TORONTO - Charges in one of Canada's largest ever police corruption cases should not have been thrown out even though years would have passed before the case went to trial, Ontario's highest court heard Monday.
The charges against six former members of the Toronto police drug squad were based on allegations they conducted searches without warrants, falsified notes to hide those facts and didn't account for all of money seized in drug investigations, as well as extortion and assault allegations.
The 30 corruption counts were stayed in January 2008 - four years after the charges were laid - under the prospect of a trial that wouldn't be completed until August 2008. Ontario Superior Court Justice Ian Nordheimer described that as a "glacial" pace.
The Crown is appealing that decision, arguing that due to various factors the delay was not unreasonable.
In his decision Nordheimer suggested the defence was surrendering to the inevitable when, after delays with disclosure from the Crown, they accepted a date for the preliminary hearing that was a full two years after the charges were laid.
Crown attorney Ken Campbell disagreed, saying the defence should have raised concerns about the delay at that time.
"There was nothing inevitable about it," he told the panel of Ontario Appeal Court judges Monday.
"It could have been avoided if they'd spoken up... They could have had an earlier trial date if they'd wanted one."
By not complaining about that delay at the time, the defence lawyers effectively waived their clients' right to raise it as an issue now, Campbell argued, though the Appeal Court justices spent much time questioning him on that point.
When it came time for setting the trial date much of the delay was due to defence lawyers being unavailable, as well as some of the six accused changing lawyers and inherent time requirements, Campbell said.
Nordheimer laid much of the blame for delays on how long it took the Crown to get mountains of evidence to the defence.
"I consider that the largest portion of the delay in this case results from the actions of the Crown relating to the manner and timing of the disclosure," he said in his decision.
Campbell called the Crown's disclosure obligations "very onerous," noting that if the papers and files were all stacked atop each other, the pile would reach 41 feet.
"This was a very substantial and very complex case that required enormous resources," he said.
The corruption charges against John Schertzer, Steven Correia, Nebojsa Maodus, Joseph Miched, Raymond Pollard and Richard Benoit were laid after more than 200 drug cases were dropped by provincial prosecutors following theft, extortion and assault allegations.
The allegations are from between 1997 and 2002. Initial allegations of improper investigation and arrest tactics in the drug squad led to an investigation and Police Services Act charges against some of the men.
