Court Information

Date: June 11, 2019

Ontario Court of Justice

Central West Region - Brampton, Ontario

Parties

Between:

Her Majesty the Queen

— and —

Jazwant Dhillon

Before: Justice B Duncan

Heard on: May 8, 2019

Reasons for Judgment released on: June 11, 2019

Counsel

C Lynch — Counsel for the Crown

D Locke, Glen Henderson — Counsel for the Defendant

Judgment

B Duncan J.:

The Charges

[1] The defendant is charged with sexual assault, sexual interference (x2) and showing sexually explicit images to a person under age 16 (s 171.1) all offences dated between July 18 and 19 2017.

[2] This is an application under the Charter section 11B for a stay of proceedings due to delay.

[3] The allegation briefly is that the adult defendant participated in a game of hide and seek at his home with neighbourhood kids and at one point while hiding with the 8 year old victim, showed her a porn video on his phone, touched her sexually, and invited reciprocal touching.

[4] The Crown has elected to proceed by summary conviction procedure.

The Phone

[5] The defendant's cell phone plays an important role in this application. It was seized by police at the time of the defendant's arrest, the day after the alleged offence. However rather than being logged into and placed into secure police property storage, it was placed in a drawer of a desk in the police division investigative office. There it remained for about 15 months. It was not brought before a justice nor was a report made as required by the Criminal Code s 489-490.

[6] As the first trial dates (October 24-26 2018) approached, counsel for the defendant first verbally (late September) and then in writing (October 3) requested return of the phone because he wanted to review its contents in preparation of his defence. He noted that there was no indication in the disclosure or at the judicial pre-trials that the phone or its contents were going to be used by the Crown as evidence at trial.

[7] The defence inquiry sparked action by the Crown. An application for a warrant to search the contents of the phone was made and granted on October 17 2018. It authorized a search within a narrow time frame of a few days surrounding the alleged offence. [1]

[8] After the warrant was granted the phone was quickly examined by police who first orally and later in writing reported that evidence of pornography or at least traces of it, had been found. This late development resulted in consent adjournment of the October 24-26 trial and ensuing efforts to reschedule within 11b limits. Details of those efforts will be discussed below.

[9] In addressing the court on appearances when the phone and adjournments were discussed, the defence voiced its intention to retain its own expert to examine the phone itself or a copy of its contents. On November 19 2018 the defence made a written request for the "digital forensic image retrieved from the phone." On December 21 2018 the Crown responded that the phone had "not been imaged but that the electronic data for the time period set out in the warrant had been extracted". That data was said to be contained on a USB key that was then provided to the defence by way of disclosure.

[10] But the USB key was found by the defence expert to not contain the information that he required for his analysis in that it only showed "an extract of the folder structure". Emails between opposing counsel on this topic continued over the next few months [2] and as of the time of the hearing of the application before me (May 8) had still not been resolved. I have been informed that, very recently, on May 28 2019, agreement had been reached for the defence expert to be provided with the phone itself in order to conduct his analysis.

The History of the Proceedings

[11] The defendant was charged on July 19 2017. The trial is now scheduled for July 15-18 2019, almost exactly two years later. The history is as follows:

• July 19 2017 – arrest
• July 20 2017 – information sworn; defendant released on bail
• August 21 2017 – first appearance out of custody; counsel retained
• September 11 – October 30 2017 – three more appearances; Crown pretrial held
• November 22 2017 – Judicial pretrial held – to be continued
• December 20 2017 – Second JPT held; defence seeks time to review further disclosure and get instructions
• January 11 2018 – defence seeks further time to confirm instructions and review immigration consequences
• February 1 2018 – Defence seeks a short adjournment to confirm instructions
• February 8 2018 – Trial dates set for October 24-26 2018. Second stage (shortly before trial) pretrial set for September 17
• September 17 2018 – Second stage JPT held before Hawke J – no recorded proceeding – adjourned to September 24
• September 24 2018 – before Hawke J – on record - reference made to JPT and possibility of resolving case – adjourned to continue October 5
• October 3 2018 – Defence counsel writes to Crown requesting return of defendant's cell phone seized at time of arrest – "I have not been provided any disclosure or received any information to suggest the phone is being held as evidence upon which the Crown intends to rely at trial"
• October 5 2018 – before Hawke J – Court told that there is an issue that may prevent trial proceeding as scheduled. Crown says the issue is that the cell phone has not yet been analysed – adjourned to October 12
• October 12 2018 – before Stribopolous J – Court told counsel awaiting further disclosure – fast approaching trial dates noted – to October 16
• October 16 2018 – before Currie J – discussion of possible new dates though no application for adjournment yet made – to Oct 19 for further JPT before Hawke J and adjournment application if necessary
• October 17 2018 – warrant for contents of phone sought and granted
• October 18 2018 – forensic analysis of phone done
• October 19 2018 – trial scheduled for Oct 25-28 adjourned on consent. New dates set for December 3 – 5 2018. Defence counsel agrees to date with caveat that he has another trial which may or may not go ahead scheduled in St. Catharines on those dates. Forensic report re phone not available yet
• October 30 2018 – Forensic report ready for disclosure
• November 6 2018 – before Hawke J. Defence says it still doesn't have full expert's report and will likely be retaining own expert – defence contends that December dates are not viable – told to bring an adjournment application on notice – November 15 agreed to for adjournment application
• November 15 2018 – application to adjourn December trial brought by defence and opposed by Crown - before D McLeod J. Grounds for adjournment advanced were 1. Defence needed time to retain its own expert to examine phone 2. Defence needed time to prepare a section 8 application re the warrant 3. Inadequate trial time has been set (3 days) to accommodate these new issues. Also at the hearing of the application counsel told the court that his St Catharines trial was still going ahead so at least as of the date of the adjournment application he wasn't available in any event – adjournment of December trial dates granted.
• November 16 2018 – counsel appear again before D McLeod J to set new dates. Because child friendly court required, earliest dates are a year away – in November 2019. Crown counsel says this in unacceptable and wants to prioritize the case over other cases in order to get earlier date. However head trial co-ordinator required to authorize the prioritization and she is unavailable until the next week. Adjourned to November 23 2018 to set new trial dates. Section 8 Motion date set for December 17.
• November 23 2018 – four day trial set for July 15-19 2019. Also section 8 motion rescheduled for May 8. At the time these July dates were set the parties were offered the following dates; the Crown was available but the defence was unavailable:
  • December 18-21 2018
  • January 22 – 25 2019
  • February 25-28
  • March 4-7
  • April 8-11
  • April 15-18
  • July 2-5
  • July 8-11
  • July 15 – 18 – defence available – accepted
• May 8 2019 – hearing of 11B application (and section 8 application). Ruling reserved
• July 15-18 2019 – anticipated trial dates.

11B Analysis

Total Delay

[12] The total delay from charge to trial is almost exactly 2 years (24 months). Counsel agree that IF there were no periods of waived delay or defence caused delay, the presumptive ceiling date would have passed on January 20 2019.

Net Delay

[13] There are no periods of waived delay.

[14] The Crown relies on two periods of defence delay. First it is argued that there was excessive delay to get instructions after the December 20 2017 judicial pre-trial to the setting, on February 8 2018, of the first trial dates in October. The Crown says that no more than a month should have been required and seeks to have 19 days (December 20-31 plus Feb 1-8) deducted as defence delay. I agree. This pushes the presumptive ceiling date from January 20 to February 8 2019.

[15] The Crown also submits that, most significantly, the defence unavailability for the rescheduled trial, as set out above, was the sole cause of the delay beyond January 2019. Therefore the Jordan clock stops on January 20, a point in time under the presumptive ceiling of February 8. This submission brings into focus the pivotal issue on this application.

[16] As is well known, the pre-Jordan regime considered that defence counsel's unavailability on earlier dates did not foreclose reliance on subsequent delay when asserting an 11b claim. Counsel was not expected or required to be perpetually available: R. v. Godin, 2009 SCC 26. However in Jordan the Court held that "the defence will have directly caused the delay if the court and the Crown are ready to proceed but the defence is not." In R. v. Mallozzi, 2018 ONCA 312, the Court confirmed that Jordan meant exactly what it said. The Jordan clock stops with the first set of dates that the Crown and the court are available for trial but the defence is not: R. v. Jafour, 2019 ONCJ 175 para 21.

[17] However, more recently the Court has suggested that the clock stop "rule" may be more flexible. In R. v. Albinowski, 2018 ONCA 1084, the Court dealt with a Crown appeal from a stay entered at trial of three co-accused. The main issue concerned the trial judge's characterization of time from completion of pre-trial procedures (early October 2015) to the preliminary inquiry in September 2016. Dates for the preliminary were offered in January, February, July and August but were declined due to unavailability of one or more defence counsel. The trial judge characterized the time after the July dates as defence delay but not the time from January. The Court of Appeal found this to be reversible error but at the same time rejected a strict, inflexible rule:

46. Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach. ....

[18] However, on the facts, the Court held that it was error for the trial judge to have failed to characterize the unavailability of defence counsel from January as being defence delay. The Court pointed out that the earliest dates (in January) were offered three months earlier "in the days leading up to the remand appearance on October 6 2015" (para 20). The Court concluded:

50 ....While the dates [in January] may have been unexpected, the fact is that the court was able to offer dates allowing for a reasonable time for the defence to prepare for and conduct the preliminary inquiry in this case...

[19] The principle I take from Albinowski is that defence unavailability will not stop the Jordan clock if the dates are so soon as to not allow sufficient time for the defence to prepare.

[20] In this case the dates of defence unavailability in January (22-25) were two months after they were offered (November 23). Was that too soon?

[21] This was to be a trial, presumably requiring a higher degree of preparation – and hence more time for it – than a preliminary as in Albinowski [3]. How much time would be required to be ready for trial?

[22] One measure might be extracted from the pre-Jordan line of cases such as R. v. Lahiry, 2011 ONSC 6780, where Code J. clarified that systemic delay is not the entire time from set date to trial but that the time to prepare and get ready for trial must be deducted. In the simple drink/drive cases before him, that period was estimated at around 2 months in one case (para 37), 4 months in another (para 61) and just under 2 months in a third (para 117-120). A similar observation was recently made by Burstein J in R. v. Zikhali, [2019] O.J. No. 262, at para 33 where he said that "… historically 1.5 months was commonly used as an estimate of time reasonably required for the defence to ready itself for trial once it has received disclosure in a straightforward summary conviction case."

[23] By these measures, it can be assumed that the present case would require and deserve at least as much attention and preparation time due to the difficulties, delicacies (child witness) and the higher stakes involved. On the other hand, it might be assumed that much of the preparation had already been done for the aborted trial in October. Having regard to these circumstances, while I think it is a borderline call, I would not be prepared to find that the January dates were too soon – but for the factor of the expert witness.

[24] As for that factor: From the time that the phone issue arose and the search was conducted the defence said it intended to retain its own expert to examine the contents. In fact it did so, as the correspondence confirms. The defence would not be in a position to prepare this part of its defence – or at least to get very far in doing so – until it received the necessary disclosure of data for the expert to analyze. At earliest that occurred with the availability of the USB key on December 21 2018, a month before the January trial date. While there remains a dispute as to the suitability of that disclosure, even assuming the best case scenario for the Crown, in my view the proposed January trial dates were too soon and did not provide a reasonable time for the defence to be prepared for trial in these circumstances.

[25] An expert would have to be retained, the data that he required would have to be requested and acquired from the Crown; once received it would have to be analyzed by the expert who would then report his findings to counsel who would then have to determine whether the evidence was useful to his defence and obtain the client's instructions. If it was determined that the evidence was going to be presented, a report would have to be prepared and served on the Crown 30 days before trial: s 657.3 Criminal Code. While the expert could have been retained before December 21 2018 (and may have been) in my view the 30 days available until trial was not a reasonable or sufficient time to accomplish all of the other steps required for proper preparation. In fact compliance with the last step of service 30 days prior would be impossible. [4]

[26] On the face of it then, the January trial dates were too soon for proper defence preparation and the unavailability of defence counsel at that time does not stop the Jordan clock. The same would apply even more so to the December dates offered. The February dates were beyond the presumptive ceiling and there were no exceptional circumstances to permit an extension.

[27] But there is one big question remaining – was the defence pursuit of an expert analysis and expert evidence a legitimate step to take in the sense "legitimate" is used in Jordan (para 65) and R. v. Cody, 2017 SCC 31 (para 28-35):

"…a defence action may be deemed not legitimate in the context of a section 11b application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay."

[28] "Marked inefficiency" would certainly include pursuit of evidence that could have no or little conceivable value to the defence. At first I had difficulty imagining how a technical analysis could be necessary or even helpful to the defence given the facts here which I thought would give rise to a very simple issue of whether there was any porn at all on the phone – something that could easily be determined by any non-expert looking at it. I wrote to counsel to address this point and received the following response from defence counsel:

To be clear, we do not believe it is suggested by the Crown, and neither are we particularly looking for, actual files containing pornography on the telephone. The suggestion is that pornographic videos were at some point streamed on the phone. The Crown's case, as we understand it, is that "artifacts" or "digital fingerprints" of that streaming have been recovered and, more particularly, the dates and times of such streaming are ascertainable. With reference to these dates and times, the Crown hopes to corroborate the anticipated evidence of the complainant.

Hypothetically, the presence of "artifacts" or "digital fingerprints" on the phone is not likely at issue. The defence expert will be asked to focus on whether the dates and times, as advanced by the Crown, are in fact ascertainable and reliable.

On a further hypothetical, while it is not disputed that Mr. Dhillon owned the phone, the defence expert may be asked about any evidence on the phone – whether independently or in conjunction with other anticipated evidence – is available to support a theory that Mr. Dhillon was not the exclusive user of the phone.

[29] With this information, I am quite satisfied that the defence pursuit of an expert analysis of the phone was a legitimate step to take in defence of this case. [5]

Summary of 11B

[30] In summary, while the defence was not available for the January dates, those dates did not allow for a reasonable time for defence preparation in the circumstances of this case. The pursuit of expert analysis and evidence was a reasonable and legitimate step to take by the defence. Accordingly, the defence is not responsible for the resultant delay and the Jordan clock did not stop in January. The next dates offered were at the end of February and though defence counsel was similarly unavailable then and in subsequent months, all of those dates were beyond the presumptive ceiling date of February 8. There are no exceptional circumstances. I am obliged to find a violation of 11B.

Order

[31] The proceedings must be stayed.

Released: June 11 2019

Justice B Duncan

Footnotes

[1] The defence has also brought a section 8 application alleging that the information to obtain the warrant was misleading and incomplete particularly in omitting any reference to the fact that the police had been illegally (because no report had been filed) holding the phone for over a year. That application was also heard by me on May 8.

[2] Affidavit of J Dosanjh Tab 9 Applicant's application record.

[3] I don't take the 3 months in Albinowski to necessarily be a bench mark measure – only that it was considered sufficient prep time in the circumstances of that case for preparation for a preliminary.

[4] Nor could it be expected or assumed that the Crown would agree to abridgment of time. The Crown was rather oppositional to the proposed defence expert Mr. Musters and announced its intention to challenge his expertise and professionalism. That position may have now changed since the recent decision R. v. C.B., 2019 ONCA 380 para 138, et seq where the Court recognized Mr. Musters as an expert.

[5] In its factum the Crown has submitted that the defence should have pursued disclosure and its own expert analysis much earlier, presumably well before the first trial date. I disagree. The phone only became a significant issue when the Crown evinced an intention to use its contents as evidence.