WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2022 08 19 COURT FILE No.: 3111-998-19-1955
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ETHAN RACANELLI & ZACHARIAH MORALES
Before: Justice Allison Dellandrea
Heard on: May 5, 2022 Oral Decision released: June 17, 2022 Reasons for Decision on 11(b) Application released: August 19, 2022
Counsel: Ms. J. Bellehumeur............................................................................ counsel for the Crown Mr. Dennis Reeve ........................................ counsel for the defendant Ethan Racanelli Mr. David Reeve ..................................... counsel for the defendant Zachariah Morales
DELLANDREA J.:
Introduction & Overview
[1] The applicant Ethan Racanelli is jointly charged with the applicant Zachariah Morales on a single count of sexual assault against J.K. alleged to have occurred on December 1, 2019. Mr. Morales faces an additional count of sexual assault alleged to have occurred on the same date and at the same location against a second complainant, J.C.
[2] The Information against both applicants was sworn on February 13, 2020.
[3] The applicants elected to be tried in the Ontario Court of Justice.
[4] The total time from the swearing of the Information to the anticipated completion of the scheduled trial is 28 months, 12 days – far in excess of the presumptive 18-month ceiling established by the Supreme Court of Canada in Jordan for trials at the Ontario Court of Justice.
[5] The applicants seek a stay of proceedings pursuant to s. 24(1) of the Charter as a remedy for the alleged breach of their right to be tried within a reasonable time, pursuant to s.11(b).
[6] On June 17, 2022, after having received written and oral submissions from both applicants and from the Crown, I informed the parties in brief oral reasons that I was satisfied that the applicants had satisfied their onus of establishing a breach of their rights to be tried within a reasonable time pursuant to s.11(b) and imposed a stay of proceedings pursuant to s. 24(1) of the Charter. I indicated that more fulsome written reasons would follow. These are those reasons.
The Allegations
[7] The applicants are charged in relation to their attendance at the residence of one of the complainants, J.C., on November 30, 2019. Both J.C. and another female, J.K. were present. All four parties were consuming alcohol in J.C.’s bedroom in the basement area of the home.
[8] It is alleged that during the night, Mr. Racanelli penetrated J.K. while she was passed out in the laundry room and that Mr. Morales sexually assaulted both J.K. and J.C. by various forms of sexual touching while each of the women were unconscious. The applicants departed the residence after being angrily ejected by J.C. in the early morning hours.
[9] Later that day, December 1, 2019, the complainants provided their accounts of these allegations to Peel Police during their videotaped interviews.
The Timeline
[10] The applicants were arrested on February 3, 2020 for the alleged offences of sexual assault. An Information was sworn on February 13, 2020 and the applicants’ first court appearance was March 2, 2020. Initial disclosure was not available on the first appearance. The matters were adjourned to March 23, 2020.
[11] On March 15, 2020, the Ontario Court of Justice suspended all trials, preliminary inquiries and case management courts due to the COVID-19 pandemic. All scheduling matters for criminal cases were subject to presumptive COVID remands.
[12] Initial disclosure was provided to counsel via courier in late June/early July 2020. It included synopses, police notes and an incomplete summary of the complainants’ statements.
[13] The Crown emailed the applicants’ counsel on July 3rd seeking their clients’ consent to the provision of a DNA sample. Mr. Morales’ counsel declined the invitation on his client’s behalf and requested a Crown pre-trial (CPT) upon receipt of further disclosure.
[14] Correspondence was directed by the applicants’ counsel to the Crown on August 10, 2020 indicating that neither the videotapes nor transcripts of the complainants’ police interviews had yet been disclosed.
[15] On November 2, 2020, the Crown sent an email to Peel Police requesting the complainants’ video statements. The Officer in Charge (“OIC”) immediately replied, indicating that the video statements had been sent to the Crown server on March 9, 2020. The OIC suggested that the Crown consult with their internal IT support for assistance in retrieving the videos, if necessary.
[16] Between November 2020 and January 2021, the Crown and OIC corresponded regarding the preparation and submission of DNA warrants. The DNA warrants were issued on January 25, 2021.
[17] On January 11, 2021, counsel for the applicants attended court and repeated their requests for disclosure of the complainants’ statements. The matter was adjourned to February 22, 2021. The statements remained unavailable. Counsel additionally requested disclosure of the DNA warrant, Information to Obtain, and DNA report. The matter was adjourned to April 12, 2021. On that date, the statements, ITO and DNA analysis remained outstanding. Counsel repeated these requests on the record, and the matter was adjourned to May 31, 2021.
[18] On May 31st, counsel repeated their request for disclosure of statements, ITO and DNA results which remained outstanding. The matter was adjourned to September 20, 2021.
[19] On September 20, 2021 the applicants’ counsel requested that the matter be moved to the newly created judge-led Intensive Case Management Court (“ICMC”) at the earliest opportunity. The matter was adjourned to that court on September 24, 2021.
[20] The DNA reports were disclosed on September 22, 2021. The statements, and ITO remained outstanding.
[21] On September 24, 2021 the parties appeared in the “ICMC” and a Crown pre-trial was conducted in a breakout room.
[22] On September 27, 2021 the videos of the complainants’ statements were pushed by the Crown to the disclosure hub. The applicants’ video statements were disclosed by the same method the following day.
[23] The video of one of the complainant’s police interviews (J.C.) appears to be incomplete. The recording cuts off mid-sentence as the interviewer is posing the question “was there anything sexual at all between you ….” No additional (i.e.: complete) recording of this interview was provided prior to the hearing of this application.
[24] The trial time estimate form was completed at the Judicial Pre-trial (“JPT”) on October 1, 2021.
[25] On October 8, 2021, the trial dates were set. The Applicants accepted the earliest trial dates which were offered by the court of June 17-24, 2022.
Applicable Legal Principles
[26] In its landmark decision of Jordan, 2016 SCC 27, the Supreme Court of Canada delineated presumptive time periods within which an accused should be brought to trial in order to preserve their right to be tried within a reasonable time. For cases at the Ontario Court of Justice, the presumptive ceiling is 18 months. In cases where the total delay less delays either waived or caused by the defence exceeds this presumptive limit, the Crown bears the onus of demonstrating that the delay was reasonable, having regard to the complexity of the case or exceptional circumstances bearing on the matter’s scheduling.
[27] Where the delay falls below the presumptive ceiling, the defence may yet establish that the period of time to the end of the trial is unreasonable, and warranting of a stay. Stays of proceedings for cases below the presumptive ceiling are recognized to be rare, and reserved for only the clearest of cases: Jordan, at paras. 5; 46-8; 60.
[28] In Cody, 2017 SCC 31, the Court outlined the analytical steps which are to be followed by courts in their adjudication of s.11(b) claims under the Jordan framework, as follows:
(1) Calculate the total delay from the laying of the Information to the end of the trial.
(2) Calculate the net delay by subtracting delay waived or attributable to the defence from the total delay.
(3) Compare the net delay to the presumptive ceiling.
(4) If the net delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish:
(a) that the defence took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and;
(b) the case has taken markedly longer than it should have.
(5) If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The Crown must establish the presence of “exceptional circumstances” to avoid the imposition of a stay of proceedings. [1]
ANALYSIS
a) Total delay
[29] The analysis into unreasonable delay begins with the calculation of the total delay between the laying of the Information and the completion of the scheduled trial: Jordan, 2016 SCC 27, at para. 66; K.G.K., 2020 SCC 7 at paras. 2, 23.
[30] It is not disputed that in the instant case, the total delay between February 13, 2020 and June 24, 2022 is: 862 days, or 28 months and 12 days.
b) Defence delay and Discrete events
[31] Delays attributable to the defence are to be subtracted from the total delay. The clearest example of defence delay occurs where the time period occasioned by an adjournment is waived by counsel. Defence waivers of delay may be explicit or implicit, provided that the waiver is informed, clear and unequivocal: Jordan, at para. 61; Cody, at paras. 26-27.
[32] There was no express waiver of 11(b) by either applicant at any time in this case.
[33] There are other less obvious actions by the defence which may be characterized as defence delay. These include acts by the defence that are deliberate or calculated tactics to delay the trial (such as frivolous applications or requests), as well as acts which deliberately cause the delay (such as being unwilling, unprepared or unavailable to proceed when both the Crown and the Courts are available to do so): Jordan, at paras. 63 to 65.
[34] In Cody, the court clarified that only delays which are solely caused by the defence or which flow from illegitimate action by the defence are to be subtracted as defence delay: Cody, at para. 30.
[35] The history of the proceedings and the circumstances surrounding the defence action must be considered in the discretionary assessment of the impugned defence delay. The determination is “by no means an exact science” but is considered one which “first instance judges are uniquely positioned to gauge:” Cody, at para. 30.
[36] Both defence action and inaction may be considered defence delay where the conduct exhibits marked inefficiency or marked indifference towards delay. Counsel are thus expected to actively advance their client’s right to a trial within a reasonable time, to cooperate with Crown counsel and the court whenever possible, and to use court time efficiently in order to expedite the proceedings with dispatch.
[37] In this case, the Crown argues for the subtraction of two time periods from the total delay:
(1) The period between March 2020 and November 2020 (8 months), which the Crown submits should be characterized as a discrete event due to the Brampton Crown’s office transition to an electronic disclosure system.
(2) The period between January 11, 2021 and September 20, 2021 (approximately 8 months) should be characterized as illegitimate defence delay on the basis that the applicants repeatedly requested adjournments for outstanding disclosure instead of scheduling a Crown or Judicial Pre-trial.
[38] Respectfully, I reject the Crown’s mischaracterization of these periods of delay for the following reasons.
[39] In this case, the Crown’s delay in providing the complainants’ statements to counsel – for 21 months following their creation – is particularly problematic in view of the fact that the police had apparently sent the videos to the Crown some 18 months earlier, in March 2020. While the correspondence between the Crown and the officer in charge reveal that the Crown’s receipt of the videos from the police went unnoticed and unknown to them until November 2020, there was no evidence or explanation for why another 10 months passed before the Crown finally provided them to the defence.
[40] Several concerns flow from the unfortunate gaps in the Crown’s attention to its disclosure obligation during this period of time. First, no explanation was offered as to how the Crown did not know that the videos had been promptly dispatched to their server by the OIC in March 2020 – until the officer told them as much in November. It is understood that mistakes sometimes happen. Indeed, the court in Cody acknowledged that they are an “inevitable reality of a human criminal justice system.” [2] The Crown is not required or expected to meet a standard of perfection in meeting its disclosure obligation. However, when mistakes such as this one occur, the Crown must take immediate steps to remediate the error and minimize delay: Cody, at para. 59.
[41] Ms. Bellehumeur pointed to the onset of the pandemic in March 2020 which seriously complicated the Crowns’ usual access to the systems through which disclosure material was logged as having been received, and then forwarded on to the defence. In the case of video statements, these items were most often copied onto disks and sent by courier to counsel. By August 2020, the Brampton Crown’s office transitioned to an electronic disclosure hub designed to streamline and expedite the disclosure process by virtual means.
[42] Exceptional circumstances were described in Jordan (at para. 69) as follows:
Exceptional circumstances 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 when they arise.
[43] I accept that the transitioning of the Crown’s disclosure infrastructure system between March and August 2020 was both reasonably unforeseen and unavoidable. However, I am not persuaded that the Crown could not reasonably have remedied the delays arising as a result of that transition. There was no explanation offered as to how the statements were completely missed upon their receipt from Peel Police in March 2020, nor evidence provided of any steps taken to inquire about their status before November 2020. Had anyone gone looking for them, presumably they would have been located, and could readily have been disclosed.
[44] As Justice Kenkel observed in considering a similar circumstance in Silva, 2021 ONCJ 672 [3], while the initial COVID protocols suspended in-court proceedings, it should have provided Crowns with ample time while trials were not being held to contact police and remedy any disclosure issues risking potential delay. COVID cannot be considered a discrete event which caused any delay in this case.
[45] To be sure, by November 2020 the Crown was aware that the statements had been sitting on their server for 6 months, undisclosed – but still nothing was done to escalate the urgency of their retrieval and quick transmission of these items to counsel. Nor did the Crown inform either counsel or the court of the fact that they had received the statements from the police in March but were struggling to produce copies to counsel. The Crown has not established that this time period qualifies as an exceptional circumstance or discrete event which should be subtracted from the total delay.
[46] I likewise am not persuaded that any of the time between January 11 and September 20, 2021 should be considered defence delay.
[47] First, at no time did the Crown suggest that the disclosure requests being made by counsel were unreasonable or insist that a Crown or Judicial Pre-trial be set in its absence. These circumstances are distinguishable from those in both Hanan, 2022 ONCA 229 [4] and Carbone, 2020 ONCA 394 [5] where defence counsel either refused to set or adjourned pretrials over the Crown’s insistence that they proceed. Such was never the case here.
[48] Indeed, the disclosure which remained outstanding throughout this period included the items which Ms. Bellehumeur candidly and responsibly conceded to be the cornerstone of the Crown’s case, namely: the videotaped recordings of the complainants’ interviews, which counsel had been repeatedly and specifically requesting since August, 2020 and which they required to meaningfully assess their clients’ jeopardy. It is clear from Jordan that “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay:” at para. 53. Requests by counsel for integral items of disclosure are necessary, and legitimate steps in the discharge of their duty to their clients.
[49] Crown counsel argued that the impact of the delayed disclosure of the outstanding statements (until September 2021) was significantly mitigated by the provision of statement summaries which had been provided earlier (in July 2020) which should therefore have been sufficient to permit the scheduling of the Pre-trial, and trial, much sooner. There are two obvious flaws to this submission. First, the transcripts and correspondence during the relevant period of time reveal that the Crown never advanced this position or urged the scheduling of the Pre-trials at any time. The Crown’s ex post facto characterization of this time period as defence delay is therefore without merit.
[50] More obviously and importantly, the Crown’s submission misses the crucial point that statement summaries prepared by the police are not evidence. A summary is understood to be something other than a complete, accurate or verbatim transcript of a recorded statement. Regardless of how lengthy or detailed a summary purports to be, it remains the case that the accuracy and utility of any summary can only ever be verified by comparison to the original, complete recording. The well-recognized potential for inadvertent mistakes or omissions in any kind of summary underpins the requirements of certified court transcripts and emanates the best evidence rules.
[51] The Crown’s disclosure obligation compels them to provide the accused with all relevant materials within their possession in a timely fashion. The provision of unverified summaries neither relieves them of this duty nor makes the defence’s continued requests for the originals remotely “illegitimate” conduct, attracting of defence delay.
[52] Logic and fairness dictate that the Crown bears the responsibility for this delay. It would be a perverse result to characterize this time period as defence delay, as the Crown suggests, on the basis that the defence chose to repeat their requests for the most central piece of disclosure, as opposed to scheduling a Judicial Pre-trial to “call them out” for not having provided it. The Crown cannot in one breath admit to having inexplicably lapsed in their disclosure obligation of the most material piece of evidence for almost a year, then deny the responsibility for the delay it caused in the next: Frail, 2017 ONSC 5886 at para. 44 per Justice Shreck; Kande, 2020 ONCJ 446 at para. 10 per Justice Rahman.
[53] Illegitimate defence delay, according to Cody, arises from defence conduct which “solely or directly” caused the period of delay in issue: at para. 28. None of the impugned delay between January and September 2021 was attributable to the defence.
[54] Following the eventual receipt of the complainants’ videotaped statements on September 27, 2021, the applicants’ counsel promptly attended a JPT on October 1st, following which the trial date was set on October 8th.
[55] The Applicants agreed to the first available trial dates offered, of June 17, 2022.
[56] Throughout their conduct on their clients’ behalf, the Applicants’ counsel sought to advance their clients’ case with diligence and efficiency. No delay was expressly waived or solely the result of defence conduct.
Conclusion & Disposition
[57] The total delay between the swearing of the Information and the end of scheduled trial in this case is 28 months, 12 days. No delay was expressly waived or caused by the defence, nor were there any discrete events, exceptional circumstances or particular complexity which warrant subtraction from this total.
[58] The delay is prima facie unreasonable.
[59] The Applicants have established that their rights under s. 11(b) of the Charter have been infringed and that a stay of proceedings under s. 24(1) is warranted.
[60] The proceedings in respect of both Applicants are hereby stayed.
Released: August 19, 2022 Signed: Justice A. Dellandrea
[1] Cody, at paras. 20-25. [2] Cody, at para. 58. [3] Silva, 2021 ONCJ 672 at para. 18. [4] Hanan, 2022 ONCA 229 [5] Carbone, 2020 ONCA 394