Ontario Court of Justice

Date: 2023 11 24 Court File: Toronto 22-70003368

Between: His Majesty the King — And — Mario Rodriguez

Charter Section 11(b) Ruling

Before: Justice Brock Jones Heard on: November 22, 2023 Decision Released on: November 24, 2023

Counsel: M. Walia, counsel for the Crown M. Singh, counsel for Mr. Rodriguez

Jones J.:

Introduction

[1] On May 15, 2022, Mr. Rodriguez was charged with three offences relating to his prior intimate partner: pointing a firearm (Criminal Code section 87(1)); assault with a weapon (Criminal Code section 267(a)); and uttering a threat to cause death (Criminal Code section 264.1(1)(a)).

[2] The Jordan ceiling of 18 months was reached on November 25, 2023. The trial is now anticipated to end on January 10, 2024. The total delay is 19 months and 26 days (or 56 days over the ceiling.)

[3] Mr. Rodriguez brought an application to have the court declare his rights under Charter section 11(b) have been infringed. He seeks a stay of proceedings as the appropriate remedy.

[4] Ms. Walia opposes the application. She argues that three periods of defence delay should be deducted from the total delay. As a result, the remaining net delay is not unreasonable.

Analytical Framework

[5] In Jordan, the Supreme Court of Canada set out the framework for analyzing whether an accused person’s right to a trial within a reasonable time has been violated. Delay beyond the 18-month ceiling is presumably unreasonable.

[6] The burden then shifts to the Crown to demonstrate exceptional circumstances justifying the delay. If the Crown cannot establish exceptional circumstances to rebut the presumption of unreasonable delay the result will be a stay of proceedings under s. 24(1) of the Charter.

[7] In R. v. Coulter, 2016 ONCA 704, at paras. 34-41, the Court of Appeal clarified the analytical framework for the Jordan analysis as follows:

• Calculate the period from the laying of the information to the anticipated end of the trial to determine the total delay
• Subtract defence delay from the total delay, which results in the “Net Delay.”
• Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice.
• If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.
• To rebut the presumption, the Crown must establish the presence of exceptional circumstances, either through discrete events or by demonstrating it was a particularly complex case.
• Subtract delay caused by discrete events from the Net Delay, leaving the “Remaining Delay”
• If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
• If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[8] Mr. Rodriguez was charged on May 15, 2022, and an information was placed before the Ontario Court of Justice. On August 19, 2022, Ms. Singh was retained and appeared in court. She requested disclosure from the Crown’s office on August 21, 2022. Initial disclosure was provided the next day.

[9] On September 27, 2022, the body-worn camera footage of PC Terzo was provided to the defence. This footage lasted for 1 hour and 44 minutes. 58 minutes and 40 seconds of that footage was muted for an unknown reason.

[10] A Crown pre-trial (“CPT”) was held on September 28, 2022. The parties set a judicial pre-trial (“JPT”) for November 17, 2022.

[11] On October 26, 2022, Ms. Walia emailed DC Buchholz and asked for an update about outstanding disclosure materials. In particular, she asked for clarification regarding whether the statement of a witness, Ms. Gabriella Suarez, had been video recorded and if it was lost. DC Buccholz responded that while a statement was taken, only memo book notes could be located, not the video. Ms. Walia sent another email requesting clarification, as it was not clear if a video statement had been taken and was lost, or if the statement had never been taken on video in the first place.

[12] At the JPT with Thomas J. on November 17, 2022, this information was provided to Ms. Singh. The parties obtained a trial estimate which included a potential lost evidence application pursuant to Charter section 7.

[13] Ms. Singh appeared in case management court on December 2, 2022, and indicated she still needed to obtain instructions from her client about whether to pursue the section 7 application. She intended to set a trial date. The case was adjourned to January 13, 2023, for her to obtain these instructions.

[14] On January 13, 2023, Ms. Singh confirmed that she would bring the section 7 application. The parties set a second JPT.

[15] It was not until January 31, 2023, that Ms. Singh sent the trial scheduling form to the trial coordinator’s office to obtain trial dates. On February 3, 2023, the trial coordinator confirmed the dates of October 3 and 4, 2023, for a trial.

[16] Throughout March – August 2023, Ms. Singh continued to request outstanding disclosure from the Crown’s office. This included a 911 call, SOCO photos, and an update as to the status of the lost statement of Ms. Suarez.

[17] On August 23, 2023, Ms. Walia sent another email to DC Buccholz. She did not receive any further responses to her earlier inquiries. DC Buccholz responded on August 31, 2023, that the statement was never video recorded and later provided a “will say” explaining what happened concerning the statement. This information had not been previously conveyed to Ms. Walia.

[18] Ms. Singh filed her Charter section 7 application materials on August 30, 2023.

[19] On September 27, 2023, the body-worn camera footage of Sgt. Ulfat was provided. He was also an investigating officer. This audio was muted for a large portion of time, including during portions of the officer’s interactions with the complainant on the day of the incident.

[20] On September 28 the “will-say” of Det. Buccholz was finally disclosed to Ms. Singh.

[21] Ms. Singh requested more time for the trial on September 29 due to the late provision of these materials. She was also concerned some in-car camera (“ICC”) footage was outstanding. That footage was only provided on October 2, the day before the trial was set to commence. It is important to note that the courts were closed on October 2 to observe the National Day for Truth and Reconciliation.

[22] The trial commenced before me on October 3. Ms. Singh requested an adjournment due to the last provision of these disclosure materials. Additionally, she had been provided with some in-car camera footage (“ICC”) on October 2 via the electronic disclosure hub, which was the day before the trial was set to commence. [^1] I granted the defence application for an adjournment in part. The section 7 application would be argued on a future date, but the trial could commence the next day. Ms. Singh wanted to change the focus of her Charter application and have it encompass the failure of the investigating officers to fully record their interactions with the complainant.

[23] The trial began on October 4 but could not be completed. Further dates were obtained for the trial and Charter motion on January 8-10, 2024. Earlier dates were provided to Ms. Singh, but she was not available until December 29, 2023.

Position of the Defence

[24] Ms. Singh submits that the total delay exceeds the 18-month Jordan ceiling. There was never any waiver, either explicit or implied, of her client’s Charter section 11(b) rights. None of the Crown’s proposed arguments are correct, and no amount of time should be characterized as defence delay.

[25] While she has had to reformulate her proposed Charter section 7 application, that was caused by the late provision of crucial disclosure materials by the Crown. The three-day time estimate now required to complete the trial and Charter application was born of the failure of the state to adhere to its constitutional requirements.

Position of the Crown

[26] Ms. Walia submits three portions of time should be deducted as defence delay.

(i) August 5, 2022 – September 13, 2022

[27] Some portion of this period should be attributable to the actions of the accused. The initial disclosure materials were available on August 4, 2022, but Mr. Rodriguez did not retain Ms. Singh until approximately August 22, 2022. Ms. Singh did not request a CPT until September 13, 2022, and could have acted sooner. Ms. Walia suggests nine days be deducted.

(ii) November 17, 2022 – January 31, 2023

[28] Following the completion of the first JPT with Thomas J. on November 17, Ms. Singh should have immediately begun the process to set trial dates. However, she waited until January 31, 2023. Ms. Walia submitted that this was too long. She requests the full 75 days be characterized as defence delay.

(iii) October 4, 2023 – January 10, 2024

[29] While Ms. Walia concedes that the late provision of disclosure required an adjournment of the trial dates, she submits that the disclosure was not significant and its “practical impact” was minimal. Furthermore, the court and Crown were available on earlier dates but Ms. Singh was not available until December 29, 2023. At least some portion of this period should be characterized as defence delay.

Analysis

[30] There is no dispute the Jordan ceiling has been exceeded by 56 days. I therefore confine my analysis to the proposed areas of defence delay as argued by Ms. Walia. Those are the only areas that may reduce the total delay to less than 18 months.

(i) Initial Retainer and Setting the first CPT

[31] I do not agree that any time should be deducted from the total period of delay for the original intake period. To start, it was entirely understandable that Mr. Rodriguez required at least three months to retain counsel.

[32] Second, even though an initial disclosure package was available on August 5, 2022, on the Crown’s concession, this was entirely inadequate. Indeed, disclosure problems continued in this case well past the first CPT and subsequent JPT. Notwithstanding those problems, Ms. Singh still agreed to have a CPT with Ms. Walia within weeks of confirming her retainer. She had to review the existing disclosure materials, determine what she believed was missing, and arrange for a CPT on a mutually agreeable date.

[33] While it may be that this could have been accomplished even quicker, nothing presented in this hearing leads me to conclude that Ms. Singh did not act with due diligence at this stage of the proceedings.

(ii) Setting the Original Trial Dates following the First JPT

[34] Following the initial JPT with Thomas J. on November 17, 2022, the parties obtained a trial estimate. Yet Ms. Singh did not submit the trial scheduling form to the trial coordinator’s office until January 31, 2023. This was 75 days later. [^2]

[35] Ms. Singh submits that she required time to obtain instructions from her client about whether she would pursue the Charter section 7 application. Nevertheless, on December 2, 2022, an agent for her appeared in court and indicated on the record that the matter would be set down for a trial regardless of what happened concerning the section 7 application. She requested a further adjournment, which was granted, to January 13, 2023, to get instructions from the client.

[36] On January 13, 2023, an agent appeared again and stated that the section 7 application was being pursued and that a further JPT was required to reassess the initial trial estimate.

[37] Ms. Singh did not require 75 days to obtain instructions to set trial dates. There was nothing particularly complex about this application as it was initially conceived. A trial date was always going to be set regardless, and one should have been set as quickly as possible. That would have provided the parties with a target date to move towards. Additional time for a Charter application could have been secured later.

[38] As I will explain, the defence application had some merit both as it was originally contemplated, and as it transformed in light of the late disclosure that was provided after September 27, 2023. However, even when a defence application has merit, defence conduct that demonstrates marked inefficiency towards delay will be characterized properly as a form of defence delay for Jordan purposes: see R. v. Cody, 2017 SCC 31, at paras. 33-36. Phrased differently, “inaction may amount to defence conduct that is not legitimate.”

[39] If Ms. Singh had sent in the trial confirmation form sooner, I find that she would have obtained earlier trial dates than those that were ultimately offered by the trial coordinator’s office in early February 2023. I agree with Ms. Walia there was no legitimate reason for Ms. Singh to not send in the form to secure trial dates very shortly after the JPT. I am willing to afford at most ten days as a reasonable period for Ms. Singh to have obtained instructions from her client. [^3] Jordan requires all justice system participants to act promptly: see R. v. Chung, 2021 ONCA 188, at paras. 186-189; and R. v. G.S., 2022 ONCJ 427, at paras. 23-27.

[40] I therefore conclude that 65 days should be deducted as defence delay.

(iii) Delay resulting from the need to set additional trial dates in January 2024

[41] To fully appreciate why the trial needed to be adjourned for an additional three days after October 4, 2023, a detailed examination of the disclosure problems that plagued this case from its inception must be reviewed.

[42] A cloud of uncertainty hovered over discussions between Crown and defence counsel due to the lack of direct answers from the investigating officers about whether there was a video-recorded statement of Ms. Suarez. It was not until August 31, 2023, that DC Buccholz clarified there was never a video-recorded statement taken from Ms. Suarez, and not until September 15, 2023, that a formal statement from DC Buccholz was provided to Ms. Singh explaining matters. [^4] That was approximately 11 months after Ms. Walia first requested clarification from the investigating officers about this statement.

[43] During her testimony, DC Buccholz was surprised to learn she was listed as the “case manager” on a document entitled “witness list for disclosure”. She explained that the case manager was “usually the person that is assigned the case” and “would be the one that provides all the further disclosure… to the Crown”. She was not, in her view, the case manager. Rather, it was always Det. Ong. She could not explain why her name appeared on this document as the case manager. [^5]

[44] She did recall taking a statement from Ms. Suarez and being asked by Ms. Walia about it on October 26, 2022. She simply “assumed” there was a video of Ms. Suarez’s statement because the Crown asked for it, and accepted she should have done more to determine if there was a video statement. [^6] She even wrote to Ms. Walia that she was looking for it (meaning the video-record statement) and could not locate it. Surprisingly, she was reluctant to agree with the common-sense suggestion put to her by Ms. Singh that this would have left Ms. Walia with the impression a video-recorded statement of Ms. Suarez existed at some point. [^7] DC Buccholz was the very officer who took the statement in the first place yet she could not remember if it was on video or not.

[45] Det. Buccholz recalled asking Det. Ong (whom she viewed as the true Officer In Charge of the file) that same month about the video statement and he informed her there was not a video statement. DC Buccholz assumed for some reason that Det. Ong would communicate this information to Ms. Walia. She didn’t take any other steps to inform Ms. Walia herself.

[46] It was only on August 31, 2023, when yet another request for clarification came from Ms. Walia, that she finally explained that a video statement was never taken from Ms. Suarez. When pressed in cross-examination about why didn’t inform Ms. Walia much sooner, she testified that “I am not the Officer In Charge”, and she viewed this as Det. Ong’s responsibility.

[47] Det. Ong did not testify and the Crown provided no evidence from him for this application.

[48] It was entirely reasonable for Ms. Singh to want to spend some time during the first day of the trial cross-examining DC Buccholz about the existence, or not, of this statement. She did not have to take the will-say at face value given the tortured history surrounding this matter. It may have been that cross-examination of the officer clarified what had happened, or even exposed the possibility that the statement existed but another officer had taken it and it was misfiled. None of this was made clear at the commencement of the trial. Much of Det. Buccholz’s testimony was characterized by her uncertainty surrounding how and if any statement from Ms. Suarez was obtained even though she was the officer who interviewed the witness. She was also unclear about when or even if Det. Ong was able to clarify matters once she received Ms. Walia’s disclosure requests. [^8]

[49] DC Buccholz’s testimony on this issue was disappointing and displayed a serious lack of professionalism on behalf of how this investigation was handled by her division. Ms. Walia’s simple and direct request for clarification on whether the statement was even taken should have been provided shortly after she first communicated with DC Buccholz in October 2022. It is unacceptable that it took nearly 11 months to finally get an answer from her or Det. Ong. If either officer had taken the time to send a brief email to Ms. Walia or picked up a phone for a short conversation this entire issue would have been settled immediately. Yet neither officer bothered to do so. Instead, they collectively failed to respond to Ms. Walia’s inquiry and as a result, the trajectory of the case was affected.

[50] Had this matter been directly addressed by the end of 2022, Ms. Singh might have been satisfied with the responses provided or been able to settle any lingering disputes with the Crown’s office surrounding this statement well before the commencement of the trial. Instead, the existence or not of the statement remained a live issue up until the eve of the trial in October 2023. Time had to be set aside for Ms. Singh to explore this potential aspect of her proposed Charter section 7 application.

[51] Additionally, the late provision of the body-worn camera footage of Sgt. Ulfat caused more delay. The footage included the complainant speaking about the allegations. A large portion of the footage was muted, with no apparent explanation as to why. In R. v. Azfar, 2023 ONCJ 241, Justice Porter held that if a court concludes that an officer intentionally muted a body-worn camera while it otherwise should have been operational, that may give rise to a violation of section 7 of the Charter. For example, where an officer manipulates the audio-recording features of a body-worn camera in circumstances such that the police have failed to preserve relevant evidence, and where a court found that this was done intentionally to frustrate the constitutionally protected rights of an accused person, a finding of a breach might be inevitable.

[52] It is true that Ms. Singh was made aware, via some of the disclosure materials initially provided to her on September 22, 2022, that PC Terzo muted his body-worn camera when interacting with the complainant as well. But one officer muting his body-worn camera may not have given Ms. Singh, in her professional judgment, a strong enough foundation to bring an application under section 7 of the Charter. Once Sgt. Ulfat’s body-worn camera footage was provided days before the trial was set to commence, she had evidence of two officers engaging in this conduct, in similar circumstances, and the strength of her application grew immensely. [^9] What may have appeared to be inadvertent behaviour by a single officer could now be viewed as something else entirely. At a minimum, the late disclosure materials provided Ms. Singh with a legitimate basis upon which to question the officers about whether the practice was intentional, negligent or possibly even systemic within their division.

[53] Those factors would be relevant to determining if a violation of Mr. Rodriguez’s rights under section 7 of the Charter occurred, and what remedy would be appropriate if one was found. As held by Porter J. in Azfar, the “selective muting of aspects of an investigation by the police, with the result that those aspects are unavailable in disclosure provided to the defence, strikes at the very heart of the integrity of police investigations”: see para. 31.

[54] The Charter application is not frivolous and has merit, and Ms. Singh was entitled to an appropriate amount of court time to examine the officers and call any other relevant evidence. I therefore concluded it was reasonable for Ms. Singh to request an adjournment to re-assess how she would bring her Charter section 7 application accordingly and what amount of time was required to adjudicate it. [^10]

[55] Fundamentally, none of the delay that pushed this case over the Jordan ceiling would have occurred had the Crown provided full and complete disclosure well before the start of the trial. This includes core items of disclosure that were provided very late, such as the body-worn camera footage of Sgt. Ulfat and the ICC camera footage. While the significance of these items may be subject to debate, they both form part of the Crown’s Stinchcombe obligations. What practical value they had to the defence was for Mr. Rodriguez and Ms. Singh to determine after having a reasonable opportunity to review them. Providing them immediately before the start of the trial represents a stark failure of the Crown to meet its disclosure obligations in a timely manner.

[56] Several decisions of this court released this year have commented on the constitutional implications of the Crown failing to provide disclosure materials in a reasonable period: see, for example, my prior decision in R. v. Hotaki, 2023 ONCJ 261; Justice Mainville’s decision in R. v. Smith, 2023 ONCJ 222, and Justice Waby’s decision in R. v. Osifo, 2023 ONCJ 416. The adjournment to complete the trial was the direct consequence of the late provision of these disclosure materials.

[57] What remains for me to determine is how much, if any, of the time between October 4, 2023 and the continuation dates for the trial in January 2024 should be viewed as defence delay. In R. v. Hanan, 2023 SCC 12, the Supreme Court of Canada rejected the Crown’s argument that a “bright line rule” should exist in these cases. Specifically, the Court rejected the argument that all of the delay between the next available trial date following defence counsel’s rejection of a date previously offered by the court must be characterized as defence delay. Rather, “[a]ll relevant circumstances should be considered to determine how delay should be apportioned among the participants”: see para. 9.

[58] A three-day estimate to continue the trial, which is greater than what was originally contemplated, was also the result of this new disclosure material. Ms. Singh must still cross-examine the complainant about the circumstances of the alleged offences, her relationship with the accused, whether she knew the body-worn cameras were operating or not when she spoke to the officers, and what if anything was said to her when those cameras were muted. Furthermore, Ms. Singh will require time to examine both officers about why they muted their body-worn cameras and their appreciation of their professional obligations to keep and preserve relevant evidence. Ms. Singh may also choose to call defence evidence. With submissions on both the trial and the Charter application, this was a fair estimate of the time requirements to finish the case. The scope and nature of this trial has evolved considerably since the first JPT with Thomas J. That was, at best, a preliminary estimate of the time required for a trial based on the limited information contained in the initial disclosure package.

[59] I do not find that any of the time between October 4, 2023, and the continuation dates constitutes defence delay. Ms. Singh is a practicing lawyer and had other obligations previously scheduled, including a three-week Superior Court trial set to begin on November 27. While very early dates were offered to Ms. Singh in October and November 2023, she is not to be faulted for being unavailable on these dates. There was not enough notice for her to have cleared her schedule and she had other clients whose matters also deserved to be heard. Mr. Rodriguez was not in custody on these charges and there was nothing about this case that elevated its priority to such an extent Ms. Singh should have taken drastic steps for it to be heard sooner.

Conclusion

[60] Due to my deduction of 65 days resulting from Ms. Singh’s delay in submitting the trial scheduling form, I conclude the net delay in this case falls under 18 months. I therefore deny the application.

[61] The case remains dangerously close to exceeding the Jordan ceiling. It will be incumbent on both parties to remain focused and diligent on the continuation dates to complete the matter on time. Ms. Singh must also file her updated Charter materials at least 30 days before the commencement of the continuation dates for Ms. Walia to have time to respond. Ms. Walia’s responding materials should be filed with the court two weeks prior to the next date for the trial.

Released: November 24, 2023 Signed: Justice B. Jones

Footnotes

[^1]: The courts were closed on October 2 to observe the National Day for Truth and Reconciliation. [^2]: The Practice Direction issued by the Chief Justice of the OCJ requires defence counsel to fill out the trial scheduling form and submit it to begin this process: https://www.ontariocourts.ca/ocj/notices/procedure-scheduling-criminal-trials/ [^3]: This ten-day period is at the upper end of what I consider to normally be appropriate. Defence counsel should be able to send in the trial scheduling form within a few days following a JPT. Due to the uncertainty in this case about the viability of the proposed Charter application (stemming from the unclear answers from the Crown about the witness statement’s existence, or lack thereof), I have erred on the side of a longer period. [^4]: Testimony of DC Buccholz, October 4, 2023, at page. 25. [^5]: Testimony of DC Buccholz, October 4, 2023, at page 15. [^6]: Testimony of DC Buccholz, October 4, 2023, at pages 16 and 17. [^7]: Testimony of DC Buccholz, October 4, 2023, at pages 24 and 26. [^8]: For example, see the testimony of DC Buccholz, October 4, 2023, at pages 18-19, and 36-8. [^9]: Indeed, during oral argument I was informed that a third officer’s body-worn camera was also muted during portions of the investigation, but that officer’s involvement does not seem to be as directly tied to the triable issues in this case. [^10]: The original section 7 Charter application was also not on its face “manifestly frivolous” and therefore time had to be set aside for it to be heard: see R. v. Haevischer, 2023 SCC 11.