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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 DATE: July 7, 2023
BETWEEN:
HIS MAJESTY THE KING
— AND —
MICHAEL FERREIRA
s. 11(b) - Unreasonable Delay Application Ruling
Before Justice K. Mulligan
Heard on June 30, 2023
Reasons for Decision released on July 7, 2023
M. Walia ................................................................................................. counsel for the Crown Igor Vilkhov ........................................................ counsel for the accused Michael Ferreira
1The Applicant, Michael Ferreira, was charged with sexual assault contrary to s. 271 of the Criminal Code of Canada. The Information containing that count was sworn on December 20, 2021. The Applicant’s trial is scheduled to complete on July 7, 2023. By way of Notice of Application, the Applicant has applied for a stay of proceedings on the grounds that his rights as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (The Charter) have been violated.
The Time Lines
- December 2020-February 28, 2021- alleged offence date
- June 2021 - complainant provides a video-taped statement
- December 19, 2021 - Applicant charged
- December 20, 2021 - Information sworn
- January 11, 2022 - Applicant requests disclosure
- February 18, 2022 - 1st appearance -no disclosure
- March 25, 2022 - 2nd appearance -initial disclosure provided- (complainant’s statement missing)
- April 29, 2022 - 3rd appearance -still no complainant statement
- May 3, 2023 - Crown writes to Applicant requesting him to make his election/Applicant responds
- May 27, 2022 - 4th appearance -still waiting for disclosure of complainant’s statement
- June 24, 2022 - 5th appearance -still awaiting disclosure of complainant’s statement
- July 22, 2022 - 6th appearance -Applicant advised complainant’s statement still being vetted
- August 19, 2022 - 7th appearance -complainant’s statement still outstanding
- September 23, 2022 - 8th appearance -complainant’s statement still outstanding
- September 27, 2022 - Crown writes to Applicant to seek his election/Applicant responds -Complainant’s statement disclosed
- November 4, 2022 - 9th appearance -Judicial Pretrial (JPT) scheduled for November 22, 2022
- November 22, 2022 - JPT conducted and Defence requests trial dates
- November 29, 2022 - Trial Coordinator responds to trial date request and search begins
- December 2, 2022 - 10th appearance -matter remanded to allow trial dates to be obtained
- December 8, 2022 - Parties find a mutually available set of trial dates
- December 16, 2022 - 11th appearance -trial dates set for July 6 and 7, 2023
The Law
2Section 11(b) of the Charter of Rights and Freedoms guarantees that any person charged with a criminal offence has the right to a trial within a reasonable time. The framework for assessing whether an accused’s right to a trial within a reasonable time has been infringed is found in the Supreme Court of Canada’s decision in R v Jordan, 2016 SCC 27. The Court in Jordan established presumptive ceilings under which a trial must be completed. For trials that take place in the Ontario Court of Justice, that ceiling is 18-months. In the Superior Court of Justice, the ceiling is 30 months. Cases that extend beyond those established ceilings, the Court held, are presumptively, unreasonably delayed and a stay of charges is the only means available to redress the constitutional infringement.
3To determine whether an Applicant’s s. 11(b) Charter rights have been infringed requires a four-step analysis. First the Court must calculate the total delay, defined as the delay between the swearing of the Information and the actual anticipated end of trial. Next the Court must subtract any periods of time that were either waived by the defence or were caused solely or directly by the defence. The delay remaining is defined as the net delay. If the net delay exceeds the presumptive ceiling the delay is presumptively unreasonable unless the Crown can demonstrate that the case is either particularly complex or that exceptional or discrete circumstances arose that were reasonably unforeseeable or outside the Crown’s control. In order to satisfy this burden, the Crown must show that they took reasonable steps to circumvent and adapt to the problems before the delay exceeded the presumptive ceiling.
4If the delay at issue is below the presumptive ceiling the Applicant bears the burden of establishing, on the balance of probabilities, that the delay is unreasonable. To do so the Applicant must show that he took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that his case took markedly longer than it reasonably should have. I am mindful that the Supreme Court indicates that stays below the presumptive ceiling should only be granted in the clearest of cases.
The Evidence
5In this case the total delay is 560 days or 18.5 months. The Crown argued that when defence delay is subtracted, the net delay is well below the 18-month ceiling. It submitted that the Applicant delayed setting and conducting a crown pretrial meeting, a judicial pretrial meeting and caused delays in securing and setting the 2-day trial dates.
Defence Delay
6The evidence filed to support this application shows that the complainant’s video-taped statement was recorded by police approximately 6 months before the Applicant was charged with the offence. For whatever reason, that statement was not made available to the Applicant until more than 9.25 months after his Information was sworn and about 1 year and 3 months after it was initially provided to the police by the complainant. By that time, the Applicant had made 8 court appearances. At each appearance he indicated that significant disclosure was outstanding and repeated his request for same. Not one jurist in the Case Management courts questioned the Applicant’s reason for requesting an adjournment or his stated need for the missing disclosure to move the case forward. That is not surprising given the 14-month range in the alleged offence date and the nature of the alleged offence itself.
7There is no evidence as to what took the Crown so long to fulfil their disclosure requirement. There are only references by various Crowns, in the set date transcripts, to there being “a huge backlog with video services” and that the statement may be “a very long statement that has to be vetted by hand”.
8The Crown took the position that the Applicant had sufficient disclosure to conduct a Crown pretrial (CPT) and a JPT. It based its submission on the fact that he was in possession of “hundreds of pages” of text messages allegedly sent between he and the complainant. It also pointed to the fact that he was provided with a 5-page police summary of the complainant’s oral statement. Given that disclosure, the Crown twice wrote to the Applicant asking him to make his election as to mode of trial before the complainant’s statement had been disclosed. The Applicant responded to the Crown’s first written request by clearly stating that he was not in a position to properly obtain those instructions until the complainant’s statement had been disclosed and reviewed by him and his counsel.
9I disagree with the Crown’s submissions that the Applicant should have conducted a CPT and a JPT and been in a position to make his election as to mode of trial in the absence of the complainant’s video-taped statement. The parties both agree that the statement was close to 30 minutes long. I was not provided with the police summary or a transcript of the statement in question, so I am unable to assess the content or completeness of the former to give any credence to the Crown’s submission that the Applicant had enough partial disclosure to move the case forward. To the contrary, the length of the video-taped statement, the disclosure of over 300 pages of messages between the complainant and the Applicant on June 20, 2022, the 14 month range in the alleged date of offence, the Applicant’s clear statement as to the importance of the complainant’s video statement to his mode of trial and trial strategy, the complexities of the potential evidentiary processes in these types of cases such as s.276 and s. 278 applications, and the fact that, as per the JPT form, the Crown’s case relies solely on two witnesses, the complainant and “Sonya,” all contribute to my finding that the complainant’s statement was not peripheral to the decisions the Applicant was being called upon to make. The Applicant was not “waiting for every last bit of disclosure” before moving the case along. He was waiting for perhaps the most substantive piece of disclosure, the importance of which is evident within the overall constellation of evidence.
10The Crown submitted that a CPT and/or JPT should have been scheduled by the Applicant early in the proceedings and that his failure to do so not only caused delay but also demonstrated a lack of a sustained effort to expedite the proceedings. I also disagree with this submission. There is no value to any pretrial meeting unless both parties are in possession of substantive disclosure and are prepared to make decisions as to how a hearing is expected to unfold. Without the complainant’s full statement, the Applicant would be hard pressed to make any substantive decisions at a crown pretrial. If the Applicant elected a trial in the Superior Court of Justice, no JPT would have been required being as sexual assault is not preliminary hearing eligible. Given the Crown had made numerous requests of the police regarding the missing statement, a CPT would have done nothing to expedite the provision of the missing disclosure and would have been a waste of the Applicant’s resources. As for a JPT, assuming for the sake of argument, that the Applicant was in a position to elect a trial in the Ontario Court of Justice, the pretrial judge has no jurisdiction to force disclosure, nor could she have been expected to provide guidance as to the Crown’s obligation to provide same being as both parties were in agreement that the missing statement was first party disclosure. As such, the Crown’s submission in this regard is little more than a call for process over substance.
11It is important to note that the evidence before me shows that it took the Applicant a mere 73 days, or just under 2.5 months, to secure a two-day trial date from the date he finally received substantive disclosure. In that time, he met with his client, reviewed the video statement, scheduled and conducted a CPT, scheduled and conducted a JPT and then corresponded with the trial coordinator to secure trial dates. I find that all these necessary processes were conducted with dispatch once the missing statement was received. The sad fact is that it took almost exactly 1 year from the date that the Applicant’s Information was sworn to the date his trial was finally scheduled by the Court. I decline to parse each day or month in the time between the provision of the complainant’s statement and the securing of trial dates preferring instead to step back from the minutiae and adopt a “bird’s eye” view of this time period. Considering that, by design, the Applicant’s first court appearance is scheduled far enough out from the date of charge to allow for the processing and provision of substantive disclosure in order to make each court appearance meaningful, the evidence clearly shows that, had disclosure not been delayed, the Applicant could have had his trial date set within 2.5 months of his first appearance and completed before the end of 2022.
12The only defence delay I find on the record before me is one of 17 days. That period is the time between the first trial dates offered by the trial coordinator and the next dates offered for which the Crown was unavailable. The trial coordinator first offered trial dates of June 5-6, 2023. The Court and Crown were available for those dates, but the Applicant wasn’t. The Applicant asked if there were any other June 2023 dates available and was offered June 21-22, 2023. The Applicant was available, but the Crown wasn’t. The next dates offered were the trial dates currently scheduled. In these circumstances the delay attributable to defence, being solely caused by defence and which is therefore, defence delay, is the delay between June 6 and June 22 that being 17 days.
13As such the calculation of Net Delay is:
Total delay (560 days) less Defence Delay (17 days) = 543 days (17.85 months)
14Since the Net delay is just days shy of the 18-month ceiling the Applicant bears the burden of establishing, on the balance of probabilities, that the delay is unreasonable. To do, as already indicated, so the Applicant must show that he took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that his case took markedly longer than it reasonably should have. From the evidence and finding above I find that the Applicant did take meaningful steps to expedite the proceedings. In fact, apart from the impossibility of holding himself perpetually open and available, he could have done nothing further to expedite proceedings. The Crown’s submission that the Applicant frustrated the process by declining the Crown’s invitation to have a further JPT to discuss “a possible Motion for Directions” from the Court with respect to the 388 pages of messages between the complainant and the Applicant regarding a possible s.278 motion, is without merit. The Applicant did refuse to schedule a second JPT to partake in those discussions. However, given that the JPT form clearly indicates that defence had considered and clearly declined to bring such an application, there was no need for same unless the Crown wished to file one. Since it hasn’t, the issue was obviously a non-issue.
15For all these reasons, I am satisfied that the Applicant has satisfied his burden of proving that his trial has been unreasonably delayed and a stay of the charge is granted.
Released: July 7, 2023 Signed: Justice K. Mulligan