His Majesty the King v. Jedidiah Drummond
CHARTER SECTION 11(B) RULING
Court File No.: 23-30000866 Date: 2024 04 04 Ontario Court of Justice
Between: His Majesty the King And: Jedidiah Drummond
Before: Justice Brock Jones
Heard on: March 25, 2024 Decision Released on: April 4, 2024
Counsel: C. Lindo-Butler, for the Crown E. Battigaglia, for Mr. Drummond
Introduction
1Mr. Drummond is charged with six firearms-related offences. The Information pertaining to those alleged offences was sworn on February 13, 2023. His trial is set to conclude on June 7, 2024. The period between the swearing of the Information and the anticipated end of his trial is 15 months, three weeks, and three days. As such, the relevant period of delay does not exceed the 18-month ceiling in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.
2Nevertheless, Mr. Battigaglia alleges a violation of his client’s Charter section 11(b) right to a trial without unreasonable delay. In Jordan, the Supreme Court held that total delay, which falls below the presumptive ceiling, may still be deemed unreasonable if specific circumstances are found to exist.
3I agree with Mr. Battigaglia that the central reason for the delay in this case was the Crown office’s failure to provide core disclosure promptly. I also agree that after he was retained as counsel, he did everything reasonably expected of him to move the matter along. I am also satisfied that completing the case will take “markedly longer” than is reasonably required.
4I grant the application and stay the proceedings. These are my reasons.
Overview of the Allegations
5On February 13, 2023, Toronto Police Service Officers executed a search warrant at an apartment in Toronto. Inside, they located a firearm. Mr. Drummond is the registered tenant of this apartment.
6The search warrant was granted primarily based on information provided by a confidential source. The investigating officers also obtained video surveillance from the apartment building, which they used to associate Mr. Drummond with a motor vehicle regularly parked at the building and the apartment unit itself.
(i) February 13, 2023 (Laying of the Information) to November 15, 2023
7Mr. Drummond was arrested and charged with six firearm-related offences on February 13, 2023. An information was laid before the Ontario Court of Justice the same day.
8Though Mr. Drummond did not retain counsel immediately, I note that at his release hearing on March 1, 2023, Mr. Battigaglia, at that time only retained for that hearing, specifically referenced to the Court the need to obtain and review the Information to Obtain (“ITO”) associated with the above noted search warrant application. As such, the Crown was put on notice that this item of disclosure was requested.
9After his release, Mr. Drummond made five appearances in case management court while representing himself. He repeatedly explained that he was in the process of retaining counsel. At none of those case management appearances was the Crown able to provide Mr. Drummond with disclosure. In fact, there was little, if any, discussion of the status of disclosure.
10On July 12, 2023, Ms. Lindo-Butler appeared for the Crown in court and agreed to another adjournment for Mr. Drummond to retain counsel. She stated that if Mr. Drummond continued to represent himself, a judicial pre-trial (“JPT”) may be necessary because “we need to get this moving.” The presiding Justice of the Peace commented that Mr. Drummond requested another adjournment to retain counsel.
11Mr. Battigaglia was retained in August 2023. On August 14, he wrote to Ms. Lindo-Butler informing her he was retained and requested disclosure, including:
- All surveillance videos viewed and seized by police… and all other footage viewed and seized on any and all other dates and times;
- Complete search warrant packages and ITOs;
- All surveillance notes and reports; and
- The notes of all the ETF officers involved.
12At Mr. Drummond’s case management court appearance on August 16, 2023, Mr. Battigaglia informed the Court of the complete lack of disclosure and his desire to set a Crown pre-trial as soon as disclosure was received. Ms. Lindo-Butler agreed to a subsequent adjournment of the case to September 20, 2023.
13Shortly after this court appearance, the Crown provided a considerable amount of disclosure including the search warrant and ITO. The next day, on August 17, 2023, Mr. Battigaglia sent the Crown an email acknowledging receipt of these materials while re-iterated that certain essential items remained outstanding.
14On September 28, 2023, Mr. Battigaglia wrote another email to Ms. Lindo-Butler, reminding her that the video surveillance evidence, including those video clips referred to in the ITO, remained outstanding, as did the notes of the ETF officers. She replied on October 10 that she had sent a request (presumably to the OIC) for the outstanding disclosure.
15When the case reappeared in case management court on October 18, 2023, the parties indicated they were in the process of setting a JPT. The first JPT was set for November 2 but had to be cancelled due to a technical issue with the online scheduling program. The JPT was re-scheduled for November 30, 2023.
16At Mr. Drummond’s November 15, 2023 case management court hearing, Mr. Battigaglia and the presiding Justice of the Peace expressed concerns about the length of delay – nearly nine months – for the case to finally arrive at the JPT stage. Mr. Battigaglia noted that the delay was due to the late provision of disclosure.
(ii) November 30, 2023 (JPT before Freeman J.) to February 21, 2024 (Setting Dates for a Trial)
17At the November 30, 2023, JPT, Freeman J. held that the JPT could not be meaningfully conducted because a key item of disclosure was missing. A surveillance video that formed part of the basis for the ITO had not been provided. I note that this same item formed part of the list of items that Mr. Battigaglia identified as an essential item of missing disclosure in his email to Ms. Lindo-Butler. Her Honour directed that a new JPT be set once that video was finally provided to the defence. As a result of the missing disclosure Freeman J. was unable to estimate trial time requirements and thus trial dates could not be obtained.
18When the case was next in case management court on December 6, 2023, Mr. Battigaglia advised the Court that the JPT was not conducted due to the state of disclosure and that a subsequent JPT was required once disclosure was completed. Ms. Lindo-Butler acknowledged, on the record, that the outstanding disclosure items included:
- Surveillance videos;
- The notes of the ETF officers; and
- Video or photos taken at the time of the execution of the search warrant.
19On January 3, 2024, when Mr. Drummond’s case next appeared in case management court, Mr. Battigaglia again advised the Court that the video surveillance footage that formed part of the ITO was still outstanding and hence the reason for his client’s inability to complete the JPT process and obtain available trial dates. The outstanding video was disclosed to the defence shortly thereafter and a JPT was held on January 8, 2024. Trial time estimates were obtained including for both a Charter section 8 application and a section 11(b) application. On February 21, 2024, dates for the trial and applications were set by the Court and Mr. Drummond was remanded accordingly.
Position of the Defence
20Mr. Battigaglia submits the delay in this case is excessive and was caused entirely by the Crown's failure to provide core disclosure in a timely fashion. He argues that even before Mr. Battigaglia retained him, his client made references in case management court to his need to review the disclosure materials. He further argues that the Crown cannot blame Mr. Drummond’s status as a self-represented litigant for any of the delay that occurred during that six-month period. The case was stalled, he asserts, solely due to the Crown’s inability to provide substantive disclosure. Mr. Battigaglia points to the fact that once formally retained, he immediately wrote to the Crown requesting all outstanding items and still had to wait months for that request to be granted.
21While a disclosure package was provided on August 17, 2023, the state of disclosure remained incomplete. That the missing disclosure was core is proved by the fact that Justice Freeman was unable to complete the first scheduled JPT. When full disclosure was finally provided in early 2024, he points out that the trial coordinator provided dates within four months of the parties’ trial date request. Thus, he argues, the case should have and could have been brought to trial far sooner than it was. It is only the failure of the Crown to fulfill its constitutional obligations that led to the trial taking “markedly longer” than it should have.
22Mr. Battigaglia also argues that the Ontario Court of Justice’s new Jordan-compliant practice directive explicitly states that trials of this nature should generally be concluded within 15 months. That, in turn, should be considered when assessing whether a trial was reached within an appropriate period for applications brought under the Jordan ceiling.
Position of the Crown
23Ms. Lindo-Butler submits that the accused delayed the case by tardily retaining counsel of choice. She submits that the period from February 13, 2023, to August 16, 2023, should be characterized as defence delay. She submits that Mr. Drummond was not able to obtain and review disclosure because he was unable to perfect his retainer agreement with counsel of choice.
24She argues that Mr. Drummond was not absolved of his responsibilities as a self-represented litigant and should have acted diligently to move the case forward. She cited the court appearance of April 12, 2023, in her written materials as an example. She cites Mr. Drummond’s case management court appearance of April 12, 2023, in her written materials as an example. She noted that while Mr. Drummond informed the Court that his lawyer, who was not yet retained, was awaiting disclosure, the Crown’s office had not yet received a formal request for disclosure. Indeed, there was no such request until August 14, 2023.
25Using that logic, Ms. Lindo-Butler asserts the “net delay” is only ten months and nine days. In her written materials, Ms. Lindo-Butler claims that the defence position “unfairly criticizes the Crown for respecting Mr. Drummond’s repeated requests for adjournments to retain counsel of choice.” Disclosure could not be provided until counsel was retained.
26In essence, Ms. Lindo-Butler argues that whatever shortcomings may have existed regarding the timely provision of certain items of disclosure, the case was still set for a trial in less than 18 months. Therefore, it did not take “markedly longer” than it should have, and the application should be dismissed.
27During the oral argument, Ms. Lindo-Butler went further. She characterized the application as “frivolous”, describing the issue as being truly about delayed retainer as opposed to delayed disclosure. She went on to assert that Mr. Drummond is attempting to use the Charter as a sword against the Crown and submitted some of Mr. Battigaglia’s tactics appear to have been committed in bad faith and that they appear to have been undertaken deliberately to manufacture phantom delay.
The Crown’s Constitutional Obligation to Provide Disclosure Promptly Including to Self-Represented Litigants
28The Crown has a 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 SCR 326, at para. 18. The Crown must also obtain from an investigative agency any relevant information that it is aware of and must take reasonable steps to inquire about any such information. As stated by Charron J. in R. v. McNeil, 2009 SCC 3, at para. 17: (my emphasis added):
The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that relevant information in the first-party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.
29The prosecution of Mr. Drummond turns essentially, if not entirely, on the constitutionality of the search conducted at the apartment and whether the Crown can prove he was in possession of the firearm. Any experienced criminal lawyer would understand that essential disclosure, in this case, would include the search warrant itself, the ITO, and any material relied upon by the affiant to support his assertion that reasonable and probable grounds existed for the issuance of a warrant. In this case, Ms. Lindo-Butler knew or should have known, from the very outset of the prosecution, that these items needed to be obtained and provided to Mr. Drummond.
30Jordan 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. 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.
31The Crown, it is often remarked, is no ordinary litigant. It must ensure trial fairness, and Crown counsel, as officers of the court, have a duty to consider the rights of all justice system participants, including the accused. In R. v. Kahsai, 2023 SCC 20, the Supreme Court of Canada held that our adversarial criminal justice system “depends on certain conditions being present” to maintain its legitimacy and serve as an “effective mode of procedure”: see para. 52. The Court explained the particular concerns that arise when an accused person is self-represented at para. 53 (my emphasis added):
The risk of imbalance in the adversarial process is exacerbated when an accused is unrepresented (see P. J. LeSage and M. Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at pp. 155-56). In defending criminal charges without representation, the accused lacks the benefit of independent legal expertise and professional advice while facing what may amount to profound legal jeopardy. Proceeding to criminal trial without representation will often put the accused at a significant disadvantage, sometimes risking a trial in which no meaningful defence is advanced. This is a choice that the accused has a right to make, provided they are fit to stand trial and informed about the consequences of their decision. But that choice may jeopardize the fairness of a trial. To protect the integrity of the adversarial system from these inherent vulnerabilities, the trial judge and the Crown have unique roles to play to ensure a fair trial for an unrepresented accused.
32In Stinchcombe, the Supreme Court of Canada held that when an accused is unrepresented, “Crown counsel should advise the accused of his right to disclosure” and that a “plea should not be taken unless the trial judge is satisfied that this has been done”: see p. 343 (my emphasis added.)
33Ms. Lindo-Butler’s argument regarding the period from February 14, 2023, to August 16, 2023, which she describes as defence delay, attempts to rewrite what happened during that period in a light favourable to the Crown. However, when Mr. Drummond was self-represented, he never had to ask for disclosure; the Crown was constitutionally obligated to provide him with disclosure and inform him of that right. Even if there is some nominal expectation on a self-represented litigant to inquire about the evidence against him, at April 12, 2023, case management court appearance, Mr. Drummond informed the Court that his lawyer, though not retained, was waiting for disclosure. In response, the Crown (not Ms. Lindo-Butler) conceded that disclosure was not yet available.
34Stinchcombe was decided over thirty years ago. My review of the transcripts filed in support of this application shows that while Mr. Drummond was self-represented, the Crown did not advise the case management court what disclosure items remained outstanding and did not advise Mr. Drummond that he was entitled to review disclosure before deciding how to proceed with his case. While there appears to have been some confusion during the case management court appearance of May 3, 2023, as to whether Mr. Battigaglia would continue representing Mr. Drummond after the bail hearing, at his May 31, 2023, appearance Mr. Drummond clearly informed the case management court that he did not yet have a lawyer. On June 21, 2023, Mr. Drummond again told the case management court that he did not have a lawyer. While he was trying to retain Mr. Battigaglia, that did not change his status as a self-represented person nor the duty owed to him by the Crown.
35With that background in place, thanks to a fulsome application record filed by Mr. Battigaglia, I find that Ms. Lindo-Butler’s remark in case management court on July 12, 2023, that the matter needed to “move along” mischaracterized why the case was stalled. The case could not proceed because some essential disclosure items were still outstanding. Nothing substantial was provided to Mr. Drummond until over a month later. Thus the delay was accumulating due to the Crown’s failure to provide substantive disclosure, not Mr. Drummond’s requests for further time to retain counsel. The Justice of Peace’s remark that Mr. Drummond requested to put the case over to another date is of no weight in my assessment of the section 11(b) application. With a complete record, I can accurately determine what was causing the delay and find that even if counsel had been retained as of the first case management court appearance the amount of delay in this case would not have been different.
36Mr. Battigaglia has also filed another application seeking leave to cross-examine the affiant of the ITO if the Jordan application is denied. It is not in dispute that the ITO contains references to video surveillance taken at the apartment building in question on various dates in February 2023. Officers relied upon the contents of that video footage to link Mr. Drummond to the apartment building, a car parked there, and the specific unit that was ultimately searched. The video, therefore, constituted core disclosure necessary to enable both parties to understand their respective cases and thus estimate the time required to present them.
37Despite the essential nature of the outstanding disclosure items, not only were they not provided to Mr. Drummond during the period he was self-represented, their existence was not even brought to his attention or to the attention of the justice presiding in case management court. [1] Given that the timeline for Mr. Drummond retaining Mr. Battigaglia was uncertain at best, the Crown was required to ensure meaningful information was communicated to the Court and Mr. Drummond about the nature of the outstanding disclosure items and what steps, if any, were being taken to procure them. Had Mr. Drummond never retained a lawyer, he needed this information to help address the “risk of imbalance,” as the Supreme Court commented in Kahsai. The Crown must take seriously its obligations to alleviate that imbalance at all stages of the proceedings. Transparency in the disclosure process is an essential first step. [2] I would also suggest that transparency in the intake stages assists the Court in managing cases as it is mandated in Jordan.
38Armed with the knowledge of the actual state of disclosure, a self-represented litigant can at least decide how they wish to proceed. That may involve asking the presiding justice questions about their rights and procedural options. Courts have an obligation to provide some degree of assistance to self-represented persons. The extent of that assistance will vary depending on “context and is circumscribed by what is reasonable in the particular circumstances of the case”: see R. v. Bancroft, 2024 ONCA 121, at paras. 6-7. At a minimum, it encompasses addressing matters that will have a material bearing on the outcome of the charges: para. 8. No one could reasonably dispute that the provision of all disclosure relating to the execution of the search warrant at the apartment would meet that standard.
39Justice Rosenberg of the Ontario Court of Appeal described the particular vulnerabilities of self-represented persons in the criminal justice system as follows: [3]
Without their own lawyers, accused are vulnerable to pressure to plead guilty, not well positioned to challenge the prosecution’s case and less able to mount a full defence. In short, they are at serious risk of being unable to adequately access the justice system.
40Ensuring that the rights of an unrepresented accused person are meaningfully protected is thus vital. An accused person does not waive his Charter section 11(b) rights by taking a reasonable amount of time to retain a lawyer. For marginalized and socially disadvantaged individuals, retaining a lawyer may be very difficult, and courts must be sensitive to that reality. In cases where the Crown cannot even provide disclosure when an accused person seeks to retain counsel, the argument that the accused has somehow waived those rights is entirely meritless. Accepting that argument would allow the Crown to weaponize its failure to meet its constitutional obligations. A more unjust outcome is difficult to imagine.
41Mr. Battigaglia further argued that Ms. Lindo-Butler should have procured a self-represented JPT to assist his client before Mr. Drummond retained him. While I agree that this was an option available to the Crown, the issue of the outstanding disclosure materials would have inevitably been a focal point of discussion at any JPT. The Crown did not require judicial oversight to understand why the case was stalling; it simply needed to demonstrate a genuine commitment to rectifying the problem. It is clear to me that the setting a self-represented JPT by mid-summer 2023 would have had no effect the case's trajectory.
42The search warrant and ITO were uploaded to the digital disclosure system on August 16, 2023, over six months after Mr. Drummond’s arrest. However, the video that formed part of the affiant’s grounds in the ITO, which both parties agree was crucial to the defence in assessing whether a section 8 Charter application would be brought, was not provided until January 3, 2024, nearly 11 months post-arrest. The notes of the ETF officers who executed the warrant were not provided until January 29, 2024. Those notes would have demonstrated, at a minimum, where the firearm was located in the apartment and if anyone else was present as a “found-in” at the time of the execution of the warrant.
43I have no difficulty concluding that the case was unable to proceed due solely to the failure of the Crown to provide necessary disclosure. While the Crown is not obligated to provide every item of disclosure before trial dates should be set (see, for example, R. v. Allison, 2022 ONCA 329, at paras. 44-52), the outstanding materials in this case were of foundational importance to both a potential Charter section 8 application and the issue of possession on the trial proper. Any attempt to shift blame to the defence, is entirely unfounded: see R. v. Safdar, 2021 ONCA 207, at paras. 39-40; R. v. Singh, 2023 ONSC 6030, at para. 22.
44Furthermore, nothing in the Crown’s materials filed on this application demonstrates that the Crown made any effort to inquire of the police why the provision of missing disclosure items was taking so long and what could be done about it. Nor could there have been any justification for not providing Mr. Drummond with disclosure directly before he retained Mr. Battigaglia if it was available. An accused person is not required to retain counsel and has the fundamental right to represent himself. The Crown’s disclosure requirements are not frozen in time until a lawyer is on the record. They start from the genesis of the prosecution. I note that the Law Society of Ontario’s Rules of Professional Conduct require prosecutors to make “timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and known facts and witnesses…”: see Rule 5.1-3. I find there was no defence delay.
45The Crown 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. In this case, while the ceiling was not breached, as I will explain, the absence of any evidence indicating the Crown did anything to rectify the known problem of delayed core disclosure is a compelling factor to consider when determining an “under the ceiling” application. [4]
Delay Applications Under the Jordan Ceiling
46The majority in Jordan held that delay falling below the presumptive ceiling would be unreasonable where the defence establishes that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have”: see para. 48. Unless the defence establishes both requirements, the s. 11(b) application must be dismissed: R. v. Campbell, 2022 ONCA 223, at paras. 20-23.
47In R. v. K.J.M., 2019 SCC 55, the Supreme Court clarified the nature of the “ceilings” established in Jordan at para. 69:
While the presumptive ceilings are a significant chapter in Jordan, they are not the whole story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility.
48A case's reasonable time requirements “derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings”: see Jordan at paras. 87-89, 91.
49This case is not factually or legally complex. While there is a scheduled section 8 Charter application to challenge the issuance of the search warrant, that is a common feature of how firearms possession charges are often defended. The companion application seeking leave to cross-examine the affiant does not involve any aspect of the ITO that could potentially impact the confidential source's identity. [5] It would be disposed of very quickly. A straightforward Charter section 10(b) application will be heard and blended with the trial proper. [6] If the evidence located during the search of the apartment is not excluded, this is a standard possession case.
50Jordan 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 was meant to change the culture of complacency in criminal proceedings.
51The presumptive ceiling “is not an aspirational target,” and 18 months is still “a long time to wait for justice”: see Jordan at paras. 56-7. Most cases – not simply the odd case – “can and should” be completed in less time: Jordan, supra. The Ontario Court of Justice implemented a new Jordan-compliant scheduling practice directive [7] on November 1, 2023, to ensure all cases are heard within 15 months. The Directive also creates the expectation that matters will be resolved or set down for trial within six months. It was intended to reduce the time for cases to proceed to trial.
52Notably, the directive states that “the Court’s expectation is that… at the first court appearance following the six-month Information sworn date, both parties will, at a minimum, have addressed disclosure…”: see para. 9 (my emphasis added.) Where “discrete” items of disclosure remain outstanding, the parties “will be expected to take the necessary steps to address” the issue. Only the Crown can solve the problem of outstanding disclosure in the face of repeated requests from defence counsel.
53The Directive applies to transitional cases, such as this one, before the court when the Directive was initiated, albeit with necessary modifications. Indeed, the Directive states clearly that even for transitional cases, “the Court expects that, if more than six months have elapsed since the Information sworn date, the Crown and Defence will be prepared to either resolve the matter or set a trial date at the next court appearance”: see para. 19 (my emphasis added.)
54When deciding whether a case took “markedly longer” than it reasonably should have, the Crown’s failure to take reasonable steps to expedite the proceedings is a factor to consider: see K.J.M. at para. 81. Prosecutors who wait an undue period before “kicking into gear” demonstrate the “sort of normalized indifference towards delay that prompted Jordan”: K.J.M., supra. By contrast, a proactive Crown “will be a strong indication that the case did not take markedly longer than reasonably necessary”: Jordan at para. 112.
55Inaction is not justified by the defence either. Defence counsel cannot simply sit back and let delay accumulate. 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 K.J.M at para. 83.
56Once retained on August 16, 2023, Mr. Battigaglia wrote the Crown to request all outstanding disclosure. He followed up on September 28, 2023, and placed his concerns on the court record. He set the earliest possible JPT dates. When the first JPT date of November 2, 2023, was lost, and the case appeared in court on November 15, 2023, he again expressed his concerns about the missing disclosure. The presiding Justice of the Peace agreed. Counsel accepted the earliest JPT dates. When disclosure was finally complete and trial dates could be set, Mr. Battigaglia indicated he had earlier dates available if the court could accommodate them. He immediately advised the Court and Crown of his delay concerns and obtained a date for an 11(b) motion. He took meaningful steps that demonstrated a sustained effort to expedite the proceedings.
57By contrast, the Crown’s response to Mr. Battigaglia’s disclosure concerns does not demonstrate enough was being done to obtain the outstanding items. On October 10, Ms. Lindo-Butler responded to the September 28 email, explaining what disclosure items were outstanding. Then, she initiated the process to schedule a JPT, as she considered disclosure substantially complete. She took the position that if Mr. Battigaglia disagreed, the topic could be discussed at the JPT.
58On November 30, 2023, at the JPT, Freeman J. shared Mr. Battigaglia’s concerns. She directed that trial dates would not be set until the outstanding disclosure was provided. Nothing in the application record demonstrates that the Crown disputed this finding, and it appears that the parties proceeded after the first JPT based on Freeman J.’s determination.
59On December 6, Ms. Lindo-Butler wrote to Mr. Battigaglia to suggest a further one-month adjournment to January 4, 2024, for her to obtain the outstanding disclosure. No explanation was provided for why it should have taken another month to obtain a surveillance video and officers’ notes. The Crown had ample notice and opportunity to obtain these materials. The Court’s new Practice Directive had been in place for over a month. The Crown’s conduct was that of a passive disclosure recipient, despite the repeated requests from counsel that were first articulated in an email on August 17, 2023, six months after the Information was sworn.
60While Mr. Battigaglia did not formally initiate the process to set the first JPT, and some prior decisions have suggested the defence must do more than make requests for disclosure to show they took “sustained efforts to expedite the proceedings” (see, for example, R. v. A.B., 2023 ONCJ 459, at para. 37), I do not find anything turns on it in this case. The Crown must set a JPT date in Toronto using the appropriate scheduling software. Ms. Lindo-Butler did this after receiving Mr. Battigaglia’s request on September 28, 2023. Whatever faith may be held in the power of a case management JPT to “solve” disclosure problems, the JPT, in this case, did not have the desired results. [8] Indeed, the Crown took over a month from the date of the first JPT to finally provide the missing surveillance video footage (January 4, 2024). The notes of the ETF officers did not come until nearly two months later (January 29, 2024).
61Every piece of disclosure in this prosecution could have been provided to the accused on his first appearance in court, and instead, it took nearly a year to do so. This is precisely the normalized indifference to an accused person’s constitutional rights under section 11(b) of the Charter that Jordan was meant to change: see R. v. A.C., 2024 ONSC 1603, at paras. 63 and 85. Whether the “dilatoriness of the police” was the reason for the delay in providing disclosure, I do not know. I received no evidence that the Crown took steps to ensure the police were taking their responsibilities in this regard seriously either: A.C. at para. 101.
62I recognize that the Supreme Court in Jordan held that stays below the ceiling will be “rare” and “limited to clear cases”: see para. 48. In K.J.M, the Court clarified that the restriction to “clear cases was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits”: see para. 78.
63I find Harris J.'s decision in R. v. Belle, 2018 ONSC 7728, particularly informative. The Crown provided a “mountain of information” on the eve of the accused’s trial. This material should have been provided previously, and the Crown did not explain why it was disclosed at the last minute. A second trial date was set after 28 months and 10 days, which fell below the ceiling of 30 months for cases to conclude in the Superior Court of Justice.
64Harris J. granted a Jordan application despite the application being based on delay falling below the ceiling. It was a standard importing case with a six-day jury trial. After arriving in the Superior Court, a trial could typically have been set within 10-12 months: see para. 12. Instead, it took nearly 18 months to bring the case to trial, which was “markedly longer” than what should have been expected.
65Commenting on Belle in Campbell, the Ontario Court of Appeal noted that the delay in Belle was due to the late disclosure, which allowed the application judge to determine that the time to the second trial was outside the reasonable time requirements for the case: see para. 30. Similarly, I find the late disclosure in this case has resulted in a trial date outside what was reasonably required.
66In R. v. Mohamed, 2022 ONSC 3000, Justice Peeris held that 16 months and 18 days was “markedly longer” than reasonably required for a three co-accused case involving firearms and drug charges. The prosecution was centred around the execution of a search warrant based on information provided by a confidential source. There was nothing particularly complex about the evidence, but the case was delayed by the failure of the Crown to provide disclosure within six months. The charges were stayed.
67In other reported decisions where courts have denied “under the ceiling” applications for delay and where the defence cited the late provision of disclosure, the Crown has been able to rely upon some explanation for its inaction. For example, in R. v. Rahi, 2023 ONSC 905, Ducharme J. accepted the pandemic's role in the case's ability to move forward and that the Crown made efforts at all stages of the proceedings: see para. 49. In R. v. S.C., 2022 ONCJ 486, Mackay J. accepted that the pandemic and the switch to a new electronic disclosure system justified delays in providing disclosure: see para. 46.
68Similarly, Fraser J. denied a Jordan application in R. v. Charlton, 2024 ONCJ 95. The accused was charged with possession of child pornography. A report detailing the images and videos located on two cell phones was outstanding for a prolonged period, and the defence did not consistently act with due diligence in obtaining that report: see paras. 15-16. The outstanding disclosure was also the product of post-arrest investigative steps, common in child pornography cases, but that does not exist in the present case: see para. 24. The case could not be said to have taken “markedly longer” than reasonably necessary.
69I find nothing equivalent that explains the disclosure problems present here. Certainly, no evidence in that regard was provided by the Crown. Taking a birds-eye view of this case, there is no escaping the conclusion that the delay was due to the Crown's negligence in providing essential disclosure materials. Mr. Battigaglia did everything that could have been reasonably expected of him.
70When determining if a case took “markedly longer” than is reasonably necessary to get to trial, the Supreme Court instructed trial judges to use knowledge of their jurisdiction, including how long a similar case typically takes to get to trial considering relevant local and systemic circumstances: see Jordan at paras. 87-89, 91.
71This case could have been set for a trial much sooner. Once the parties had sufficient disclosure to set trial dates, I note that they were able to obtain a five-day trial within four months of requesting one and were able to get four days for Charter motions within two months of that request. Had a complete disclosure package been provided to Mr. Battigaglia once he was retained and appeared in court on August 16, 2023 (which was six months post-arrest) [9], trial dates would have been made available by early 2024, or approximately twelve months after the laying of the information. That would have been three to four months sooner than the trial dates that were finally acquired.
72No evidence was presented that the Crown undertook efforts to prioritize this case.
73Each case must be decided on its facts and rather than what I might deem to be a generally reasonable period of delay for all cases of a similar nature: A.C. at para. 58. The police had near complete disclosure in their possession from the day they arrested and charged Mr. Drummond. [10] Cases of this nature should be held to a different standard than more complex ones with challenging or ongoing disclosure requirements.
Conclusion
74The Supreme Court of Canada called upon all justice system participants to embrace “real change” in Jordan. For Crown counsel, the Court specifically highlighted the need to promptly deliver on their disclosure obligations: see para. 138. Each year that passes, the failure of the Crown to embrace that spirit of change and instead allow a “leisurely approach to disclosure” to persist will be met with greater and greater disapproval from the courts: see R. v. Aden, 2023 ONSC 766, at para. 109; A.C. at para. 89.
75The Ontario Court of Justice’s new Jordan-compliant practice directive marks a significant step forward in addressing the culture of complacency identified in Jordan. Absent a compelling explanation for why the missing disclosure items were not provided for eleven months, despite repeated requests for these items and the determination of Freeman J. at the first JPT, I draw an adverse inference against the Crown: see A.C. at para. 49.
76This case took markedly longer than it should have. On a balance of probabilities, I am satisfied that Mr. Drummond’s rights under section 11(b) of the Charter were violated. This is one of the rare cases where a stay of proceedings should be granted even if the total delay is under the Jordan ceiling of 18 months.
77I conclude by noting my disappointment with several aspects of Ms. Lindo-Butler’s submissions during the oral hearing. The aspersions cast on Mr. Battigaglia’s professionalism, including that he brought this application in bad faith, made “token comments” to advance the 11(b) motion [11], falsely represented the record of the case, and engaged in “Charter by ambush,” were completely unwarranted. In Groia v. Law Society of Upper Canada, 2018 SCC 27, the Supreme Court wrote that for trials “[t]o achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve”: see para. 2.
78Lawyers should aspire to the highest standards of the profession, especially civility. The Crown, as a Minister of Justice, must act both “fairly” and “dispassionately”: see Kahsai at para. 55. Resolute advocacy can and must exist alongside professionalism. [12]
79The record for this application demonstrates that Ms. Lindo-Butler’s criticisms of Mr. Battigaglia were unsupported by any evidence.
Footnotes
[1] I was not provided with any evidence other than the court transcripts of what was, or was not, communicated to Mr. Drummond when he was self-represented. [2] If a judge becomes involved at a self-represented JPT, the presiding judge will always ask the assigned Assistant Crown Attorney what disclosure items are outstanding. The judge will also ensure the accused person understands their significance, and that the Crown is generally obligated to disclose them prior to the commencement of the trial. Or, as happened here, where core disclosure has not been provided, the judge will refuse to set trial dates, and a further JPT will be required once that disclosure is available. [3] Twenty-Five Years Later: The Impact of the Canadian Charter of Rights and Freedoms on the Criminal law”, Supreme Court Law Review (2d), Vol. 45 (Markham, Ontario: LexisNexis Canada, 2009), available online: https://www.ontariocourts.ca/coa/about-the-court/publications-speeches/twenty-five-years-later/ [4] Some of the email correspondence between the lawyers after Mr. Battigaglia was retained contain the word “requested” in brackets next to items Mr. Battigaglia specifically inquired about, presumably inserted by Ms. Lindo-Butler in her replies. I heard no evidence about what, if anything, the inclusion of this word was meant to demonstrate was actually being done. [5] Mr. Battigaglia seeks leave to cross the affiant on (1) the quality of the video surveillance evidence as presented in the ITO and whether its contents were described inaccurately to the issuing justice; and (2) what circumstances, if any, justified the application for a tele-warrant (as opposed to a standard section 487 search warrant). [6] This procedure was agreed upon by the parties at the second JPT with Favret J. [7] Ontario Court of Justice, “Practice Direction: Jordan -Compliant Trial Scheduling, (November, 2023) online: https://www.ontariocourts.ca/ocj/notices/jordan-compliant-trial-scheduling [8] The JPT form completed by Freeman J. does not indicate an officer associated to the file even attended to address outstanding disclosure concerns. [9] Six months was more than enough time for the Crown to provide complete disclosure. [10] The ITO contained information from a confidential source, and the Crown must be entitled to a reasonable amount of time to properly vet this document before disclosing a redacted version to the accused. That was done, and it was provided to Mr. Battigaglia on August 16, 2023. Therefore, this vetting process did not contribute to the excessive delay at the centre of this application. [11] This comment was repeated multiple times. [12] See rule 7.2-1 of the Law Society of Ontario Rules of Professional Conduct.
Released: April 4, 2024 Signed: Justice B. Jones
