Judge tosses gun case over Toronto police delays ‘bordering on negligent’

Late last month, an Ontario court judge stayed all charges against MacMillan, citing delays caused by Toronto police.

“The conduct of the police in this case can be characterized as bordering on negligent,” Judge Hafeez Amarshi wrote. “This case ranks among the worst of disclosure-delayed matters that have come into my court.”

The Supreme Court has said that provincial court cases must be completed within 18 months. If that deadline is breached, the case must be tossed for violating a person’s constitutional right to be tried within a reasonable time, unless the delay can be explained by exceptional circumstances.

Although Amarshi found exceptional circumstances did cause some delays in MacMillan’s case, the bulk of wasted time was due to police simply not providing evidence that should have been available since MacMillan’s arrest.

The ruling comes as police forces and politicians have blamed the courts for being too lenient on individuals charged with serious firearms offences, and amid calls for reform to make it more difficult for such individuals to be released on bail.

Toronto police did not return a request for comment Wednesday.

It took between six months and over a year for Toronto police to deliver evidence that it had in its possession since the arrest, Amarshi said, including records of a 911 call, videotaped statements from the complainant, surveillance footage and a search warrant.

No trial dates could be set until the disclosure was provided, Amarshi said.

“I acknowledge the seriousness of these criminal charges,” the judge wrote.

“The public would be understandably dismayed that serious cases are at jeopardy of never being heard on their merits because of police indifference and apparent apathy towards their basic disclosure obligations.”

Police demands for reform grew louder following the shooting death of OPP officer Const. Grzegorz Pierzchala in December. One of the people charged in the killing, Randall McKenzie, was wanted at the time for violating his bail conditions.

In the wake of Pierzchala’s killing, the Ontario Association of Chiefs of Police and all 13 premiers issued calls for legislative reform.

In this case, the judge laid the blame for the collapse of a firearms prosecution squarely at the feet of the police.

MacMillan has been out on bail since shortly after he was charged, with strict conditions including house arrest. His lawyer, Trevin David, declined to comment on the case.

Amarshi noted that by the anticipated end of MacMillan’s trial on Feb. 14, it would have been more than 22 months since his arrest.

The Crown conceded that no delay in the case was caused by the defence.

The case was plagued by delays as it moved through the courts, including having to cancel a pretrial hearing due to the lack of evidence being disclosed. On one occasion, the Crown even said in court that initial disclosure was ready when it was not, Amarshi wrote.

On another date, the Crown told the defence in an email that “substantial disclosure” would be available within the next week — but it had still not arrived a month later.

It turned out the Crown was still waiting on Toronto police to send them the evidence so that they could then disclose it to the defence.

“What is clear from the evidentiary record … is that the Crown consistently over the course of these proceedings made concerted efforts to follow up with the Toronto Police Service,” Amarshi said.

As one example, Crown attorney Matthew Giovinazzo said in court that he followed up at least once a month, if not more, with the police officer in charge of the case about the complainant’s video statement, a key piece of evidence.

“A frequent police response to these inquiries was that it had been ordered but was not yet available,” Amarshi said.

Sometimes the Crown would have to escalate his request to the superior officer at Toronto police’s 54 Division due to the lack of a response from the officer-in-charge. The judge wrote that it was “unclear” whether that tactic sped up the disclosure process.

“Mr. Giovinazzo is a particularly diligent prosecutor who found himself in an unenviable position, unable, despite his consistent efforts, to get the police to meet their disclosure responsibilities in this case,” Amarshi said.