A Brampton judge blasted the federal agency that prosecutes drug crimes for taking far too long to disclose its evidence to the defence, in a heroin-importing case that was then tossed due to delay.

In a decision released last month, Ontario Court Justice Paul O’Marra criticized the Public Prosecution Service of Canada, also known as the federal Crown, for its “dilatory efforts in providing timely, crucial disclosure” and “the lack of urgency in moving the matter forward despite repeated warnings.”

He then stayed heroin-related drug offences against Lumabar Vitalis, who had been arrested in September 2016. He was set to stand trial in June of this year.

Two months before Vitalis’s arrest, in July 2016, the Supreme Court of Canada had released a landmark decision, R v. Jordan, which set strict timelines for bringing criminal matters to trial: 18 months in provincial court and 30 months in Superior Court.

If the presumptive ceiling is breached, it falls on the Crown to prove that there were exceptional circumstances for the delay.

After deducting the delays attributed to the defence, O’Marra found the delay in Vitalis’s case to be 18 months and 13 days, barely over the limit for provincial court. The Crown acknowledged there were no exceptional circumstances, but argued the delay was closer to 16 months.

O’Marra pointed out that the PPSC office at the Brampton courthouse has been criticized by other judges about the period of time it has taken federal Crown attorneys to disclose evidence to the defence in non-complex importing cases, resulting in a stay of proceedings.

“I join that chorus of condemnation,” O’Marra wrote. “The period of time that it took to provide disclosure to counsel in this case was unacceptable.”

Vitalis’s lawyer, Adele Monaco, said it was a “fantastic ruling” in an interview with the Star.

“It was really on the line, it could have gone either way,” she said, “but it will have a resounding effect with other defence lawyers as well.”

A spokesperson for the PPSC said the agency “is dedicated to ensuring that disclosure is collected and presented in a timely fashion and consistent with the timelines set by the recent jurisprudence.”

According to O’Marra’s ruling, while the Crown did make some disclosure in the months following Vitalis’s arrest, there were frequent requests from the defence to the Crown for outstanding material, which the Crown is constitutionally obligated to turn over. The material included video surveillance, cellphone analysis and police officers’ notes.

“It is important to note that as of November 2016, all of the disclosure was in the hands of the police and without any explanation was not disclosed until May 10, 2017,” O’Marra wrote.

The lags in the disclosure process made it difficult to schedule a judicial pretrial and then set trial dates, as the defence still needed to have a full picture of the Crown’s case against Vitalis.

“Would counsel be in a position to make strategic decisions about the case? I cannot see how counsel could have made those decisions without crucial disclosure and conducted a meaningful (judicial pretrial). It would be irresponsible for counsel to set a date for a (judicial pretrial) without critical disclosure,” O’Marra said.

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Had O’Marra found that the delay was 16 months, as the Crown had argued and which would be below the presumptive ceiling set by the Supreme Court, the judge said he would have still tossed the case due to delay, which the top court said in R v. Jordan is possible in some circumstances.

“Based on the foregoing circumstances, including the Crown’s dilatory efforts in providing timely, crucial disclosure, the lack of urgency in moving the matter forward despite repeated warnings, (defence) counsel’s sustained effort to expedite an uncomplicated case, I would still issue a stay of proceedings despite the fact that the delay falls below the presumptive ceiling,” O’Marra wrote.

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