- Burnaby Beacon
- Posts
- Judge tosses opioid importing charges over unreasonable delay to trial
Judge tosses opioid importing charges over unreasonable delay to trial
A BC provincial court judge has thrown out 11 charges of importing and possessing opioids for the purposes of trafficking after an unreasonable delay to trial.
Dario Antonio Baruca and Aiden Joseph O’Brien were jointly charged with two counts of unlawfully importing to Coquitlam and Burnaby an analogue of fentanyl into Canada, and two counts of possession in Coquitlam and Burnaby for the purposes of trafficking.
Seven more counts were laid against Baruca, including two of importing fentanyl analogues, one of possession of fentanyl analogues for the purpose of trafficking, three counts of importing opium into Canada, and one of possession of opium for the purposes of trafficking.
All counts were alleged to have occurred between Oct 30 and Nov 27, 2017, according to a recent court decision.
R v Jordan and court delays
In a four-day pretrial hearing, the two accused applied for the judge to dismiss the case based on the landmark 2016 Supreme Court of Canada decision R v Jordan.
The decision on Baruca and O’Brien, from Judge Jennifer Oulton, relied heavily on caselaw, including the Jordan decision and others that shaped the practice around delayed justice.
The Jordan decision is based on the principle that “justice delayed is justice denied,” and explains that timeliness of trials is “an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial.”
A long wait for trial, the court found, means prolonging stress, anxiety, and stigma experienced by an accused, despite them being presumed innocent. And it impacts a fair trial because the longer one waits to trial, “the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.”
Jordan set a ceiling of 18 months for provincial court cases and 30 months for superior court cases.
In the case of Baruca and O’Brien, the pretrial hearing, held in April this year, took place 19 months and a day after charges were approved against them.
The accused also argued that the pre-charge delay, which Oulton described as “considerable,” should contribute to the analysis of the delay.
And in a separate argument, they suggested the pre-charge delay was an abuse of process.
The two accused were not charged until 32 months and 15 days after their Nov 24, 2017 arrest, according to the ruling.
Crown prosecutors “conceded the delay was presumptively unreasonable” but argued that there were “discrete exceptional circumstances” and that the case was a complex one, excusing the delay from a Jordan application.
Imported fentanyl analogue and opium
The case followed a six-month investigation into O’Brien and Baruca, along with five others, between May and November 2017.
The investigation included court-sanctioned vehicle tracking, undercover work, and 37 days of physical surveillance, according to the ruling.
On Nov 24, 2017, Baruca and O’Brien were arrested in Baruca’s vehicle, and a search of the vehicle allegedly found two packages addressed to O’Brien, each containing 500 grams of cyclopropyl fentanyl, an analogue of fentanyl.
A search of Baruca’s hotel room at Atrium Hotel, in which he’d lived since 2015, also reportedly turned up two kilograms of opium, $16,000 in cash, a 544-gram package of cyclopropyl fentanyl, and evidence connecting him to other shipments of illicit substances. A box seized from the front desk of the hotel contained another two kilograms of opium.
Some shipments, which had reportedly arrived from the Netherlands, Germany, and China, were addressed to other names, but hotel staff said Baruca was the one picking the packages up. Police also searched two vehicles, including the one he was arrested in and one parked outside the Atrium Hotel.
And seven months after their arrest, on June 18, 2018, police forwarded their report on the matter to Crown counsel.
Charges weren’t approved for nearly 25 months after that, on Aug 7, 2020.
A trial, however, was not scheduled to take place until September and October 2022, with pretrial hearings scheduled for June, July, and August.
Crown argues reasonable delays
The case included seven applications by Baruca’s defence counsel, something prosecutors said made the case particularly complex.
Crown lawyers also argued that there were excusable delays, including a “mutual good-faith error in scheduling the pretrial applications” that should have shaved time off of the Jordan analysis.
However, Oulton noted such a delay must be “reasonably unforeseen or reasonably unavoidable,” and she said there wasn’t evidence before her that the Crown had attempted to promptly address that issue.
The Crown also sought to have some time excused for Baruca’s defence requesting a second copy of disclosure from the Crown, but Oulton said there was no evidence for that request adding much time to the case. In all, it took six days, between the request for disclosure and defence receiving the disclosure. She also suggested providing disclosure—even a second copy—should not be considered unreasonable.
As for how complex the case was, Oulton acknowledged that there were 5,000 pages of disclosure, something she described as “voluminous.”
“But the assessment of whether a case is particularly complex is not a quantitative, but a qualitative exercise,” she said.
Several of the defence applications had to do with how police investigated the matter prior to the arrest, which Oulton said went ahead “largely without prior judicial authorization for the gathering of evidence against Mr Baruca.”
“Police were given information and assistance because they asked for it. Defence challenges the legality of those searches,” Oulton said.
“Police seized video footage from the Atrium Hotel, received information about Mr Baruca from the manager of the Atrium Hotel, obtained a passport photo without a production order, requested and received information from the port authority, got a package from Canada Post, and requested CBSA to intercept and open packages, and ‘flag’ Mr Baruca.”
‘The case is complex, but it is not particularly complex’
Oulton said the case was “most certainly complex to schedule” but said that doesn’t automatically classify it as a “particularly complex case.”
“Each case turns on its own facts, but I have also considered cases which courts have found to be particularly complex and I find them distinguishable from this case,” Oulton said.
On the other hand, she pointed to a 2018 case, R v Lai, which was not found to be particularly complex, “despite 17 counts, voluminous disclosure, two accused, three victims, multiple pretrial conferences, and pretrial applications, at least three expert witnesses and 45 potential witnesses.”
Oulton said there were a number of things Crown could have done to mitigate the delay, including separating the two defendants into separate cases, making scheduling easier, or filing a direct indictment, which would have eliminated preliminary inquiries in the case.
“With respect to Mr Baruca, I find the case is complex, but it is not particularly complex. With respect to Mr O’Brien, I find the case against Mr O’Brien is not complex. The evidence against Mr O’Brien alone would take an estimated four days of trial,” Oulton said.
“Crown did not have a concrete plan to minimize or mitigate delay here and would be disqualified from relying on the particular complexity of the case in these circumstances.”
In both cases, the delay was found to be 26 months, well above the 18-month ceiling provided by Jordan, and that the delay was unreasonable. The remedy for an unreasonable delay is to dismiss the case—as such, Oulton found she did not need to consider the abuse of process matter.