His Majesty the King v. Abdullah Hotaki, 2023 ONCJ 261
ONTARIO COURT OF JUSTICE
DATE: 2023 06 20 COURT FILE: Toronto 22-70000002
BETWEEN:
HIS MAJESTY THE KING
— AND —
ABDULLAH HOTAKI
CHARTER SECTION 11(B) RULING
Before: Justice B. Jones
Heard on: June 16, 2023 Decision Released on: June 20, 2023
Counsel: T. Schreiter, counsel for the Crown D. Cristovao, counsel for Mr. Hotaki
Introduction
1In R. v. J.F., 2022 SCC 17, the Supreme Court of Canada held that “[t]imely justice is one of the characteristics of a free and democratic society”: see para. 22. It emphasized that in R. v. Jordan, 2016 SCC 27, it “delivered a clear message to all participants in the criminal justice system in Canada: everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(b) of the Canadian Charter of Rights and Freedoms”: see para. 1. This case demonstrates, unfortunately, that seven years after the release of Jordan, not nearly enough has changed.
2Mr. Hotaki is charged with two counts of sexual assault and two counts of assault on Ms. E.H. He was arrested on January 3, 2022. An information was placed before the Ontario Court of Justice on January 4, 2022. His trial is set to conclude on July 28, 2023. The period between the laying of the information and the anticipated end of his trial is 18 months and 25 days. It thus exceeds the 18-month ceiling in the Ontario Court of Justice established by the Supreme Court of Canada in Jordan.
3Despite the extremely valiant efforts of defence counsel to move this case to a trial as quickly as possible, the failure of the Crown to provide core disclosure promptly resulted in Mr. Hotaki’s rights under section 11(b) of the Charter being violated. Indeed, the approach to providing disclosure, in this case, was mired in the very culture of complacency the Supreme Court warned about in Jordan: see para. 40.
4For the reasons that follow, I enter a stay of proceedings under Charter section 24(1) accordingly.
Analytical Framework
5In Jordan, the Supreme Court of Canada set out the framework for analyzing whether an accused person’s right to a trial within a reasonable time has been violated. Delay beyond the 18-month ceiling is presumably unreasonable.
6The burden then shifts to the Crown to demonstrate exceptional circumstances justifying the delay. If the Crown cannot establish exceptional circumstances to rebut the presumption of unreasonable delay the result will be a stay of proceedings under s. 24(1) of the Charter.
7In R. v. Coulter, 2016 ONCA 704 at paras. 34-41, the Court of Appeal clarified the analytical framework for the Jordan analysis as follows:
- Calculate the period from the laying of the information to the anticipated end of the trial to determine the total delay
- Subtract defence delay from the total delay, which results in the “Net Delay.”
- Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice.
- If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.
- To rebut the presumption, the Crown must establish the presence of exceptional circumstances, either through discrete events or by demonstrating it was a particularly complex case.
- Subtract delay caused by discrete events from the Net Delay, leaving the “Remaining Delay”
- If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
- If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
(i) January 4, 2022 – November 2, 2022 (Arrest, Intake, Disclosure Requests and the First JPT)
8Mr. Hotaki was originally represented by Ms. J. Greenwood.
9On January 24, 2022, Ms. Greenwood informed the Crown’s office she had been retained and requested initial disclosure. Initial disclosure was provided on February 18, 2022. Following a Crown pre-trial held on February 23, 2022, both parties agreed the initial disclosure package was inadequate. The absence of certain other important materials precluded them from having a meaningful discussion.
10The complainant provided two statements initially. The first was given on January 1, 2022, at her home. It was recorded on a police body-worn camera. The complainant provided a second, audio/video recorded statement at the police division on January 3, 2022. Only the audio of this second statement was provided in the initial disclosure package.
11The outstanding materials that needed to be obtained after the initial disclosure package was provided included the first video recorded statement of the complainant; the video associated with the second statement of the complainant; several officers’ notes; a 911 call recording; Centre for Forensic Sciences (“CFS”) reports; and police photographs.
12Ms. Greenwood wrote to the Crown’s office requesting these items again on February 25, May 30, and July 25, 2022.
13On August 19, 2022, the police photographs were provided. Ms. Greenwood wrote another letter for the other outstanding items on September 13, 2022.
14On September 22, 2022, Ms. Greenwood had a Crown pre-trial with Mr. Schreiter. They set a judicial pre-trial date (“JPT”) for November 2. On October 6, she wrote another letter requesting the outstanding items.
(ii) November 2, 2022 – July 28, 2023 (Subsequent Disclosure Requests, Setting the 11(b) Motion and the Anticipated Trial Date)
15On November 2, 2022, a JPT was conducted. Ms. Greenwood raised her 11(b) concerns. Following the JPT, the Crown disclosed the complainant’s first video recorded statement and the defence agreed to set a trial date. Five days later, the parties accepted the first trial dates offered: July 27 and 28, 2023.
16While some other items of disclosure were provided shortly after the JPT, on November 15, 2022, Ms. Greenwood wrote another letter requesting many of the same outstanding items she had been seeking since February 25, 2022. These included the DNA results from the testing undertaken by the CFS and three sets of missing officers’ notes. She indicated, in writing, her concerns about her client’s 11(b) rights.
17On November 30, 2022, the complainant provided another short statement that was recorded in the Officer In Charge’s (“OIC”) memo book. This was her third statement. It was not disclosed.
18Beginning January 27, 2023, Ms. Cristovao represented Mr. Hotaki.
19On March 17, 2023, Ms. Cristovao informed the Crown she was bringing an 11(b) motion and had acquired the necessary transcripts.
20On the date this motion was heard, some of the materials requested by the defence remained outstanding. This includes the video associated to the audio recording of the complainant’s statement taken at the police division on January 3, 2022; the third, shorter statement given by the complainant which is contained in the OIC’s notes; and two or three sets of other officers’ notes.
Position of the Defence
21Ms. Cristovao submits that the total delay exceeds the 18-month Jordan ceiling. There was never any waiver of Mr. Hotaki’s 11(b) rights, nor any delay caused solely or directly by the defence. Instead, she and Ms. Greenwood made diligent efforts to move the matter along expeditiously.
22Notably, she reminds me that even with the trial dates having been set, there remains a significant amount of outstanding disclosure, despite repeated requests to have complete disclosure provided as soon as possible.
23The cause of the delay in this case was the late provision of disclosure. Nothing more, and nothing less.
Position of the Crown
24Mr. Schreiter argues that the conduct of the defence respecting how the 11(b) motion was set is tantamount to an implied waiver of Mr. Hotaki’s section 11(b) rights. He submits that Ms. Greenwood did not indicate an 11(b) motion would be brought at the JPT; the defence should have known that the COVID-19 backlog meant that a trial date merely 25 days after the technical 18-month ceiling was not unusual in this jurisdiction; and the trial coordinators could have offered an earlier date had this been raised as a concern earlier. I should therefore deduct a quantity of time which would result in the net delay being under 18 months.
25In addition, or in the alternative, Mr. Schreiter asks me to consider the ongoing effects of the COVID-19 pandemic on the operations of the Ontario Court of Justice. He submits that the scheduling backlog constitutes a discrete exceptional circumstance and that at least 60 days should be deducted. He relies in particular upon R. v. Meawasige, 2023 ONSC 2907, a recent decision of the Summary Conviction Court of Appeal, which I will discuss later in these reasons. There is no case-specific requirement for the effects of COVID to be considered. The “ripple” effects are intangible, but real, and continue to this day.
The Crown’s Constitutional Obligations
26The Crown is required to prioritize which cases it will prosecute and to ensure those prosecutions are handled with due regard to the constitutional rights of the accused. In R. v. Thanabalasingham, 2020 SCC 18, the Supreme Court emphasized that “[t]he clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion”: see para. 9.
27Jordan implemented a prospective approach to mitigating delay. This prospective approach clarified the Crown’s constitutional obligation to bring the accused to trial within a reasonable time: see J.F., supra, at para. 31. It requires the Crown to become more accountable.
28That degree of prioritization did not occur in this case. Any delay that results from the exercise of the Crown’s discretion to prosecute must conform with an accused person’s Charter section 11(b) right to be tried within a reasonable period: see Jordan, supra, at para. 79. The Crown has a concurrent constitutional obligation to “disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it”: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at para. 18.
29From the very beginning of this case, it was clear to the Crown’s office that there would be core disclosure items and it needed to plan how they would be processed, vetted, and provided to the defence. Yet for ten months core disclosure was not provided, including the first video-recorded statement of the complainant, and officers’ memo book notes. Instead, repeated requests for disclosure went unanswered.
30It was only after the JPT on November 2, 2022, that the first video-recorded statement of the complainant was finally disclosed. Despite there being considerable outstanding disclosure materials remaining, defence counsel still agreed to set trial dates. The first dates offered were just shy of nine months later in July 2023.
31The Crown cannot merely point to limits on institutional resources to justify the existence of delay. It must demonstrate that it took “reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: see Jordan at para. 70. Furthermore, the parties were not ready to set a trial until after the November 2, 2022 JPT, nearly ten months after Mr. Hotaki had been charged. Indeed, had Ms. Greenwood refused to set a trial date at that time due to the outstanding disclosure that remained, she would have been on solid ground to take such a position.
32I echo the comments of Justice Mainville, in R. v. Smith, 2023 ONCJ 222, about the unacceptable nature of core disclosure not being provided promptly. In that case, the Crown’s office did not provide initial disclosure for effectively nine months. An information was put before the Ontario Court of Justice and the accused was located and arrested three months later. Disclosure was not provided for another six months. Justice Mainville stated the following at para. 49 (my emphasis added):
Initial disclosure was not provided to the defence until March 2, 2022, more than nine months following the laying of the charge. Additional disclosure was provided on March 24, 2022. That is wholly unacceptable. To provide initial disclosure six months after arrest, as was done here, is too long in and of itself. But when three additional months have already passed prior to arrest, and the Crown is aware that the accused must be brought to trial without undue delay and within 18 months of being charged, to take nine months to provide any disclosure at all is astounding. The Crown ought to have accelerated the matter and made extra efforts to move it along once Mr. Smith was arrested three months in. Instead, six court appearances passed without any disclosure being made.
33Justice Mainville, who also sits in this courthouse, added in her decision that when the outstanding disclosure is “central to the Crown’s case”, it is “inexplicable” that the Crown would not provide that material before expecting counsel to set a JPT and attempt to move the matter forward: see para. 51. I agree. Nevertheless, defence counsel in this case still did everything reasonably possible to move the case to a trial.
34I add the following observation. That officers’ notes and a third victim statement remain outstanding at the time of this decision, as the eve of the trial approaches, is not merely “astounding.” It demonstrates a disappointing disregard by the state to adhere to the constitutional values championed in Jordan. Absent a compelling explanation as to why the provision of core disclosure took markedly longer than is required, any delay that results falls squarely at the feet of the Crown. Other judges of this court have come to the same conclusion: see R. v. MacMillan, 2022 ONCJ 594, at paras. 61-83; R. v. Brown, 2021 ONCJ 663, at paras. 21-29.
35Indeed, the Supreme Court specifically commented on the duties of Crown counsel in Jordan at para. 138 (my emphasis added):
For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases.
36I acknowledge that not every single item of outstanding Crown disclosure should prevent a case from being set for a trial: see R. v. Allison, 2022 ONCA 329, at paras. 44-52. Nevertheless, in R. v. D.A., 2018 ONCA 96, the Ontario Court of Appeal held, in clear and emphatic terms, that “[t]he accused is entitled to review disclosure they have received to determine its importance, before moving a case forward” see para. 13. The Court further held that it is unreasonable to expect defence counsel to set dates when the outstanding disclosure includes “material” matters: see para. 22.
37It is difficult to overstate the importance of the disclosure items that were left outstanding in this case until after the JPT was held on November 2, 2022. An audio / video-recorded statement by the complainant in a sexual assault case is essential for defence counsel to review before making any strategic determinations about how to proceed: see, for example, R. v. Elakrat, 2020 ONCJ 343, at paras. 18-23. Furthermore, the importance of the video associated with the complainant’s audio recorded statement at the police division should not be discounted. How a witness presents when giving a statement may have considerable value. Finally, officer’s memobook notes may reveal important details about the investigation of the offence previously unknown to the defence. The late disclosure of these obviously relevant items was contrary to the Crown’s constitutional obligation to disclose all relevant material in a timely manner: see R. v. Ahmad, 2022 ONSC 2321, para. 82.
Expectations of Defence Counsel and The Crown’s Obligation to Prioritize
38Defence counsel must take meaningful and sustained steps and cannot simply sit back and let delay accumulate. Among other expectations, defence counsel should attempt to set the earliest possible dates, be cooperative with and respond to the reasonable inquiries of the Crown, and place the Crown on notice when the delay has become a concern: see R. v. K.J.M., 2019 SCC 55, at para. 83. As noted by the Supreme Court of Canada in J.F., not only must defence counsel indicate that their client’s section 11(b) right has not been respected but they must also bring a motion for a stay of proceedings with due diligence: see para. 36.
39Ms. Greenwood and Ms. Cristovao acted professionally and diligently at all stages of this case. They made repeated requests for disclosure. At every appearance in case management court, they expressed their desire to obtain disclosure and move forward.
40The Crown’s argument that Ms. Greenwood’s failure to formally request an 11(b) motion at the JPT is a form of implied waiver is without merit. Defence counsel should not be expected to raise a possible 11(b) motion at this early stage when the trial dates that will be offered remain unknown. Ms. Greenwood expressed 11(b) concerns at the JPT on November 2, 2022, and in written correspondence with the Crown as early as November 15, 2022. There could be no doubt that she took issue with any trial dates outside the Jordan ceiling and an 11(b) motion would be brought accordingly.
41Subsequently, Ms. Cristovao put the Crown on formal notice of an 11(b) motion on March 17, 2023. These were reasonable and diligent decisions by defence counsel. The Crown had explicit notice shortly after the trial dates were set that 11(b) was an issue. It could have attempted to locate an earlier date for this trial by prioritizing this case for nine months. It did not.
42Furthermore, as the Crown concedes, defence counsel merely remaining silent and accepting a trial date past the Jordan ceiling cannot provide an inference of clear and informed waiver. Rather, it may be a factor to consider in appropriate cases: see J.F. at para. 49; R. v. Herman, 2023 ABCA 52, at para. 48. This is not one such case.
43The Crown asks me to take judicial notice that two-day trial dates were available for matters of sufficient Jordan jeopardy well before July 27, 2023, if they had been flagged in November or December 2022. While it may have been possible to obtain earlier dates I cannot simply assume that fact, especially given Mr. Hotaki was out of custody. The trial coordinators in this courthouse are faced with immensely difficult scheduling decisions daily. Multiple factors are considered. The Crown must produce specific evidence on this application if it wishes that argument to be considered.
44The Crown’s argument that Ms. Greenwood should have known about the COVID backlog’s effect on the trial scheduling process in Toronto and therefore she impliedly waived her client’s 11(b) rights by accepting dates beyond the Jordan ceiling is rejected. Simply because defence counsel “accept” trial dates beyond the 18-month ceiling because that is all that is offered to them does not mean that they have waived their client’s 11(b) rights. Acquiescence of the inevitable does not mean an endorsement of that outcome. In this case, both Ms. Greenwood and Ms. Cristovao made it repeatedly known that 11(b) was an issue and they were never waiving Mr. Hotaki’s 11(b) rights.
The Impact of COVID-19
45The Crown argues that the ongoing COVID-19 pandemic caused significant disruptions to normal court operations and the ability of the Crown’s office to handle its regular duties (including providing disclosure) and this should be considered by the court. I agree that the pandemic constitutes an exceptional circumstance.
46Justice Nakatsuru of the Superior Court of Justice in R. v. Simmons, 2020 ONSC 7209 explained the impact that the pandemic has had on the function of the justice system. He noted that the pandemic had a “system-wide impact of unprecedented proportions”: see para. 70. However, the Crown cannot simply point to the existence of the pandemic as a justification for delay. Rather, it must demonstrate it adapted to the pandemic and took reasonable measures to mitigate delay and protect the constitutional rights of the accused: see R. v. Ali, 2021 ONSC 1230 at para. 7; R. v. Valiquette, 2022 ONSC 1722 at para. 39.
47These sentiments were also recently expressed by the Alberta Court of Appeal in R. v. Ghraizi, 2022 ABCA 96, at para. 12:
We agree with both the trial judge and summary conviction appeal judge that Crown counsel illness, unavailability due to the assigned Crown’s jury trial extension, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan, at paras 74-75, once the ceiling is exceeded, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system”.
48Even when the Crown has taken serious efforts to attempt to find a solution in a particular case, where excessive delay persists, that does not necessarily mean the resulting delay is automatically rendered acceptable for constitutional purposes: see R. v. Villanti, 2020 ONCA 755, at paras. 38-39. I find that no meaningful, specific efforts were taken in this case by the Crown at all.
49In a recent unreported decision, R. v. Gutnik, dated June 2, 2023, Justice Mulligan of the Ontario Court of Justice commented on the “cascading systemic impact” of the pandemic and the prioritization policies of the Ministry of the Attorney General. The Crown filed Ministry policies that it relied upon to explain, in part, how the scheduling of the Gutnik case occurred. I find the comments of my colleague extremely informative. Justice Mulligan wrote as follows at para. 15 (my emphasis added):
…the Ministry of the Attorney General policies designed to decrease the backlog of cases to which the COVID-19 pandemic added, were focused and appear to have been quite effective. From my experience, those policies were a positive step forward when they were announced to the public on October 7, 2021. Thus, I agree with the Respondent that my experience and the supporting materials filed in response, support the submission that the Crown, systemically, took reasonable steps to mitigate the delay. In fact, having presided at the College Park courthouse for many years, I suggest that it could also be reasonably asserted that the need for policies such as the Ministry of the Attorney General’s COVID-19 Recovery Policy, which requires prosecutors to “take steps to reduce the number of cases in the criminal justice system to ensure priority is given to the prosecution of serious offences”, existed prior to and will likely continue well after our collective memory of the COVID-19 pandemic has receded.
50I concur with Justice Mulligan’s remarks. While the policies put in place by the Ministry of the Attorney General to address the systemic delay caused by the pandemic were positive, similar policies pre-dated the pandemic and will almost certainly always exist. That is because the Crown will always be faced with the need to prioritize which cases it prosecutes, as we do not live in a world of unlimited judicial resources. Those policies, alone, cannot demonstrate that the Crown took reasonable steps in any particular case to address the problem of known delay beyond the Jordan ceiling.
51The Crown argues that R. v. Meawasige, 2023 ONSC 2907, is particularly instructive. The total delay, in that case, was 18 months and 22 days. The trial court entered a stay of proceedings which was overturned by the Summary Conviction Appeal Court. The charges were laid against the accused in early 2021. Justice Akhtar faulted the accused for not having taken reasonable steps to contact the Crown’s office to collect disclosure: see para. 26. This formed part of the reason for the delay. The accused and his trial counsel also failed to attend court on at least one appearance, when they could have been provided information about how to access disclosure via the Crown’s online disclosure system: see para. 29. The accused did not therefore exercise due diligence in obtaining disclosure while self-represented and his failure to fully retain counsel by a certain date delayed a Crown pretrial and a judicial pretrial which in turn caused a delay in setting the trial date: see para. 30.
52Nothing similar occurred in this case whatsoever. Ms. Greenwood and Ms. Cristovao acted with due diligence at every stage of the proceedings.
53Regarding the impact of COVID-19, Justice Akhtar found that there was evidence the Crown’s office took steps to alleviate the delay. For example, when it appeared the Jordan ceiling would be breached, the matter was reassigned to a new Assistant Crown Attorney who was available on earlier dates: see para. 44. Indeed, Justice Akhtar distinguished his decision from cases where the Crown merely made “vague submissions as to the trickle-down effects of the pandemic on court scheduling”: see para. 46.
54While some quantity of time associated with the “ripple effects” of the pandemic may be considered in appropriate cases, Justice Akthar did not further address this issue as it was unnecessary for the disposition of the appeal: see paras. 48-49.
55“COVID” is not a magic incantation to be uttered by the Crown in every case where the Jordan ceiling has been breached. It is now June 2023. On May 5, 2023, the head of the UN World Health Organization declared an end to COVID-19 as a global health emergency. [1] This case began well after the Ontario Court of Justice had adapted its policies and procedures to adjust for the effects of COVID. It is scheduled to finish at a date when any claim that the “ripple effects” of the pandemic should still be considered an exceptional circumstance demands intense scrutiny.
56The delay in this case was caused by the failure of the Crown to provide core disclosure for ten months. It was not attributable to some intangible effect resulting from the pandemic backlog. In his submissions, Mr. Schreiter admitted that disclosure items remain outstanding, and again pointed to the “backlog”, challenges associated with the Crown’s new electronic disclosure system on Evidence.com, and the administrative tasks required to process body-worn camera videos. None of these factors excuse the excessive delay. The rights of the accused to obtain disclosure materials are not somehow subservient to the machinations of how the Crown’s office provides disclosure. It needs to ensure it can deliver these materials in a reasonable period.
57The Crown cannot forever attempt to excuse the shortcomings of its constitutional obligations on the pandemic. In many of the decisions cited by Mr. Schreiter, other courts have accepted that at least 60 days of delay may be attributable to the “ripple” effects of the pandemic. That is only appropriate in a case where there is some evidence that the time between when the parties were ready to set a trial date and when a trial date was obtained was markedly longer than it otherwise would have been due to the effects of the pandemic. Yet after the complainant’s statement was provided and the parties could set a trial date, the time to trial here was just under nine months. That is actually less than the time to trial in the Ontario Court of Justice at College Park before the onset of the pandemic. See, for example, Justice Mulligan’s analysis of this issue in light of her experience at College Park (and now the Toronto Courthouse) in Gutnik at para. 17, where she finds that 10 months had been the pre-pandemic norm.
58The Crown has failed to demonstrate COVID had anything to do with the cause of the delay in this case, and that it took reasonable steps to adapt to whatever effects it claims COVID had on the scheduling of this trial: see R. v. L.L., 2023 ONCA 52, at paras. 21-23.
59In his written submissions, Mr. Schreiter further stated that “this was not a case that qualified to be expedited, there was nothing more the Crown could reasonably have done to mitigate the delay due to the COVID scheduling backlog.” Yet doing “nothing more” is a choice itself. The Crown, when faced with an excess of cases that can be prosecuted under the Jordan ceiling, must choose which cases it wishes to ensure are reached given that reality. It may have to stay other prosecutions or resolve them by alternative means. I take judicial notice of the fact that over the last year, I have been witness to many cases any reasonable observer would objectively consider to be less serious than the allegations in this case, that were nevertheless set for a trial. Absent an infusion of new resources, I understand difficult choices lie ahead for the Crown’s office. But they must be made given the paramount importance of protecting the 11(b) rights of all accused persons: see Jordan at paras. 116-7.
Conclusion
60In Jordan, the Supreme Court of Canada held that courts play an important role in changing courtroom culture and must address the causes of delay that have taken root: see para. 141.
61At every step of the proceedings, the defence took meaningful steps that demonstrated a sustained effort to expedite the proceedings. Unfortunately, the Crown’s response by contrast was plagued by a lack of timely responsiveness in providing disclosure, responding to legitimate defence requests, or creating a plan of action to ensure Mr. Hotaki’s Charter right to a trial with a reasonable time was respected.
62The allegations – while serious – are not inordinately complex.
63In R. v. Aden, 2023 ONSC 766, at para. 109, Justice Schreck of the Superior Court of Justice recently commented on the problem of the late provision of disclosure materials by the police to the Crown:
…the principles in Jordan were well established by the time the applicant was first charged in March 2020 and it was known to all involved in the criminal justice system that the culture of complacency that had plagued the system for years would no longer be tolerated. Despite this, the police took the same “leisurely approach to disclosure” that was often a large part of that culture of complacency: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 359; MacMillan, at para. 82.
64Jordan was not merely an aspirational decision or a collection of pious wishes. It imposed an obligation on all participants in the criminal justice system “to alleviate the delays that have plagued the criminal justice system”: see R. v. Albinowski, 2018 ONCA 1084 at para. 50. It is beyond dispute that the provision of core disclosure materials in a reasonable period is the very least that should be expected of the Crown.
65Over 30 years ago the Supreme Court of Canada in Stinchcombe held this was a foundational principle of an accused person’s rights under the Charter. Post Jordan, excessive delay that accrues due to the failure of the police and Crown to provide basic, core disclosure material in a reasonable period of time will be deemed to be what it is: inexcusable. Moreover, the delay it causes is “constitutionally impermissible, and will be treated as such”: see Jordan at para. 117.
66Mr. Hotaki’s rights under section 11(b) of the Charter were violated, and I enter a stay of proceedings on all counts.
Released: June 20, 2023 Signed: Justice B. Jones
Footnotes
1WHO chief declares end to COVID-19 as a global health emergency | UN News (May 5, 2023)