W A R N I N G

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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 02 15 COURT FILE No.: College Park, Toronto 20-75003692

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

K.L.

Before Justice Lori Anne Thomas Heard on December 10, 2021 Oral Reasons for Ruling on 11(b) Application given December 10, 2021 Written Reasons for Ruling released on February 15, 2022

Counsel: Peter Hamm, counsel for the Crown Samiyyah Ganga and Adam Weisberg, counsel for the accused K.L.

Thomas J.:

[1] The Defendant's 11(b) Application was granted, and an Oral Ruling given, with herein Reasons to follow.

[2] K.L., the Applicant, was charged with sexual assault and exploitation. The Applicant's 5-day trial was scheduled to conclude on May 6, 2022.

[3] The Applicant and the Respondent both agree the total delay is 20 months and 13 days, taking into account seven days subtracted due to Defence delay, as per R. v. Gleiser, 2017 ONSC 2858, at para. 18 and R. v. Gill, 2020 ONCJ 124, at paras 28-30.

[4] The Respondent argued that "any delay in this matter must be viewed as an exceptional circumstance attributable to 'hurricane' COVID-19".

[5] The Applicant argued that Crown used the pandemic as a blanket excuse for all the delay without explaining the reasonable steps to mitigate the delay caused by unforeseeable events. The Applicant noted the leading cause for the delay was in the nine months that the Crown delayed in providing initial disclosure.

[6] The Crown could provide no evidence as to why each delivery promise failed despite repeated assurances of the disclosure's imminent arrival. The disclosure was delivered within seven days when a new Crown was assigned. There was no explanation how the newly assigned Crown was now able to provide the disclosure expeditiously when the initial Crown could not.

[7] As such, I found that delay was unreasonable and stayed the charges against the Applicant.

Allegations

[8] The allegations of the case are that the complainant and the Applicant were in a sexual relationship for three weeks in March 2016. The complainant, who was then 16 years old, met the Applicant when she hired him to take her cosplay photos. The two became friends then started a relationship. The Applicant took free photographs for the complainant and drove her places. The complainant told police that she consented to the sexual relationship but felt pressured and did not want to say no because she was focused on "people pleasing".

[9] Further, there was an allegation, in one instance, the Applicant continued to have intercourse with the complainant against her request that he stop.

[10] On July 29, 2020, D.L. an unrelated party, contacted Toronto Police Services about the rumours that the Applicant sexually exploited the complainant.

[11] On August 13, 2020, the police interviewed the complainant. The Applicant was arrested and released on an undertaking four days later, with the first appearance on October 20, 2020.

Summary of Proceedings

[12] On August 18, 2020, two days after the Applicant's arrest, counsel requested initial disclosure. The Crown's office advised that no profile had been created and told counsel to email back at a later date. Counsel sought initial disclosure six more times between August 19 and September 4. Each time, the response noted that no profile was created.

[13] On September 4, 2020, Applicant's counsel was in touch with the Deputy Crown to request initial disclosure and address a grammatical error on the undertaking. Again, the profile had not been created, as the Information had not been sworn. The Deputy Crown advised he would contact the officer-in-charge to have the Information sworn.

[14] On September 9, 2020, the Information was sworn.

[15] The Applicant's counsel sent four more requests for initial disclosure between September 17 and October 20, 2020. None of the letters received a response.

[16] The October 20th appearance was adjourned to November 13.

[17] By October 29, 2020, counsel sent another request for initial disclosure. Again, the Crown's office replied that disclosure is not ready yet, but they would notify when it became available.

[18] On November 11, 2020, the Defence sent another request for disclosure. There was no response to this request.

[19] At the November 13th appearance, a message from the assigned Crown, not Mr. Hamm, noted that disclosure had taken longer as "a lot of private information of a third party that needed to be addressed". Further, the assigned Crown anticipated it to be finished by November 16, 2020, and she will provide disclosure and have a Crown pre-trial "as soon as possible". Accordingly, the matter was adjourned to December 18 to accommodate the disclosure and the Crown pre-trial.

[20] No disclosure or communication came the week of November 16, 2020. As such, between November 23 and December 11, three more requests for initial disclosure were sent. Each time, the Crown's office responded that the team was notified, and the Defence would be notified once disclosure was available.

[21] At the December 18th appearance, the assigned Crown was present. Without explaining, she apologized for the delay and said she would get the disclosure to the Defence "by the end of the week, next week." Presumably, by December 24, 2020. The matter was adjourned to January 15, 2021.

[22] No disclosure was provided in the interim.

[23] At the January 15th appearance, there was no message from the assigned Crown as to the reason for the delay. The Crown in court advised he would follow up in an attempt to expedite the disclosure. The matter was adjourned to February 12, 2021.

[24] On February 9, 2021, with no initial disclosure and no correspondence from the Crown, the Applicant's counsel sent another request. Yet again, there was no response to this letter.

[25] At the February 12th appearance, the Crown in court advised the disclosure was being prepared by the administrative staff and needed Crown to review it before being disclosed. Accordingly, the matter was adjourned by three weeks at the Crown's request.

[26] No disclosure was provided in the interim.

[27] At the March 5th appearance, the Crown in court advised that the disclosure still needed to be screened and requested a further three weeks.

[28] On March 26, 2021, the assigned Crown advised that the disclosure would be sent on March 29, 2021 and provided dates for a Crown pre-trial beginning three days after the anticipated disclosure date.

[29] In court, the Crown confirmed that disclosure would be available on March 29. Therefore, the matter was adjourned to April 23.

[30] There was no disclosure or further correspondence from the Crown before the next appearance.

[31] At the April 23rd appearance, the Crown in court advised the assigned Crown was leaving the College Park office for another Crown office. The Crown stated he would write a memo regarding the outstanding disclosure issue to ensure it would not "fall through the cracks" while the matter switched to a different Crown. Accordingly, the Crown requested a brief two-week adjournment.

[32] No disclosure or Crown correspondence occurred in the interim.

[33] On May 7, 2021, the matter was traversed to be spoken to in Case Management Court before Justice Bhabha. The Crown in court advised he apprised the Deputy Crowns of the outstanding disclosure issue. He explained the hope is that the disclosure would be vetted and disclosed expeditiously. The Crown acknowledged that it was a "very long time for no initial disclosure", which is why he notified all the people he could to address the issue. He opined that some of the delay might be caused by Crown reassignment.

[34] Justice Bhabha advised that 11(b) was looming over the case. Her Honour noted that even if in the subsequent month disclosure was provided, Crown and judicial pre-trials were held, there was no guarantee that the matter would commence before the 18-month Jordan threshold. Her Honour further noted that the Crown would have to explain to a judge what the Crown did and what occurred concerning the disclosure delay.

[35] Her Honour queried whether the disclosure was still with the police. However, the Crown stated that he believed the disclosure had come from the police but needed vetting. Consequently, the matter was adjourned three weeks to the case management court.

[36] On May 17, 2021, initial disclosure was provided, approximately nine months from the arrest and initial request.

[37] The disclosure encompassed videos and statements from the investigation between August 4-17, 2020. None of the initial disclosure was significantly redacted. In particular, the complainant's statement was not considerably redacted. Essentially, there was nothing apparent to explain the delay in providing the disclosure or the need for months of review.

[38] On May 19, 2021, Applicant's counsel reached out to Mr. Hamm, the newly assigned Crown, to schedule a Crown pre-trial. That pre-trial was held on May 25.

[39] The parties scheduled a judicial pre-trial on June 24, 2021, the first available date.

[40] On the day of the judicial pre-trial, the parties scheduled a five-day trial with a section 276 motion to precede the trial. The Court was able to provide a trial in 10 months. The Defence was unavailable for the first dates, April 25-29, 2022 but was available immediately after for May 2-6, 2022. As such, that was when the trial was scheduled to proceed.

Legal Framework

[41] In R. v. Jordan, 2016 SCC 27, the Supreme Court stated that a trial delayed more than 18 months was presumptively unreasonable. The net calculation is the total delay subtracting any defence-only delay. That is when the only party unable to proceed was the Defence.

[42] Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness based on exceptional circumstances.

[43] If the Crown can rebut the presumption, any period of delay that was or could have been reasonably mitigated should be deducted from the delay calculation. If the delay is below the presumptive ceiling, the Defence has the burden to prove it made sustained efforts with meaningful steps to expedite the proceedings, and the case took markedly longer than it would have reasonably taken otherwise.

[44] Exceptional circumstances occur when events lie outside the Crown's control. In that, they are reasonably unforeseen or reasonably avoidable, and the Crown cannot reasonably remedy the delays stemming from the circumstance. There are two categories of exceptional circumstances: discrete events and particularly complex cases (Jordan, paras. 69-71).

[45] The Court was clear that it was not enough for the Crown to point to a past difficulty. To rebut the presumption, the Crown "must show it took all reasonable steps to avoid and address the problem of delay before the delay exceeded the ceiling", even if those efforts were unsuccessful (Jordan, para 70). [1]

[46] For a case to be particularly complex, it will depend on several factors. As stated by the Supreme Court, in paragraphs 77 and 79 of Jordan:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case

… And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. In a similar vein, and for the same reason, the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused's s. 11(b) right… [Emphasis added.]

[47] The Crown correctly states that the ongoing COVID-19 pandemic is a discrete event. As noted in R. v. Simmons, 2020 ONSC 7209, at paras. 70 and 72:

Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.

[48] The Crown cannot prioritize one case over another, particularly when thousands of matters were continuously adjourned and awaited trials: R. v. Allen, 1996 O.J. No. 3175 (CA), at para. 27.

i) Particularly Complex Case

[49] The Respondent submitted this case was particularly complex because it involved a novel Defence argument on the sexual exploitation count, and there was to be a section 276 Application.

[50] The Respondent argued that the novel argument required additional scrutiny of the police investigation and Crown case before redactions could be undertaken and disclosure prepared.

[51] Starting with the Crown's submission that the case was complex because of the section 276 Application, I rely upon the Crown's written submissions, which state that the section 276 Application "is a common necessity in cases of this nature." Further, the Crown provided no cases that support that the inclusion of a 276 Application makes a sexual assault case particularly complex.

[52] The regularity of sections 276 and 278 motions in sexual assault cases undermines any assertion that their presence makes a case particularly complex.

[53] With respect to the novel argument, there was no evidence of any additional scrutiny that needed to be undertaken. Instead, there was an absence of evidence as to why the Crown did not vet the disclosure by the November 13, 2020 appearance.

ii) Exceptional Circumstance

[54] The Crown provided no evidence of any steps taken to mitigate the delay or why the disclosure was delayed for such a lengthy period. [2]

[55] Not until May 7, 2021, was any concerted effort taken to provide initial disclosure to the Defence. After that, it was only 12 days for the disclosure to be provided. Within 36 days of receiving the disclosure, the case was pre-tried between counsel and judicially, and then trial dates were scheduled.

[56] Unlike in R. v. Lawson, 2021 ONCJ 39, there was no evidence before me as to how the pandemic affected the Crown's ability to vet the disclosure for over six months when it was presumably in the Crown's possession. Furthermore, there was not one instance where the Crown explained that any of the delay was caused by the pandemic, only that it was due to vetting the private information of a third party.

[57] Moreover, the Applicant was charged when the Courts slowly resumed operations. It commenced after the Crown was most acutely affected by the pandemic and the closure of courts (Lawson, para. 51). The Crown was well aware of the backlog, and that trial dates could be set later than expected in this case.

[58] Without evidence of efforts taken to mitigate the delay, the Crown cannot rebut the presumption of unreasonable delay: R. v. Bui, 2021 ONCJ 379, at para 44.

Summary

[59] I find that Crown not only failed to mitigate the delay and instead was the sole reason for the delay based on the record before me. Therefore, no time will be deducted from the 20 months and 13 days of delay.

[60] Nine months is markedly long to provide initial disclosure, especially when the Crown took over six months to conduct minimal vetting in a case that did not involve a confidential informant.

[61] Further, it is without question that the Applicant made sustained efforts to expedite the proceedings. There were 15 written requests and nine court appearances where the Defence repeatedly asked for initial disclosure. After receiving disclosure, the Defence participated in a Crown pre-trial within six days of receiving disclosure. Then again, participate in a judicial pre-trial at the earliest possible date. It is clear that once disclosure was provided, the Applicant prioritized this case and expedited the proceedings.

[62] The delay was unreasonable whether the case was under or over the ceiling, and a stay should be entered.

Released: February 15, 2022 Signed: Justice Lori Anne Thomas

Notes

[1] Bolded emphasis added.

[2] I do not fault Mr. Hamm for not being able to provide evidence. Mr. Hamm made every effort to obtain evidence as to the reason for the delay. The record was clear that Mr. Hamm proved to be extremely diligent on the file once he was assigned. As such, I expect he was as diligent with attempting to determine the reason for the delay.