WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DANIEL DESJARDINS
JUDGMENT
Heard on May 11, 12, 13, June 30, July 7, September 12, 14, October 25 and November 17, 2022
Reasons for Judgment released on June 9, 2023
Richard Morris.................................................................................... counsel for the Crown
Jodie Primeau.................................................................................. counsel for the accused
RICHARDSON J.:
Introduction
1Daniel Desjardins was charged that he did, on or about October 14, 2020, sexually assault RSC, contrary to section 271 of the Criminal Code and forcibly confine RSC contrary to section 279 of the Criminal Code (hereinafter referred to as “the Substantive Charges”).
2He was further charged that he did on or about October 23, 2020, breach his undertaking contrary to section 145 of the Criminal Code by communicating directly or indirectly with RSC. He is also charged with Criminal Harassment contrary to section 264 of the Criminal Code. This is hereinafter referred to as “the Breach Charges”.
3This case involves three issues.
4First, I must determine whether 22.5 months of delay, which exceeds the Jordan ceiling, is unreasonable. After hearing argument and taking some time to consider the section 11(b) Application, on June 29, 2022, I advised counsel that, for reasons I would release later, I was dismissing the application and I ordered the trial to proceed. Those reasons are found at paragraphs 7 to 253 herein.
5Secondly, during the trial, there was an evidentiary point raised with respect to whether the Crown is entitled to notes made by defence counsel concerning the discussions that counsel had with Terri Lyn Lemmon, a defence witness who was called at trial. I dealt with this summarily during the trial, but I indicated to counsel that I would release written reasons for my decision later. Those reasons are found at paragraphs 254 to 264.
6Thirdly, there is the trial decision on the merits. This involves issues of credibility and reliability and whether, on the application of the principles set out in R. v. W.(D.), the accused is entitled to an acquittal. On November 17, 2022, I indicated that for written reasons that I would release later, I was acquitting Mr. Desjardins on the charges. Those reasons are found at paragraphs 265 to 396.
The Section 11(b) Application
Introduction and the Nature of the Jordan Framework
7As I will set out below, this case involves approximately 22.5 months of delay.
8The first issue is whether the failure to proceed with the trial on January 21, 2022 as a result of the pregnancy of RSC and the delay associated with getting the trial back on track constituted a discrete event within the Jordan analysis.
9The other issue is the impact, if any, of the COVID-19 pandemic.
10Pursuant to the framework established by R. v. Jordan1, the presumptive ceiling for this case – a trial in the Ontario Court of Justice without Preliminary Inquiry – is 18 months2.
11Jordan, and all 11(b) jurisprudence, is about balancing the accused’s right to trial within a reasonable time against society’s right to have a decision in a case made on its merits. At paragraphs 19 to 28 in Jordan, the Supreme Court reiterated why this is so important:
An unreasonable delay denies justice to the accused, victims and their families and the public as a whole.
Trials within a reasonable time are 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. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, 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.
…[S]ome accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2).
Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timely trials (R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1220-21). Delay aggravates victims’ suffering, preventing them from moving on with their lives.3
12None of these principles are new. What was new in Jordan, was the recognition that the existing jurisprudence, which focused largely on proof of actual prejudice suffered by the accused, was “too unpredictable, too confusing and too complex.”4
13I would be remiss if I did not make it clear that I found it difficult to decide this 11(b) application. Despite the fact that Jordan was designed to be more predictable, less confusing and less complex than the previous Morin/Askov jurisprudence, it is impossible to plan for every nuance and development in a case and I had some difficulty applying Jordan to the circumstances of this case.
14The Supreme Court observed that under the previous jurisprudence:
a “culture of complacency has emerged…. Unnecessary procedures and adjournments, inefficient practices and inadequate institutional resources are excepted as the norm and give rise to ever-increasing delay. This culture of delay “causes great harm to public confidence in the justice system” (LeSage and Code, at p. 16). It “rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system” (Cowper, at p. 48).””5
15To determine whether this case has exceeded the presumptive ceiling, I must:
a) Calculate the total period of delay; and
b) Subtract any defence delay6.
16The total period of delay is calculated from the date of the charge to the actual or anticipated end of the trial.7
17If the delay net of defence delay exceeds the 18 month ceiling, it is presumptively unreasonable. The onus then shifts to the Crown to establish that, the delay can be explained by exceptional circumstances8.
18Exceptional circumstances are circumstances that lie outside the Crown’s control because they are reasonably unforeseen and reasonably unavoidable and because the Crown cannot remedy the delay emanating from those circumstances once they arise.9
19It is not possible to identify in advance all of the circumstances that qualify as “exceptional circumstances”. Generally speaking they fall into two categories, “discrete events” and “particularly complex cases”.10
20I agree with defence counsel that this case is not particularly complex. At the end of the day, the case boiled down to an assessment of credibility, reliability and the application of the W.(D.) formulation. That has an impact on deliberation time, but not trial complexity itself.
21Jordan also makes it clear that defence-waived or caused delay does not count in calculating whether the presumptive ceiling has been reached.11
22Defence-waived delay is delay where there is an explicit or implicit, clear and unequivocal waiver.12
23Delay caused by defence includes “deliberate and calculated” tactics such as “frivolous applications and requests” which are the “most straightforward examples of defence delay.”13 Actions taken by the defence to “legitimately respond to the charges” are not included in defence delay.
The Period During Which the Jordan Framework Applies
24The parties filed an agreed Statement of Facts. Where the timeline in the Agreed Statement of Facts has left a gap in details needed to decide this case, I have indicated so from the Information, from Transcripts or from the recordings of the proceedings.
The Commencement of the Jordan Period
25The Information on the Substantive Charges (20-1358) was sworn on October 28, 2020. Mr. Desjardins was arrested on the Substantive Charges on October 14, 2020.
26The Information on the Breach Charges (20-1359) was also sworn on October 28, 2020. Mr. Desjardins was then arrested on the Breach Charges on October 27, 2020. He was held for bail. Mr. Desjardins was released on a recognizance on October 28, 2020 and given a first appearance date of November 24, 2020.
27A replacement Information (21-0655), which combines 20-1358 and 20-1359 was sworn on May 28, 2021. The Crown proceeded on this Information and 20-1358 and 20-1359 were withdrawn on June 30, 2022.
28At the outset, I find that the date the Information was sworn, October 28, 2020, marks the commencement of the 18 month Jordan period14. This, not the date of arrest, is the point at which Mr. Desjardins is a “person charged with an offence” such as to bring himself into the ambit of section 11(b) of the Charter15.
29The 18-month time frame established in Jordan thus establishes an outer limit in this case of requiring the evidence and the argument to be completed by April 28, 2022.
The Impact of Deliberation Time
30In this case, I concluded hearing the evidence and the argument on September 14, 2022. There were two periods of deliberation time. The first is the period between the end of the 11(b) argument on May 13, 2022 and my oral decision on the 11(b) argument on June 29, 2022. The second is the deliberation time between the end of the evidence and argument of the trial itself on September 14, 2022, and the oral decision to acquit Mr. Desjardins on November 17, 2022.
31In R. v. KGK, the Supreme Court concluded, generally speaking, that delay attributable to a judge’s deliberation time is excluded from the Jordan framework. As Justice Moldaver observed in KGK,
Properly construed, the Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument. That is when the parties’ involvement in the merits of the trial is turned over to the trier of fact.16
32That is not to say that deliberation time can never factor into a section 11(b) analysis. Although the Jordan framework no longer applies, deliberation time will factor into a section 11(b) analysis where the accused shows that “the deliberation time took markedly longer than it reasonably should have in all the circumstances”17. “[T]he presumption of judicial integrity operates to create a presumption that the trial judge took no longer than reasonably necessary to arrive at the verdict”18. Trial judges are “presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations – which take on a different character once the evidence and argument at trial have concluded – as well as practical constraints that judges face”19. This is a high threshold.
What is a “Month”?
33As discussed, in Jordan, the Supreme Court described the period beyond which delay is presumptively unreasonable as 18 months. This raises the question of what constitutes a “month”. In R. v. Ashraf, Justice Band had this to say about how to calculate months:
I believe that the method of calculating delay that is most consistent with Jordan's goals is to start at one date and count the number of months that have elapsed since. It is clear, simple and accords with common sense and everyday experience.20
34Following Justice Band’s method of calculation, for this case not to run afoul of the presumptive ceilings in Jordan, evidence and argument should have been concluded before April 27, 2022. Following this method, I have calculated the period between October 28, 2020 and the end of evidence and argument on September 14, 2022 as 22.5 months. The period over the Jordan ceiling is 4.5 months.
35In R. v. Shaikh21, Justice Paciocco calculated months by taking the number of days and dividing by 30.417 (365 divided by 12) and rounding to 1 decimal point. Following this method, evidence and argument should have completed 547.5 (18 multiplied by 30.417) days after October 28, 2020. I round this up to 548 days. Thus, following this method the Jordan deadline was April 29, 2022. Evidence and argument was completed 683 days or 22.5 months after the day on which the process was commenced. The period over the Jordan ceiling is 135 days or 4.43 months which I round up to 4.5 months.
First Appearance – November 24, 2020
36Prior to his first appearance, Mr. Desjardins retained defence counsel. She filed a designation and made a disclosure request to the Crown on November 15, 2020.
37On November 24, 2020, defence counsel appeared and the matter was adjourned to December 15, 2020.
38On December 1, 2020, defence counsel received initial disclosure.
Second Appearance – December 15, 2020
39On December 15, 2020, defence counsel appeared, indicated that she had just received disclosure and requested that the matter go over to January 19 for counsel pretrial. The Crown offered February 2, 2021, given the Christmas holidays. Defence counsel asked for February 9, 2021 and the matter was adjourned, on consent, to that date.
40Given that defence counsel originally requested January 19, I am not prepared to find that the delay between the next date which the Crown offered (February 2) and the date that Ms Primeau was available (February 9) is defence delay.
41Mr. Desjardins’ statement was disclosed to defence counsel on December 21, 2020.
42The 911 call was disclosed to defence counsel on January 4, 2021.
43A Counsel Pretrial was scheduled for February 9, 2021 at 1:30 pm. It was then rescheduled to 3:30 and did not take place.
Third Appearance – February 9, 2021
44On February 9, 2021, the matter was adjourned to March 9, 2021 to allow for the Counsel Pretrial to take place.
Fourth Appearance – March 9, 2021
45On March 9, 2021, the matter was adjourned to April 27, 2021 for “instructions with respect to the CPT from February.” Another lawyer from defence counsel’s firm appeared for defence counsel.
46It does not appear that the CPT referred to above actually took place until, as set out below, on March 23, 2021. I am therefore unable to attribute the delay between February 9, 2021 and March 9, 2021.
47On March 16, 2021, defence counsel requested the Crown Screening Form. She was advised that the Screening Form was unavailable22.
48On March 23, 2021, a Counsel Pretrial was held. The Crown provided their initial position. Defence counsel requested the Screening Form. The Screening Form was sent to her by email following the Counsel Pretrial.
49On March 25, 2021, a Judicial Pretrial was scheduled for May 4, 2021. Although the court had dates available as early as April 8, which defence counsel was available for, the Crown was not available until May 4.
50On March 25, 2021, defence counsel also requested trial dates in advance of the Judicial Pretrial. The Court did not allow this on the basis that the local practice required a Judicial Pretrial before trial dates would be set.
51I add, in passing, that I have difficulty understanding why such a long adjournment “for instructions” was necessary. Defence counsel cannot later complain about the court’s practice of requiring a JPT before trial dates were set when counsel instructed by her requested a seven-week adjournment for the purpose of getting instructions from a CPT – a CPT which in fact had not taken place.
Fifth Appearance – April 27, 2021
52On April 27, 2021, the matter was adjourned to May 4, 2021, for JPT.
53Sometime in April 2021, a second audio 911 was disclosed.
Sixth Appearance – May 4, 2021 – Judicial Pretrial
54The Judicial Pretrial took place before Justice March on May 4, 2021. When the matter was addressed in open court, another lawyer spoke to it on defence counsel’s behalf and adjourned the matter to May 25, 2021, to confirm that trial dates were set.
Seventh Appearance – May 25, 2021
55On May 25, 2021, another lawyer spoke to the matter on defence counsel’s behalf. He indicated that defence counsel submitted the Trial Setting Form “on Friday” (May 21, 2021). He requested a return date of June 8, 2021 in order to set dates for trial. He was advised that June 8 was a closed court23. The matter was then adjourned to June 15, 2021, to set a date for trial.
56Immediately after it was clear that the matter was not going to be resolved at the Judicial Pretrial, defence counsel should have submitted a Trial Setting Form so that dates could be set on May 25.
57Thus, the delay between May 25, 2021 and June 8, 2021, is defence delay. Earlier submission of the Trial Setting Form may well have also resulted in earlier trial dates being offered than the January dates that were ultimately set.
58We will never know what those dates might have been. Thus, there is a “snowball effect” that can be caused when cases do not move along promptly. I find however, that it is very unlikely that even if defence counsel had submitted the Trial Setting Form promptly, dates earlier than November 2, 2021 would have been possible.
59This is important because, as we shall see, RSC was unavailable to testify, due to her pregnancy, between November 2, 2021 and a date after her child’s anticipated birth of February 10, 2022.
60On May 28, 2021, defence counsel attended the trial setting conference and dates were offered eight months later in January. The trial was set for the first two dates offered, January 21 and 24, 2022.
61Unknown to the parties, sometime in May 2021, RSC became pregnant. There is no evidence that this was disclosed to anyone at any point prior to November 2, 2021.
Eighth Appearance – June 15, 2021
62On June 15, 2021, the trial dates were set. In addition to setting trial dates of January 21 and 24, 2021, importantly, a Trial Confirmation Appearance was set for December 13, 2021.
63As I set out below, what happened between June 15, 2021 when the trial date was set, and the first date that was set for trial, January 21, 2022, is endemic of the “anything goes”24 culture of complacency on the part of both sides in this case.
The Doctor’s Note – November 2, 2021
64On November 2, 2021, RSC received a note from her doctor, the full text of which is set out below:
Ottawa Hospital Letterhead
Date: November 2, 2021
Re: Pregnancy
EDC: Feb 10, 2022
To Whom It May Concern
[RSC] is a patient at the Maternal Fetal Care Unit at the Ottawa Hospital.
Due to medical complications with the aforementioned pregnancy, I have advised her to be off work for the remainder of her pregnancy starting Nov 3, 2021.
If you have any questions regarding this matter, please call [telephone number omitted]
Sincerely,
[SIGNATURE]
Attending Physician Okonkwo
65As we shall see, however, despite the fact that this letter was dated November 2, 2021, the Crown did not receive notice of it until the very eve of trial on January 19, 2022. This necessitated the Crown’s application for an adjournment on January 20, 2022.
66Defence argues that the delay after January 21, 2022, and in particular the delay after the 18 month deadline for the Jordan framework falls at the feet of the Crown, and is therefore unreasonable.
67The Crown argues that the delay after January 20, 2022, constitutes delay as a result of a discrete event – the pregnancy of RSC. In the alternative, the Crown argues that the delay is also the result of the COVID-19 pandemic. Thus, what happened after the trial date was set in June 2021 is of critical importance.
Ninth Appearance – December 13, 2021 -- The Trial Confirmation Court
68The requirement that the there be a Trial Confirmation appearance six to eight weeks in advance of the trial was imposed in Renfrew County in order to help combat delay as a result of the COVID-19 pandemic. At these court appearances, which are scheduled before a Judge, the parties are required to advise the court that they are “ready to go” before their trial date is confirmed. If they are not ready to go, the parties can be given a further date to be spoken to, the trial can be vacated, the trial can be rescheduled, or a further judicial pretrial could be scheduled to resolve issues that need to be dealt with.
69On December 13, 2021, the matter came on for Trial Confirmation before Justice March. Defence counsel did not initially call in and the Crown sent her an email reminding her of the appearance25.
70When defence counsel called in, she indicated that:
This is a trial confirmation Court. I – my client and I are both ready for trial in January and we’re prepared to proceed. There is still an outstanding question about disclosure and that’s whether or not the important phone records regarding this matter were sought out or provided to the police. I think my friend was still inquiring about this…..
…if they have been sought then I’ll be asking for disclosure motion, if not, it will be a third party records. I’m still confident that we have more than enough time. It was scheduled for two days so to have this pretrial motion at the start of the trial.26
71Justice March then confirmed the trial but asked if it was an in-person or remote trial. At this point, defence counsel indicated:
I don’t believe I’ve heard from my friend regarding the complainant testifying remotely. I’m sure if my friend wants to make that request, I’ll speak about it with my client. I anticipate that that would be a contested motion, but again, I have no issue with doing that at the start of the trial. I don’t think it’s something we need to address in advance unless my friend wishes to do so.27
72The Crown replied “I am content to do it on the first day, Your Honour.”28
73Defence counsel then responded:
Yes. Hopefully we’ll be in a place where in person trials are a possibility still but thank you very much Your Honour and thank you to my friend.29
74How is it that these issues were not canvassed -- and resolved or planned to be resolved -- long before?
75It was late in the day to be pursuing a disclosure/third party records motion. Had such a motion been necessary, the trial, which ultimately took three and a half days to hear the evidence and submissions, undoubtedly would have taken longer.
76Why was it still an issue as to whether RSC was going to be able to testify remotely or by closed circuit? Why was it necessary to potentially waste trial time by insisting that the Crown bring an Application? Even though in this case, such an Application was not brought and RSC testified in the courtroom, was the decision to not consent to the Crown’s request truly “an action legitimately taken to respond to the charges.”30?
77Presuming that Defence had written to the Crown and sought Third Party Records, why did the Crown not get to the bottom of that well before the Trial Readiness Conference?
78Fortunately, the Crown advised that there were no actual records and defence counsel then indicated that a pretrial motion was not required and defence was ready to go to trial.
79As we will later see, the Crown was not so lucky.
80On December 14, 2021, the Crown replied with respect to the disclosure issue raised by defence counsel the previous day.
81On December 16, 2021, the Crown provided further disclosure.
82On January 17, 2022, defence counsel made an urgent disclosure request noting that the disclosure was missing an important audio file for the second 911 call. The disclosure request was unanswered. Defence counsel was unable to reach the trial Crown by email or telephone.
83On January 19, 2022, defence counsel again attempted to email the trial Crown but she received no response. She contacted the Crown Attorney’s Office to speak with the Acting Crown Attorney to “escalate the request”. She was advised that it would be disclosed to her through the Crown’s on-line portal.
84How is it that the issues with the second 911 call were not caught by defence counsel before January 17, 2022, given that it was disclosed to her in April 2021? How is it that the disk containing the second 911 call was transmitted by the police to the Crown and then released by the Crown to defence counsel without someone realizing that there was a problem with it?
85On January 20, 2022, defence counsel received a transcript of the Complainant’s statement to police.
86On January 20, 2022, at 11:54, the Crown contacted Ms Laundry of the Victim Witness Assistance Program (hereinafter “VWAP”) to check on the status of RSC. The Crown was then advised for the first time that the complainant was pregnant.
87On January 20, 2022 at 2:20 pm, the Crown served a Notice of Application to Adjourn the Trial on its first scheduled day, January 21, 2022.
88Why did the Crown wait until the day before trial to check on the status of its principal witness?
The First Day of Trial – January 21, 2022 (Tenth Appearance)
89On January 21, 2022, the matter came on before me, as the Scheduled Trial Judge, for an adjournment application.
90Defence counsel quite rightly submitted, noting that the date of the medical record was November 2, 2021, that if the Crown had reached out to RSC sooner, they would have been able to bring the Application and seek earlier dates. She noted that with the passage of time between November 2, 2021 and the trial date on January 21, 2022, the ability to get dates was affected.
91Defence counsel agreed that if RSC had a high-risk pregnancy, she could not be compelled to testify. She argued, however, that the application should be dismissed based on non-compliance with the notice provisions in the Rules.
92The Crown in reply indicated that he only received the November 2, 2021 medical letter, “the day before yesterday” (January 19, 2022). He then complained that he received a series of late disclosure requests from defence counsel. He stated:
I’ll leave it in Your Honour’s hands but the fact is, she’s ill. If she had been struck down by COVID, this would be a no brainer, and I understand the issue about late notice, but as I said, I only got the letter the day before yesterday. I spoke with Victim Witness [VWAP], they got in touch with the complainant who confirmed she’s not able to testify, were it not for that, I would be prepared to go today.31
93To this I responded: “There was a trial confirmation Mr. Morris on the 13th of December at which time both Crown and defence indicated they were ready to go.32”
94At this point, the Crown indicated: “Yes, and at that point I was ready to go. The subpoena list had gone out. I had reviewed the file, I had my case prepared.”33
95The Crown later admitted during argument of the 11(b) Application, that due to a computer glitch, the subpoenas had not actually gone out.34 Thus, he contended, the Crown could not discover that RSC was unable to attend before he actually learned of it on January 19.
96In any event, I stated, “But you hadn’t spoken with the complainant”. The Crown replied “No”.35
97In my view, RSC’s pregnancy is a much different circumstance than being suddenly ill or “struck down by COVID”. I agree with the Crown that “being struck down by COVID” would have made the issue of the adjournment and the delay flowing from it a “no brainer” because it was not “reasonably unavoidable”.
98RSC’s pregnancy is not necessarily in the same category. She did not suddenly fall ill and have to be rushed to the hospital.36 Nor is it akin to delay caused by the Crown getting into a car accident the morning of the trial,37 or the delay caused by two mistrials.38
99In my reasons for granting the adjournment, I reviewed the history and the details of the medical record dated November 2, 2021. I also noted:
Even though the trial date was set in June of 2021 the Crown did not take steps to speak with the complainant at all prior to the trial confirmation date of December the 13th, 2021.
At the trial confirmation court date, the Crown confirmed that witnesses had been subpoenaed and it was ready to go and that was that.
The Court is very troubled by the fact that this adjournment application, which could have been avoided, was brought so late in the day.
Trial Collapse in Pembroke is a significant problem. It has been a significant problem for some time. It is becoming a more significant problem because of COVID-19. As I speak, trial dates are now being set in the spring, late winter and spring of 2023. Trial dates at one time in Renfrew County could be had in a much shorter period of time.
As per Jordan, the parties have to work diligently to ensure that trial time is used efficiently.
I am aware that because of COVID-19 resources are stretched.
I am aware that the Crown’s Office in Renfrew County has historically been under resourced.
I am also aware that due to COVID-19 and the number of adjournments that took place as a result of COVID-19 and the lengthy period of time where the Court was not sitting for trials that matters are stacking up and this is creating volume issues, which I suspect affects both Crown and Defence.
In order to combat the problem of trial collapse as a result of COVID-19, the Court has established a regime of trial confirmation dates in advance of trial. The purpose of those trial confirmation dates are to allow the parties to advise the Court whether they are ready to proceed or whether there will be some difficulty in proceeding. The trial confirmation dates are set with sufficient time so that in the event that the case cannot proceed, the date can be used for other matters, including, other trials.
The collapse of this matter will mean that the Court date for my court today will end much earlier than anticipated and valuable court time will have been wasted. This is no longer acceptable.
At a recent Bench and Bar meeting, I indicated that at trial confirmation appearances, I expected the parties to advise, that among other things, that with respect to defence, they had spoken to their client and their client was ready to proceed and there was not going to be a last minute guilty plea. I also advised that with respect to the Crown, I expected them to advise at trial confirmation that they had spoken with the complainant, and the complainant was ready to proceed and if the complainant was cooperative or not cooperative so that the court could properly gauge how trial time could be used.
I indicated at that time that I did not expect that this was a change that would occur overnight, that this was a change that I knew was new to Renfrew County but in my view those inquiries had to be made and answers had to be provided so that Court time would be used efficiently and effectively.
This case illustrates why those inquiries need to be given.
What troubles me in this case is that through no fault of Mr. Desjardins and through no fault of [RSC], this case cannot proceed today.
This is a serious matter. The allegations of sexual assault, forcible confinement and criminal harassment are serious allegations. They need to be heard.39
100With some reluctance I then adjourned the matter to come back before me February 1, 2022 at 11:00 am.
101The real issue here is whether RSC’s pregnancy constitutes an “exceptional circumstance” within the Jordan framework. About exceptional circumstances, it is important to once again remember the words of the majority in Jordan, who stated:
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable and (2) Crown counsel cannot remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court or seeking assistance from the defence to streamline the evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather just that it took reasonable steps to avoid the delay.40
102Defence counsel argued, citing R. v. AJW41 that the illness of a witness should be included as part of the 18 month ceiling in Jordan. I disagree. AJW was decided in 2009, long before the Jordan framework. In ushering in the new era, the Supreme Court made it clear that “unavoidable” circumstances may give rise to an exceptional circumstance. The sudden unanticipated illnesses of a witness, or of Crown or defence counsel, or of the Court, is unavoidable.
103Here, however, we do not have a sudden illness. Where I had and continue to have significant difficulty is the fact the day before the scheduled trial appears to be the first time that the Crown contacted RSC through VWAP to check on her status. These are serious charges and it appears that no steps were taken by the Crown to contact RSC -- the Crown’s main witness – let alone prepare her for trial – until the day before the trial was scheduled.
104This is unacceptable. Delay arising from improper preparation of a witness by the Crown does not qualify as a discrete event.42
105I find that the Crown should have taken steps to make sure that it was aware of RSC’s pregnancy and its effect on her ability to attend court long before the eve of the January 21 trial date.
106The question, however, is when should the Crown have taken those steps and how does it factor into the Jordan framework on the facts of this case?
107The Crown has resources at its disposal, including the police and VWAP, to help it stay in contact with complainants.
108This does not mean, however, that complainants will cooperate. It is a fact of life in the criminal courts that, like accused persons, complainants drift in and out of touch with the Crown, VWAP or police and sometimes, they drift in and out of cooperation. Like accused persons and their counsel, the Crown is not required to “stay in touch” with the complainant or other Crown witnesses on a regular basis throughout the remand period between the date the trial is set and the date it is ultimately heard. As with accused persons and defence counsel, this might be a requirement that is unnecessarily burdensome.
109Other than the computer glitch, there is no evidence before me with respect to what, if any, efforts the Crown, VWAP or the police made to stay in contact with RSC prior to the Trial Confirmation Appearance. Nor is there evidence that if they had contact with her, whether they knew she was pregnant.
110At some point, however, the focus of the Crown, and for that matter, defence counsel, must shift to preparation for the trial. The Crown cannot simply leave it to the last minute and then point to any delay arising from its negligence as a truly unforeseen discrete event.
111At least one month before the Trial Confirmation Appearance, the Crown should have begun the process of making sure that the scheduled trial will proceed without delay. It should ensure that its subpoenas have been served and that there has been some meaningful contact with the complainant so that at the Trial Confirmation Appearance, it can satisfy the Court that barring something truly unforeseen, the trial will proceed as scheduled43.
112The period of “at least one month” prior to the Trial Confirmation Appearance commenced on November 12, 2022.
113The note from RSC’s doctor is dated November 2, 2022.
114On these facts therefore, I am not prepared to find that the Crown’s actions (or inactions) between the setting of the trial dates in June 2021 and November 12, 2021 were negligent to the point that the Crown can be penalized for the delay that ultimately resulted.
115This is a very close case. What to make of the Crown’s failure to learn of RSC’s pregnancy under Jordan principles troubled me a great deal.
116I do find, however, that the Crown was negligent when it advised the Court that it was ready to go on December 13, 2021 when in fact, that was not the case. Before the Crown confirmed he was ready to go to trial, he should have made sure that was in fact the case. The Crown admitted as much later during argument.
117I accept the inadvertent failure to subpoena the witnesses due to the “computer glitch” in November was a mistake and mistakes happen. In R. v. Cody, the Supreme Court of Canada stated at paragraph 58:
In principle, an inadvertent oversight may well qualify as a discrete event. The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown. As this Court observed in Jordan, “[t]rials are not well-oiled machines” (para. 73). Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b).44
118However, the Crown should have discovered its mistake long before two days before the trial date and therein lies its negligence.
119To be blunt, the real question that now needs to be asked is “so what?”
120I find that ultimately, however, this is likely a moot point. Whether or not the Crown was negligent in the month leading up to the Trial Confirmation, once RSC’s doctor determined on November 2 that she was unable to work (and by implication, testify) until after the birth of the child, the damage was done. One way or another the case was not going to proceed on January 21, 2022 and more importantly, it clearly could not proceed at any point between November 2, 2021 and January 21, 2022.
121In this way, although I find the Crown was negligent, at the end of the day, its negligence was a collateral factor to the pregnancy of RSC which on the facts of this case I find ultimately constituted an unforeseen and unavoidable event.
122The next question to be determined, however, is what the Crown did to mitigate the delay.
123On January 25, 2022, the Crown responded to Ms Primeau’s disclosure request of January 19, 2022.
124On January 28, 2022, the parties attended a trial scheduling conference and were offered dates in 2023. The Trial Coordinator made it clear that if earlier dates were to be had, those dates would have to be offered by the Crown with other matters being bumped.
February 1, 2022 – The 11th Appearance
125On February 1, 2022, defence counsel appeared and summarized the results of the trial scheduling conference.
126Mr. Lecorre appeared for the Crown45. He indicated that according to a note on the file the matter should be adjourned to February 28, 2022 in the Judge-led Intensive Case Management Court to set a date.
127Defence counsel indicated that her preference was to set an earlier date.
128I stated:
Mr. Lecorre this is a case the Crown is going to have to look at their calendar and possibly bump another matter. The Crown brought an adjournment application on this case on January 21st, basically on the eve of trial, and the case has been outstanding for some time. So, in order to set dates, the Crown is going to need to look at its schedule and decide if it is prepared to bump something else to get the matter in46.
129I adjourned the matter to the Judge-led Intensive Case Management Court on February 28.
130On February 17, 2022, defence counsel sent an email to the Crown requesting trial dates. The Crown did not respond.
131On February 22, 2022, the Court advised that dates were available on March 4 and March 25, 2022.
132On February 23, 2022, defence counsel indicated that she was available March 25, 2022. The Crown indicated that it was not available March 4, or March 25.
133In further correspondence, the Court advised that it could accommodate the trial on the Crown’s available dates of April 7, 21, 22, 26, 27, 28 and 29 if the Crown was willing to “bump” other matters. Defence counsel was available all of those dates.
134On February 25, 2022, the Crown and the Court indicated that April 7 was available.
135It must be pointed out that the fact that the Court and defence counsel indicated that they were available on April 7, 21, 22, 26, 27, 28 and 29 cannot be counted against the Crown’s efforts to mitigate because these were not dates that the Court was actually available – these were dates that the Court was only available if other matters could be “bumped” by the Crown. Contingent availability is not availability.
136What matters here is the degree to which the Crown could prioritize the case or whether the Crown made efforts to prioritize the case.
February 28, 2022 – The 12th Appearance
137On February 28, 2022, the matter came back on before me to be spoken to.
138Defence counsel set out, generally, what took place between February 2 and February 28 (summarized above). It was clear that the Crown needed to make some decisions about whether it could bump other cases to prioritize this case. The Crown was again represented by Mr. Lecorre. I stated:
….I spoke with the trial coordinator about this this morning Mr. Lecorre. This is something that Mr. Lalande [the Acting Crown Attorney] is going to have to get involved with and make some decisions about what he’s bumping.47
139I adjourned the matter back before me on March 22, 2022.
140I pause here to note that this discussion is taking place five weeks after the original trial dates did not proceed. For the second time, I had to remind the Crown that the manager of the Crown Attorney’s office needed to get involved to determine whether other cases could be bumped to accommodate this one.
141In other words, there had been no progress between February 1 and February 28. Why?
142On March 3, 2022, defence counsel followed up with the Crown. She indicated that her schedule was becoming full and it was difficult to accommodate dates.
143On March 10, 2022, after she had received no reply from the Crown, she followed up again. This time, Mr. Lalande said he would reply. Despite that, she received no reply before March 22.
144Thus, on three occasions between January 21 and March 22, the Court made it clear (once by the trial coordinator and twice by me) that the Crown needed to look at the schedule, the other cases, and take steps to prioritize the case. Defence counsel also prodded the Crown on at least two occasions.
145The din of the Jordan clock should have now been gonging loudly in the Crown’s office.
146In response, crickets. To be fair, there was some email traffic between the scheduling clerk, the trial coordinator and Ms Primeau in this intervening period about potential dates and cases that would have to be bumped.
147It is clear that, however, that those messages did not get delivered to the Trial Crown or the Acting Crown Attorney, or if delivered, were not acted on until almost two months after the trial was originally scheduled to proceed and barely one month before the Jordan deadline. As the majority stated in Jordan:
Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events.48
148I therefore find that the Crown’s actions in failing to take any step to mitigate the delay between January 22 and March 22, 2022 were negligent.
149As we shall see, however, this is subject to other findings below.
150On March 22, 2022, the Crown still had not responded. Another long email chain followed. May dates were offered. Defence counsel explained that, for the request of transcripts, Legal Aid authorization, receipt of transcripts, preparation of documents, she would require between one and two months. Defence counsel and Mr. Lalande had a lengthy telephone conversation.
151It is also apparent that at some point during this time frame, defence counsel indicated that she intended to bring the 11(b) application.
152This revelation appears to have (finally) got the Crown’s attention.
153Ultimately, in an email chain, May 2, 3, 4, 2022 were set for the 11(b) Charter motion followed immediately by trial. Defence counsel agreed to these dates so long as service was shortened to seven to ten days after receiving transcripts to review and prepare materials.
March 22, 2022 – The 13th Appearance
154On March 22, 2022, defence counsel summarized what took place between February 28 and March 22. She indicated that in order to use May 2, 3, and 4, the Crown would have to order the transcripts and the Crown would have to consent to late service of the 11(b) application.
155With respect to the Crown ordering transcripts, defence counsel indicated that:
So in order to have the transcripts I need to have the 11(b) application approved by Legal Aid and that requires a request to the Eastern District office, and then I would need to order the transcripts and then the transcripts cannot be ordered in any kind of urgent manner because that will also not be approved. Now, if I had made that request on for example February 28th, we would have had ample time for May 3rd and 4th but as it’s March 22nd making that request now I would need time to get authorized and then to request the transcripts, to receive them from a transcriptionist willing to take the legal aid rate, and then to receive them and then to make my application.49
156Citing R. v. JF50, the Crown was critical that defence waited until March 22, 2022 to signify that it was bringing the 11(b) Application. It might be suggested that defence counsel should have initiated the process with Legal Aid on February 28 or earlier.
157I find that defence counsel was in a difficult position. The Jordan timeframe had not yet passed and there was still hope that new dates could be had. She cannot be expected to have anticipated the need for the 11(b) application on February 28. By March 22, 2022, however, it was clear that in all likelihood the Jordan timeframe would come and go without a trial, crystalizing the 11(b) application and she acted properly in indicating that she intended to bring it.
158As I have found, the fact that she indicated that she intended to bring the 11(b) turned the gonging of the Jordan clock into a shrill alarm and finally seems to have awaken a dozing, if not slumbering Crown.
159There was no evidence before me as to when after the birth of the child, RSC could be expected to testify. Realistically, given the demands of a newborn baby, and the higher potential for complications during and after birth to both mother and child (given that this clearly was a high-risk pregnancy), it is unlikely RSC would have been able to testify at all much before April 10 (60 days after the child’s expected birth date). That allowed for 18 days within the Jordan timeframe, which was, even if the Crown had (as it should have been) been more diligent in responding to the requests of defence, and of the court between January 21 and March 22, likely too tight.
160To ameliorate this delay, Mr. Lalande wisely indicated that the Crown would agree to short service. With respect to transcripts, Mr. Lalande wisely further indicated:
I understand. We’re too efficient at the wrong time. Let’s take the dates – could I impose on you Ms Primeau just to write to me explaining that so I can have that for the file and I’ll give you a call after court and we can sort out transcripts.51
161Defence counsel then suggested that that either May 3 or 4 be reserved for a section 11(b) application with June 16 and June 29 being held for trial.
162At this point, Mr. Lalande stated: “… could we not just take the dates in May, I mean the 11(b) will be pretty straight-forward I think…. and why not get the trial off the ground in May.”52
163I intervened at this point, stating, “Do you want the Judge to start hearing the trial before deciding the 11(b) application?”53
164Defence counsel stated:
Well Your Honour, I believe you are likely presiding so I suppose I’ll leave it in the Court’s hands. I’m happy to argue the 11(b) application on the 3rd and of course if Your Honour believes you can get – have a decision before the 4th, then if we proceed to trial it would be on the 4th. If we don’t proceed to trial then I suppose we don’t have a problem.54
165Mr. Lalande explained how the May dates came about, noting that a Preliminary Inquiry for a homicide was vacated due to a Direct Indictment. He stated, “We had freed up some dates as part of an initiative and we have taken the task of contacting defence to save Ms Verville [the Trial Coordinator] the time”55.
166As I have pointed out, the Crown’s actions between January 21 and March 22, 2022 were not only far from perfect, they were non-existent. However, the Crown went some distance to ameliorating this inaction when it took the steps to ensure that the case would get heard shortly after the expiry (within a week) of the Jordan period.
167As I have also pointed out it is also not possible to determine whether, even if the Crown had been more diligent between January 21 and March 22, it was realistic that RSC would be able to testify.
168Ultimately, I set the 11(b) application for May 4, 2022 with the trial to take place May 12 and 13.
169On March 31, 2022, defence counsel requested that the Crown order transcripts.
170On April 1, 2022, Mr. Lalande provided a preliminary table of dates based on Crown notes. The parties were able to speak about this on April 6. Defence counsel requested that all transcripts be ordered.
171Defence counsel and Mr. Lalande spoke on April 12. Defence counsel requested that all transcripts be ordered.
172On April 20, Defence counsel requested that all transcripts be ordered and addressed inconsistencies in the Crown’s proposed timeline.
173On April 26, 2022, defence counsel received the transcripts ordered by the Crown.
174On May 4, 2022, the date scheduled for the hearing, Ms Primeau filed the Application Record.
May 4, 2022 – The 14th Appearance
175On May 4, 2022, Mr. Desjardins was formally arraigned before me. Defence counsel had filed her Application Record and the Crown had filed a Factum in response.
176The Crown indicated that he wished to file evidence in response to the Affidavit of Alison McIntosh (another lawyer in defence counsel’s firm) which was included in defence counsel’s application materials. The Crown indicated that he did not intend to cross-examine Ms McIntosh. I indicated that if he filed an Affidavit, defence counsel may wish to cross-examine his Affiant.
177I proposed that the parties adjourn the 11(b) application to May 11, at which time argument would be heard (or cross-examinations if necessary) and then I would proceed with the trial. I later added that if the parties were not ready to argue the 11(b) application, we would launch right into the trial. I indicated, “I don’t see any other way to proceed and give this man his trial dates which are fast approaching and give the 11(b) the time it deserves…”56.
178The Crown indicated he was content with that.
179Defence counsel was resistant to proceeding in this fashion. She wanted the Court to hear argument on the 11(b).
180I made it clear that I wanted “to start the trial on the 11th of May, one way or another.”57 I ordered the Crown to file his affidavit in response by the close of business on May 9. I indicated that, if possible, I expected to hear cross-examinations on May 11 or submissions on the 11(b). If that was not possible, or if submissions on the 11(b) were completed, I would proceed directly to hear the trial.
181The matter was set to proceed May 11, 12, 13, 2022. An additional day for trial was also booked for June 7.
May 11, 2022 – The 15th Appearance
182On May 11, 2022, the Crown advised that the Affiant in the Crown’s Responding Affidavit was Elizabeth Sitland. He further stated that this put me in “clear conflict” because prior to my appointment in May 2021, Ms Sitland was a member of my staff at the Crown’ Attorney’s Office. The Crown then indicated that to avoid the conflict he was withdrawing the Affidavit and not relying on it. Instead, he wanted to file emails.
183Defence counsel indicated that when the case was set for trial before me, the person representing the Crown made it clear that I was not in conflict. Defence counsel also indicated that she had not had a chance to review the materials the Crown wished to file. She asked me to rule that the Crown not be permitted to file his documents as he had missed the time for filing them.
184I expressed concern about the mention of conflict and asked the parties to have some discussions and, if necessary to have a Judicial Pre-trial with Justice March to attempt to resolve the issue. I gave the parties a number of options, including the possibility that the case could be heard by a different judge.
185After a recess, defence counsel indicated that she and her client were prepared to proceed before me. She also indicated that her preference was to proceed with the 11(b) hearing and have the 11(b) issue decided before proceeding with the trial.
186Mr. Morris indicated that he wanted to proceed with the trial and postpone the 11(b) issue. He also stated, for the purpose of “the record” that the accused was not the only person who could waive the possible conflict and I ought to consider “how it looks and so on.”58
187I have trouble understanding this position.
188The Crown wanted me to proceed with the trial and put the 11(b) application in abeyance, all the while indicating that I ought to be concerned with the spectre of a conflict. What is more troublesome is that all the parties agreed that there was no conflict prior to the matter being set for trial before me and that the conflict, if any, which arose by having Ms Sitland swear the Affidavit, clearly evaporated when the Crown decided not to rely on it.
189Defence counsel indicated that Mr. Morris and she had met over the recess and they both wanted to review additional material. They also wished the assistance of Justice March, the Pre-trial judge.
190I also indicated that I had received the 11(b) materials and conducted a brief review. I stated:
I was hoping – I’ll be frank with Counsel, I was hoping the 11(b) would leap off the page one way or another. I got the materials and I haven’t had, first of all, I haven’t had a lot of time to review the materials. I have been over them once but, this is a case you need to go over them multiple times and secondly, when I did go over them, it didn’t leap off the page.59
191The parties attended before Justice March for a Judicial Pretrial. They then came back before me and advised that they had agreed to put all of the various versions of the facts into one final document. Additional dates were also booked for June 7, June 24 and June 30.
192We then recessed and later in the day, the parties reattended before me and indicated that they had prepared an Agreed Statement of Facts, emails and other documents would be filed and I would hear the 11(b) argument on May 12.
May 12, 2022 – The 16th Appearance -- Argument of the 11(b) Application
193On May 12, 2022, I heard part of the argument of the 11(b) application. I adjourned to May 13, 2022 to hear the balance of the argument.
May 13, 2022 – The 17th Appearance – Argument of the 11(b) Application
194On May 13, 2022, I heard the balance of the 11(b) application. I adjourned to June 7, 2022.
195By the end of May 13, 2022, despite my best intentions on May 4, 2022 to proceed with the trial, three days of court time had been used up by the delay and ultimate hearing of the 11(b) application.
196In hindsight, these are days which could have -- and in my view should have -- been used for the trial on its merits. In this case, as I will discuss below, what was originally estimated and booked as a two-day trial (January 21 and 24, 2022) ended up taking three and a half days: June 30, July 7 (half day), September 12 and September 14. Had the case proceeded to trial on May 11, the evidence and argument portion of the trial would likely have concluded no later than July 7.
197I do not fault defence counsel for bringing the 11(b) application. The Crown’s actions (or inactions) leading up to the expiry of the Jordan period were clearly deserving of scrutiny and as I have pointed out, this case is very close. Thus, I do not charge defence with delay resulting from the 11(b) application. Notwithstanding I have ultimately found that, instead of the 11(b) application, the trial on the merits should have been heard in early May, the bringing of the 11(b) was proper and cannot be said to be “a deliberate and calculated tactic employed to delay the trial.”60
June 7, 2022 – The 18th Appearance
198On June 7, 2022, judgment on the Application was not ready and I adjourned the matter to June 24 for judgment.
199I was ill the week of June 20, 2022.
June 24, 2022 – The 19th Appearance
200On June 24, 2022, in my absence, Justice of the Peace McKechnie adjourned the matter to June 28, 2022.
June 28, 2022 – The 20th Appearance
201On June 28, 2022, in my absence, Justice of the Peace Moran adjourned the matter to June 30, 2022.
202On June 29, 2022, I issued a ruling advising that for written reasons to follow, the 11(b) Application was dismissed. The parties were advised to proceed to trial on June 30.
June 30, 2022 – Trial Day 1
203On June 30, 2022, the first day of trial proceeded. At the conclusion of the day, the matter was adjourned to July 7 for continuation.
July 7, 2022 – Trial Day 2
204On July 7, 2022, the second day of trial (a half day) proceeded. At the conclusion of the day, the matter was adjourned to September 12 and 14, 2022.
September 12, 2022 – Trial Day 3
205On September 12, 2022, the third day of trial proceeded. At the conclusion of the day, the matter was adjourned to September 14, 2022.
September 14, 2022 – Trial Day 4
206On September 14, 2022, the trial was completed, and I heard submissions. I adjourned the matter to October 25, 2022 for Judgment.
October 25, 2022
207On October 25, 2022, I advised counsel that judgment was not ready, and I adjourned the matter to November 17, 2022.
November 17, 2022
208On November 17, 2022, I advised counsel that for reasons to be released later, I was acquitting Mr. Desjardins of the charges.
Summary of Findings
209With respect to this Application, thus far, I have made the following findings:
a) The Information Date, October 28, 2020, is the commencement date for the running of the period in the Jordan framework.
b) April, 28, 2020 or April 29, 2020, therefore, is the expiry date for the running of the period in the Jordan framework.
c) Argument and Evidence in the trial was not completed until September 14, 2022. Thus, the total period of delay in this case is 22.5 months.
d) There is defence delay between May 25 and June 8, 2021 (14 days which I have counted as one half month using either form of calculation discussed above).
e) Thus, the total delay, net of defence delay, is 22 months.
f) The Crown was not negligent in failing to take steps to learn of RSC’s pregnancy between the date that the trial date was set (June 15, 2021) and one month before the Trial Confirmation Appearance (November 12, 2021).
g) The Crown was negligent in not case managing its file in such a way that it would have learned of RSC’s pregnancy after November 12, 2022, but before December 13, 2021. This negligence, however, is collateral because by the time the Crown should have taken these steps, it was clear that RSC was unable to testify until after the anticipated date of the birth of the child, February 10, 2022.
h) I have (somewhat arbitrarily) set a reasonable period of convalescence from a high risk pregnancy, the birth of her child and adjustment to life with a new baby at 60 days. Thus, the earliest date that RSC could be expected to testify would have been April 10, 2022.
i) The Crown was negligent in not taking steps to set new dates for the trial in the period between January 22, 2022, and March 22, 2022, when new dates were ultimately set.
j) Given that RSC could not reasonably be expected to testify before April 10, 2022, I find that the Crown’s negligence did not materially affect the setting of trial dates.
k) There was additional delay taken up by the argument of the 11(b) application, when in hindsight, the trial should have taken place. However, this delay is not attributable to defence because the delay was presumptively unreasonable and the Crown’s actions required careful scrutiny.
l) Had the Crown not agreed to order transcripts and agreed to short service of the 11(b) application, it is unlikely that the Application would have been heard in May 2022. This works to mitigate some of the damage done by the Crown’s negligence between January 22 and March 22, 2022.
m) The Evidence and Argument of the trial ultimately took three and a half days when the parties had estimated two. This had the effect of causing further delay. As the majority noted in Jordan
[I]f the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish reasonable time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.61
n) In the final analysis, I am satisfied that the Crown has shown that the net delay of 22 months, given the necessity for the adjournment of the original trial date caused by RSC’s pregnancy was not unreasonable.
The Effect, If Any, of COVID-19 – The Law
210Most courts agree that COVID-19 is a discrete event. Where judges disagree is whether the Crown must provide specific evidence of the effect of COVID-19 or whether a blanket period can be set for delay attributable to COVID-19.
211I can and do take notice of the following facts with respect to the impact that COVID-19 has had on the operation of criminal courts:
a) Between March 16, 2020, and July 6, 2020, in accordance with the Chief Justice’s directive, all out-of-custody matters were presumptively adjourned. Neither out-of-custody nor in-custody trials could proceed.
b) On July 6, 2020, in accordance with a subsequent directive, we resumed hearing a limited number of trials and preliminary inquiries that were already scheduled.
c) On July 2, 2020, the Chief Justice published a plan to begin setting unscheduled trials and preliminary hearings. Priority was given to in-custody matters. In-custody continuations could begin to be scheduled as of July 6, 2020. Other in-custody matters were eligible to have new dates set between July 7 and July 21, 2020. Out of custody continuations could begin to be scheduled as of August 5, 2020.
d) On August 12, 2020, the Chief Justice released an updated notice that advised the court could begin to schedule out-of-custody trials and preliminary inquiries that had previously been adjourned due to the Covid-19 pandemic between August 17, 2020, and September 21, 2020. Priority was to be given based on the date of the previously scheduled trial or continuation date. New out-of-custody hearings could begin to be scheduled on September 28, 2020.
e) Between April 26, 2021, to May 7, 2021, due to a resurgence in the pandemic, Ontario Court of Justice trials were adjourned at the direction of the Chief Justice to seek to reduce the number of people attending in courthouses including court staff.
f) Between May 7 and May 21, 2021, due to the same resurgence, all in person trials in the Ontario Court were adjourned at the direction of the Chief Justice. Only virtual trials could continue.
g) Along the way, directly as a result of COVID-19, the Court also imposed mandatory pretrials in some cases, Trial Confirmation Appearances in all cases, and Judge-Led Intensive Case Management Courts.
h) The Crown has not sat on its hands a result of COVID-19. Some cases, particularly drinking and driving offences with low readings and low-level assaults are now routinely offered resolutions involving pleas to provincial offences or peace bonds. These changes were unheard of before COVID. In Pembroke, and in other centres, the Crown has also identified teams of lawyers to review backlogged cases and make generous resolution offers in order to weed them out of the system.
212In R. v. Simmons, Justice Nakatsuru set out other consequences of the pandemic:
The impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.
…the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.62
213There is one line of cases, led by Justice Monahan’s decision in R. v. Greenidge, that in order to rely on COVID-19 as a discrete event, there must be a direct, identifiable link between the pandemic and the delay. In Greenidge, Justice Monahan set it out this way:
It is my view that in this case, for the Crown to rely on the pandemic as an exceptional circumstance, the Crown must prove on a balance of probabilities that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 18 month ceiling…63
214A second line of cases, arbitrarily sets a period of time (the consensus seems to be 90 days) as attributable to delay caused by the pandemic. Justice Wright noted the problem with the “specific evidence” requirement in R. v. GS:
Courts are understandably struggling with an evidentiary absence tied to the difficulty in assessing the specific differences in delay caused by the rescheduling of so many matters. But having found that the pandemic is an exceptional circumstance which had an impact on this specific case, in my view it would be an absurd result to then fail to deduct any periods of time on the basis that the Crown has not proven the impact to some level of statistical accuracy.64
215In R. v. Hinterberger, Justice Goodman stated:
The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances.65
216While many of the reported 11(b) cases come from larger centres, such as Peel, Toronto, or York, delay as a result of COVID-19 can also have a disproportionate effect on small centres such as Renfrew County. While larger centres have more volume, the presence of more judges and more court staff (and sometimes more courtrooms) allow them greater flexibility to deal with a problem like that of the backlog imposed by COVID-19.
217In Renfrew County, where there are only two full-time judges and where retention of court staff has been particularly challenging during the pandemic, we do not have the same flexibility.
218For example, as I have pointed out, there was a period of delay due to a “closed court”. Prior to COVID, “closed” courts in Renfrew County were much rarer than they are post COVID. These are the sorts of periods of delay that can arise that do not readily lend themselves to “statistical accuracy” as Justice Wright put it in GS, or be “readily quantifiable” as Justice Goodman stated in Hinterberger.
219Thus, in some cases, the Court should consider whether COVID-19 explains the otherwise inexplicable. This may be particularly appropriate where the period of delay is just past the 18 months mandated by Jordan.
220In R. v. LL, Justice Rutherford of this Court dealt with a case where the net delay was 21 months and 13 days. The Crown argued that four and half months of that delay should be attributable to the defence because the defence failed to elect and dates could not be set. Defence argued that they could not elect without receiving some additional disclosure in the form of occurrence reports.
221Defence had, earlier in 2021, brought an Application before Justice Akhtar in the Superior Court to obtain the disclosure. The Crown took the position that the records were third party records.
222In the Superior Court, Justice Akhtar granted the defence application for disclosure. In the course of doing so, he found that the defence should not have delayed its election in order to obtain the disclosure.66
223Once the disclosure was obtained, defence elected trial in the Ontario Court and brought a section 11(b) application.
224In the course of hearing that application, Justice Rutherford disagreed with Justice Aktar’s characterization and found that the missing disclosure was “essential disclosure” and the defence were not required to elect until they received it.
225The Crown then sought to attribute delay to the pandemic. Justice Rutherford ruled:
Nobody doubts the pandemic has wreaked havoc on the criminal justice system. At College Park many trials had to be adjourned only to be re-scheduled.
However, this is not one of those cases. This case entered the justice system when courts had re-opened. The realities of the pandemic were very clear. Trial coordination was evolving and coping.
Although the trial was set for June 20-24, 2022, I note the Court was in a position to offer earlier dates, namely April and May 2022. Due to the unavailability of the Applicant in April and the unavailability of the Crown in May, these dates were turned down. The fact that a 5-day trial with 3 pre-trial motion dates was offered within 10 months of the set date appearance demonstrates the court was coping with the realities of the pandemic. As a judge who sits regularly at College Park this timeframe is in line with timeframes pre- pandemic. It also demonstrates that had trial dates been requested much earlier in the pre-trial process, they would have been offered well within the 18-month period set by Jordan, supra.
I commend Mr. Linds for trying to secure earlier trial dates to try to mitigate delay. However, these attempts were made in September 2021. Knowing the Crown was unavailable in May and the defence was unavailable in April it is not reasonable to expect that 5 earlier trial dates could be secured, especially when pre-trial motions had been set for December 2021, January 2022, and February 2022.
In all of the circumstances I am of the view the pandemic played no role in the delay of setting this case down for trial.67
226Because the delay rested at the feet of the Crown and not the Pandemic, Justice Rutherford allowed the application and stayed the charges.
227The Crown appealed.
228The Court of Appeal found that Justice Rutherford was, notwithstanding Justice Aktar’s view of the matter, correct in characterizing the missing disclosure as “essential disclosure” and defence was entitled to delay making their election until they received it.
229The Crown sought to introduce “fresh evidence” with respect to the issue of pre-trial delay. The Court of Appeal refused the Crown’s application, noting that the statistical information that the Crown sought to introduce was available to the Crown at trial had the Crown chosen to exercise “reasonable diligence” in filing it. Thus, the Court of Appeal found that it was not in the interests of justice to permit the fresh evidence to be introduced because “[t]his manner of proceeding perpetuates the very problems that Jordan sought to address.” 68
230With respect to the issue of pre-trial delay, which the Crown also appealed, the Court of Appeal stated:
At the hearing of the application, the Crown chose to convey his own state of knowledge about the impact of the pandemic on the scheduling of trials at that location. He made the vague submission about the “trickle down” effect of the pandemic on trial scheduling. The application judge drew upon her own knowledge of the culture at the court location where she sits. We see no error in her conclusion that the pandemic had no impact on the scheduling of this case.
The application judge gave careful consideration to this issue. [Bold face emphasis mine; underlining emphasis the Court of Appeal.]69
231To summarize, the current state of the law seems to be that there are two available routes to establishing delay due to the pandemic.
232First, the Crown may lead statistical evidence to establish delay.
233Second, in the absence of statistical evidence, the parties may make submissions about the effect of the pandemic on delay and leave it up to the application judge to draw upon her knowledge of the culture at the Court location where she sits. In essence, the Court of Appeal seems to have recognized that applications’ judges have a “bird’s-eye-view” of how the pandemic has affected delay in their home Courts and that the “bird’s-eye-view” can be sufficient to properly dispose of a section 11(b) application one way or another.
The Effect, if any of COVID-19 – Application to the Case Before Me
234Given my ruling that the application is dismissed due to the fact that the 22 month delay in this case was not unreasonable given the nature of the pregnancy of RSC, it is not, strictly speaking necessary for me to address this issue.
235It was, however, argued before me.
236This is why I have canvassed the law in this area, some of which, post-dated my oral decision dismissing the application.
237No statistical information was filed and like LL, vague submissions were made by the Crown with respect to the impact of COVID-19.
238It may be quite reasonable to chalk up some form of systemic delay to COVID-19.
239For example, the intake period in this case (the time between the laying of the information on October 28, 2020 and the setting of trial dates on June 15, 2021) was seven months and eighteen days (7.6 months). Based on my knowledge of the Renfrew County system, this strikes me as a period that was about three months and 18 days 3.6 months) too long.
240Prior to COVID-19, this intake period would have taken about four months. For example, in paragraphs 55, 218 (and footnote 23) I noted that the number of “closed courts” increased during COVID-19. Post-COVID-19, this period continues to be a significant problem. Judge-led Intensive Case Management Courts have been developed in order to combat this problem. Only now in late May of 2023, has the intake period started to fall closer to pre-COVID normal levels.
241I note that this period also coincides with the illness and ultimate retirement of Justice Selkirk70, leaving Justice March as the sole resident presiding judge until my swearing in in June 2021. Although Justice March was assisted by a number of able per diem judges, respectfully, per diem judges are not an adequate long-term solution to a full-time, in-County, sitting judge.
242The Informations in this matter were laid on October 28, 2020, exactly one month after things were finally somewhat back to normal and out-of-custody trials could be scheduled for trial in the wake of the COVID shut-downs earlier that year.
243This period partially overlaps with the trial moratorium period between April 26 and May 21, 2021 where, at the direction of the Chief Justice, trials were either cancelled outright or proceeded virtually due to a resurgence of COVID-19 and the need to reduce the number of people circulating in the courthouse.
244In short, particularly during the intake period, there was a lot going on. What I have outlined gives some context to the fact that it took seven months and 18 days to get through it.
245My sense is that COVID-19 also caused the period between the date that the trial was set and the first trial date (June 15, 2021 to January 22, 2022 – seven months and seven days or 7.3 months) to be two to three months longer than the pre-pandemic norm for a two-day out-of-custody trial.
246Thus, while I have found that primary delay in this case was due to the time required to get through RSC’s high-risk pregnancy, there are undoubtedly periods of delay in this case that can be attributed to COVID-19. The fact remains, that despite COVID-19, evidence and argument would have likely been completed within the Jordan time-frame, if it were not for RSC’s high-risk pregnancy.
247It may be that other periods of delay are also explained by the effect that COVID-19 had on resources at the Crown’s office. For example, the period of delay in the Crown’s failure to respond to direction by the Court to prioritize this matter between January 22, 2022 and March 22, 2022 might be attributable to increased workload caused by the backlog of COVID-19 cases.
248Likewise, COVID-19 backlog delay might also explain or partially explain the Crown’s failure to check and double check that it was ready to go to trial between November 12, 2021 and January 22, 2022.
249This, however, is pure speculation and it is on this score that some statistical evidence would be necessary. My “bird’s-eye-view” does not extend to the question of the resources available in the Crown Attorney’s Office and the development of systems in that office, if any, to combat delay, about which I heard absolutely no evidence.
250In the final analysis, while I accept that there may be situations where the impact of COVID-19 in causing delay defies the kind of quantification necessitated by the Jordan framework – and allowances may have to be made for that – this case is not one of them.
251Taking a holistic approach to the period of delay, in this case, it remains my firm view that the delay was caused by the inability of RSC to testify due to her pregnancy. That was a discrete event. I find that this trial could have been completed within the 18 month period, but for RSC’s pregnancy. This, not COVID-19, was the true cause of the delay here.
252I am therefore satisfied that the Crown has proven that the four and a half months of presumptively unreasonable delay beyond the 18 month Jordan time-frame is, in the circumstances of this case, reasonable.
253Additionally, I find that the period of delay between the original anticipated end of the trial January 24, 2022 and the actual end of evidence and argument on September 14, 2022 is not unreasonable and the Application is dismissed.
The Evidentiary Issue Raised At Trial
254The evidentiary issue is whether defence counsel’s notes of an interview that she conducted with a witness loses the protection of “Litigation Privilege” or “Work Product Privilege” once the witness testifies.
255In this case, Defence called Terri Lyn Lemmon. Ms Lemmon testified that she was present at the home of the accused on the date in question and although RSC came to the house, the accused did not touch her.
256After hearing the evidence, Crown Counsel sought a ruling that he was entitled to defence counsel’s notes from her meeting with Ms Lemmon.
257It is beyond dispute that the notes that defence counsel made of her discussions with Ms Lemmon prior to testifying qualify as Litigation Privilege or a subset of Litigation Privilege known as Work Product Privilege. It is clear that the dominant purpose of the preparation of the notes was the outstanding criminal litigation against Mr. Desjardins.
258They are not protected by Solicitor-client privilege. Defence counsel was Mr. Desjardins’ counsel, not Ms Lemmon’s. Accordingly, the notes are not protected by Solicitor-Client Privilege unless defence counsel is able to satisfy me that there were elements of the notes that should be redacted because they referred to matters that were communicated between Mr. Desjardins and her. As Justice Fish observed, “In preparing for trial, lawyers as a matter of course obtain information from third parties who have no need nor any expectation of confidentiality; yet the litigation privilege attaches nonetheless.”71
259With respect to Litigation Privilege or Work Product Privilege, I was initially of the view that this was extinguished once the decision was made to call Ms Lemmon as a witness. However, I recessed the trial for a short while to consider the issue.
260After reviewing the caselaw, I determined that the appropriate question to be asked was whether Ms Lemmon reviewed the notes defence counsel made prior to testifying. If she did, in my view, the law is clear that the Litigation Privilege (or Work Product Privilege) is extinguished and defence counsel would have been obliged to provide the Crown with her notes before the Crown was called upon to cross-examine the witness. If she did not, the law is equally clear that Litigation Privilege is not extinguished.
261Upon resuming the trial, I permitted the Crown to ask Ms Lemmon whether she had reviewed Ms Primeau’s notes before testifying. She indicated that she had not. I then ruled that the notes were protected by Litigation Privilege and the Crown did not have a right to see them. I indicated to the parties that I would provide more detailed reasons at a later date.
262There is a fulsome analysis of this issue in Justice N. Dawson’s decision in R. v. Sachkiw:
I accept that it is a general principle of law that when a witness refreshes their memory from notes and testifies having done so the opposing party is entitled to see those notes. This is an implied waiver of litigation privilege. The reliability of the witness' evidence is one of the considerations the court must take into account. The opposing party is entitled to test that reliability through cross examination, and where the witness has refreshed their memory from the notes, to explore the impact of those notes on the witnesses recall.
When a witness who has refreshed their memory from their notes or previous statement is called by a litigant there is an implicit waiver of the litigation privilege….
When a litigant chooses to put a witness before the court who has refreshed their memory, the litigant is putting that witness and the memory refreshing source before the court. The case law does not distinguish between witnesses at large and the subset of witnesses who are accused persons. I do not agree that litigation privilege for policy reasons should not end when an accused person testifies having refreshed their memory from notes. The reliability of an accused person's evidence is also in play. When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court's discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.72 (Emphasis mine)
263Sachkiw, and other authorities, make it clear that the precondition to the implied waiver of the privilege is the fact that the witness has chosen to refresh her memory from the notes.
264Without that refreshing, the privilege continues to attach.
The Decision in the Trial on Its Merits
The Evidence of RSC
265RSC testified on June 30 and July 7.
266She was clearly nervous when she testified. I noted that she was shaking.
267In October 2020, she was living in what she described as “low income row housing” in Pembroke. She moved there in June 2018. The accused was her neighbour on one side. She did not know him as anyone other “Dan” until these proceedings.
268On the date in question, she woke up in a good mood. She decided to clean her house. She talked to her mother through Facebook Messenger. She recalled telling her mother about a new boyfriend. She said that they talked for an hour or an hour and half. The other thing that they discussed was a new cell phone. She was cleaning the house while she talked to her mother.
269She was planning on having some alcoholic beverages later. She also wanted cigarettes. She ordered a six pack of Laker Ice Tall Boy cans. The beer cost her $20 -- $12.00 for the beer itself and $8.00 for delivery. She indicated that this left her with no money “for smokes”.
270Because she wanted some cigarettes, she decided that she would go over to another neighbour, Chantal Anderson, and borrow some cigarettes from her. Chantal suggested that she “go see Dan”. Chantal told her that Dan just got back from the reserve73, and he had sold her a pack of cigarettes for $5.00.
271Up to the point of the charges, RSC was on good terms with Chantal. She said that their interactions stopped once the incident took place and once RSC decided to “go sober”.
272RSC was candid that she is an alcoholic. She told me that she had been sober for well over a year (as of June 30, 2022) and that she was looking at life from another perspective. She said that she realized that she had lost or damaged too many things in her life as a result of her use of alcohol.
273In cross-examination, she indicated that when she went to Chantal’s house, she had not started drinking yet. She admitted that she had been drinking the night before and some of the alcohol might still have been in her system.
274She recalled that after the incident took place, her health deteriorated. She said that she ended up in the hospital because her blood levels were low. She said that she was lethargic and anemic. It was at this point that she decided to become sober. She recalled, however, that her “drinking picked up big time to a Mad Max level” after the incident and that lasted until January 2021.
275She indicated that she had not consumed any of the beer that she had delivered. She also said that she did not consume any alcohol with Chantal when she went over for cigarettes.
276$5.00 for a pack was a really good deal. She indicated that she has personally bought cigarettes on the Reserve and they are roughly that price.
277She left Chantal’s and went to Dan’s house. She said that she was alone. She recalled that it was still daylight, but stated “I wasn’t checking the time.” Later, she said that she thought it happened about dinner time because the sun was partially set. In cross-examination, it was put to her that in her statement she stated that she was sure (and she later in the same statement, she said that she was 100% sure) that the incident happened at about 9 pm. RSC said “I wouldn’t have said 9:00 if I didn’t believe strongly that was the time. I was not looking to take notes to be able to state times.”
278She knocked and Mr. Desjardins answered the door. She asked him if she could buy a pack of smokes. She explained that she had just come from Chantal’s house and wondered if he would sell her a pack for five bucks. He said “sure.” This conversation took place at the door. She was not yet in the house.
279Mr. Desjardins opened the door and invited her in. She walked in while he went to grab the cigarettes. She waited in the entry way. He was never out of her sight. She had a clear view of the living room area of the house. He walked around the couches to go to a table he had on the back wall in order to get the cigarettes. He did not go upstairs or to the kitchen, which is at the rear of the house. The layout of Dan’s house is essentially the same as Chantal’s and hers.
280In cross-examination on July 7, she agreed that Mr. Desjardins was out of her sight for a brief time while he was getting the cigarettes.
281She recalled that there was a black “pleather” sofa in the living room.
282She recalled that he produced the cigarettes from a brown bag. They were red DKs, which she said is a brand of cigarettes that is sold on the Reserve.
283He came back and handed her the cigarettes. They were talking. She does not remember what they were talking about. She was trying to slowly leave. She said that she found herself in a situation where she was at the closet door and he was standing in front of her so she could not physically move or leave in any way. The door had been open to this point and she did not recall when the door closed.
284She stated that he started to make provocative comments. She said that the comments started just after he gave her the cigarettes. The comments were about her breasts. She could not recall whether the provocative comments started before he gave her the smokes.
285She indicated that he had made comments about her breasts before. He had noted that her breasts were “perky” because she had rings through her nipples. She said that this happened whenever she was outside, and she was wearing a shirt that showed her nipples. She recalled him saying, “Don’t hide those from me. Don’t be shy. I like that.”
286On the day in question, he made similar comments and noticed that she was not wearing a bra. He asked her if he could touch them. She stated that she now had her back up against a closet door that was adjacent to the entry area. She was still within an arm’s reach of the front door.
287When this happened she went into “another zone”. She said, “I wasn’t really there anymore.” She recalled telling him “no” many times. She recalled panicking. She recalled that she had an earpod in her ear and she yelled to him, “My Mom is on the phone.”
288She stated that he said, “Please, please just one touch. No one will know. No one needs to know. Just one touch. Just one.”
289She stated that he stuck his hand up her shirt and started grabbing her breasts. At this point in her evidence, she started to cry.
290She remembered that he had his left hand on her right breast. She said that he was fondling it and demonstrated the motion in court.
291The Crown asked her, “How does that end?” She said, “I don’t remember. I kinda zoned out while it was happening into another headspace. He backed off and let me go. I opened the door, let myself out and ran home and locked my doors.” She said that she went into an “out of body experience”.
292When asked if he touched other parts of her body, she stated that he touched her around the waistband of her pants. She said that his fingers were trying to pull at her pants. She started freaking out.
293She recalled the look on his face and the clothes that he was wearing. She said that he was wearing a brown t shirt, blue jeans and a black “raggedy” baseball cap.
294In cross-examination, RSC agreed that when she spoke to the police the next day, she said that he was wearing plaid pajama pants, a t-shirt and a red hat. She explained the inconsistency by stating that she might have been confusing what he was wearing on the day of the sexual assault with what he was wearing during one of the gazebo incidents.
295She recalled that she was wearing a t-shirt. She was not wearing a bra. She did not have a sweater. She was wearing sweatpants with a drawstring waistband. The pants were somewhere between loose and tight. She was not wearing underwear.
296She recalled that he had a “perverse, gross smile.” He made a weird sound, which sounded like “AHHHH”, when he was touching her.
297She did not have any other interaction with Mr. Desjardins that day. She stayed in her house and cried a lot. She did not see Chantal either. She wanted to be alone. She was distraught and emotional. She felt dirty and gross. She kept having showers trying to scrub her body. She wanted to be alone and did not want anyone to know what happened to her.
298She said that her boyfriend came over and arrived just after 9 pm. She was trying to keep him from finding out about it because she was afraid he would see her as a bad person. She said that she didn’t tell him at first, but with the police coming to the house there was no way to avoid it so she had to tell him. She later clarified that the boyfriend came over the next day. She said that he was not able to come the night of the incident because he had to work.
299She recalled that the weather was quite mild. At times she could wear a t-shirt and if she got cold a sweater would suffice.
300The next day RSC went to Chantal’s because she was mad at Chantal. She told Chantal and her boyfriend together. She started crying. She stated that she needed to go and confront Chantal and “say her piece”. She said that she was infuriated because Chantal had made some disparaging comments about Mr. Desjardins in the past.
301There was a lengthy break in her evidence to review her statement. She indicated that she could not recall whether she reviewed it in the past. She recalled that the statement had been emailed to her and she “skimmed” through it.
302When evidence resumed, she elaborated that as a result of the incident she suffered from lots of bruising and a severe rash. She said that she went to the hospital but the doctors could not figure out the cause. She said that she did not have any bruising prior to the incident. The bruises took weeks to fade.
303She identified a number of photos that were taken by the police and later became Exhibit 3. She stated that she did not realize that the bruises were there until she started lifting her clothes for the police. She allowed that sometimes she bruises easily. She stated that she did not look in the mirror before showing the police because she was disgusted with herself.
304Later in cross-examination, defence counsel pointed out to RSC that the police photos were taken on October 27, nearly two weeks after the date of the sexual assault. RSC agreed. She stated that during that entire period she did not look at herself. Defence counsel confronted RSC with evidence from the police officer’s notes that RSC called the police and asked them to come and take pictures. RSC disagreed and reiterated that that the police asked her to see the bruises, not the other way around. She further agreed that at the time that this took place, she was anemic and on iron supplements. She agreed that anemia causes bruising and causes rashes.
305After reviewing her statement, the Crown probed more on what RSC recalled Mr. Desjardins saying to her. She remembered that Mr. Desjardins wondered if her vaginal area was pierced. He said something like “I wonder if you have a piercing down there?” As he said this, he was using his hands to reach in that direction.
306After reviewing her statement, RSC indicated that Mr. Desjardins had made an advance towards her before. She recalled that there was one prior occasion which happened a couple of weeks before the incident. She said that she was in the backyard with Chantal hanging out and having a couple of drinks. Mr. Desjardins walked by. There was a conversation and he came into RSC’s yard. Chantal returned to her house. After she was gone, Mr. Desjardins proceeded to look around her gazebo and made comments about how a person could do what they want and no one would know or see. She said there were other derogatory comments, the exact substance of which she could not remember. She recalled being almost pinned by Mr. Desjardins between a lawn chair and a plastic basket that her dog would sleep in. She panicked and does not remember anything else.
307In cross-examination, she admitted that she did not tell the officer about this when she gave her statement on October 14. She did, however, tell the police about it during the 911 call. She explained that she did not remember it until she heard the 911 call when she listened to it with VWAP before she testified. RSC explained this disagreement in the evidence by discussing the fact that she had experienced trauma and there are some details that she remembers and some that she does not. She said that reviewing the 911 call with VWAP was “like someone shone a light into a dark corner and now I remember it.” She further elaborated that she did not remember what exactly took place in the gazebo. She said, “I know we were there because I remember being pinned in the corner, but I don’t remember what took place.”
308The Crown asked RSC if her prior experiences had any effect on her willingness to go Mr. Desjardins’ house to get smokes. She was equivocal about this. She said that she grew up in poverty and she had been abused before. “I didn’t have a lot of choice”, she said.
309At this point in the evidence, I raised the fact that we appeared to be going down a road where would be discussing RSC’s prior sexual history and we were prohibited from discussing that without an application.
310The Crown returned to the issue of her conversation with Chantal after the incident. She said that she went to Chantal’s out of frustration and to get some comfort. Chantal consoled her and Chantal was adamant that RSC call the police. She stated, “She forced it on me. I was shaking and couldn’t call. She handed the phone to me. Police came in person, I assume.”
311RSC recalled giving a statement to police that day. She stated that Mr. Desjardins got arrested shortly after the police spoke to her.
312She did not see him after that until one day she saw him in the backyard when he was out for a smoke. She looked at him and made eye contact. She said he muttered some comments about her breasts. She does not remember exactly what he said. She “went into panic mode.” She dropped her cigarette, went inside and closed the door. She recalled that the weather was nice. The sun was out. Mr. Desjardins was wearing a navy blue crew neck t-shirt. She did not recall what she was wearing. She thought she might have been wearing a white tank top and shorts.
313The Crown asked RSC to take a moment and try to remember what Mr. Desjardins said to her. She then said that she remembers that he said that her nipples were “perky” but “that’s ok. I don’t mind. You don’t have to hide them. I don’t mind looking.” She said that this took place in the gazebo. He was on his back step a good five to six feet or more from where she was.
314When asked how long she was out there before this incident happened and she ran back inside, RSC said a couple of minutes. “I had only gotten about a half an inch into my cigarette”, she added.
315It was admitted that if this incident took place after Mr. Desjardins was charged with sexual assault, he was on a release order with a condition that he have no contact with RSC.
316In cross-examination, defence counsel played a 911 call from October 27, 2020. During the call, although RSC complained that Mr. Desjardins was stalking and harassing her and had called Animal Services against her, she clearly stated that Mr. Desjardins had not communicated with her.
317This is in direct conflict with her evidence in court.
318She also admitted that when she called 911, she was partially inebriated. She stated that she did not recall the police coming and taking a statement. Nor did she recall telling the police that the breach had allegedly occurred on Friday, October 23. She stated, “I have forgotten everything. Everything is so far back in my memory it is vague. As far as dates and times I am the worst for it. I lapsed into a severe depression.”
319Defence counsel put to RSC that in her statement, she went to Mr. Desjardins’ home, left and then came back.
320Defence counsel suggested to RSC that her dog was with her when she went to Dan’s. She stated that she could not recall. Defence counsel suggested to her that in her statement, she told the police that her dog, Alvin, was with her and that she returned to her home to put her dog back in and then went back to Mr. Desjardins’ house. She stated, “It’s very possible I went there two times, I just don’t remember.”
321Defence counsel also confronted RSC with transcript of the first 911 call from October 14, 2020 (Exhibit 1) where RSC stated that when she went to Mr. Desjardins’ home, she closed the door so that the dogs would not run away. There was no discussion in the 911 call that she went to Mr. Desjardins’ house twice. RSC indicated that she vaguely recalled this and she did not dispute that this is what she told the police in the 911 call.
322RSC explained that she did not recall going there twice or anything about the dogs. She stated that she could only testify to what she remembered. She also opined that due to the trauma she suffered as a result of the offence, her memory was not good. She stated that her memory comes back in “flashes and pieces”.
323RSC also indicated that her memory from the next day (the day of the 911 call) was not good. She said that she did not sleep that night. She also consumed the six beers that she had delivered prior to the incident. She agreed that she had consumed this prior to the 911 call.
324Defence counsel put to RSC that a person named “Terri Lyn” was present in the house that day. She stated that she did not know who Terri Lyn was. Defence counsel put to RSC that Terry Lynn will tell the court that RSC was stumbling and slurring her words. RSC denied this. She also disagreed with the suggestion that Terri Lyn saw her leave and Mr. Desjardins did not touch her.
325The cross-examination of RSC commenced at 2:10 pm on June 30 and it concluded at noon on July 7. The second day was largely a rehash of the inconsistencies defence counsel exposed on the first day of RSC’s evidence.
326By the end of her evidence, RSC was clearly exhausted and fed up. She stated, “All I remember is going to his house to get smokes. He handed me smokes. He pinned me up against the closet door. His hand went under my shirt and on my breasts. I told him my mom was on the phone.” She repeated this a number of times. With respect to other details, she said that “they are there vaguely.” She stated, “I know what happened and I am certain of what he did and that’s that.”
The Evidence of Terri Lyn Lemmon
327The case resumed on September 12, 2022. The Crown opted to call no further evidence.
328Defence counsel called Terri Lyn Lemmon.
329Ms Lemmon testified that she is the mother of four and the grandmother of four. She does not have a criminal record. She works as a private home care provider, essentially helping disabled persons in their home.
330She does not drive. Her boyfriend drives her to and from where she needs to go. If her boyfriend cannot drive her, Mr. Desjardins drives her.
331She met Mr. Desjardins over ten years ago. He was a taxi driver and the taxi company he was working for closed. He started offering rides for a cheaper rate. Apart from that, they would see one another infrequently.
332The relationship was platonic. She said that she would contact him if she needed a favour.
333She made spaghetti sauce for him.
334On the date in question, Ms. Lemmon stated that she was at home until 11 am. Her washer broke. She had not done laundry in about a month. Mr. Desjardins picked her up. She had six or seven bags of laundry to do. She arrived at Mr. Desjardins’ home at approximately 11:30 am and proceeded to do the laundry. She carried the laundry up and down the stairs all day. While she was waiting for the laundry, she watched TV.
335When asked how long she was at Mr. Desjardins’ house, she stated that she was there from 9 am to 9 pm.
336She was shown a diagram of Mr. Desjardins’ home which was entered as Exhibit 3. She indicated that she when she was not running up and down the stairs to do laundry, she was sitting in the chair, identified as “2” on the diagram. In cross-examination, she stated that she did not sit in any other chair.
337She identified Item 4 on the diagram was identified as the closet near the doorway.
338In cross-examination, she stated that the diagram that became Exhibit 3 was completed by her with defence counsel during a zoom conversation about a week before she testified.
339She recalled seeing a woman (R) at the doorway of the house. The woman knocked. Mr. Desjardins answered the door. The woman stumbled in. She was very unsteady. Ms Lemmon indicated that her speech was “very trashy”. She was looking for cigarettes and she offered a blow job. She recalled that the woman said, “I’ll suck you off”.
340Mr. Desjardins put his arms out and said “whoa”. He got her cigarettes from the kitchen and “away she went”. In cross-examination, she recalled that he retrieved the cigarettes from a “Native carton”74 or bag of 200 cigarettes.
341Mr. Desjardins never put his hands on her. He did not say any words requesting or demanding sexual favours. The interaction lasted less than five minutes.
342Ms Lemmon did not intervene because she was in shock. After the woman left, Mr. Desjardins and she had a short conversation where they discussed they could not believe what just happened.
343The woman came only once. She did not return. She did not have a dog. It happened at about 6:30 pm. Ms. Lemmon never met her before or since. The woman was the only person who came to buy cigarettes that day.
344In cross-examination, Ms. Lemmon indicated that she did not know R’s name until she spoke with defence counsel. She has never gone to any effort to identify her. She agreed that her observations of the woman were very brief.
345She was not close enough to her to smell any alcohol. She estimated that she was between eight and ten feet from the woman. Her immediate assessment was “this person is drunk.” Later in re-examination, she stated that she formed the opinion that the woman was intoxicated because she saw her stumbling when she walked, her talk was “trashy”.
346When asked if there was a discussion about the price of the cigarettes, she stated that Mr. Desjardins told the woman that she could pay him the next day. There was no discussion of an amount. Ms. Lemmon assumed that he was talking about money, but he could have been talking about sex. She does not know for sure.
347Ms Lemmon stated that she only had coffee and water while she was at Mr. Desjardins’ home. She did not have anything to eat. She explained that she could not eat and drive because of a stomach condition.
348When asked when she first learned that Mr. Desjardins had a problem with the law, she stated “I don’t know the exact date.” She stated that he drove her to work and told her that he got arrested. She could not remember the exact details of the conversation. All she could remember is that he got arrested and he was released. She stated that the conversation would have lasted seven or eight minutes as that is how long it took her to get from her home to work. She remembered that she could not reach Mr. Desjardins and she was panicking because she had to get to work. The topic came up because she asked him why she couldn’t reach him. She said that once he told her that he had been arrested, she did not ask for details. She could not recall any of the exact words of the conversation.
349She did not discuss it with him again. She only discussed it with defence counsel. She allowed that she might have got a warning from Mr. Desjardins that defence counsel would be calling.
350She could not remember what day of the week it was. When the Crown attempted to probe this by asking her if recalling her shift would help her identify the day, she indicated that she works different shifts. She also could not remember if she worked the day before or the day after the conversation with Mr. Desjardins.
351She did remember that although she worked full time, she only had one client at that time. She said that she went on unemployment in the middle or towards the end of COVID. She said that her personal circumstances caused her to go on unemployment. On the date she testified, she said that she had been off work about a year. She said that she was starting a new job the same day she testified. She later advised that she believed that she stopped working for the lady in April 2021.
352She stated that she believed that the conversation happened in October 2020. She could not recall exactly what day.
353She stated that she only discussed it with Mr. Desjardins once. She discussed it “with Jodie” (referring to defence counsel) after Christmas. She could not recall the exact date. She thought it was about “three months after the occurrence.” She said her call with defence counsel lasted between twenty minutes and half an hour. She seemed to remember that defence counsel had to “swear her” over the phone and she gave her statement over the phone75.
354Ms Lemmon was surprised when defence counsel called her. She was sleeping because she had worked nights.
355Ms Lemmon agreed that she considered Mr. Desjardins a friend. She stated that she asks him for rides because it is less expensive than taking a regular cab. She said that he charges her $10.00 where a cab would cost $15.00 or more. She pays him in cash and does not get receipts. She said that it was none of her concern as to whether he paid taxes on this income. She added, “I am not the only person that he gives rides to.”
356She stated that she saw Mr. Desjardins two or three times a week for rides. The rest of the time her “significant other” gives her rides. She gets a ride to and from work.
357When she was asked how she finally got in touch with Mr. Desjardins, she thought that he “finally” called her back. Despite the fact that earlier in in her evidence she could not remember what shift she worked, she recalled that she went to work for 3:00 or 3:30 pm. She believed that she finished at midnight or 1:00 am. She stated that her significant other picked her up when she worked late.
358She agreed that she had no social interaction with Mr. Desjardins, apart from getting rides and the favour for laundry. She agreed that they had a “transactional friendship.” They do not go back and forth to one another’s homes for dinner. They do not take in social events together. She agreed that the relationship was a “commercial relationship but a friendly one.” She stated that the favour for laundry only happened once.
359Ms Lemmon could not recall how long after doing laundry at Mr. Desjardins’ home, she had the ride where he told her that he had been arrested and released.
360She stated that she was still using Mr. Desjardins to give her rides. She stated that she last took a ride with him a couple of days earlier in order to come to the courthouse to testify. She denied that they had any conversations about the trial.
361Ms Lemmon indicated that she smokes “Native cigarettes”. She buys them herself on the “Reserve”. She was not aware that he sold cigarettes. He did not give her any on the day in question. “I always have my own”, she stated.
Admissions
362At the conclusion of the evidence, the parties agreed that the photos, which were entered into evidence as Exhibit 4, were taken on October 23, 2020.
Defence Submissions
363Defence counsel indicated that the Complainant told many different versions of what took place. This raises issues with respect her credibility and reliability.
364Defence counsel stated that there were a myriad of issues with the Complainant’s recollection of what took place, including:
a) The number of times that she attended at Mr. Desjardins’ home on the day in question. Did she go once with her dog and leave, only to return without the dog or did she attend only once?
b) Was the dog even there?
c) Whether on October 23, 2020 (the breach allegations), Mr. Desjardins actually spoke with her.
d) Whether the photos of the bruising could have pertained to the light touching that she described took place. Defence counsel noted that RSC’s anemia gave an alternative explanation for the bruising. She further argued that the photos of the bruising were taken on October 23, 2020, about ten days after the sexual assault incident. This should also give rise to a doubt as to whether the bruising was connected to the sexual assault or some other cause.
e) The time of day. Was it “after supper”, or later in the evening? Was the sun up or going down?
f) What Mr. Desjardins was wearing at various times?
g) The issue of the gazebo incident and whether it was an incident that took place before the sexual assault, or whether that was part of the breach incident.
h) The inconsistency with respect to when her boyfriend arrived.
365Defence argued that RSC did not raise the issues with her memory until she was confronted with her inconsistencies in cross-examination.
366Defence counsel argued that Ms. Lemmon was a credible witness and her evidence should give rise to a doubt.
367With respect to the breach allegations, defence counsel argued that the RSC’s account of what took place during the 911 call should give rise to a doubt as to whether Mr. Desjardins even spoke with her. Additionally, the account of what took place makes it clear that RSC assumed that Mr. Desjardins had called the animal welfare authorities to complain about her dogs which she viewed to be harassing.
Crown Submissions
368Crown counsel indicated that I should assess RSC’s credibility in the same way I would assess a child’s credibility, which he argued was through the lens of her experiences.
369He submitted that the evidence of Ms. Lemmon should not raise a reasonable doubt because there is no evidence that the person who attended at Mr. Desjardins’ door that day was RSC. He argued that defence counsel was the person who actually told Ms Lemmon that the person who attended at the door was RSC. He stated that there should have been more discussion between Ms. Lemmon and Mr. Desjardins about what took place than there was. He argued that this was odd and illogical.
Analysis
370Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence.76 The credibility and reliability of a witness must be “tested in light of all the other evidence presented.”77
371In assessing each witness’s account of what happened, I have considered the account’s internal consistency, its consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.
372To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, the mental capability and limitations and their level of sophistication.
373Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern.78
374I do not believe the evidence of Ms Lemmon, nor does it leave me in doubt.
375My reasons for stating so, are simple. There is no evidence, apart from the coincidence that a woman came to Mr. Desjardins’ door asking for cigarettes, that the person Ms. Lemmon saw was RSC.
37622 months elapsed between Ms. Lemmon’s observations and her evidence. No evidence was offered with respect to the strength of her identification. In fact, I agree with the Crown that the evidence seems to be that her identification of RSC as the woman who came to Mr. Desjardins’ door stems from a discussion with defence counsel where counsel identified RSC by her first name. At the end of the day, I simply cannot rely on Ms. Lemmon’s evidence.
377I have struggled with assessing the reliability of RSC.
378RSC is a vulnerable woman. On the evidence before me, she has had serious issues with alcoholism. She also had serious health issues which resulted in a lengthy hospital stay immediately after the incident. Between the incident and her testimony in court, she is also a new mother. My sense is that some aspects of her life have been nothing less than what a layperson would describe as “sheer hell”.
379RSC’s evidence was compelling despite some of the inconsistencies. What she said in cross-examination, which I discussed above at paragraph 326 leads me to find her account of what happened credible. I will repeat it. She stated, “All I remember is going to his house to get smokes. He handed me smokes. He pinned me up against the closet door. His hand went under my shirt and on my breasts. I told him my mom was on the phone.” She repeated this a number of times. With respect to other details, she said that “they are there vaguely.” She stated, “I know what happened and I am certain of what he did and that’s that.”
380I note that this issue has recently been discussed in three appellate decisions.
381In R. v. G.M.C., the Court of Appeal dealt with a case where the trial judge convicted despite inconsistencies between the complainant’s evidence in court and previous statements, including 911 calls. Chief Justice Strathy stated:
After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:
observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;
it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events; and
a child caught up in a conflict between his father and his father’s partner is likely to have conflicting loyalties and a judge should be cautious of accepting the child’s recollection, recounted several years later, about events that may not have been particularly significant to the child at the time.
Although dressed up in unnecessarily scientific jargon, the trial judge’s application of these common experiences does not reflect error in his assessment of the evidence.
I would dismiss this ground of appeal.79
382Similarly in R. v. AJK, the Court of Appeal considered the case where the complainant stated that the accused violently raped her in his car after a date. The accused testified that the encounter was consensual. Associate Chief Justice Fairburn stated that the “complainant’s emotional disintegration” was part of the “factual matrix” that a trial judge could assess as part of the credibility assessment:
…[A] complainant’s emotional disintegration after an alleged offence may well be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant. While it would be wrong to say that all sexual assault victims would experience what the complainant experienced in this case, or that all sexual assault victims would behave as the complainant behaved in this case – an impermissible generalization about victims of sexual assault – the undisputed fact is that the complainant did behave in this way in this case. The inference to be taken from the evidence elicited at trial was that the complainant was emotionally devastated because something emotionally devastating happened to her: see R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 16-18, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628.
This was simply part of the factual matrix that the trial judge was permitted to consider in resolving issues of credibility.80
383Finally in R. v. A.A., a panel of the Ontario Court of Appeal found that it was open to a trial judge to accept the complainant’s evidence notwithstanding her inability, due to gaps in memory caused by trauma, to explain something that would seem, “by common sense” something she should be able to explain. They found:
The appellant’s first argument was that the trial judge's reasons concerning “gaps” in the complainant's testimony were insufficient.
In his reasons, the trial judge noted that the complainant was unable to explain “in any detail” how she got around the appellant and out the apartment door when he was holding two knives to her stomach. However, the trial judge stated that he was “mindful of the fact that … the events described by [the complainant] would have resulted in significant trauma that could affect her memory as to details such as that.”
The appellant argued that this reasoning amounted to nothing more than vague speculation. Moreover, he asserted that the missing details in the complainant’s evidence could not be described as relating to peripheral matters. Rather, they were directly relevant to the elements of both the assault with a weapon and unlawful confinement offences. Finally, the appellant asserted that, if permissible, the trial judge’s finding concerning the complainant’s memory issues cast doubt on her overall reliability, a factor the trial judge failed to address in his reasons.
We did not accept this submission. It is well accepted that peripheral details of a traumatic event can be difficult to recall and accurately describe at a later date: see, for example, R. v. G.M.C., 2022 ONCA 2, at para. 38. The trial judge was clearly alive to the complainant's inability to recall certain specific details of the events. However, as the trier of fact, it was open to him to accept the core of the complainant's testimony, which proved the elements of the offences, while acknowledging that she could not explain all the precise details of how she escaped. The impact of this inability, to the extent that it existed, on both the complainant’s overall reliability and credibility was entirely for the trial judge to assess. We discerned no palpable and overriding error in his reasoning.81
384These three cases make it clear that it is open to me to accept RSC’s “core evidence” with respect to what happened notwithstanding her failure to remember other details.
385Moreover, these cases also make it clear to me that I cannot discount RSC’s evidence based on stereotypical assumptions with respect to how she, as a complainant should behave or what she should or should not remember.
386The ultimate question here, however, is whether I should accept RSC’s very limited core evidence.
387The problem I have is RSC’s reliability. And this is where I have a doubt. If I were assessing the complainant’s failure to remember a single “peripheral detail”, or a few “peripheral details”, my concern would not be so heightened.
388Here, however, there are simply too many inconsistencies.
389There are too many gaps in her memory.
390I highlighted them above.
391For me, the collective impact of these inconsistencies and gaps in the RSC’s memory means that I cannot safely rely on her account of what took place and convict Mr. Desjardins of the sexual assault offence.
392I believe RSC. I also believe that the trauma of what has happened to her, not only as a result of this offence, but also as a result of other struggles in her lifetime (which were only alluded to in the evidence) has made haywire of her memory when she was testifying before me. This “haywire” makes it impossible for me to draw a firm conclusion with respect to Mr. Desjardins’ guilt beyond a reasonable doubt.
393This is why I have acquitted Mr. Desjardins of sexual assault and forcible confinement.
394With respect to the breaches and the criminal harassment charges, I agree with defence counsel that the Crown has not proven the element of communication beyond a reasonable doubt. The inconsistency with respect to the 911 call is most telling: RSC did not complain to the police that Mr. Desjardins had spoken with her. She complained that he had filed a complaint with the animal welfare authorities.
395With respect to the communications with respect to her appearance, I have a doubt as to whether this incident took place. I am not certain if RSC was speaking about a post-offence encounter with the accused, or a pre-offence encounter with the accused.
396Thus, I have a reasonable doubt with respect to these offences as well.
Released: June 9, 2023
Signed: Justice J.R. Richardson
Footnotes
- 2016 SCC 27, [2016] SCJ No. 27.
- R. v. Jordan, supra, at paragraph 46.
- R. v. Jordan, supra, at paragraph 19 through 21 and 23.
- R. v. Jordan, supra, at paragraph 38.
- R. v. Jordan, supra, at paragraph 40.
- R. v. Jordan, supra, at paragraph 47.
- R. v. Jordan, supra, at paragraph 60.
- R. v. Jordan, supra at paragraphs 47 and 60.
- R. v. Jordan, supra, at paragraph 69.
- R. v. Jordan, supra, at paragraph 71.
- R. v. Jordan, supra, at paragraph 49.
- R. v. Jordan, supra, at paragraph 61.
- R. v. Jordan, supra, at paragraph 63.
- R. v. Jordan 2016 SCC 27.
- See R. v. JF 2022 SCC 17 at paragraph 23.
- R. v. KGK 2020 SCC 7 at paragraph 31. See also, R. v. JF, supra, paragraph 20; footnote 1. See also R. v. Safdar 2021 ONCA 207 at paragraphs 27 and 33-34.
- R. v. KGK, supra, at paragraph 54.
- R. v. KGK, supra, at paragraph 56.
- R. v. KGK, supra.
- R. v. Ashraf 2016 ONCJ 584 at paragraph 58. See also R. v. JM 2017 ONCJ 4; R. v. Frail [2017] OJ 5234 (S.C.J) and R. v. Leonard 2019 ONSC 1493. In Frail, Justice Schrek observed that this is the approach that the Supreme Court appears to have taken in R. v. Cody 2017 SCC 31 – see paragraph 23 and footnote 1 in Frail. Finally, see also section 28 of the Interpretation Act, R.S.C. 1985 c.I-21.
- R. v. Shaikh 2019 ONCA 895 at paragraph 33 and footnote 2.
- Delay in providing a Crown Screening Form is a significant problem in Pembroke. A Crown Screening Form is often required in order to determine whether an accused qualifies for Legal Aid. In this case, Mr. Desjardins was legally aided and it is completely unacceptable that almost four months after the Information Date, the Crown Screening Form was not available.
- A “closed court” is a court that has been closed by Courts Administration in Pembroke due to the Court having too many matters on the docket. This phenomenon has become much more common in the wake of COVID-19. While it is open to the presiding jurist to ignore the Court Administration closure, this rarely happens unless it is very clear that the case is already in Jordan jeopardy.
- R. v. Thanabalasingham 2020 SCC 18 at paragraph 9. “Anything goes. The world has gone mad today. And good’s bad today. And black’s white today. And day’s night today.”., Cole Porter, Anything Goes, 1934.
- There is no evidence as to why defence counsel did not call in for this appearance and had to be reminded to call in. Perhaps she misdiarized it. Without casting aspersions on defence counsel, I note that some defence counsel often appear to treat the Trial Confirmation Appearances as an unimportant pro forma type of appearance. Others send an agent or articling student who is not properly instructed. Court appearances are not a substitute for a proper tickler system. This is part of the culture of complacency which must be addressed by defence counsel in Renfrew County. As I shall set out shortly, defence counsel are not the only offenders.
- Transcript of Proceedings December 13, 2021, page 2, lines 17 to 30.
- Transcript of Proceedings December 13, 2021, page 4, lines 12 to 20.
- Transcript of Proceedings, December 13, 2021, page 4, line 21 to 22.
- Transcript of Proceedings, December 13, 2021, page 4, line 26 to 29.
- R. v. Jordan, supra, at paragraph 66.
- Transcript of Proceedings, January 21, 2022, page 3, lines 17 to 25.
- Transcript of Proceedings, January 21, 2022, page 3, lines 26 to 29.
- Transcript of Proceedings, January 21, 2022, page 3, lines 30 to 32.
- Transcript of Proceedings, May 11, 2022, page 35, lines 28-32 and page 36, lines 1-30.
- Transcript of Proceedings, January 21, 2022, page 4, lines 1 to 3.
- R. v. Baron 2017 ONCA 772.
- R. v. Coulter 2016 ONCA 704.
- R. v. Mallozzi 2017 ONCA 644.
- Transcript of Proceedings, January 21, 2022, page 6, line 25 to page 9, line 21.
- R. v. Jordan, supra, at paragraph 69 and 70.
- R. v. AJW 2009 ONCA 661.
- R. v. Schardt 2021 ONSC 3143.
- Above, I commented that some defence counsel treat the Trial Confirmation Appearance as a pro forma appearance. As this case clearly demonstrates, this is also the case for some Crown counsel.
- R. v. Cody, 2017 SCC 31 at paragraph 58.
- I do not fault Mr. Lecorre. The case was not his assigned file. However, above I commented about the problem of some defence counsel not taking the Trial Confirmation Appearance seriously and sending an agent or student who were not properly instructed to simply confirm the trial date. As I have also pointed out, this is not a problem that is exclusive to defence counsel. Crown counsel frequently appear before me without proper and complete instructions or direction from the Crown who has carriage of the case. This is an example of that.
- Recording of Proceedings, February 1, 2022. I listened to the recording in the course of preparing this judgment. My Judicial Assistant, Ms Lehman, also listened to the recording and verified its accuracy.
- Transcript of Proceedings, February 28, 2022, Page 2, Lines 17 to 25.
- R. v. Jordan, supra, at paragraph 75. For an example of a case where the Crown did nothing to ameliorate delay, see R. v. Picard 2016 ONSC 7061. For an example of a case where the Crown’s efforts to ameliorate delay were appropriate, see R. v. Abdullatif 2019 ONCJ 506. One must also be mindful of Justice Doherty’s dictum in R. v. Allen (1996), 110 CCC (3d) 331 at 348 (Ont. C.A.): “No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources, the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.”
- Transcript of Proceedings, March 22, 2022, page 2, lines 14 to 28.
- R. v. JF 2022 SCC 17.
- Transcript of Proceedings, March 22, 2022, page 3, lines 1 to 6.
- Transcript of Proceedings, March 22, 2022, page 3, lines 12 to 17.
- Transcript of Proceedings, March 22, 2022, page 3, lines 18 to 20.
- Transcript of Proceedings, March 22, 2022, page 3, lines 26 to page 4, line 1.
- Transcript of Proceedings, March 22, 2022, page 5, lines 20 to 23.
- Transcript of May 4, 2022, page 5, lines 7 to 10.
- Transcript of May 4, 2022, page 10, lines 2 to 3.
- Transcript of May 11, 2022, page 20, lines 20 to 31.
- Transcript of May 11, 2022, page 22, line 25 to page 23, line 1.
- R. v. Jordan, supra, at paragraph 63.
- R. v. Jordan, supra, at paragraph 74.
- R. v. Simmons 2020 ONSC 7209 at paragraphs 70 and 72.
- R. v. Greenidge 2021 ONCJ 57 per Monahan, J. at paragraph 30 See also R. v. Bui 2021 ONCA 379; R. v. Schardt 2021 ONSC 3143; R. v. Di Iorio 2021 ONCJ 7193; R. v. Gagnon 2021 ONCJ 6888; R. v. Meawasige 2022 ONCJ 190; R. v. Gomes 2022 ONCJ 537; R. v. Hinterberger 2022 ONSC 4860; R. v. YD 2022 ONCJ 376; R. v. McCudden ONCJ 138; R. v. Mohammed 2022 ONCJ 512; R. v. SM 2022 ONCJ 513.
- R. v. GS 2022 ONCJ 427. See also Justice Henschel’s decision in R. v. Korovchenko 2022 ONCJ 388, Justice Wright’s earlier decision in R. v. Ajgirevitch 2022 ONCJ 237 and Justice Chapman’s decision in R. v. Hamidi, 2022 (unreported).
- R. v. Hinterberger 2022 ONSC 4860.
- See R. v. LL 2021 ONSC 3337. It appears as though the disclosure application was brought to the Superior Court in order to engage the Superior Court’s inherent jurisdiction, given that a defence election had not been made.
- R. v. LL (2021), OJ 6963 (OCJ) at paragraphs 53 to 57.
- R. v. LL 2023 ONCA 52 at paragraph 13.
- R. v. LL, supra, at paragraph 21.
- Justice Selkirk’s sick leave began before the pandemic, on or about January 1, 2020.
- Blank v. Canada (Minister of Justice) 2006 SCC 39 at paragraph 32.
- R. v. Sachkiw 2014 ONCJ 287. See also R. v. Minassian 2020 ONSC 7130; R. v Osmond 2020 ONCJ 654; R. v. LG, [2019] OJ 1995 (SCJ); R. v. Mitchell 2018 BCCA 52; R. v. Mugford (1990), 58 CCC (3d) 177 (Nfld. C.A.).
- The “Reserve” is a reference to the First Nations Community that is home to the Algonquins of Pikwakanagan First Nation which is located near the village of Golden Lake, Ontario approximately 40 kilometers south of Pembroke. I have used the term “Reserve” in this judgment because that is the term the witnesses used. This should not be taken that I condone the use of that term.
- I am aware that standard commercially available cigarettes, such as one might buy in a corner store, are sold in cardboard or paper packaging called a “Carton” which contains the equivalent of ten small “packs” of cigarettes for a total of 200 cigarettes. The evidence before me establishes that cigarettes sold in the Algonquins of Pikwakanagan First Nation Community are sold in plastic bags of 200 cigarettes. This was referred to in the evidence as a “Native carton”. As with the use of the word “Reserve” in this judgment, I have used the word “Native” because that is what the witnesses used. This should not be taken that I condone the use of this word.
- Defence counsel later advised that there was no sworn statement.
- R. v. Morrissey, [1995] OJ 639 (Ont. C.A.) at paragraph 33. R. v. HC [2009] OJ 1979 (Ont. C.A) at paragraph 26.
- R. v. JJRD, supra, at paragraph 46.
- R. v. Stewart, [1994] OJ 811 (Ont. C.A) at paragraph 27.
- R. v. G.M.C., 2022 ONCA 2 at paragraphs 38 to 40.
- R. v. A.J.K. 2022 ONCA 487 at paragraphs 43 and 44.
- R. v. AA 2023 ONCA 174 at paragraphs 14 through 17. I note that this case was decided after I indicated that for written reasons that would follow, I was acquitting the accused. I have included it in these reasons because, in my view, it supports the propositions in GMC and AJK, supra.