Court Information

Date: November 30, 2020

Information #: 19-1140

Court: Ontario Court of Justice

Parties: Her Majesty the Queen v. Morgan William Ottewell

Before: Justice of the Peace W. Rojek

Location: Guelph, Ontario

Date of Hearing: November 30, 2020

Appearances

Crown: M. Dolby (By Teleconference)

Defence: M. Murdoch (By Teleconference) for Mr. Ottewell

Ruling

ROJEK, J.P. (Orally):

The defence brought initially three applications in this case:

An application for the stay of proceedings on the basis that the defendant's right to trial within a reasonable time as guaranteed by Section 11(b) of the Charter of Rights and Freedoms has been denied.
An application to stay proceedings on the basis that the defendant has been subjected to a denial of the rights contemplated by Section 7 of the Charter of Rights and Freedoms.
An application pursuant to Section 35 of the Provincial Offences Act and Sections 7 and 11(d) of the Charter of Rights and Freedoms for the ordering of disclosure of all the "fruits of the investigation", and an order for counsel for Mr. Ottewell to have access to all materials in possession of the Crown and investigating officers.

The defence requested during proceeding on the 16th day of November 2020 that the Court would not deal with the second application (based on Section 7 of the Charter of Rights and Freedoms) until the end of trial and therefore, only two remaining applications were subject of the November 16, 2020 motion hearing.

The Crown opposed all three applications.

The Crown agreed to postpone hearing of the Section 7 application until trial.

Factual Background

Mr. Morgan Ottewell has been charged with the offence of careless driving causing the death of Wade Al Brodie; allegedly committed on the 19th day of November 2018.

Timeline of Proceedings

December 5, 2018: Mr. Ottewell was informed by the investigating officer he would be charged as the result of the accident.

January 15, 2019: The CFS report was completed.

January 22, 2019: An email was received by the investigating officer advising that the deceased had methamphetamine in his system. It seems from that email it was not clear for the coroner who caused that collision.

February 20, 2019: A Part III information had been sworn.

March 1, 4, 8, 11, and 25, 2019: The defence made requests for disclosure.

April 3, 2019: The first appearance was set. The defence requested disclosure about the disclosure provided. The court made reference to the Gandhi Application to expedite disclosure process.

May 1, 2019: The matter was adjourned until the 5th day of June 2019 to obtain disclosure.

April 3, 2019: A screening form was received by the defence.

April 8, 2019: A request for disclosure was sent to the Crown's Office.

May 1, 2019: The matter was adjourned until June 5, 2019. The defence indicated they wrote a detailed and comprehensive request for disclosure which was received on April 8, 2019 and that there was no response. The Court again made a reference to the Gandhi Application.

May 20, 2019: Defence requested disclosure. The Crown responded informing that a note was sent in SCOPE.

June 5, 2019: The matter was adjourned until August 21, 2019 to complete disclosure. The defence indicated to the Court that there was not complete disclosure provided. The Crown responded that the request for additional disclosure was sent to police but there was no response.

June 13, 2019: A Technical Traffic Collision Investigative Report was received by the defence.

July 29 and 31, 2019: The defence requested disclosure. The defence requested a toxicology report, coroner's report and EMS report.

August 7, 2019: The presence of methamphetamine in the deceased's system was disclosed to the defence. The Crown advised they would work on disclosure.

August 9, 2019: Some disclosure was received by the defence.

August 21, 2019: The matter was adjourned until November 8, 2019 for a judicial pretrial. The defence again raised the issue of lack of full disclosure. The Court again made a reference to the Gandhi Application and possibility of ordering the officer-in-charge to attend so lack of complete disclosure could be examined.

October 29, 2019: The 9-1-1 call recording was received by the defence.

November 6, 2019: Disclosure regarding toxicology, EMS, post mortem and some of the officers' notes were received by the defence.

November 8, 2019: The matter was adjourned until December 20, 2019 for a Gandhi Hearing. The Court ordered two officers involved in the investigation to attend on December 20, 2019. The Court indicated Jordan timelines.

November 13 and December 19, 2019: The defence requested disclosure. The defence also asked to have the officers attend court on December 20, 2019 with relevant notes.

December 20, 2019: One officer attended without her notes; the other officer did not attend. The matter was adjourned until February 7, 2020 for judicial pretrial continuation. The officer who did not attend was not notified by the Crown of the court date. The defence indicated a desire to obtain Information to Obtain, probably on the Search Warrant, which was declined by a justice of the peace. The parties identified three witnesses who were OPP officers and one civilian witness. The Crown did not have the schedule of one of the officers who works outside of the Wellington County jurisdiction. The Court did not have that schedule either. The Court brought the Jordan issue up again.

December 23, 2019: Some disclosure was received by the defence.

January 22, 2020: The defence met with the Technical Traffic Collision Investigating officer.

February 7, 2020: The matter was adjourned until March 6, 2020 for continuation of the judicial pretrial. It has been brought to the Court's attention that some additional disclosure was provided to the Crown and some time was needed to review the received material.

March 5, 2020: The TTCI Report was received by the defence.

March 6, 2020: The matter was adjourned until April 3, 2020 for continuation of the judicial pretrial and Gandhi Hearing. One of the investigating officers was ordered to attend. The court observed that an updated TTCI Report requested on February 12, 2020, probably was not completed. Initial trial time estimate was noted by the court to be four days and suggested the parties should communicate with the Trial Coordinator to start the process of arranging trial dates.

March 17, 2020: As the result of the Chief Justice Order, all matters before Provincial Offences Court scheduled between March 16, 2020 and April 3, 2020 have been adjourned until a later date.

March 24, 2020: A number of admissions were made by the defence in a pre-trial memorandum.

April 6, 2020: Information was provided to the defence that "Art Williams from our team" was working on the black box data and disclosure would be provided.

May 13, 2020: The defence requested from Trial Coordinator setting a JPT date for June 12, 2020 and to prepare trial dates.

June 12, 2020: This matter was placed on the court docket and has been adjourned until September 4, 2020 for judicial pretrial continuation. The defence expressed willingness to set trial date. The court observed that that was not possible due to the pandemic. The defence indicated that the disclosure was not completed by the Crown.

September 2, 2020: Nine pages of disclosure was received by the defence.

September 4, 2020: The matter was adjourned until October 2, 2020 for the continuation of judicial pretrial. The issue of lack of complete disclosure was raised by the defence. It was brought to the Court's attention that an email from the Coroner's Office dated January 22, 2019 was not disclosed to the defence for some time. There was an indication of a second TTCI report and of the vehicle recall, impact of air bags and possibility of calling Daryl Mayers from the Centre of Forensic Sciences. Information that Art Williams continues to work on the file was confirmed.

September 17, 2020: The defence offered any assistance to the trial coordinator to set trial dates and asked for an early date.

October 2, 2020: The matter was adjourned until November 13, 2020 for judicial pretrial continuation. The dates of March 8 to 12, inclusive, 2021 have been prearranged as trial days but not formally confirmed, and the matter has been adjourned until November 16, 2020 for the motion hearing. The defence sent an email to the Trial Coordinator saying the defence wished to assist in setting trial dates. The Crown did not contact Trial Coordinator to start the process of setting trial dates. The Court learned also that there was another TTCI Report being prepared but it was not available. The defence requested one day to be set for a motion hearing prior to actual trial dates to argue motions.

October 20, 2020: Materials were filed.

November 13, 2020: The matter was adjourned until November 16, 2020. (There was no transcript provided from November 13, 2020 court appearance).

November 16, 2020: Motion hearing day and the matter was adjourned until November 30, 2020 for a decision.

November 30, 2020: The Court was advised that the days of March 8-12, 2021 are still available for the trial in this matter. The defence brought to the Court's attention that there is still some disclosure outstanding. The Crown confirmed that there is some disclosure which is expected to be provided to the defence. The Crown concedes that there is no delay attributable to the defence.

Case Law Considered

The Court considered the following case law:

Analysis

Issues Before the Court

Two issues are subject of Court's deliberation:

The delay of proceedings.
Lack of complete disclosure.

These two issues are, however, connected to each other.

Defence Delay

There was no waiver of Section 11(b) rights by the defence.

It was agreed by the Crown that there was no defence delay in these proceedings.

There was an unexpected COVID-19 related courts' closure imposed on March 17, 2020.

The total time between swearing the Information and possible trial dates is 24 months and 21 days.

The Jordan Framework

The Supreme Court of Canada set out a new framework for determining Section 11(b) applications in R. v. Jordan, 2016 SCC 27.

Presumptive Ceilings

The Supreme Court set a presumptive ceiling of:

18 months for cases proceeding to trial in the Ontario Court of Justice (Provincial Court)
30 months for cases proceeding to trial in the Superior Court

Calculation of Delay

The first step is to calculate the total delay from the charge to the actual or anticipated end of trial, subtracting any defence delay to arrive at the "net delay".

If the net delay exceeds the ceiling, unless the Crown can establish exceptional circumstances, the delay is unreasonable and a stay of proceedings must follow.

Exceptional Circumstances

"Exceptional circumstances" are circumstances outside the Crown's control in the sense that:

They are "reasonably unforeseen or reasonably unavoidable" and
The Crown cannot reasonably remedy the delay emanating from those circumstances once they arise.

The circumstances need not be rare or entirely uncommon and will "depend on the trial judge's good sense and experience."

The list of exceptional circumstances is not closed but, in general, they fall under two categories:

Discrete events
Particularly complex cases

Application to This Case

This case is proceeding before the Ontario Court of Justice, Provincial Offences Court. The 18-month ceiling is applicable.

In R. v. Nguyen, the Ontario Court of Appeal stated in paragraph 26:

The language in K.J.M. is categorical -- the ceilings established in Jordan apply uniformly. Accordingly, while the POA is intended to provide a speedy and efficient proceedings for dealing with regulatory offences, the 18-month ceiling for single-stage provincial court proceedings established in Jordan applies to proceedings under Part 1.

This is a Part 3 matter but in the Court's view, the uniform ceiling of 18 months applies as it is a "single-stage" provincial court proceeding.

Defence Delay Analysis

The Crown agrees with the defence, and this view is shared by this Court that there is no defence delay in this case. The defence not only on a number of occasions asked for trial but also tried to cooperate with the prosecution, investigation and the court to bring this matter to a trial stage of proceedings. It made certain admissions in a pre-trial memorandum shared with the Crown information about the lack of recollection of the accident by the defendant; it met with the Technical Traffic Collision Investigator; it shared the defence's theory of what happened, and it caused the expansion of the investigation.

The Court does not find defence delay. Therefore the net delay is 24 months and 21 days.

Discrete Events

The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to the extent it could not be remedied.

COVID-19 Pandemic

It is a fact that due to the pandemic, Provincial Offences Courts were closed in mid-March 2020. It is the reason why the April 3, 2020 court appearance did not take place and this matter was adjourned until June 12, 2020. This amounts to two months and nine days.

The Provincial Offences Courts were partially operating, in this case, as of June 12, 2020. That was the day a continuation of the Judicial Pretrial occurred, followed by a number of court appearances.

Disclosure Issues

All transcripts are indicating disclosure issue through the proceedings in this matter starting with first appearance in April 2019. It was not an issue which was caused by COVID-19 pandemic. It started with not disclosing to the defence the email dated January 22, 2019 from the Coroner's office indicating the presence of methamphetamine in the deceased's system. The Crown admits that that email was not presented to the Crown until July 2019 and disclosed to the defence in August 2019.

In the view of this court it is delay attributable to the Crown.

Police and Crown Disclosure Obligations

The Court relies on the decision in R. v. McNeil. The Supreme Court of Canada stated:

In addition to clarifying these three uncertainties, this case provides an appropriate context within which to reiterate the respective obligations of the police and the Crown to disclose the fruits of the investigation under R. v. Stinchcombe, and to consider the extent to which relevant police disciplinary records and third party criminal investigation files should form part of this "first party" disclosure package. The Crown's obligation to disclose all relevant information in its possession to an accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence under Section 7 of the Canadian Charter of Rights and Freedoms. The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all materials pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.

The Supreme Court of Canada also made this observation:

Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruits of the investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by the police. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions -- see, for example, Section 42(1)(e) of the Ontario Police Services Act. Of particular relevance here is the police duty to participate in the disclosure process.

The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of police investigators to disclose to the Crown all relevant material in their possession. The police obligation to disclose all material pertaining to the investigation of an accused to the prosecuting Crown was recognized long before Stinchcombe.

And in the next paragraph:

The corollary duty of the police to disclose to the Crown the fruits of the investigation is now well recognized in the appellate jurisprudence. See R. v. Jack, R. v. T. (L.A.), R. v. Gagné, and Driskell v. Dangerfield.

It is also widely acknowledged that the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown. See R. v. MacPherson, R. v. Oliver, and R. v. Campbell.

The Supreme Court of Canada recognized certain difficulties the Crown may encounter if the relevant evidence had been gathered by an unknown government agency. The Court stated in paragraph 48:

As stated earlier, the suggestion that all state authorities constitute a single entity is untenable and unworkable. In order to fulfill its Stinchcombe disclosure obligation, the prosecuting Crown does not have to inquire of every department of the provincial government, every department of the federal government and every police force whether they are in possession of material relevant to the accused's case. However, this does not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material.

This is not the situation in the case before this Court. The Crown, or rather the police, knew since January 22, 2019 that the Coroner had information relevant to this investigation.

The Court follows the McNeil decision and does not accept late disclosing of the January 22, 2019 email by the police to the Crown as an explanation for not disclosing it in a timely fashion to the defence.

Outstanding Disclosure

The black box data from the vehicle is still outstanding since the defence met with TTCI on January 22, 2020 and need for an additional report has been established and, although the Crown states it is being worked on, it is still not done or provided to the defence.

The Crown had an opportunity to move on these issues at least after June 12, 2020, and it is not completed yet. If the disclosure requested by the defence was a new issue raised recently, it would be a different situation. In the Court's view it was not a situation which could not be remedied by the Crown when they re-started Judicial Pre-trial process and had the opportunity and assistance from the Court.

Calculation of Discrete Event Deduction

The Court would be open to consider the proposed period of March 12, 2020 to January 2021 when POA Courts will start hearing trials again, if the case was ready to be set for trial, with no outstanding disclosure and with proper scheduling of necessary officers and other witnesses. This is not the case in Mr. Ottewell's case.

For this reason, following the R. v. Drummond decision, the Court is prepared to include the time from March 12, 2020 to June 12, 2020 as a discrete event and subtract this period from the net delay.

The delay is therefore 21 months and 21 days.

The Court states for greater clarity, it would be prepared to include the whole period from March 12, 2020 to January 2021 as a discrete event if the matter had been completely ready to have a trial date set and only the COVID-19 pandemic court closure prevented setting trial dates.

Particularly Complex Case

The Supreme Court of Canada provided guidelines on how to apply the concept of Particularly Complex Cases. In the R. v. Cody ruling, paragraph 64, the Court said:

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative assessment. Complexity is an exceptional circumstance only where the case is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay will still exceed the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable.

A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time".

When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination which falls well within the expertise of a trial judge.

Assessment of Complexity

There is no acceptable explanation why the requested disclosure was not obtained and provided to the defence. The January 22, 2019 email was disclosed some 8 months later, the "black box" data was not obtained and the report by Art Williams is still not completed.

The case although extremely serious due to the loss of life of Mr. Wade Al Brodie does not seem particularly complex. This Court was told it would involve an eye witness, investigating officers, one being Technical Traffic Collision Investigator, Mr. Art Williams report and probably his viva voce evidence. The main issue is whether or not the Crown can prove beyond reasonable doubt that it was the defendant who drove carelessly. There is a defence theory already disclosed to the Crown that the black box data could prove or disprove allegations against the defendant.

Based on the limited indication of possible evidence to be presented during trial the Court does not find this matter, although with most serious consequences, is falling into the category of a particularly complex case. In the opinion of this court this is a serious matter of grave consequences but its level of complexity does not exceed many other cases heard in Provincial Offences Courts involving motor vehicles collisions.

Seriousness of the Charge

There is no dispute that Mr. Ottewell had been subject of extremely serious allegations for two years. There is no dispute that the defence did not cause delay in this matter.

The Court is fully aware of the tragic consequences of the accident which happened on the 19th day of November 2018 on Highway 6 near Kenilworth, Ontario. Mr. Wade Brodie lost his life as a result of this accident.

It is not a typical Provincial Offences Court case.

The possible penalties if a conviction is entered, are listed in Section 130(4) of the Highway Traffic Act:

On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver's licence or permit may be suspended for a period of not more than five years.

On the other hand, the right to have trial within a reasonable time is firmly established in Section 11(b) of the Charter of Rights and Freedoms:

Section 11 -- Any person charged with an offence has the right;

(b) to be tried within a reasonable time.

Conclusion on Section 11(b) Application

The court following the analysis of the law and facts presented to it with respect to the Section 11(b) Application found that the applicable delay in this case is 21 months and 21 days. This is above the 18-month ceiling for matters tried in Ontario Court of Justice.

This court did not find that this matter would fall into the category of a particularly complex case. Therefore, this court finds that the defendant's right to a trial within reasonable time was violated.

For the reasons indicated above there is no other remedy under Section 24 of the Charter of Rights and Freedoms than a stay of proceedings against Morgan Ottewell. Any other remedy would in the view of this Court only deepen the violation of the Section 11(b) right.

The stay of the proceeding in this matter is therefore ordered.

Section 35 Application

There is a second application brought before this court, namely for an order directing the Crown to complete disclosure. This application is based on Section 35 of the Provincial Offences Act which states as follows:

The court may, before or during trial, if it is satisfied that it is necessary for a fair trial, order that a further describing any matter relevant to the proceeding, be furnished to the defendant.

Considering the Court's decision on Section 11(b) Application and ordering stay of the proceeding, there is no need to rule on Section 35 Application. However, if this ruling would fail, this Court would make an appropriate order under Section 35 compelling the Crown to provide outstanding disclosure to the defence.

Costs

The Court is not prepared to deal with the request for costs since it is not making any ruling with respect to the Section 35 Application.

Closing

Thank you both counsel for assisting this court in proceeding on these two applications.

The Court will reserve its right to make grammatical or spelling corrections if they will be needed and to make final editing of the text of this decision before it will be released in writing.

Released: November 30, 2020

Justice of the Peace W. Rojek

Certificate of Transcript

Form 2 - CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Jacoba Near, certify that this document is a true and accurate transcript of the recording of R. v. Ottewell in the Ontario Court of Justice held at 59 Carden Street, Guelph, taken from Digital Recording, which has been certified in Form 1.

Date: January 5, 2021

R. v. Ottewell, 2020 ONCJ 623

Case Summary