relation to the pre-arrest period, the Crown submits that both Canada and the United States had outstanding arrest warrants for the apprehension of Gill. As of May 6, 2004, it was the belief of Canadian authorities that the United States would be actively seeking the extradition of Gill.

[91]        The Crown concedes that Gill did not waive any of the time in which he was absent from Canada.  As well, despite the belief of Canadian authorities that the United States would pursue extradition first, it is also conceded that Canada remained responsible to request the extradition of Gill so he could be brought to trial.

[92]        As noted earlier, the Crown submits that this failure to request extradition of Gill is delay that falls at the feet of the Crown and therefore the pre-arrest delay should be assigned to the Crown.

[93]        The Crown submits that the only Morin factor of significance in the analysis of the reasons for the delay turns on the actions of the Crown.

[94]        The Crown accepts responsibility for not requesting the extradition of Gill from India.  However, the Crown submits this failure to request extradition of Gill in a timely manner has not impacted his fair trial interests, as he has not suffered actual prejudice and any inferred prejudice has been rebutted.

[95]        The Crown submits that Gill “lived an open, free and unfettered life in India between 2004 and 2013, when he returned to Canada.” He travelled the world unaware of any criminal charges in Canada. Therefore, the Crown submits that Gill could not have suffered any “anxiety, stress, or cloud of suspicion” which normally accompanies a criminal charge.

[96]        The Crown submits that the affidavit of Gill, in which he affirms that he has suffered from actual prejudice as a result of a loss of memory, loss of records and a loss of potential witnesses, is vague in detail and falls short of establishing any specific actual prejudice.

[97]        The Crown concedes that in relation to inferred prejudice, the amount of inferred prejudice is “significant.” Notwithstanding, the Crown submits that the inferred prejudice has been rebutted and Gill remains able to make full answer and defence due to the enduring nature of the evidence.

[98]        This evidence includes intercepted communications, photographs, surveillance records, surveillance videos and seized drugs and money. The passage of time has not eroded this evidence, all of which has been disclosed to Gill.

[99]        The Crown further submits that this is a case in which credibility will not be in issue. Rather, the evidence in this case consists of real, enduring and unchanged evidence.

[100]     The Crown submits that in balancing the s. 11(b) interests, the effect of a stay of proceedings if no prejudice can be established would not be in the interests of society.

[101]     The Crown submits that the fair trial rights of Gill have not been compromised and the evidence remains intact and fresh.

[102]     The Crown submits that the conspiracy allegation is a serious allegation involving the importation and exportation of large amounts of illicit drugs. The Crown submits that the moral culpability of Gill is high, and in the event of a conviction, he would receive a significant federal sentence.

[103]     The Crown submits that it complied with respect to the informational obligation of s. 11(a) of the Charter, as the Crown believed in December 2004 that Gill was represented by a “well-respected member of the defence bar in British Columbia, Chris Johnson.”

[104]     The Crown submits that ethically it could not go behind retained counsel, or the belief that there was retained counsel, as doing so would be contrary to Chapter 4, Rule 1.1 of the Law Society of British Columbia Professional Conduct Handbook.

[105]     In short, the Crown submits that in the circumstances of this case, there was compliance with s. 11(a) of the Charter.

[106]     Overall delay is the threshold. Where there is no unreasonable delay, an inquiry under s. 11(b) of the Charter is not necessary.

[107]     In addition, pre-charge delay is not to be included in any s. 11(b) inquiry, unless the pre-charge delay prejudiced Gill’s ability to either mount a defence or to receive a fair trial:  R. v. Fagan (1999), 115 BCCA 106, at paragraph 32.

[108]     The Information was sworn on July 23, 2004. Gill returned to Canada on July 26, 2013, and was arrested on August 1, 2013. The trial is scheduled to commence on September 29, 2014, and conclude on November 27, 2014. I find that the total length of time from the swearing of the Information to the projected conclusion of trial is 124 months or 10 years and four months.

[109]     I find that the time from the swearing of the Information until the arrest of Gill is nine years and eight days.

[110]     As Gill has raised issues in relation to his ability to make full answer and defence within the context of his right to a fair trial, I shall also determine the total length of the passage of time from the commencement of the investigation until the commencement of the trial.

[111]     The “Project Longhaul” investigation commenced in January of 2003. On July 29, 2003, search warrants were executed at Gill’s residence. This timeframe encompasses seven months.

[112]     The post investigation but pre-charge timeframe from July 29, 2003, until July 23, 2004, totals just short of 12 months or one year.

[113]     The total length of time from commencement of the “Project Longhaul” investigation until commencement of the trial is 141 months, or 11 years and 9 months.

[114]     The Crown concedes that Gill has not waived any delay from July 23, 2004, until the commencement of trial on September 29, 2014. The Crown further concedes that Canada had the responsibility to bring Gill back to Canada once his whereabouts in India were known to police authorities.

[115]     The Crown submits that this responsibility was not so much a legal obligation but could result instead in the delay being assigned to the Crown. The Crown addressed this point in the following submission:

[116]     I accept the position taken by Gill that he did not waive any of the time that elapsed from July 23, 2004, until the commencement of his trial scheduled for September 29, 2014.

[117]     The Crown was fully able to request the extradition of Gill from India.  For reasons which remain unexplained, the Crown failed to take any appropriate steps to request the extradition of Gill.  This finding weighs against the Crown.

[118]     The amount of time from the swearing of the Information on July 23, 2004, until the commencement of Gill’s trial on September 29, 2014, is exceptional, and raises an issue as to its reasonableness. This requires an inquiry to determine the reasons for the delay.

[119]     The time taken to get an individual tried with a criminal offense to trial always involves certain inherent time requirements. These requirements will vary from case to case. These time requirements will include, but are not limited to, time taken to retain counsel, prepare disclosure, conduct bail hearings, and to hear applications.

[120]     In this case, following the arrest of the Gill, the time requirements to retain counsel, seeks disclosure, conduct a bail hearing, and bail review, along with preparation for this application and for trial, fall into the inherent time requirements that are normally required to process a case. This period of time that is attributable to inherent time requirements is neutral: R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] S.C.J. No. 74 at paragraph 44.

[121]     The purpose of this factor in the Morin analysis is not to assign blame, but rather, the issue is the attribution of time. The question to be answered is whether or not there were any actions by Gill which may have caused delay.

[122]     Those actions may include attacks on wiretap packets, attacks on search warrants or adjournments which do not amount to waiver:  Morin at paragraphs 44 and 45.

[123]     I do not find that there were any actions by Gill which contributed to the delay in this case and accordingly I conclude that this is a neutral factor.

[124]     The purpose of this factor in the Morin analysis is again, not to assign blame. It is this factor which serves as a means whereby actions of the Crown which delay the trial may be investigated:  Morin at paragraph 49.

[125]     Inaction on the part of the Crown may be properly considered in this factor in the Morin analysis because the Crown in this case, at all times, had the responsibility and obligation to diligently bring Gill to trial.

[126]     In the Application Record filed by Gill, there is a series of facsimile communications between the R.C.M.P Liaison Officer (RCMP L.O.) in New Delhi, India, and the OCA in which information was shared concerning the whereabouts of Gill and his activities in India. Many of these communications are marked as “Urgent.”

[127]     The exchange of facsimile communications ranged over a timeframe of January 2004 through to February 2005. In some of the communications the OCA investigators considered going to India to interview Gill.

[128]     Communications confirm that OCA investigators were aware at all times that Indian police authorities also knew where Gill was and that Gill could be available for questioning (Facsimile - from RCMP L.O. Delhi to OCA dated February 29, 2004).

[129]     As well, communications between OCA investigators and Indian police authorities establish that the OCA investigators wanted to ensure that the Indian police authorities did not disclose to Gill particulars concerning pending Indictments in the United States. Concurrently, those same communications establish that through 2004 the Crown in Canada was in the “process of deciding the best avenue of prosecution”  (Facsimile - OCA to RCMP L.O. Delhi March 5, 2004).

[130]     In a further facsimile communication dated April 30, 2004 between the RCMP L.O. India and the OCA investigators, it is suggested that the extradition of Gill should not be a problem as Canada enjoyed “more success with extraditions than our partners. It should not be a problem to locate him, as several sources know his whereabouts.”

[131]     On February 16, 2005, there was a facsimile communication from the OCA to the RCMP L.O. in which there is reference to Indictments in the United States involving Gill and others. This facsimile was designed to keep the RCMP L.O., and the Director of the Asian Desk, informed of the “latest developments.”

[132]     It was also in this communication that the OCA investigator made reference to the status of extradition proceedings by stating: “at this point, it does not appear that Canada will be seeking extradition of our Arpinder Gill from India to Canada.”

[133]     In a Synopsis headed “Attempts to arrest Arpinder Singh Gill” contained in the Application Record, one of the OCA investigators in Canada provided a brief review of the status of the Gill conspiracy investigation. In relation to the status of extradition proceedings, the following was noted by the investigator:

[134]     Other than OCA investigators periodically checking CPIC to determine whether or not the arrest warrant was still outstanding, there were no other steps taken to bring Gill back to Canada. There were no steps taken by OCA investigators to have Gill arrested in India, due to the position that the Department of Justice would not be requesting extradition of Gill from India to Canada.

[135]     The Crown takes the position that they are not subject to any statutory obligation to request the extradition of any individual. The Crown further submits that the “failure to seek extradition is not a breach of anyone’s Charter rights, period” (Transcript, June 17, 2014, p. 18, l. 37 - 41).

[136]     The Crown submits that complex decision-making in relation to the extradition process is shielded from judicial scrutiny, subject to improper motive or bad faith, by operation of prosecutorial or ministerial discretion. The Crown submits that this discretion is a first level decision-making process lying at the core of prosecutorial discretion.

[137]     In relation to an explanation or reason for the failure of the Crown to request the extradition of Gill from India to Canada, the Crown in oral submissions had this to say:

[138]     I have difficulties with the position taken by the Crown that it is impermissible of the Court to call on the Crown to provide an explanation or reason, or lack thereof, for the failure of the Crown to request the extradition of Gill from India to Canada. In the context of this case, as noted by the Crown, there is no explanation or reason given. This lack of any explanation ultimately results in this Court being unable to determine if the Crown exercised any improper motive or bad faith.

[139]     As such, what exactly is the prosecutorial or ministerial discretion that is being shielded from examination? For example, no investigative strategy has been advanced that would require protection. No third party safety interests have been advanced. There do not appear to be international protocols with India or the United States which may require protection. Canadian national security interests do not appear to be in play.

[140]     It must be remembered that it is the duty of the Crown to bring Gill to trial. It is the Crown who is responsible for the provision of facilities and staff to ensure that Gill is tried within a reasonable time. However, where the course of action is inaction or indifference, and absent any justifiable explanation, then the Crown must be expected to bear the consequences.

[141]     Crown vigilance in bringing persons to trial within a reasonable time is an obligation of fundamental importance in relation to the guaranteed right of an individual to be tried within a reasonable time. This need for vigilance was addressed by the Ontario Court of Appeal in R. v. Kporwodu, 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 at paragraph 4 as follows:

[142]     Specifically, in relation to extradition cases, the Crown has an obligation, having regard to the totality of the circumstances which may exist on a case-by-case basis, to exercise reasonable diligence to locate and then to take appropriate steps to request the extradition of an individual charged with a criminal offense on Canadian soil.

[143]     In this particular case, the inaction or indifference of the Crown to request the extradition of Gill from India to Canada is directly responsible for a delay of just over nine years from the date the conspiracy Information was laid until the arrest of Gill.

[144]     There were investigative avenues available to the Crown to request the extradition of Gill from India to Canada. It appears to be the case that the OCA investigators, and the Crown, decided to do nothing in relation to the extradition of Gill from India to Canada, as they appeared to rely on the United States to take appropriate extradition steps to request the extradition of Gill to the United States.

[145]     In Singleton, Frankel, J.A. reviewed three significant extradition cases. They included the Macintosh decision out of Nova Scotia, along with R. v. White, (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), leave ref’d [1997] 3 S.C.R. xv and R. v. Terk, 2011 QCCA 390. Frankel, J.A. in Singleton identified the principle established in those three decisions at paragraph 96 as follows:

[146]     The Crown failed to request the extradition of Gill from India to Canada. The Crown was obliged to do so in a reasonable and timely manner. The Crown failed to act in a vigilant manner to ensure that Gill’s right to be tried within a reasonable time was protected. The resulting delay is significant and serious, and is wholly attributable to the Crown.

[147]     In this case, limits on institutional resources was not advanced by Gill. I find, having regard to the available resources at the Main Street courthouse, that this factor in the Morin analysis is a neutral factor.

[148]     Section 11(b) of the Charter protects both individual and societal interests. The individual rights that this section protects are: (1) the right to liberty, (2) the right to security of the person, and (3) the right to make full answer and defence.

[149]     The right to security of the person is protected by seeking to minimize the anxiety, concern, and the stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to restrictions on liberty which result from pre-trial incarceration or restrictive bail conditions. The right to make full answer and defence is protected by attempting to ensure that proceedings take place while the evidence is available and fresh: Morin, paragraph 28.

[150]     Prejudice may manifest itself in each of these three areas. In this context, prejudice was discussed by the Supreme Court of Canada in Godin at paragraph 30 as follows:

[151]     Prejudice may be inferred from overly long delay: Morin, paragraph 61. The longer the delay, the stronger the inference. In R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.J. No. 106 at paragraph 67, Cory J. said this in relation to very long and unreasonable delay:

[152]     In cases where there are very long delays, and where fault does not fall at the feet of an accused, an irrebuttable presumption of prejudice to an accused could result from the passage of time unless the Crown can demonstrate there was no prejudice to the accused flowing from the delay. It is also open to an accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay:  Askov, paragraph 69.

[153]     In this case, Gill has filed affidavit evidence in which he affirms the delay in this case has resulted in actual prejudice. In addition, the nine-year delay from the date when the conspiracy Information was laid until the arrest of Gill approaches, if not exceeds, the point at which the inference of prejudice is irrebuttable.

[154]     As such, there is an onus on the Crown in the face of the inferred and asserted actual prejudice to demonstrate that the degree of prejudice suffered by Gill is not such as to require that a Judicial Stay of Proceedings be directed:  Arsenault, paragraph 76.  

[155]     On September 25, 2013, following a Judicial Interim Release Hearing, Gill was detained in custody on the primary ground. A review was taken from that order and in reasons found at 2013 BCSC 2450, the Supreme Court Justice found that there was no error in principle made at the original bail hearing that would significantly affect the outcome of the initial bail application. The Justice also was not satisfied that the circumstances heard at the original bail hearing had changed in any material respect at the time of the review application.

[156]     In its submissions before the Provincial Court Judge, the Crown took the position that Gill was involved in high-level drug trafficking activity in the United States and that the United States was seeking the extradition of Gill.

[157]     The Crown also submitted that Gill was “faced with incredibly serious drug offenses for which he faces double digit penitentiary sentences and extradition to the United States for likewise serious offenses…” (Transcript, September 17, 2013, p. 3, l. 39-43).

[158]     The Crown also submitted that Gill was well aware that there was law enforcement action against him because of executed warrants on his residence, and elsewhere, as a result of which he took flight. In addition, the Crown submitted that there was a clear indication that Gill had retained legal counsel, Mr. Johnson, in Vancouver in 2004 and, as such, Gill was aware of the conspiracy charge which strengthened the fugitive theory.

[159]     At the bail hearing, the Crown submitted the following in relation to the prospect of extradition of Gill to the United States:

[160]     In detaining Gill, the Provincial Court Judge, in part, noted that the United States would be making application for extradition of Gill on conspiracy Indictments sworn in  the United States. In addressing the primary ground under s. 515(10)(a) of the Criminal Code, the learned Judge at paragraph 27 of his decision said this:

[161]     At the time that the delay argument was advanced by Gill in June of this year, there were several significant changes of circumstances. First, I understand that the United States is no longer interested in requesting the extradition of Gill to the United States. No explanation was advanced by the Crown as to when or why the United States was no longer requesting extradition of Gill, other than two of the co-conspirators had received “meagre” sentences in the United States for their involvement in the alleged conspiracy.

[162]     In addition, Gill affirms in his affidavit that when he departed Canada in September 2003 for India, he was unaware of any pending criminal charges. Gill also deposed that while he was away from Canada, he was never informed of any criminal charge against him or the existence of any outstanding warrant, thus denying he was a fugitive.

[163]     Gill further affirms that after his arrest, he became aware of an exchange of correspondence between the Crown and an unknown recipient in which Mr. Johnson was identified as his counsel.  On that point Gill affirms as follows:

[164]     Michael R. Shapray, barrister and solicitor, also filed an affidavit in relation to the delay argument sworn May 27, 2014. In his affidavit, Mr. Shapray swears that he contacted Mr. Johnson in October 2013 and was told by Mr. Johnson that he had no recollection of being retained by Gill in 2004.

[165]     In addition, Mr. Shapray swears that, in a further interview with Mr. Johnson, he was advised as follows:  that Mr. Johnson had no recollection of ever speaking to Gill; that he was never formally retained by Gill in either 2004 or 2005; that he assumed that he was likely contacted by someone connected to Gill and was asked to make some inquiries; if that was the case, he would have spoken to the Crown to determine their position on the matter, but he would not have advised the Crown that he was retained to represent Gill; and that he has no notes of speaking with anyone about this matter at the time, and if he had made any such notes in 2004 or 2005 they would have since been destroyed, as it is beyond the time period for storing such records.

[166]     Unfortunately, the Crown lawyer, Mr. Mark Krotter, who was dealing with this matter in 2004, has since died.  The Court was not advised if Mr. Krotter left any note or record which may explain what occurred at the time court appearances were first scheduled at Main Street.

[167]     Gill has now spent over one year in custody awaiting trial. Since his original bail hearing, the United States appears to have lost interest in requesting the extradition of Gill. As a result, his legal jeopardy has been greatly reduced and the likelihood of a prison sentence for life unlikely. It would also appear to be the case that the strength of the Crown submission at the initial bail hearing that Gill was a fugitive has been significantly undermined by the unchallenged affidavit evidence provided by both Gill and Mr. Shapray. While Gill can seek a further review of his detention order, the fact remains that Gill will never be able to regain the time lost since the pronouncement of the detention order.

[168]     The Crown, in addressing Gill’s allegations of prejudice to his security and liberty interests, submits as well that Gill was able to travel the world and to renew his Canadian passport on two occasions without any hindrance. This submission fails to acknowledge the fact that it was wholly within the power of the Crown to revoke or refuse to issue a passport to Gill when his passport came up for renewal.

[169]     Canadian Passport Order SI/81-86 (effective June 28, 2006), s.9 and s. 10(1) reads as follows:

[170]     The Crown submits that Gill is a “kingpin” in a major cocaine distribution network, yet as a result of Crown inaction or indifference permits this purported kingpin to travel the world on his twice-renewed Canadian passport.

[171]     In addition, though a warrant was in place for the arrest of Gill, other than entering the warrant on CPIC, the Crown failed to take any steps to execute the warrant while Gill was out of the country, as required by s. 511(1)(c) of the Criminal Code.  I note that in relation to the entered warrant that Peace Officers in British Columbia were bound to arrest Gill forthwith.  The wording of the warrant is explicit and directs Peace Officers in the following language:

[172]     In R. v. Wright, 2003 ABQB 1003, the Accused was before the Court on a three count Information alleging an assault with a weapon, harassment and uttering threats. There was a 40-month delay between the time that the Information was sworn to the date when the accused surrendered to the police.

[173]     The Court found that the police essentially did nothing other than record the warrant of arrest on the CPIC system. As to whether or not this strategy was acceptable in the face of a Charter delay argument, the Court, at paragraph 30, had this to say:

[174]     I find that Crown’s inaction or indifference towards Gill’s passport renewal and the inaction or indifference of the Crown towards executing the outstanding warrant where no institutional resource issues were in play suggests the adoption of a lethargic strategy that is inconsistent with the Crown’s present assertion that this case is very serious, that Gill’s criminal culpability is at the upper end, and that he must now be brought to trial as soon as possible.

[175]     The Crown further submits that Gill faces the potential of a significant prison sentence in the event of a conviction. Since the conspiracy Information was sworn on July 23, 2004, more than 10 years have now passed. Gill was approximately 37 years old when the Information was sworn. He is now 47 years old.

[176]     Had the Crown been diligent in taking reasonable steps to bring Gill to trial in Canada, he would have been a much younger man. In addition, if convicted, he would have been a much younger man facing a potential prison sentence of some length. The wording contained in s. 11(b) of the Charter clearly establishes that this guaranteed right requires that the Crown must ensure that individuals charged with criminal offences are dealt with in a timely manner.

[177]     The policy underlying the constitutional guarantee of a trial without unreasonable delay was discussed by Martin J.A. in the Ontario Court of Appeal decision in R. v. Beason, 1983 CanLII 1873 (ON CA), [1983] O.J. No. 3151. Martin J.A. identified that this policy was not only based upon the various forms of prejudice or anxiety caused by unreasonable delay, but also identified the intrinsic value this policy addresses when trials are held within a reasonable time. On this point, Martin J.A., at paragraph 60, had this to say:

[178]     Gill’s liberty interests in having his trial without unreasonable delay, and any potential prison disposition which may result from the trial if found guilty, have been impacted by the 10 years that have gone by since the swearing of the Information. As noted by Martin J.A. in Beason at paragraph 64:

[179]     The “Project Longhaul” investigation commenced in January of 2003. On July 29, 2003, search warrants were executed at the residence of Gill. The conspiracy Information was sworn on July 23, 2004. That timeline totals 19 months. The post-charge but pre-arrest timeline totals 108 months or nine years. The post-arrest but pre-trial time line totals 14 months.

[180]     The total length of time from the commencement of the investigation to trial is 11 years and nine months. The total length of time from the date the conspiracy Information was sworn until trial is 10 years and two months.

[181]     Gill affirms in his affidavit that his memory of events in 2003 has been impacted due to the passage of time. He detailed this impact on his ability to make full answer and defence as follows:

[182]     In his written submissions, Gill explains the impact of the prejudice on his fair trial interests at paragraph 90 as follows:

[183]     The Crown submits that credibility cannot be a significant issue in this case and that further, the substance of the evidence consists of “real, unchanged evidence, uneroded by the passage of time.”  It was submitted Gill would be able to make full answer and defence from a review of the uneroded evidence disclosed by the Crown.

[184]     The Crown further submits that any inferred prejudice has been rebutted and any actual prejudice has not been established when one examines the nature of the Crown evidence in this case. The reliability of the evidence of the wiretaps, surveillance evidence, photographs and the like would not deteriorate over the passage of time.

[185]     In particular, the Crown relies upon the Bains decision where at paragraph 64 the Court commented on the impact of the passage of time with respect to otherwise enduring evidence as follows:

[186]     I note that in the Bains decision, the total delay was 45 months, of which the trial judge found that Bains had implicitly waived seven months of the delay. In addition, the Court expressly noted at paragraph 65 that the trial judge made no finding of actual prejudice which was not challenged on appeal.

[187]     It may well be that the Crown’s case has been uneroded by the passage of time. The same cannot be said for the human memory. Gill has affirmed that as a result of the length of the delay in this case, his memory has been impacted and he is unable to make full answer and defence.

[188]     It is well accepted that the passage of time normally hinders, not helps, the ability of a witness to recall past events. Witness recall can be aided through the making of notes and other aids, but that is not the case in relation to Gill. When Gill returned from India to Canada in July 2013, that was the first time, he affirms, that he was ever aware that he was facing a serious conspiracy to import allegation.

[189]     The Arsenault case closely reflects the situation facing Gill. In Arsenault, the Court commented on witness’s memory loss over an extended period of time, and of the danger of that memory loss to fair trial interests, at paragraph 90 as follows:

[190]     It is clear that proof of actual prejudice to the right to make full answer and defence is not always required to establish a s. 11(b) violation (Godin, paragraphs 37 and 38). Even the risk of prejudice to Gill’s ability to make full answer and defence as a result of the lengthy delay in this case is enough to establish the violation.

[191]     I find in this case that Gill has established an actual risk to his ability to make full answer and defence arising from the long delay of 10 years and two months from the date the conspiracy Information was sworn until trial. The actual prejudice is all the more worrisome when factoring in the total time from investigation commencement to trial of 11 years and nine months.

[192]     I accept the affidavit evidence filed by Gill and Mr. Shapray. I find that the affidavit evidence does establish that Gill has suffered from actual prejudice from the delay in bringing him to trial. I also find that the Crown has not rebutted the inferred prejudice which arose from the length of the delay.

[193]     I find that the Crown’s description of the delay in this case as being “considerable” and “substantial” does not fairly characterize the nature of the delay. I conclude the delay in this case is extraordinary. The extraordinary delay in this case has impacted Gill’s fair trial interests. I conclude that the Crown has failed to demonstrate that Gill has not been prejudiced by either inferred or actual prejudice.

[194]     In summary, I conclude that Gill has suffered from significant prejudice to his liberty interests and to his right to make full answer and defence. Of those two protected areas of individual interest, the one of the gravest concern is in relation to Gill’s ability to make full answer and defence. The Crown has failed to demonstrate otherwise with respect to both of those protected areas of individual interest. 

[195]     The determination of the total length of the delay, waiver of time periods, reasonableness of the delay, inherent time requirements, limits on institutional resources and actions by Gill were analysed, and findings were made in relation to the s. 11(b) issue advanced by Gill.

[196]     That analysis and the findings that were made on those factors relating to s. 11(b) apply to the s. 11(a) issue advanced by Gill.

[197]     In relation to actions of the Crown, it was submitted that with respect to the informational component of s. 11(a) that the Crown “fulfilled its obligation by communicating with a well-respected member of the defence bar in B.C., Chris Johnson.”

[198]     The Crown directs the attention of the Court to correspondence filed in this case that would establish that Gill had retained Mr. Johnson, who was advised in relation to the conspiracy Information.

[199]     In particular, there were two emails dated October 27, 2004, and November 16, 2004, respectively from Mr. Krotter, to an unnamed recipient, relating to the prospect that Gill would be making a Court appearance at the Main Street courthouse either on November 16, 2004, or January 14, 2005, with the indication that Mr. Johnson was counsel for Gill.

[200]     In the October 27 email, it was suggested that Mr. Krotter contacted Mr. Johnson and gave him the Crown position with respect to bail for Gill. I find it significant in that email that Mr. Krotter noted that Mr. Johnson could, or would, “contact accused Gill through third-party.”

[201]     In the November 16th email, there is a notation that Mr. Krotter had a communication with Mr. Johnson in which it was “anticipated Mr. Gill would come before the courts within two weeks.”  That email concludes with Mr. Krotter questioning:  “What is the plan if Gill is still absent by January 14, 2005?” There was no Court appearance by Gill on November 16, 2004, or on January 14, 2005.

[202]     In his affidavit, Gill affirms that when he departed Canada for India in September 2003, he was not aware of any pending criminal charges. He, as well, affirms that while he was away from Canada, he was never informed of any criminal charge or of the issuance of any warrant for his arrest.

[203]     In addition, Gill affirms that he did not know Mr. Johnson and never retained him or gave him instructions through a third party to act on his behalf with respect to the conspiracy Information.

[204]     In the affidavit of Mr. Shapray, he swears that he interviewed Mr. Johnson by telephone in October 2013 in which he was told, in part, that Mr. Johnson had no recollection of ever speaking with Gill, nor was he ever formally retained by Gill in either 2004 or 2005. Any file notes which he may have had with anyone about this matter would have been destroyed, as it was beyond the time period for storing such records.

[205]     As noted earlier, Mr. Krotter is dead and there does not appear to be any other communication from Mr. Krotter after November 16, 2004, which could shed any light on determining in fact that Gill was indeed represented by Mr. Johnson and was aware of the conspiracy Information. In addition, the Record of Proceedings is silent on legal representation for Gill until August 2013 following his arrest.

[206]     I do not agree with the position of the Crown that their belief that Gill was aware of the conspiracy Information establishes compliance with s. 11(a).  It is not the belief in the mind of the Crown that is relevant as to whether or not there has been compliance with s. 11(a). It is the belief in the mind of Gill that is the relevant consideration. It is the right of Gill to be properly informed without unreasonable delay of the conspiracy Information.

[207]     Following the non-appearance of Gill at Court on January 14, 2005, the “plan” questioned by Mr. Krotter should have, at the very least, resulted in inquiries made to Mr. Johnson to determine if indeed he was retained as counsel by Gill or was retained to represent Gill through a third party.

[208]     It would have taken very little time and very little effort for the Crown to have followed up with Mr. Johnson to confirm that Gill was aware of the conspiracy Information. Such an inquiry would be wholly appropriate and could alleviate concerns over whether or not Gill was properly informed of the conspiracy Indictment.

[209]     Further, the OCA investigators were aware of the whereabouts of the Gill in India both prior to and following the swearing of the conspiracy Information. OCA investigators were certainly capable of serving him with a copy of the Information if instructed to do so by the Crown if there was any concern over Gill being properly informed of the charge.

[210]     Gill affirms that he was never informed of the conspiracy Information until his arrest in Canada in 2013. Gill was not challenged in relation to that evidence. Nor was the sworn evidence of Mr. R. Shapray challenged.  I accept the affidavit evidence of Gill and Mr. Shapray on this issue.

[211]     I find that the Crown’s inaction in failing to diligently ensure that Gill was properly informed of the conspiracy Information without unreasonable delay and the resulting delay is attributable to the Crown.

[212]     As I found earlier in this Ruling, the OCA investigators were aware of the whereabouts of Gill in India, both prior to and following the swearing of the conspiracy Information, and were certainly in a position to have Gill served with a copy of the Information along with a copy of the entered warrant.

[213]     However, the OCA investigators appear to have followed an investigation strategy in which there was a holdback of information from reaching Gill. One example relates to the pending United States Indictments with respect to their conspiracy investigation of Gill, which was running parallel with “Project Longhaul” in 2003 and 2004.

[214]     In a five page “Urgent” facsimile dated March 5, 2004, from one of the OCA investigator’s in Canada to the RCMP L.O. in New Delhi, there was extensive file information updating the RCMP L.O. on the status of the pending Indictments against Gill, and others, in the United States, and the current status of “Project Longhaul.”  The OCA investigator emphasized in this facsimile that Gill was not to be made aware of the pending Indictments in the United States.

[215]     There was a further Internal Investigation Report from one of the OCA investigators dated March 10, 2004, in which it was confirmed that the RCMP L.O. in New Delhi was instructed, in relation to the pending United States Indictments, that the pending Indictments were not to be made aware to the “Indian authorities in case it gets disclosed to Arpinder Gill.”

[216]     In the Application Record there does not appear to be any document, communication record or other reliable information source that would establish that Gill was ever formally informed of the Canadian conspiracy Information until his arrest in the summer of 2013.

[217]     Whether this failure was as a result of Crown indifference, inaction or an investigation strategy, it nevertheless resulted in an impact on Gill’s fair trial interests. In particular, this failure impacted Gill’s ability to make full answer and defence.

[218]     Had Gill been made aware of the specifics of the conspiracy Information at a reasonably early stage, this would have provided Gill with the opportunity to begin to marshal a defence. This would have allowed Gill the opportunity to retain counsel, note details of events and conversations which he may have had in 2003, secure documents which may support his defence and locate potential defence witnesses.

[219]     As noted in the affidavit filed by Gill, he affirms that he was never made aware of the conspiracy Information until his return to Canada and, as a result of the passage of time, his memory has been impacted such that he is unable to make full answer and defence. I accept his evidence that the passage of time has impacted his ability to make full answer and defence.

[220]     Further, had Gill been informed at an early opportunity of the specifics of the conspiracy Information, this would have allowed Gill the opportunity to make arrangements to return to Canada at an early stage so that he could deal with the charge and, if found guilty of the charge, to commence his sentence within a reasonable time so that he could get on with his life.

[221]     The Crown submits that Gill was a “kingpin” in the alleged conspiracy. It is submitted that the amount of drugs involved in the alleged conspiracy was significant and that if Gill is found guilty, he could potentially face a sentence between 14 to 20 years in jail.

[222]     It was submitted by the Crown that while the delay was lengthy and was attributable to the Crown, after the arrest of Gill, the Crown has moved with “expediency and sensitivity in getting him to trial as quickly as possible.”

[223]     The Crown submits that the societal interest in having Gill proceed to trial on the merits is high, “given the serious nature of the charge and Gill’s alleged culpability in a major cocaine distribution network.”

[224]     There is no question that the allegations relating to the conspiracy are extremely serious. However, I have found that there have been breaches of Gill’s constitutional rights contained in s. 11(a) and s. 11(b) of the Charter. The totality of the circumstances surrounding the breaches are serious as they resulted in prejudice to Gill’s fair trial interests.

[225]     It must be kept in mind that Gill’s fair trial interests are not the only ones protected by s. 11(a) and s. 11(b) of the Charter.  Society, as a whole, has an interest in

[226]     I have been urged by the Crown to carefully consider the societal interest in bringing Gill to trial on the merits. But I also note that it is the duty of the Crown to protect both the individual and public interests that are engaged by s. 11(a) and s. 11(b) of the Charter.

[227]     In this case, I have found the delay in bringing Gill to trial to be extraordinary, with the passage of just over nine years from the date the conspiracy Information was sworn until the arrest of Gill. This delay is attributed to the Crown.

[228]     I refer again to Macintosh, where at paragraph 92, D. R. Beveridge J.A. quoted the United States Supreme Court decision in Doggett v. U.S., 112 S. Ct. 2686, in which Souter J. writing for the majority had this to say in relation to unjustified delays in pursuing prosecutions:

[229]     In looking at the totality of the circumstances surrounding this case, it is patently clear that the Crown failed to exercise any due diligence after Gill was charged with conspiracy to traffic in cocaine; to either advise him of the specifics of the conspiracy Information within a reasonable timeframe; or to take any reasonably diligent steps to request the extradition of Gill from India to Canada, when his whereabouts were known to the Crown.  I find the failure to exercise due diligence in complying with s.11(a) and s. 11(b) of the Charter cannot be justified and cannot be condoned, particularly as Gill has not waived any delay nor is Gill to be faulted for any actions which impacted his s. 11 interests.

[230]     Although s. 11(a) and s. 11(b) of the Charter include a societal component, the protections afforded by these two constitutional rights operate, perhaps most importantly, where an accused is charged with a very serious offence, as in this case. The circumstances surrounding the delay in bringing Gill to trial are serious and on their own would justify a remedy of a stay of proceedings. When I also take into account the circumstances surrounding the breach of Gill’s s. 11(a) right, the remedy of a stay of proceedings is all the more necessary.

[231]     Pursuant to s. 24(1) of the Charter, I direct that a stay of proceedings shall be entered in relation to the conspiracy Information as against Gill.