R. v. Fehr,


2004 BCCA 53

Date: 20040209

Docket: CA028140; CA028148

Docket: CA028140






Allen Brian Fehr




- and -


Docket: CA028148






Eugenio Pugliese






The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry


M.A. Nathanson

Counsel for the Appellant

Allen Brian Fehr

N.L. Cobb

Counsel for the Appellant

Eugenio Pugliese

C.R. Bond

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

11 and 12 December 2003

Place and Date of Judgment:

Vancouver, British Columbia

9 February 2004


Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry

Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]            This is a drug case where wiretaps are the central issue.

[2]            By the use of authorized electronic interceptions, the Surrey R.C.M.P. drug squad discovered a plan to import substantial quantities of illicit drugs.  On 2 February 1998, Allen Fehr was arrested at his car which was found to contain one kilogram of cocaine, 33.5 pounds of marihuana, 9.5 pounds of methamphetamine, 13 pounds of psilocybin and 1.5 pounds of hashish.  On the same day, police observed Eugenio Pugliese and one Martin Slatsky carrying a box into Pugliese's apartment.  They were arrested and Slatsky's car was searched.  Police found 15 kilograms of cocaine in the car and another three kilograms in Pugliese's apartment.

[3]            Fehr was charged on a 15-count indictment alleging conspiracy, importation, trafficking and possession for the purposes of trafficking.  Pugliese was charged in the same indictment with five counts alleging conspiracy and possession for the purposes of trafficking.

[4]            They were tried before Mr. Justice Collver without a jury.  The hearing took 37 days spread over seven and a half months.

[5]            On 10 November 2000, the trial judge pronounced his verdicts with reasons to follow.  He found Fehr guilty on seven counts and Pugliese on two counts and acquitted them of the other counts.  In the result, both were found guilty of conspiracy to traffic in cocaine; Fehr also in marihuana.  Both were found guilty of possession for the purpose of trafficking of cocaine; Fehr additionally in marihuana, methamphetamine, psilocybin and hashish.

[6]            Written reasons for conviction were handed down 14 November 2000: 2000 BCSC 1634.  On 3 January 2001, the trial judge sentenced Fehr to eight years imprisonment and Pugliese five years imprisonment.

[7]            Fehr takes three main points on this appeal:

(1)   Denial of adequate disclosure impeded his challenge of the wiretap authorizations;

(2)   The trial judge used the wrong test in deciding whether there was investigative necessity for the wiretaps; and

(3)   The seizure of his car on the day of the arrest was unlawful.

[8]            Pugliese joins with Fehr in the first two points and adds an allegation that he was denied his s. 11(b) Charter right to be tried within a reasonable time.

[9]            I would dismiss the appeals.  In my opinion, the appellants were not denied proper disclosure.  The information sought was too remote and had little relevance to the issues in the case.

[10]        On investigative necessity, the trial judge applied the correct test at the time, but that test was later overruled by the Supreme Court of Canada in R. v. Araujo, [2000] 2 S.C.R. 992.  The record provides a sufficient basis for this Court to apply the Araujo test to the facts.  In performing that exercise, I conclude that the affidavit material satisfied the test for investigative necessity.

[11]        Fehr's car was lawfully seized as an incident of his arrest.  There were reasonable and probable grounds for believing it to contain contraband connected with the crimes under investigation.

[12]        Pugliese's s. 11(b) right was not infringed.  The delays were not objected to, indeed, the trial was prolonged in part by the arguments on admissibility made on his behalf.


[13]        In April 1997, an informant told Surrey R.C.M.P. that Fehr was dealing in cocaine.  An undercover officer made four purchases from him, the last on 15 May 1997 for four ounces of cocaine.  Police found Fehr's activities were connected to those of other suspected drug dealers under investigation.

[14]        The Chilliwack R.C.M.P. obtained two wiretap authorizations, P.18/97 on 14 April 1997 and P.29/97 on 12 June 1997.  The interceptions conducted under P.18 identified Robert Bogdanich.  He was named as a target in P.29.  As he appeared to operate primarily in Surrey his file was transferred to the detachment there.

[15]        Coquitlam R.C.M.P. had Walter McCormick and his associates under investigation since November 1996.

[16]        The investigations put Fehr in the company of Bogdanich and McCormick from time to time.  One phone call intercepted under P.29 involved Bogdanich and a man named "Allen" whom the police believed was Fehr.

[17]        The investigations were consolidated into one operation bearing the title 'Project Entomology'.  Constable Michael Tivers of the Surrey detachment was designated as the file coordinator.  His duties included the preparation and swearing of the affidavits for wiretap authorizations.

[18]        He obtained two authorizations.  The affidavit in support of the first, P.38/97, issued by Associate Chief Justice Dohm on 28 August 1997 naming Bogdanich, McCormick and Fehr as targets, mentioned the phone call between Bogdanich and "Allen" as one of the pieces of evidence connecting Bogdanich and Fehr.

[19]        The second authorization, P.48/97, was issued by Mr. Justice Oppal, then of the Supreme Court, on 10 December 1997.  Fehr continued to be a target.  Bogdanich and McCormick were dropped as targets but remained as known persons who may communicate with Fehr and two other targets newly added to this authorization.  Pugliese was not then known to the police in this investigation.

[20]        Project Entomology ended with the arrests on 2 February 1998.

[21]        The disclosure issue arises from the two earlier wiretap authorizations, P.18 and P.29 with particular evidence on P.29 which produced the interception of the call between Bogdanich and "Allen".  Disclosure, it is argued, would provide two things:

(1)   the opportunity to challenge the validity of the authorizations, thereby putting into question the lawfulness of the later two authorizations; and

(2)   material for the cross-examination of Constable Tivers, the affiant in P.38 and P.48, particularly on his credibility, by delving into the packet supporting P.18 and P.29.

The appellants submit that Tivers' credibility was shaken somewhat by other factors, including his use of "confusing" boilerplate language in the affidavits (about which counsel argued extensively), so that additional ammunition from full disclosure may have tipped the scale against the authorizations.

[22]        The investigation of Fehr involved the undercover purchases mentioned earlier, camera surveillance of the residence, USA-Canada border checks, the use of informants and the wiretaps.  The appellants contended below that alternatives to wiretapping were not adequately explored and accordingly the Crown could not establish investigative necessity.  In ruling on the validity of the wiretaps, the trial judge applied an efficacy test, whether the use of wiretaps was "the most efficacious way" to investigate the targets, following this Court's decision in R. v. Cheung (1997), 119 C.C.C. (3d) 507 at 519.

[23]        In Araujo, supra, the Supreme Court of Canada later overruled the efficacy test holding that "[t]here must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry." (para. 29)

[24]        The appellants say that the trial judge's ruling on the wiretaps cannot stand because he used the wrong test.  They argue that there must be a new trial so that the evidence, including evidence from the earlier wiretaps, can be considered with the right test in view.  It would be inappropriate, they maintain, for this Court to make an original finding on the Araujo test since Tivers' credibility is of central importance and, due to lack of full disclosure, he has not been fully cross-examined.

[25]        The facts leading to Fehr's arrest and the seizure of his vehicle were described by the trial judge in the narrative portion of his reasons for conviction:

[20]     Intercepted telephone calls between January 29 and February 1, 1998 revealed that an expected shipment of cocaine was delayed “on the other side”.  Those calls were between Fehr, Pugliese, and McCormick.  In a call from Pugliese to Fehr on January 31st, Pugliese questioned whether he should “down size” Fehr’s share.  However, they agreed that “the digits” would remain the same.

(c)   Arrests, and seizure of drugs

[21]     February 2, 1998 began with a series of telephone calls which led to police surveillance at several locations: Fehr’s home, where he was seen loading three large plastic containers and a sports bag into the back of his station wagon; Fraser Heights Mall, where Fehr parked the station wagon; Martin Slatsky’s residence, from which he was followed to Pugliese’s apartment block; and the Surrey Law Courts, where Fehr made a brief 1:30 p.m. court appearance before returning with Cheryl Wachowich (in a different vehicle) to the Fraser Heights Mall.

[22]     Slatsky and Pugliese had been observed carrying a box into Pugliese’s apartment, and were arrested as they left.  Fehr was arrested in his station wagon, which had not been moved since he parked it in the Fraser Heights Mall lot earlier in the day.

[23]     When Slatsky and Pugliese were arrested, the police seized 5 kilos of cocaine from the trunk of Slatsky’s vehicle, and 10 kilos from a briefcase.  A search of Slatsky’s residence resulted in the seizure of 50 more kilos of cocaine.  A later search of Pugliese’s apartment led to the seizure of 3 kilos of cocaine.

[24]     Allen Fehr’s station wagon (in which he was arrested immediately after his return to the Fraser Heights Mall) was towed to the Surrey R.C.M.P. office and searched.  The police seized 1 kilo of cocaine, 33.5 pounds of marihuana, 9.5 pounds of methamphetamine, 13 pounds of psilocybin, and 1.5 pounds of cannabis resin (hashish).  A search of Fehr’s residence turned up drug paraphernalia (including detector devices, balance scales, plastic baggies, etc.), $10,000 U.S., $5,000 CDN, and 1/4 pound of marihuana.

[26]        The trial judge admitted the fruits of the search as evidence in the trial upon holding that the seizure was incidental to arrest and therefore the search warrant issued within hours of the arrest was valid.  Fehr argues that the seizure was not truly incidental to the arrest as the trial judge should have found the seizure itself required a warrant and, in the result, the evidence ought to have been excluded under s. 24(2) of the Charter.

[27]        I turn now to the circumstances pertaining to the delay argument advanced by Pugliese.  He was charged jointly with Fehr, Slatsky and McCormick.  Each was separately represented.  Between 18 February and 9 October 1998 there were eleven interim appearances in the Provincial Court and between 4 November 1998 and 1 February 2000 there were 23 interim appearances in the Supreme Court before motions in the trial got underway on 4 February 2000.

[28]        The trial judge analyzed the delay issue on the basis of a 24-month period.  Pugliese submits that the delay was actually 31 months because the seven and a half months it took to conclude the trial must be included.  Counsel for Pugliese took the unusual course of making his delay argument at the end of the trial rather than at the beginning despite being questioned by the trial judge as to this course of action.

[29]        The difficulties involved in coordinating dates for defence counsel in the Provincial Court, compounded by Fehr's change of counsel, led to a direct indictment.  Pugliese's first appearance in the Supreme Court was on 4 November 1998.  He was granted bail.

[30]        The trial was set to be heard before a jury with selection to take place on 6 June 1999.  As that date approached, Fehr discharged his lawyer and the trial was adjourned.  The trial judge saw this as a significant event in the chronology.  I quote from his ruling on the s. 11(b) application:

[16]  While the delay in the present case is a substantial one, one of the intervening factors to be considered with respect to the two-year total period is that this trial was originally set to be heard before a jury, with jury selection on June 6th, 1999. However, on May 25th, 1999, the trial was adjourned when Mr. Fehr appeared without counsel. Mr. Cobb quite responsibly determined that it would be problematic for Mr. Justice Oppal and a jury to attempt to deal with these charges if Mr. Fehr was not represented.  The May 25th, 1999 adjournment is a factor over which the Crown had no control, and the trial was therefore adjourned to February 7th of this year.

[31]        The trial proceeded through February into early March, largely taken up with wiretap challenges.  All counsel consented to an adjournment of the trial to May.  In fact it resumed on 19 June.  The hearing was concluded in the summer.  Of the 37 days of hearing, 20 days were devoted to testimony and 17 to argument on the many defence motions and final submissions.

[32]        The trial judge did not assign any blame for the delay.  He said in his ruling:

[19]  In any event, nothing about either the Crown’s conduct, that of the accused, availability of courtroom space or other institutional resources would seem to pertain to the delays which have plagued this case.  They simply arose because of either scheduling conflicts that counsel could not resolve or Mr. Fehr’s inability to proceed with the trial originally scheduled for June the 6th, 1999 – all matters that were beyond the control of either of the Crown or Mr. Cobb insofar as Mr. Pugliese’s application is concerned.

He weighed the impact of the delay on Pugliese's life and the seriousness of the offences and concluded that a stay based on s. 11(b) of the Charter could not be justified:

[24]  Does all of that satisfy me that the delay I have alluded to and the impact which the delay has had upon Mr. Pugliese justifies the stay of proceedings he seeks?  Has the delay been so excessive as to constitute an infringement of his Charter rights?  I conclude that it has not.

[25]  This, as mentioned, is a prosecution in which substantial quantities of cocaine, marijuana, hashish and methamphetamines have been seized, the total value of which, taking the top end of the valuation I was provided with several weeks ago, would be in the neighbourhood of $3.1 million.  It is a serious matter and Mr. Pugliese’s role in the alleged conspiracy is one which results in four counts - two of conspiracy and two of possession of cocaine for the purpose of trafficking. Notwithstanding the extent to which his life has undoubtedly been substantially changed by reason of the two years that have transpired since he was originally arrested, it would be an improper exercise of my discretion to conclude that there is justification in this case for entering a judicial stay.

[26]  Counsel have done their best to get this matter on for trial as early as possible, but the complications that have beset that process, particularly those involving Mr. Fehr, (which, unfortunately, Mr. Pugliese has been caught up in), do not, in my view, satisfy the requirements suggested in Morin. I am not satisfied that the competing interests between the right to be tried within a reasonable time and society’s need to see that those charged with such offences are brought to trial justify the requested stay, and I decline to order it.

[33]        On this appeal, Pugliese argues that the trial judge miscalculated the length of the delay, 24 rather than 31 months, failed to make a finding whether Pugliese waived his s. 11(b) rights, erred in considering the failure of counsel to explicitly reserve the right to argue delay, wrongly concluded that society's interest outweighed his right to be tried within a reasonable time, erred in holding that the problems of a co-accused in retaining counsel were part of reasonable delay and erred in not severing Pugliese from the other accused when Fehr could not proceed with the May 1999 trial date.



[34]        Fehr asserts the right to get into the affidavits supporting the prior authorizations, P.18 and P.29.  He puts this argument first on standing: having had one of his conversations intercepted under P.29, which conversation was tendered as evidence in support of P.38, he was entitled to a Garofoli hearing: R. v. Garofoli, [1990] 2 S.C.R. 1421, to challenge the validity of P.29: R. v. Shayesteh (1996), 111 C.C.C. (3d) 211 (Ont. C.A.) at 238.

[35]        The trial judge agreed with the Crown's position below that Fehr lacked standing to argue for the opening of the packets connected with P.18 and P.29, not having been named as a target in either.

[36]        In this Court, the Crown does not rely on standing.  It seeks to uphold the ruling against disclosure on the alternative basis given by the trial judge:

[9]   That aside, subject to the extent to which the information and belief of Const. Tivers may be undermined during the course of cross-examination, the contents of his affidavits in P.38/97 (233 paragraphs in 107 pages) and P.48/97 (341 paragraphs in 167 pages) suggest compliance with the requirements of s.186(4) of the Code (stating the offences in respect of which communications may be intercepted, the types of communications that may be intercepted, identity of those persons whose communications are to be intercepted, etc.).  Indeed, given the extent to which Const. Tivers has detailed the activities of Allen Fehr in the P.38/97 and P.48/97 affidavits, reliance upon information gleaned from P.29/97 seems inconsequential.

[37]        I prefer to express no opinion on the standing question.  In my view, the trial judge's ruling is supportable on the basis of materiality.  There was abundant proof for the authorization of P.38 apart from the one interception of the call between Bogdanich and "Allen".  The trial judge's opinion that it was "inconsequential" was reasonably based on the material before him.  He formed that view in the course of discharging the task of keeping the case within reasonable limits, a matter of discretion with which this Court is reluctant to interfere.  The Crown did not tender the phone call as evidence in the trial proper.  The call would not have added much if anything to the authorization: it was, in a word, immaterial.

[38]        Constable Tivers underwent four days of cross-examination and he was found to be credible.  The trial judge was fully justified in curtailing adventures into subjects having no significance in the trial.  He was not satisfied that any useful purpose would be served by prolonging the already protracted cross-examination by opening new areas of questioning.

Investigative Necessity

[39]        The appellants take three points on the issue of investigative necessity:

(1)   The trial judge applied the wrong test;

(2)   He focused on the good faith of the officer rather than the substance of the test; and

(3)   He took an incorrect approach to amplification.

[40]        As I have said, the trial judge used the right test at the time, but it was not the test later formulated in Araujo, supra.  His application of what became the wrong test constitutes an error of law.

[41]        Having determined an error of law, we are faced with two choices: ordering a new trial or deciding whether the record supports the ruling on the Araujo test.  Either way, the second and third points become somewhat academic.

[42]        In my view, this Court should adopt the latter course and avoid a new trial.  The appellants say that we should not attempt to apply Araujo, supra, ourselves because so much depends on the credibility of Constable Tivers whom we have neither seen nor heard.  Much of the wind is taken out of the appellants' sails on this argument because the potential new element bearing on Tivers' credibility, namely, what might emerge from the packets for P.18 and P.29, has been disposed of.  We do not need to speculate on what effect that information may have had because, in my view, the decision to refuse disclosure was soundly based.

[43]        Then it is said that by approaching the evidence with the mind set on the efficacy test rather than the Araujo approach, the trial judge would have seen things in a different way than if he used the test of no practical alternative.  Therefore his findings as to credibility should not influence this Court.

[44]        I do not agree that we are unable to have regard for the trial judge's analysis of the investigative necessity issue, particularly his assessment of Tivers' credibility.

[45]        I reject the suggestion that by using the wrong test, the trial judge's perspective on the evidence may have been skewed.  He referred in his reasons on admissibility to a decision of this Court which adopted a test very close to that developed in Araujo, supra:

[56]  ... In R. v. Paulson (1995), 97 C.C.C. (3d) 344 (B.C.C.A.), at 351, Chief Justice McEachern concluded that an authorizing judge need not be held to a “last resort” standard, preferring the “no real practical alternative” test adopted by LaForest J., in R. v. Duarte (1990), 53 C.C.C. (3d) 1 (S.C.C.).

[46]        The trial judge meticulously went through investigative measures other than wiretapping in his ruling: 2000 BCSC 1678.  He found that the alternatives such as surveillance, undercover operators, informants, border searches and the like had pretty well run their course.  He rejected the accusation that Tivers' affidavit presented a confused and misleading picture of the investigation and, in the end, he accepted Tivers' evidence:

[57]     In P.38, Const. Tivers succinctly reviewed both the status of the investigation and the drug squad’s strategy (in Paragraphs 207 and 208), before providing detailed reasons for deposing that surveillance, informants’ tips, and the use of undercover operators and searches, by themselves, would be unlikely to succeed (he adopted a similar approach in P.48, in Paragraphs 315, 316 and 318).  Notwithstanding his regrettable vagueness and uncertainty about many of the details counsel attempted to elicit in cross-examination, my review of his affidavit satisfies me that in both informing himself about failed investigative procedures and informing the authorizing judges about why continuation of those procedures would not, by themselves, lead to success, Const. Tivers provided a “fair, balanced and accurate narrative of the underlying factual circumstances”: in Criminal Code (Re), supra.  While he might have exercised greater care, his bona fides cannot be assailed.

[47]        The undercover officer made four purchases but her attempts to induce Fehr to sell larger quantities to put her in contact with his supplier were rebuffed.  Camera surveillance was tried and abandoned because Fehr's residence could not clearly be seen from the street.  Border checks had limited utility in establishing the conspiracy under investigation.  And, in any event, it was argued by the appellants below that secondary searches at the border were unlawful.  Installing an informant as an agent was explored.  At one point an informant expressed a willingness to act as an agent but later backed away from the idea.  Regular surveillance was also used, but again it was of limited utility in gathering evidence of an agreement to engage in a criminal enterprise.

[48]        The police needed to hear the words spoken by the targets in order to achieve the goal of the investigation, which was to establish a conspiracy to import and traffic.  As a practical matter, there was, in the terms of Araujo, supra, "no other reasonable alternative method of investigation" to electronic surveillance.

[49]        I have not been persuaded that the trial judge was wrong in accepting Tivers' evidence.  It was said that Tivers used boilerplate language in his affidavits in a way that confused and misled; that he presented conflicting evidence; and that he failed to speak to any informants directly.

[50]        The use of boilerplate language in affidavits supporting wiretap authorizations was criticized in Araujo, supra, in strong terms at para. 47:

[47]  A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers.  At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not.  Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it.  There is nothing wrong -- and much right -- with an affidavit that sets out the facts truthfully, fully, and plainly.  Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.

[51]        It was also suggested in Araujo, supra, that the affidavit should speak from personal knowledge:

[48]  Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best first-hand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers.  This would strengthen the material by making it more reliable.  In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants.

[52]        Tivers' affidavits were imperfect as the trial judge acknowledged.  But I cannot say that Tivers' use of standard phraseology and formats followed by other police officers damaged his credit.  If each affidavit for a wiretap had to be structured and expressed in a new and creative style on every occasion, the task would become unduly burdensome.  I note that neither the authorizing judge nor the reviewing judge appears to have had any difficulty in following the affidavits.

[53]        The trial judge found that Tivers went about his task in good faith and attempted to set forth the facts in an honest way.  I cannot accept the argument that the trial judge placed undue emphasis on Tivers' bona fides and lost sight of the content of the affidavits.  The trial judge's findings in that regard responded to the arguments before him.

[54]        Two examples are cited as illustrating the conflicting and misleading character of the affidavits.  The affidavits said camera surveillance was unsuccessful, yet no explanation was given as to why it was set up in the first place.  The affidavit for P.38 referred to an informant designated as "F" who may be willing to act as an agent, yet in the affidavit for P.48 the same person, this time designated as "C", was said to be unwilling.  What is argued to be an unexplained conflict was more likely a change of heart than an attempt to suppress evidence that would detract from investigative necessity.  Neither example demonstrates any error on the credibility finding.

[55]        Finally, Fehr argues that the trial judge's assessment of Tivers' credibility cannot be relied upon because the trial judge used information acquired after the authorization to bolster Tivers' evidence.  Amplification of the evidence in the Garofoli hearing is limited to minor technical matters: see para. 59 of Araujo, supra.

[56]        The point arises in connection with the failed attempt by the undercover officer, Corporal Robertson, to deal in larger quantities with Fehr.  The trial judge said:

[53]     However, it seems that Const. Tivers’ less optimistic view of that prospect, as quoted from Par.209(c)(iv) of his affidavit, was justified, having regard to what happened two days later.  On August 29, 1997, Allen Fehr seemed to become increasingly cool to the prospect of selling Cpl. Robertson a kilo of cocaine as their negotiations dragged on throughout the day.  While Fehr’s loss of enthusiasm was likely due to his suspicions about surveillance that day, I am not persuaded that what Const. Tivers said in his affidavit of August 27th is at odds with the “comfortable” description on July 11th.

[57]        I agree with the Crown's argument that this is not amplification but merely an observation in passing.  Even if it were amplification, it does not affect my reliance on the trial judge's view of Tivers' evidence.

Seizure of Fehr's Vehicle

[58]        Fehr's strongest point on the seizure of his vehicle is that it was derivative of the wiretaps and if the wiretaps are illegal, the seizure would be fruit from the poison tree.  As I found no reversible error in the review of the wiretaps, I cannot give effect to this point.

[59]        The contention that the seizure of the vehicle was not incidental to arrest is without any foundation and I would reject it.  No violation of s. 8 of the Charter was established.

[60]        The search of the vehicle which produced the drugs was authorized by warrant, the validity of which is not challenged, except to the extent that it followed upon an allegedly unlawful seizure.

[61]        It follows that there was no error in admitting the results of the search and seizure.

Delay – Section 11(b) of the Charter

[62]        Pugliese alone advances the ground that the trial judge erred in not granting him a stay of proceedings on account of delay.  He makes five points which I will discuss seriatim.

(1)   Was the relevant period of delay 24 or 31 months?

[63]        Pugliese argues that the trial judge erred in not counting the trial time of seven and a half months in considering the Charter argument.

[64]        The trial judge does not make a specific finding of waiver, either explicit or implicit, but he did note that Pugliese's counsel raised no objection to the adjournments extending the length of trial.  Whether or not that constitutes a waiver, I think it is relevant to the question whether the extraordinary remedy of a stay ought to be given.

[65]        The trial judge was gentle in his comments about counsel's difficulty in coordinating dates but he made it plain twice in his ruling that had this been a jury trial, counsel's convenience and scheduling would not have been accommodated.  Pugliese's counsel's busy calendar was part of the cause of the delay, even though the trial judge was not prepared to assign any blame to him.  A trial involving several accused in a multi-count indictment where Charter challenges abound is going to take a long time.  The accused have the right to raise such issues but they cannot seek a stay if the proceedings are prolonged as a result.

[66]        The delay application should logically have been made at the beginning of the trial.  Pugliese's counsel was questioned on why he did not follow that course but he declined the invitation to address the matter at the beginning, preferring to leave it to the end.  To wait until the end and then add the time of trial to the complaint of delay is to create an artificial basis for a stay.  Such a practice could give rise to tactical manipulation.

[67]        It was not wrong for the trial judge to exclude trial time from the delay period.

(2)   Did the trial judge wrongly consider Pugliese's counsel's failure to "explicitly reserve the right to later argue that the delays were prejudicing his client"?

[68]        There was no such error.  The trial judge observed counsel's silence as a factor in assessing the reasons for delay.  This is in accordance with the leading case of R. v. Morin, [1992] 1 S.C.R. 771, see especially p. 793 under "Actions of the Accused".

[69]        As can be seen from para. 18 of his oral ruling on 18 September 2000, the trial judge simply put counsel's position in context:

I concede that it is not necessary for counsel to voice an objection to an adjournment in quite the way I may have suggested he should have done.  However, in dealing with these various delays and the reasons for them, that brings me to the third of the Morin factors.  Inherent in a prosecution with four accused was the prospect of calendar conflicts, making it difficult to choose a trial date that would be as early after the arrests as one would prefer.

(3)   Did the trial judge err in giving more weight to society's interest in the prosecution than Pugliese's right to be tried within a reasonable time?

[70]        A fair reading of the trial judge's ruling does not give the impression that he placed less importance on Pugliese's s. 11(b) right.  He considered the competing interests and concluded that a stay was not appropriate.  That was a matter of judgment upon consideration of all the relevant factors.  The result does not imply a ranking of the interests.

(4)   Did the trial judge err in finding the delays caused by Fehr's problems with counsel as reasonable delay in the trial process?

[71]        Fehr's problems with counsel formed part of the picture as the trial judge saw it.  He did not, in my view, categorize the delays as either reasonable or unreasonable.

[72]        There is no basis for the complaint that the trial judge treated delays caused by Fehr as reasonable.  But even if he did, I can find no error.  Such difficulties are inherent in joint indictments.  One accused cannot avoid being affected by the litigious approach taken by the other accused.  Such delays as are caused by the other accused, generally speaking, have to be accepted as part of the process.

(5)   The Crown should have severed Pugliese when the jury trial could not proceed.

[73]        Pugliese is driven to argue this point by the logic of his fourth argument.  It is a submission without substance because Pugliese did not apply for severance.  It has a hollow ring in light of the fact that his counsel told the court below that the trial should not proceed if Fehr did not have counsel.


[74]        For the foregoing reasons I would dismiss both appeals.


“The Honourable Mr. Justice Donald”

I Agree:

“The Honourable Madam Justice Saunders”

I Agree:

“The Honourable Mr. Justice Lowry”