Court Information
Date: January 11, 2017
Ontario Court of Justice Old City Hall - Toronto
Between: Her Majesty the Queen
And: David Keyes
For the Respondent/Crown: J. Gibson
For the Applicant/Defendant: T. MacDonald
Heard: December 20, 2016
Reasons for Ruling
(Re Charter ss. 11(b) and 24(1))
MELVYN GREEN, J.:
A. INTRODUCTION
[1] David Keyes, the Applicant, was arrested and charged with possessing and accessing child pornography on May 14, 2015. His four-day trial is set down for three days in mid-March 2017 and a final hearing date on April 13, 2017. Some 23 months will have passed between the date of the Applicant's arrest and that scheduled for the conclusion of his trial. This delay substantially exceeds the 18-month presumptive ceiling imposed by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 for cases tried, as here, in provincial court. Absent the deduction of at least five months for defence-attributable delays, the Crown bears the burden of demonstrating that the delay in excess of 18 months is not unreasonable.
[2] First, however, the Crown asserts that the Applicant's s. 11(b) application ought not to be entertained. Rather, says the Crown, the defence application should be summarily dismissed for, in effect, non-compliance with the rules governing the prosecution of such claims. I turn, first, to this threshold issue.
B. THE CROWN MOTION FOR SUMMARY DISMISSAL
[3] By way of background, the March and April 2017 trial dates in this matter were set on August 8, 2016. An intermediate date of December 20, 2016 was fixed at the same August 8th appearance for purposes of accommodating a preliminary "Garifoli motion", Crown counsel noting that she and defence counsel will, in the interim, "have further conversations about the Garifoli and whether that will be required". No mention was made at the time of a potential s. 11(b) application for a stay of proceedings resulting from unreasonable delay.
[4] By Notice of Application dated November 17, 2016, the Applicant provided notice of his intention to prosecute a s. 11(b) application on December 20th, the date scheduled for the anticipated Garifoli application. An accompanying Application Record was served and filed on November 21st. The Record included the Form 1 Notice and transcripts of most but not all of the Applicant's appearances. (The remainder were filed within the next week.) Although prescribed by the Rules, the Applicant did not file a formal "factum". In lieu, the Record included just over a page of typed submissions styled "Appendix A". This appendix, while not titled "factum", sets out, if most pithily, the entirety of Applicant's argument in aid of a stay: the bookend dates of the proceedings, the fundamental rule in R. v. Jordan, supra, an express denial of any defence waivers or other defence-attributable delay, and, accordingly, a plea for a s. 24(1) stay absent Crown proof of exceptional circumstances. Appendix A concludes:
If the Crown seeks to prove and rely upon the existence of exceptional circumstances, the Applicant may seek to file and rely upon further materials as may be necessary in order to appropriately respond.
[5] In summary, the Applicant did not signal his intention to pursue a s. 11(b) claim until well after the trial dates were scheduled. And Appendix A falls short of full comportment with the "Practice Direction" for s. 11(b) applications in the Toronto Region of the Ontario Court of Justice (OCJ) in so far as it does not include "A chart or other breakdown of the relevant time periods with an apportionment of each to inherent time requirements, other neutral periods, Crown delay, defence delay/waiver and institutional delay". Had Crown counsel received not just timely but significantly earlier notice of the pending s. 11(b) application, she could, she says, have made efforts to ameliorate the delay.
[6] A few comments are in order. First, the Application Record was served in a timely manner – "at least 30 days prior to the date for the hearing of the application". Second, whether or not put on notice when the trial date was set on August 8, 2016, Crown counsel – like every conscious participant in the Canadian criminal justice industry – was poignantly aware that the Supreme Court had fundamentally changed the calculus for assessing unreasonable delay when it released Jordan exactly a month earlier. The Applicant's case may not have been on an endangered list but it was, as Crown counsel fairly acknowledges, at risk. And as Crown counsel concedes, no special effort was ever made, either before or after the current trial dates were scheduled, to expedite the trial or otherwise remedy the increasing longevity of the case.
[7] Finally, I note that the Practice Direction on which the Crown relies in claiming defence non-compliance was issued in 2013. Its terms reflect the organizational framework of the Morin regime for the assessment of unreasonable delay; they do not contemplate the impact of Jordan. Nonetheless, it is my view that irrespective of the length of the delay every s. 11(b) applicant should continue to assemble "a chart of other breakdown", as required by both the OCJ Practice Direction and the post-Jordan Practice Direction issued by the Superior Court of Justice on September 1, 2016. These graphic histories provide a convenient overview, identify areas of concern, and economically educate the justice hearing the motion. They are particularly helpful in, as here, transitional cases. Rules and Directions aside, an applicant risks losing a tactical forensic advantage by ceding to the respondent the framing of the chronological narrative upon which any judge will then rely in endeavouring to make sense of an often complex matter.
[8] That said, where, as in the instant case, the Applicant asserts that he is not responsible for any delay by way of waiver or conduct (and, accordingly, there is nothing of substance to deduct from the cumulative delay), the evidentiary burden clearly shifts to the Crown to demonstrate otherwise, as does, if still necessary, the legal burden to establish such exceptional circumstances as to render any excessive total delay reasonable.
[9] While the Applicant could have more fully developed his written argument, I do not find the modest non-compliance with the governing rules and practice to have in any way prejudiced the Crown. Nor would I characterize the defence scheduling of its s. 11(b) motion as a strategy of "bait and switch". In cases where the presumptive ceiling is markedly surpassed and the defence bears no patent responsibility for that delay, the heavy lifting inevitably shifts to the Crown.
[10] In the result, the Crown's preliminary motion for summary dismissal of the Applicant's s. 11(b) application is dismissed.
C. THE SECTION 11(b) APPLICATION
(a) Evidence
[11] The s. 11(b) assessment largely turns on the legal characterization of the almost nine-month hiatus between the adjournment of the Applicant's preliminary inquiry (as originally scheduled) and the date now fixed for the conclusion of his trial. If, as the Crown urges, all or at least a substantial portion of this interval is assigned to the defence, the total time to trial would fall under the ceiling imposed by Jordan.
[12] As already noted, the Applicant was arrested and charged on May 14, 2015. He was released on surety bail the same day. His charges are serious, as measured by societal interest and the penal consequences of conviction. The first offence is alleged to have occurred and the second alleged to have commenced well more than six months before the Applicant's arrest. Accordingly, absent defence consent the Crown has no choice but to proceed by Indictment.
[13] The prosecution's case rests largely on the contents of the Applicant's computers and forensic analysis of their internet traffic. The collection and analysis of this data was undoubtedly time-consuming and generated very substantial disclosure. A previously disclosed but initially incomplete hard drive had to be replaced in early October 2015. Throughout, defence counsel made several legitimate requests for specific additional disclosure and the Crown made good faith efforts to fulfill these requests. Counsel, as it was said on one remand appearance, had a "good working relationship". Other than a single two-week delay to seek instructions and the unopposed defence adjournment flowing from a catastrophic instance of non-disclosure (both detailed below), defence counsel consistently facilitated rather than impeded the forward progress of the prosecution.
[14] Crown counsel indicated her preparedness to fix dates for a preliminary hearing at a judicial pre-trial held on October 23, 2015, approximately five months after the Applicant's arrest. Although some disclosure remained outstanding, defence counsel sought no more than a brief adjournment to obtain instructions and, it appears, perfect his retainer. As a result, the matter was remanded to November 5th, some 13 days later.
[15] A four-day preliminary inquiry was set down on the return date of November 5th: July 18, 19, 20 and 25, 2017. Crown and defence counsel were available beginning in March 2016, but the earliest dates offered were in early July. The assigned Crown's vacation schedule prompted selection of the later July dates. These preliminary inquiry dates were confirmed on January 21, 2016, with the parties affirming that disclosure, in defence counsel's words, "seems pretty complete". As it transpires, both counsel were mistaken.
[16] In a joint effort to streamline the conduct of the preliminary inquiry, Crown and defence counsel had several times communicated during the week preceding July 18, 2016, the first scheduled preliminary hearing date. The nature of their exchanges made apparent to Crown counsel that the defence was not in possession of an item of disclosure that both parties agree is highly, if not critically, material. The missing disclosure was delivered to defence counsel on Friday, July 15th. As a result of the late disclosure, the preliminary inquiry was adjourned, at the request of the defence, before it began on the following Monday, July 18th. In the circumstances, Crown counsel rightly did not oppose the adjournment application. Nor did she request an interim waiver of s. 11(b) or otherwise flag any concerns respecting delay.
[17] The matter was remanded three weeks, to August 8th, to afford defence counsel a meaningful opportunity to review and assess the voluminous freshly disclosed materials before taking a further step. The defence then consented to the Crown proceeding by way of the summary conviction and the March and April 2017 trial dates and the preliminary motion date of December 20, 2016 were fixed.
[18] The significance of the late disclosure is not at issue. Nor is the fact that this material was not disclosed to the defence until the very eve of the scheduled preliminary inquiry. Nor is there any suggestion that the defence was knowingly "hiding in the weeds". The issue, rather, is whether the defence bears any responsibility for the belated disclosure and, if so, what if any proportion of the delay consequent to the inevitable adjournment of the July 2016 preliminary hearing dates it should assume. The following passages from the transcript of the Monday, July 18th appearance illustrate both the commonalities and differences in counsels' positions. They also help frame the core factual controversy on this s. 11(b) application.
Defence: Your Honour, unfortunately I'm asking for an adjournment this morning due to late disclosure received on Friday. …
The Court: … I gather your position is that upon receiving the data it's changed the playing field for what you expected, is that the issue?
Defence: Yes, absolutely. … We originally received the hard drive for this matter on … October 7th, 2015 and we had the judicial pre-trial based on that and that was the case the defence expected it had to meet and decisions about mode of election, and obviously the time estimate and strategy were made based on that.
This is a massive amount of data … that was provided on Friday. This isn't just a weekend project. It changes the core of the Crown's case … from the perspective of the defence, from what we expected it to be. It is in excess of 58 gigabytes of data. … [J]ust reviewing the officer's summary of what the Crown considers relevant, I haven't even been able to get through that yet.
It's definitely a game-changer. I need to be able to review it, investigate it, because some of that data isn't even contained with this hard drive, there's actually links to other sites, outside websites that are going to be investigated somehow. …
… [W]e need this to come back in approximately two to three week … so that a new date can be set …
The Court: All right, thank you. Ms. Gibson [Crown counsel], let me hear your take on this.
Crown: I spoke with my friend on Thursday … and based on the contents of that conversation it kind of made me think that maybe my friend was missing something.
So I called him back on Friday to see if in fact on [the] hard drive that he had previously been provided, if he had all of the exhibits that was listed and then he mailed me back to say, no; in fact, one of the exhibits was missing.
So, it is clear that that means if exhibit one is the basis of the Crown's case in the particular matter, there is a lot of data on that. So when my friend emailed me last night to say he'd be seeking an adjournment, I said on that basis I would not be opposing give that he does have to have time to review that.
But I do have to put a few things on the record. … The hard drive … was provided in October. … Officer Saini's notes were … picked up by my friend on December 15th, 2015. He is the technological exhibits officers. He is the officer who reviewed all of those exhibits including on the first page of … exhibit one.
… [I]t's clear that the Crown needs to provide this. We ended up providing it but at the same time, I think there's some obligation on my friend to review the hard drive, to look at it, to say there's an exhibit missing.
Clearly … it was an oversight when we were providing the hard drive with all of the data, but … this was a significant time ago and to the best of our knowledge, we thought the disclosure had been fully completed so the missing exhibit was an oversight and it certainly wasn't intended to derail the process. I appreciate it now has but that's the situation we're in.
Defence: Your Honour, I just want to make something clear about what this new information is. … Exhibit one, for all intents and purposes, … relates to the main laptop, the one that is said to belong to Mr. Keyes.
What I received in the October 7th hard drive included information extracted from exhibit one. A lot of information, and I expected that, including what they say were the images or videos that were taken from it which allegedly constitute child pornography and things of that nature.
So, I've had a lot of information with regard to this exhibit one and I expected that. If I was missing anything on that primary laptop, I'd have been going to my friend's office right away saying I don't have the information with regard to this laptop.
What I received in this new disclosure on Friday was a whole new grouping of information with regard to on-line activities which were extracted in a large part from the unallocated space from exhibit one which I did not have before.
So I wasn't going in there thinking, oh, the Crown just forgot to give me everything that they have about the primary laptop which is the centre of this case. On Friday, I was given suddenly new information which related to that primary laptop. I thought I had all the information I needed in regard to that.
[19] The adjournment having been granted, the matter was remanded three weeks, to August 8, 2016, for a further judicial pre-trial. At the set-date appearance immediately following the JPT, Crown counsel introduced the case by noting,
This matter was up for a preliminary hearing in July and a couple of days prior to that prelim we realized that [defence] counsel did not have the IEF [Internet Evidence Finder] results for one of the exhibits – the main exhibit, in fact – and ultimately as a result of that the preliminary hearing had to be adjourned.
… Due to the time frame, the Crown has to proceed by indictment but I understand that my friend is now prepared to consent to allow us to proceed summarily and so I am content to do that …
It is my understanding that an IEF tracks the internet activity of a specific computer. The computer here at issue, and the one for which production of the IEF was regrettably delayed, was the seized laptop to which the Crown alleges the Applicant had exclusive access – that is, "the main exhibit".
[20] In light of the defence waiver of any jurisdictional impediment, the March and April 2017 trial dates (effectively the first offered by the Court) were then fixed, as was the December 20, 2016 hearing for the preliminary Garifoli motion. As earlier explained, by Form 1 served some 30 days in advance of December 20, 2016, the defence filed notice of its intention to utilize the date bookmarked for the Garifoli motion for an application to stay the proceedings for unreasonable delay.
[21] The Applicant, as set out in his sworn affidavit, is a 53-year-old man without criminal antecedents. He avers to the mental anguish, occupational frustration, health complications and financial ruination he has suffered subsequent to being charged. Much of this flows from the nature of the charges and the notoriety that attend them, but there is little doubt that their impact has been exacerbated by the protraction of the proceedings. Crown counsel declined to cross-examine the Applicant on his affidavit. To the degree that it remains relevant to a post-Jordan transitional analysis, she fairly concedes that the Applicant has endured actual and inferred prejudice as a result of the delay.
(b) The Governing Law
[22] The authoritative approach to the assessment of s. 11(b) claims is that set out in R. v. Jordan, supra. In expressly overruling R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court took a sharp knife to the Gordian-like knot into which unreasonable delay jurisprudence had wound itself. For reasons of doctrine and efficiency, the Jordan Court largely reconstructed the s. 11(b) analytical scaffolding so as to put an end to the "culture of complacency" that had frustrated the right to trial without unreasonable delay. The "micro-counting" and judicial "guesstimations" that had come to characterize the application of the "Morin framework" were condemned for allowing "tolerance for ever-increasing delay": Jordan, at para. 37. Instead, courts hearing s. 11(b) applications were cautioned that they "must avoid failing to see the forest for the trees" (here invoking the wisdom of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18) or, as said, at para. 91, "trial judges should step back from the minutiae and adopt a bird's-eye view of the case".
[23] The Court of Appeal helpfully summarized the Jordan methodology in R. v. Coulter, 2016 ONCA 704, at paras. 34-40:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling [of 18 months in the case of provincial court trials], it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
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 (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
The same calculus, including the presumptive ceilings, applies to "transitional" cases that, as here, were within the system before the release of Jordan on July 8, 2016 (Jordan, paras. 41 and 94). Where, as summarized in Coulter, at para. 56, the remaining delay exceeds that ceiling (here, 18 months), a "transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took is justified based on the parties' reasonable reliance on the law as it previously existed (Jordan, para. 96)".
(c) Applying the Law
(i) Total Delay
[24] The total delay in this case is 23 months.
(ii) Defence Delay
[25] The Jordan framework comprehends two types of defence delay: waiver (which was never manifested in the case before me) and that "delay caused solely by the conduct of the defence". The latter form of defence delay has two variants. As explained in Jordan, at para. 63:
This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" ([R. v. Askov, [1990] 2 S.C.R. 1199], at pp. 1227-28). …
There is no suggestion that the Applicant's conduct fell within the second sub-category of "deliberate and calculated tactic[s] employed to delay the trial".
[26] As to the first sub-type of defence-caused delay, the Court in Jordan notes, at paras. 64-66, that:
… [T]he defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay … .
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. …
[27] The Crown seeks to characterize the 13-day interval between the JPT on October 23, 2015 (when Crown counsel signaled she was ready to fix a hearing date) and the next appearance (November 5, 2015, when the July 2016 preliminary inquiry dates were set) as "defence delay". As noted earlier, the defence sought the two-week adjournment to finalize instructions and perfect his retainer. But for this brief adjournment, the defence was prepared to move forward despite fully appropriate but still outstanding disclosure requests. In light of the general conduct of the defence and the brevity and purpose of the remand, I view this adjournment request as reasonable. It was certainly "not frivolous". In the result, I would not deduct these 13 days from the 23-month total delay.
[28] If I am in error in my legal colouration of these 13 days, I wish to make clear that their subtraction from the "total delay" would have no impact on the ultimate determination of this application.
(iii) Net Delay
[29] The "net delay", then, remains some 23 months – five months in excess of the presumptive ceiling. Accordingly, the delay to trial is presumptively unreasonable. The Crown can rebut this presumption if, and only if, it establishes the presence of "exceptional circumstances" under either or both of the conventional and transitional rubrics formulated in Jordan.
(iv) (General) Exceptional Circumstances
[30] The list of "exceptional circumstances" is not closed but, "in general", as said in Jordan, at para. 71, "exceptional circumstances fall under two categories: discrete events and particularly complex cases". A medical emergency or a witness who unexpectedly recants while testifying illustrate the former category. The Respondent, as put in its factum, "concedes that there were no discrete events that caused delay in this matter".
[31] The Respondent does, however, plead exceptional circumstances, both with respect to the complexity of the case and that flowing from the substantial late disclosure that precipitated the nearly-nine-month delay following the aborted preliminary inquiry.
[32] As to the delay arising from incomplete disclosure, the Crown readily acknowledges its responsibility to provide full disclosure. It asserts, however, a "corresponding duty on the defence to ensure that it is in possession of all of the relevant disclosure". What the Crown styles defence counsel's "surprising" failure to recognize the missing disclosure should, it says, result in the deduction of the entire nine months from the overall delay – thus reducing the total delay to trial to just over 14 months, or well under the presumptive ceiling of 18 months prescribed by Jordan.
[33] In the alternative, Crown counsel claims that as "there is some 'fault' on both sides" at least some portion of the nine-month delay should be subtracted from the total delay to reflect this shared responsibility. The precise quantum proposed by the Crown is five months – which, conveniently enough, "would bring the total duration of time to trial to just under the 18 months" directed by Jordan.
[34] I am not all persuaded that it is "surprising" that defence counsel failed to recognize that what is now understood to be a crucial facet of the prosecution's case had not been disclosed prior to July 15, 2016. Defence counsel, I find, understood that the contents and analysis of the hard drive for exhibit 1, his client's personal computer, was of critical importance. He appreciated that the original disclosure of the hard drive was incomplete and had been replaced in October 2015 by a larger hard drive that contained additional probative materials. He knew that the disclosure he did have respecting exhibit 1 contained the kinds of files and internet tracking data that he quite reasonably assumed formed the core of the prosecution's evidence. He believed, in short, that he had received full disclosure of the case to meet long before July 2016.
[35] Defence counsel was not reticent to pursue legitimate disclosure requests throughout the period preceding the preliminary inquiry. He was not, in my view, guilty of any laches. While he cannot "remain passive" if he "knew or ought to have known" that the Crown, through inadvertence, had failed to make material disclosure (see, R. v. Dixon, [1998] 1 S.C.R. 244, at paras. 37-38), defence counsel did not negligently shirk any correlative responsibilities as, I find, he neither knew nor, in all the circumstances, ought to have known of the missing disclosure. Nor, in my view, was he at fault – directly, indirectly or contributively – for the Crown's failure to provide the crucial IEF until the very eve of the scheduled preliminary inquiry. Defence counsel cannot be held responsible for not requesting disclosure of something he does not know exists and which, as I understand the process and nature of the incremental disclosure with which he was provided, he had no reason to infer was missing.
[36] The Crown's position, at best, is that its non-disclosure of highly material files was an inadvertent mistake or oversight. I have no doubt that the failure to convey these additional exhibit 1 materials to the defence was not intentional, but that does nothing to abbreviate the unreasonable delay endured by the Applicant or to mitigate the prejudice he suffered, both presumed (under Jordan) and actual (as conceded by the Crown).
[37] I appreciate that the list of exceptional circumstances is not closed, but the cognizable inventory does not, in my view, categorically extend to substantial and consequential "mistakes" made in the execution of the Crown's constitutional obligations. In Jordan, at para. 69, the Court affords an exhaustive "definition" of "exceptional circumstances" as those that,
… lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. [Emphasis in the original.]
To be clear, there are two conditions precedent to the invocation of exceptional circumstances, each of which must be satisfied to secure its doctrinal grace.
[38] There may well be occasions – last-minute witnesses, sudden recantations, fresh forensics, for but a few examples – when late disclosure proves unforeseen or unavoidable. For the most part, however, disclosure, and its timing, is a matter entirely within the Crown's control. There is always a risk of oversight or mistake in the provision of disclosure, even one that may imperil a prosecution, but the risk is both foreseeable and avoidable. The obligation to make complete and opportune disclosure is within the administrative capacity of the Crown's office. It is the Crown's job to monitor and manage the process of disclosure. It is not the court's function to excuse the Crown's miscarriage of its constitutional duties by elevating routine "mistakes" into exceptional circumstances". Such an approach would only condone, even encourage, the very trial delays Jordan is at pains to diminish if not eliminate.
[39] Nor can it be said that the Crown has here met the second, and equally essential, leg of the definition of "exceptional circumstances". As the Supreme Court instructs at para. 70 of Jordan:
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [Emphasis added.]
The Crown endeavoured no such "reasonable steps" when faced, on August 8, 2016, with the ineluctable consequence of its failure to afford critical disclosure – the inevitable delay of the trial to a date beyond that constitutionally sanctioned by the Supreme Court.
[40] With respect the events surrounding the very late disclosure of the voluminous files relevant to exhibit 1, the Respondent has satisfied neither of the definitional components of "exceptional circumstances". The doctrine provides it no shelter in this regard.
[41] The Crown's effort to invoke complexity as a further exceptional circumstance affords it no safer refuge. Considerable time and effort were almost certainly devoted to police and expert analyses of the hard drives of the seized computers. Irrespective of the length of this examination or the volume of material amassed, the Crown's case, including the critical IEF report referable to exhibit 1, was sufficiently assembled to permit its disclosure long before the cusp of the scheduled preliminary inquiry in mid-July 2016 – indeed, likely as early as October 2015 (that is, less than five months after the Applicant's arrest) when the replacement drive was provided to the defence and the Crown asserted its readiness to fix a hearing date. The precise date is irrelevant, as is the exact size of the undisclosed files or the work dedicated to their production. What does matter is that the Crown had possession of these highly probative materials long before mid-July 2016 and yet failed to disclose it to the defence. Put otherwise, the purported complexity of the case had nothing to do with the failure to disclose crucial aspect of that case until months after it was in the Crown's possession.
[42] Exceptional complexity may sometimes explain the delay involved in preparing full disclosure. It does not excuse a delay in affording that disclosure once it is within the Crown's control.
(v) Transitional Exceptional Circumstances
[43] As earlier noted, "transitional exceptional circumstances" may apply to cases already "in the system" at the time Jordan was released and in which, as here, the total delay exceeds the presumptive ceiling of 18 months "when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed": Jordan, para. 96. As the Supreme Court explains, there is to be some allowance in the application of the new s. 11(b) formula in jurisdictions where, as said at para. 94, "prolonged delays are the norm [as] it will take time for these [Jordan-imposed] incentives to shift the culture". Similarly, as put at para. 97, [j]udges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality" in assessing delay as local "Crown counsel need time to respond" to the implications of the Jordan decision.
[44] The jurisdiction harbouring the instant case, that of the Toronto Region, is one with which I am intimately familiar. It is not "plagued by lengthy, persistent, and notorious institutional delays". While unreasonable delay applications are relatively commonplace, and have been for the decade-plus that I have presided in this jurisdiction, their incidence is largely a function of an aggressive enforcement of s. 11(b) that has reduced the tolerance for delay. Exempting cases involving waiver or dilatory defence conduct, the outer limit of acceptable delay to trial for most Morin-governed prosecutions in Toronto provincial courts is approximately 12 months. Exceptionally complicated cases – as measured by, for example, the volume of disclosure and the time required to assemble it, the number and nature of Crown witnesses, the number of co-defendants, and the complexity of the legal issues – have historically been granted greater latitude.
[45] Other than referencing the substantial disclosure generated by the police examination of the seized computers, the Crown has not identified any complexities that elevate this case from the norm in this jurisdiction. And, as I have already observed, the delays attributable to production of the prosecution's case are far more attributable to the Crown's inattention to its continuing disclosure obligations than any difficulties related to promptly accessing, analyzing and reproducing the relevant files. In any event, the Respondent's "reliance on the law as it previously existed" hardly assists the Crown as late disclosure was never countenanced under the precursor regime. Indeed, "delay in disclosure" was one of the "actions of the Crown" expressly impugned in Morin, supra, in 1992. As there said, at para. 46, "such delay cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable".
[46] As should be clear, the Crown has failed to persuade me that any "transitional" considerations exempt this case from close application of framework developed in Jordan. There is simply no evidence of Crown reliance on the norms implicit in the earlier s. 11(b) regime. Even if there were, the role of prejudice and the seriousness of the offence in informing that assessment do nothing to advance the Respondent's cause. As the Crown has rightly conceded, the Applicant suffered actual as well as inferred prejudice attributable to delay. And, as said by the majority of the Supreme Court in R. v. Williamson, 2016 SCC 28 (the companion case to Jordan), at para. 36,
[W]e consider that the Charter right is respected, and the public interest is best served, by trying serious charges on their merits in a timely fashion. These are precisely the cases that should be heard promptly, on the strongest possible evidence. [Emphasis in original.]
The offences in Williamson involved repeated sexual abuse of a child. The Supreme Court treatment of the seriousness of such offences closely echoes that of the Ontario Court of Appeal, from which the appeal was taken. The Court of Appeal's approach, on which the Crown could theoretically claim reliance as an expression of what Jordan styles the "law as it previously existed", affords no comfort in this regard. Despite describing the offences as "especially despicable", the Court entered a stay for unreasonable delay upon concluding that "Charter protections must be construed as to apply to everyone, even those alleged to have committed the most serious criminal offences" (R. v. Williamson, 2014 ONCA 598, 314 C.C.C. (3d) 156, at paras. 66 and 68.)
D. CONCLUSION
[47] For the above reasons, the s. 11(b) application is granted. The offences with which the Applicant was charged are stayed.
Released on January 11, 2017
Justice Melvyn Green
