Her Majesty the Queen v. Anibal Silva

ONTARIO COURT OF JUSTICE DATE: 2021·05·19 NEWMARKET

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

ANIBAL SILVA

Ruling on s 11(b) Application

Evidence and Submissions Heard: May 18, 2021. Delivered: May 19, 2021.

Counsel

Mr. Tony Vanden Ende ……………………………………………………...counsel for the Crown Mr. David Landesman …………………………………………………...counsel for the Applicant

Before: KENKEL J.

Introduction

[1] Mr. Silva is charged with Impaired Operation s 320.14(1)(a), 80+ 320.14(1)(b), and Failing to Stop for Police s 320.17. The Information was sworn May 16, 2019. The matter is now set for a three-day trial scheduled to be completed June 11, 2021. The applicant/defendant submits that the delay of almost 25 months breaches his right to a trial within a reasonable time under s 11(b) of the Charter. The Crown submits that after deducting two periods of defence delay and COVID delay, the net delay is just over 15 months and therefore below the presumptive ceiling for trials in this court. The applicant has not proven the delay was unreasonable.

[2] The bird’s-eye view – this case involves multiple failures:

• the failure of the police to respond to repeated requests for the disclosure of one document;
• the failure of all parties – the defendant/applicant, the Crown and the court to implement the Supreme Court’s instructions in Jordan and take active steps to prevent unnecessary delay;
• the failure of all parties to follow the direction of the Ontario Court of Appeal to set a trial date once core disclosure was made;
• and ultimately, the failure of the administration of justice to hold this trial within a reasonable time.

[3] These reasons explain why I find the delay in this case is a breach of the accused’s right to a trial within a reasonable time contrary to s 11(b) of the Charter.

Defence Delay

[4] The total delay is well beyond the presumptive ceiling for cases in this court. The Crown submits that there are two adjournments that should be attributed to defence delay – July 19, 2019 following what the Crown says was a late disclosure request, and October 4, 2019 for failure to hold a Crown pre-trial meeting.

[5] The July 19 adjournment was not due to a late disclosure request as the defence requested the disclosure one month prior on June 19, 2019. The fact that the Crown in the courtroom that day did not have the request noted in their SCOPE system can’t be attributed to the defence.

[6] October 4, 2019 was the 6th appearance in the matter. The Assistant Crown Ms. Barnier was right to advise the court that all core disclosure had been provided. Some further disclosure including the accident report was disclosed and picked up that day. That left one significant item outstanding – the departmental report. This case involved a collision between the accused’s vehicle and a police car. The evidence regarding the incident was disclosed including In-Car-Camera (ICC) video. While internal reports regarding the police vehicle would not automatically be disclosed, the relevance of this report was not disputed by the Crown.

[7] The disclosure to that point was sufficient to permit defence counsel to write a letter to the Crown on October 24, 2019 which referred to the police evidence. The defence took the position that the ICC videos showed the accused did not hit the police as alleged. The letter shows the defence had the core disclosure about the Crown’s case. It also shows that the Crown and defence had been in touch correspondence and that the Crown had acted on the other disclosure requests. As explained below, the matter was ready to set a trial date and judicial case management should have been engaged to deal with the remaining disclosure item.

[8] The defence did not waive any period of delay and the circumstances do not show that either adjournment cited by the Crown is reasonably attributable to the defence only.

Further Disclosure Requests and Delay

[9] Ms. Barnier was right that what was needed after the 6th appearance was active case management through the judicial pre-trial process. Unfortunately, what followed was a series of 11 adjournments (not counting the COVID adjournments) where the defendant, the Crown and the court were content to simply adjourn the matter on the basis that there was outstanding disclosure with little discussion. The Crown properly concedes that all of those adjournments count towards the ceiling as they agreed to each one without requesting that a trial date be set.

[10] From the March 20 appearance to October 16, 2020 all matters were adjourned due to the COVID-19 global pandemic. It was not possible to set a trial date during that time, but the office of the Crown Attorney continued to function, albeit with reduced staff and remote workers. During that period there was ample time for the Crown to obtain the outstanding departmental report from the police. It had been requested many times, even with tags such as “rush” indicating the urgency. There’s no evidence of any police response.

[11] The departmental report was still outstanding on October 16, 2020 and again on November 20, 2020 and December 18, 2020. The defence and Crown agreed to adjournments each time. By December 18, it was 18 months since the report had been requested.

[12] It doesn’t appear that the police responded to Crown requests for disclosure of the departmental report until January 27, 2021. On that date the Crown advised the defence that the police were asking about the relevance of the report to the case. A series of emails followed and on January 28, 2021 the report was provided electronically via the Disclosure Hub. Once the Crown had a response from the police, it took all of one day to resolve the issue.

[13] On January 29, 2021 the defence asked to set a date for a judicial pre-trial meeting. It had been 15 months since the Crown suggested that a judicial case management was required, but in the interim neither party had asked for a case management meeting and both parties were simply content to keep adjourning the matter. A judicial pre-trial case management conference was held on February 26, 2021. A trial date was set on March 24, 2021.

Disclosure Requests and Delay

[14] In R v Kovacs-Tatar, [2004] OJ No 4756, the Ontario Court of Appeal explained at para 47 that the Crown is obliged to make initial disclosure before an accused person is called upon to plead or elect their mode of trial, but it is unreasonable to insist that every item of disclosure be provided before a trial date is set. The court noted that even after a trial date is set, there is typically ample time before trial to obtain disclosure such as the expert report at issue in that case. The court repeated the same instruction in R v NNM, [2006] OJ No 1802 at para 37, “the Crown is not obliged to disclose every last bit of evidence before a trial date is set”.

[15] On October 4, 2019 the Crown was correct that all core disclosure had been made and the matter was ready to set a trial date. Both counsel should have sought judicial case management to obtain a trial time estimate and to manage the remaining disclosure issue. Subsequent events in January of 2021 showed how easily that issue could have been resolved.

[16] Judicial case management is not simply a process to confirm trial time estimates. In cases such as this, judges provide ongoing management of disclosure and evidentiary issues and they ensure that active steps are taken so that both parties arrive on the scheduled date ready for trial. It is important that judicial case management be engaged early in the process to avoid unnecessary delay. Waiting 15 months until disclosure is perfect as was done in this case was all wasted time. Under the prior Morin analysis it’s not plain that the defence would be able to complain about much of this delay, but the presumptive ceilings in the Jordan system require all parties including the court to monitor the case to eliminate unnecessary delay. In 18 appearances (not counting COVID presumptive adjournments) to the point the trial date was set, that simply wasn’t done.

COVID-19 A Discrete Event

[17] It is not contested that COVID-19 is a “discrete event” as that term is used in the Jordan framework. The period of delay caused by a discrete event must be subtracted from the total delay when determining whether the ceiling has been exceeded – Jordan at para 75. The issue on this point is whether COVID caused any delay in this case.

[18] Many trials were adjourned due to COVID and there was no ability to set a trial date during the period of presumptive adjournments. In many cases that time must be subtracted from the delay analysis. However, in this case the one thing that appeared to have been causing delay could have been remedied during the COVID period. The Crown had ample time while trials were not being held to contact the officer-in-charge as they later did months after the COVID shutdown. After the COVID shutdown period ended in October of 2020 the parties were still not ready to set a trial date. There were four more adjournments to January of 2021 before a judicial pre-trial meeting was set. The COVID discrete event does not appear to have caused any delay in this case. It was simply another missed opportunity to obtain a copy of the remaining document.

[19] In the alternative, if the Crown is correct that the COVID period must be subtracted from the overall delay, that still leaves 18 months delay. That’s the ceiling for this court marking the point at which delay becomes presumptively unreasonable.

Conclusion

[20] This case illustrates what the Supreme Court in R v Jordan 2016 SCC 27 called a “culture of complacency”. The presumptive ceilings established in Jordan require defence counsel, Crown counsel and the court to work proactively to ensure that the accused’s right to a trial within a reasonable time is not frustrated. The community also has a strong interest in timely trials.

[21] The delay in this case far exceeds the presumptive ceiling. There are no exceptional circumstances including COVID that justify the delay. I find the applicant has proved that his right to be tried within a reasonable time under s 11(b) of the Charter was breached. The proceedings must be stayed.

Delivered: 19 May, 2021. Justice Joseph F. Kenkel