Court File and Parties

COURT FILE NO.: CRIMJ(P) 981/21 DATE: 20230509 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – TEVIN BAILEY

Counsel: Gregory Hendry, for the Crown/respondent Kevin Kaczmara, for the accused/applicant

HEARD: April 26, 2023 Rahman, J.

Introduction

[1] The applicant, Tevin Bailey, is charged in a six-count indictment with human trafficking, procuring, receiving a material benefit, advertising sexual services, and exercising control. He applies to have the charges against him stayed because his trial has been unreasonably delayed.

[2] The applicant was charged on December 17, 2019. His preliminary hearing did not take place until July 2021, in part, because the COVID-19 pandemic affected the regular operation of the courts. The applicant’s first trial date was originally set for April 2022. That trial date was adjourned at the applicant’s request because his counsel was unavailable. The trial was re-scheduled for October 2022. The October 2022 trial date was adjourned because the Crown provided new disclosure the week before the trial was to start. The applicant was offered new trial dates beginning in January 2023, but he was unavailable until May. The applicant’s trial is now set to begin on May 8 and expected to conclude on May 15.

[3] The applicant argues that he is not responsible for any of the delay in this case. The total delay in this case, calculated to the expected end of the trial, is almost 41 months. The applicant submits that disclosure delays have “pervaded this case” and were the principal driver of the delay in bringing him to trial. The applicant argues that he is not responsible for the delay caused by the adjournment of the trial dates. Although he requested that the first trial date be adjourned, he contends that the trial could not have proceeded anyway because of incomplete disclosure. As for the adjournment of the second trial date, the applicant argues that he is not responsible for the delay from the first date offered (for which he was unavailable) to the date that was ultimately set because it was the Crown’s fault that the date had to be re-set. Finally, the applicant disputes the Crown’s contention that the COVID-19 pandemic’s impact on the courts’ operations caused any of the delay in this case.

[4] The Crown argues that once defence delay and delay caused by exceptional circumstances are subtracted, the remaining delay falls well below the Jordan ceiling. The Crown contends that the applicant is responsible for just over five months of delay because the April trial dates were adjourned to October. The Crown also argues that the applicant is responsible for the entire four and a half months of delay between January 2023 (when the Crown and the court could accommodate the re-scheduling of his trial) and May 2023 (when his trial was ultimately scheduled). Finally, the Crown argues that the COVID-19 pandemic constitutes an exceptional circumstance that impacted the progress of this case. Once that delay is taken into account, the remaining delay is well below the 30-month presumptive ceiling.

[5] On May 3, 2023, I released a brief endorsement advising the parties that the application was dismissed with written reasons to follow. These are those reasons.

Procedural History

[6] I will first review the main procedural steps in the life of this case.

Pre-pandemic

[7] The applicant’s matter was addressed in court only three times before the COVID-19 pandemic affected the normal operation of the Ontario Court of Justice.

[8] The applicant was charged on December 17, 2019 and was released on bail the next day. His matter was adjourned for a month, to January 20, 2020 for the Crown to provide disclosure. Disclosure was not available by that date, so the matter was adjourned for another month to February 18, 2020.

[9] The Crown did end up providing some disclosure by February 18. [1] The disclosure included two video statements provided by the complainant in July 2018 and May 2019. The Crown also disclosed synopses of statements made by two other people. The matter was adjourned for another month to March 17, 2020.

Post-pandemic

[10] The normal operation of the Ontario Court of Justice was suspended on March 16, 2020. As of that date, most matters were subject to a so-called “presumptive adjournment.” This meant that, like most out-of-custody matters, the applicant’s matter appeared on the court list, but was not addressed in court other than to automatically adjourn the matter for a set period. The applicant’s matter was adjourned on three occasions in this manner, on March 17, May 27, and August 4, 2020. It was not addressed on the record in court again until October 13, 2020. That appearance will be discussed further, below.

[11] In the interim, the parties conducted a Crown pre-trial conference on March 17, 2020. At that pre-trial, Crown counsel told applicant’s counsel that the “data dump” from the applicant’s phone had not been done yet. As it happened, although the applicant’s phone had been seized upon his arrest, the police did not obtain a warrant to search its contents until March 25, 2020. The extraction report for the cell phone’s data became available and was disclosed to the applicant in July 2020. [2]

[12] On October 1, 2020, the Crown emailed the trial co-ordinator’s office and requested a judicial pre-trial conference (JPT). The next day, applicant’s counsel emailed Crown counsel and explained that he was missing a witness statement and also the information to obtain (ITO) for the applicant’s phone. Applicant’s counsel took the position that it was premature to set a JPT considering the outstanding disclosure. Crown counsel emailed applicant’s counsel back on October 5, 2020 and advised that she was working on getting the missing statements to counsel and that she had also followed up on her request for the ITO. [3]

[13] The matter was addressed in court on October 13, 2020. The applicant took the position that he could not conduct a JPT until he received the outstanding disclosure. By that point, the main item outstanding was the ITO. When asked by the justice of the peace when the outstanding disclosure would be available, Crown counsel speaking to the matter (who was not assigned Crown counsel) said the following:

My notes indicate that the only thing that is outstanding is an ITO, there was an unsealing order request that was made by our office last week on October 7th. So we're just waiting on that and then once the ITO is vetted we will be in a position to set a JPT.

[14] The matter was adjourned to November 17, 2020. Although the ITO was still not available on November 17, applicant’s counsel agreed to adjourn the matter to January 5, 2021 and set a JPT in the interim.

[15] Applicant’s counsel did not email the trial co-ordinator’s office until December 12, 2020 to schedule the JPT. The JPT was ultimately scheduled for January 21, 2021. By the time of the JPT, the ITO still had not been disclosed. The applicant also requested some police notes that remained outstanding. The parties and the court agreed on setting a two-day preliminary inquiry.

[16] Applicant’s counsel diligently took steps a few days after the JPT to have a preliminary inquiry date set. However, because of the pandemic’s impact on the setting of dates, a scheduling conference was not held to set the dates until March 8, 2021. On that date, the two-day preliminary hearing was set for July 13 and 14, 2021, although the Crown and court were available on June 17, 2021.

[17] On July 5, 2021, the matter was addressed in trial readiness court before Caponecchia J.. Applicant’s counsel said that there was some outstanding disclosure but that Crown counsel was making efforts to get it to him. Just before the preliminary hearing, applicant’s counsel filed an adjournment application. He sought to adjourn the preliminary hearing because he was missing Constable McConnell’s notes. Caponecchia J. told counsel to bring the matter back before her on July 9, 2021, if for some reason the outstanding disclosure might prevent the matter from proceeding the following week.

[18] The matter returned before Caponnechia J. on July 9. Applicant’s counsel filed a formal adjournment application the day before. Applicant’s counsel explained that he had just received the outstanding disclosure. He said that he would abandon his adjournment application if the Crown would make Constable McConnell and the complainant’s mother available to be cross-examined at a discovery hearing. When Crown counsel refused to undertake to make these witnesses available, applicant’s counsel said he was still pursuing the adjournment application. Caponecchia J. denied the adjournment application and ordered the matter to proceed on July 13.

[19] The preliminary hearing proceeded on July 13 and 14, 2021. On July 14, the applicant acknowledged that there was sufficient evidence for him to be ordered to stand trial. The applicant’s matter was adjourned to August 13, 2021 in this court.

Proceedings in the Superior Court of Justice

[20] The applicant’s matter was first addressed in this court on August 13, 2021 and was adjourned to its JPT date of September 15, 2021.

[21] Between the first appearance and the JPT, the Crown disclosed (on August 30) Constable Gair’s notes which included reference to screenshots he had taken on July 14, 2021. The applicant requested the screenshots that the officer had taken and also noted on the JPT form that this material was outstanding.

[22] On September 15, 2021, the applicant’s first trial dates were scheduled. The trial was set for April 19, 2022. Two months after these dates were set, on November 16, 2021, the applicant brought an application to adjourn the trial. The trial was re-scheduled to begin on October 24, 2022.

[23] A week before the trial was set to begin, on October 17, 2022, the Crown disclosed the screenshots taken by Constable Gair. The Crown also disclosed an Excel spreadsheet containing FBI data regarding online sexual advertisements. As a result of this disclosure, the applicant applied to adjourn the trial.

[24] The parties appeared in court on October 21, 2021 to address the adjournment application. The Crown acknowledged that the disclosure should have been made sooner than it was. Crown counsel also said that the adjournment request was reasonable to allow the applicant to investigate the FBI disclosure that had just been provided. The October 24, 2022 trial dates were adjourned and the matter was adjourned to November 7, 2022 to set new trial dates.

[25] On November 7, 2022, the parties appeared to set the new trial dates. Because the applicant raised delay concerns, the Crown said it was prepared to set an earlier trial date. The court and the Crown were available to begin the trial on January 23, 2023. The applicant was not available until May 8, 2023. [4] The applicant’s six-day trial is expected to conclude on May 15, 2023.

The Jordan Delay Analysis

Total Delay

[26] The total delay from the date that the applicant was charged (December 17, 2019) to the anticipated end of trial (May 15, 2023) is 40 months and 28 days.

Net Delay

[27] Defence delay must be subtracted from the total delay to determine net delay. If the net delay exceeds the 30-month Jordan ceiling, the delay is presumptively unreasonable.

[28] As mentioned above, the Crown contends that the applicant is responsible for over nine months of delay (nine months and 21 days). The Crown argues that the applicant is responsible for the following two periods of delay:

1. April 19, 2022 to October 24, 2022 a period of five months and five days.
2. January 23, 2023 to May 8, 2023 a period of four months and 16 days.

[29] I will consider each period of delay in turn.

Adjournment of the first trial: April 2022 to October 2022

[30] There is no dispute that the first trial date in April 2022 was adjourned at the applicant’s request and that a new trial date was set for October 2022. However, the applicant argues that he is not responsible for the ensuing delay caused by this adjournment. The applicant argues that the Crown had not fully complied with its disclosure obligations by April 2022, meaning that the trial could not have proceeded anyway. The applicant observes that the officer in charge had taken screenshots the day that the preliminary inquiry finished (July 14, 2021). Though the officer’s notes regarding those screenshots had been disclosed the following month, the screenshots themselves did not end up being disclosed until October 2022. The applicant points out that he had requested the screenshots in September 2021 and had also listed them as outstanding disclosure on the Superior Court’s JPT form.

[31] The Crown responds that the court should not speculate that the screenshots would not have been disclosed had the April 2022 trial dates not been adjourned. The Crown says that if the trial had been in April, it is likely that it would have made the disclosure before then, just as it ultimately did in advance of the trial in October.

[32] I agree with the Crown that this period of delay is defence delay.

[33] There is no question that the Crown should have made the disclosure sooner that it did. There is no excuse for the Crown waiting until it did to disclose screenshots that had been in the police’s possession since July 2021. Having said that, I agree with the Crown that it is likely that the Crown would have disclosed the screenshots earlier had the trial gone ahead in April 2022. I say that because the Crown and police had the screenshots. The applicant knew about them in August 2021. The delayed disclosure, while unfortunate, is typical of the kind of disclosure that takes place in criminal cases as the parties get ready for trial. Again, I should not be taken as excusing the Crown’s delay in providing disclosure here. However, I am satisfied that had the trial proceeded in April 2022, the Crown would have realized the disclosure was outstanding – as it did in October 2022 – and would have disclosed it before the trial.

[34] It is also significant that, when the applicant applied in November 2021 to adjourn the April 2022 trial dates, he did not raise the issue of the outstanding disclosure, even though he knew about it. There is also no indication in the record that the applicant followed up on the screenshot disclosure between April and October. [5] Moreover, applicant’s counsel candidly acknowledged in his oral submissions on this application that the screenshots did not amount to voluminous disclosure (there were five screenshots) and were not the type of material that would have changed the nature of the Crown’s case. As mentioned, I am satisfied that the Crown knew it had to disclose this material before any trial took place, and that is what it ultimately did. In the circumstances, I am not prepared to find that the Crown’s failure to make complete disclosure before April 2022 is consequential and should change the normal attribution of delay for a defence adjournment.

[35] The five months and five days between April 19, 2022 and October 24, 2022 is defence delay and is properly subtracted from the total delay.

The defence’s unavailability between January 2023 – May 2023

[36] The applicant argues that the four-and-a-half-month period between the date the Crown and court could accommodate his trial and the date he was available should not count as defence delay. The applicant says that the October 2022 trial was adjourned because of the Crown’s late disclosure of the FBI material. Consequently, the defence should not be responsible for the four months of delay. Applicant’s counsel contends it would not be fair to expect the defence to be ready for trial only three months after the adjournment of the October trial. He says that it took some time to investigate the new disclosure and it would be improper to hold the defence responsible for its unavailability in setting the new trial date. The new trial date was too soon to permit the defence to investigate the new disclosure. In support of his position, the applicant relies on this court’s decision in R. v. Aden, 2023 ONSC 766. [6] In Aden, at paras. 65-66, [7] Schreck J. observed that “ legitimate actions by the defence in response to late disclosure are not properly characterized as defence delay” and that, in such circumstances, “it may be appropriate to apportion responsibility for a period of delay between the Crown and the defence.”

[37] The Crown counters that the January trial dates gave the defence ample time to investigate the new disclosure and be prepared for a new trial. Crown counsel also observes that applicant’s counsel did not reach out to the Crown until February 2023 to seek assistance investigating the recently disclosed email address.

[38] I agree with the applicant that the defence should not be responsible for the entire period of delay. However, the defence should take responsibility for some of the delay.

[39] The Crown correctly observes that the Jordan clock ordinarily stops when the court and Crown are ready to accommodate an accused’s trial. However, in R. v. Boulanger, 2022 SCC 2, [8] the Supreme Court recently held that there may be exceptions to this categorical approach to stopping the Jordan clock. The court has some flexibility in determining how to apportion delay. As the Court of Appeal recently observed in R. v. Zahor, 2022 ONCA 449, at para 102, [9] “a contextual approach is needed to determine the extent to which the defence conduct is the ‘sole or direct’ cause of delay.” Because the FBI disclosure required a new trial date to be set, I cannot find that the defence is solely responsible for the entire period of delay. The applicant had the right to investigate the new disclosure and was entitled to some time to do so. At the same time, the defence must accept some responsibility for its unavailability when setting the new date. The applicant was offered more than the single date in January. He was offered dates in February, March, and April and was unavailable for all of them. In my view, the most equitable way to apportion the delay would be to have each party responsible for half the delay. Therefore, I attribute half the delay, two months and 8 days, to the defence.

Conclusion on Defence Delay

[40] The defence delay in this case totals seven months and 13 days.

[41] When defence delay is subtracted from the total delay, the net delay is 33 months and 15 days.

[42] Because the net delay in this case exceeds the 30-month presumptive ceiling, the onus is on the Crown to rebut the presumption that the delay is unreasonable. I will next consider the Crown’s position that the COVID-19 pandemic’s impact constitutes a discrete event that brings the delay below the ceiling.

Exceptional Circumstances (Discrete Events)

[43] The Crown argues that the COVID-19 pandemic had an impact on this case’s progress through the system. The Crown argues that a period of almost 15 months, from March 16, 2020 to July 14, 2021, should be subtracted because of the pandemic’s impact on the operation of the courts. Although the Crown initially relied in its written submissions on the pandemic’s impact on the Crown’s ability to provide disclosure, in oral submissions Crown counsel acknowledged that he was only relying on the pandemic’s impact on the case’s actual progress through the system. The Crown observes that the Ontario Court of Justice did not resume setting date for out of custody matters until the end of September 2020. And even by then, the court was prioritizing re-setting trials and preliminary hearings that had been adjourned because of the court’s restricted operations. The Crown argues that the pandemic had a direct causal impact on the delay in bringing the applicant to trial.

[44] The applicant argues that the pandemic had no real impact on the progress of this case. The applicant repeats his submissions that it was the Crown’s delay in providing disclosure that was the real cause of delay in this case. In particular, the applicant argues that the case could not have moved forward without the phone data extraction report and the DVD of S.M.’s statement. Those items were disclosed on July 16 and October 5, 2021 respectively. The ITO was not disclosed until July 5, 2021, the week before the preliminary hearing. The applicant submits that the Crown cannot rely on the COVID-19 pandemic as a free pass to excuse delay where the pandemic impact on the courts had no causal connection to the delay in this case.

[45] I accept that the pandemic had some impact on the progress of this case through the system, though not as much as the Crown submits. Two periods of delay should be subtracted as discrete events caused by the COVID-19 pandemic. The first period of delay concerns the time during which cases were being presumptively adjourned in the Ontario Court of Justice. The second period of delay concerns the time it took to set a preliminary hearing date.

The Presumptive Adjournment Period

[46] From March 17 to October 13, 2020, the applicant’s matter was subject to presumptive adjournments. Because the applicant was out of custody, his matter was not being addressed in court and was simply adjourned for a set period of time. The Ontario Court of Justice did not start setting dates for out of custody matters until the end of September 2020. In that sense the pandemic had a real impact on the progress of this case.

[47] I cannot accept the applicant’s submission that, because the Crown had not fully complied with its disclosure obligations, this period of time should not be subtracted as a discrete event. In short, I am satisfied that the delayed disclosure would not have affected the case’s progress had there been no pandemic.

[48] The applicant had received the bulk of the disclosure by April 2020. Though he did not have the actual video of S.M.’s statement (which was exculpatory), he had a synopsis of it. It seems fair to say that the applicant would at least have been able to set a judicial pre-trial by April 14, 2020. In other words, by April 14, 2020, the matter could have moved forward, but for the pandemic. The Crown could not have done anything more to mitigate the delay caused by the disruption to the regular operation of the Ontario Court of Justice. Although the applicant was entitled to disclosure of the other outstanding items, I am satisfied that the matter could have moved forward by April 14. Therefore, at the very least, the six-month period from April 14 to October 13, 2021 should be subtracted from the net delay as a discrete event. This is not a case like R. v. Gonsalves, 2022 ONSC 6004 [10] where the Crown failed to make “core disclosure.” Gonsalves involved a case of drug-impaired driving where the Crown took a year to disclose the very evidence that would have supported the charge against the defendant – the drug recognition expert report and toxicology report. In the case at bar, the outstanding disclosure, though important, would not have stopped the case from progressing through the system.

[49] I am also satisfied that the delay in disclosing the ITO should not prevent this period from being characterized as a discrete event. The ITO was the main piece of disclosure outstanding when the preliminary inquiry date was set. However, its delayed disclosure did not ultimately impact the way this case proceeded. The applicant received the ITO the week before the preliminary hearing. He did not ask to adjourn the preliminary hearing because it was outstanding, nor did he try to change his election. [11] I recognize that, at the October 13, 2020 appearance, the Crown seemed to acknowledge on the record that the ITO was necessary before the JPT could be set. Normally, this admission would be a significant one. However, in the circumstances, I agree with Mr. Hendry’s submission that he should not be bound by the position taken by his colleague. Crown counsel who spoke to the matter on October 13 was not assigned to this file. He was also speaking to the matter in a busy set-date court that would have been dealing with dozens of files shortly after the Ontario Court of Justice had again begun dealing with out-of-custody matters. It is understandable that Crown counsel dealing with the matter in those circumstances may not have been able to make a considered decision about what disclosure was necessary to move the matter forward.

[50] As for the disclosure that did lead to the defence’s application to adjourn the preliminary hearing, a judge determined that its late provision did not require an adjournment. While I do not wish to be seen as condoning the Crown’s slow provision of disclosure, I cannot find that it should prevent the Crown from relying on this period of time as a discrete event.

The Delay Setting the Preliminary Hearing

[51] The next period of delay that must be subtracted as a discrete event involves the administrative delay setting the preliminary hearing date itself. When the matter was addressed in court on January 5, 2021, the applicant’s representative explained that a JPT had been set for January 21, 2021, and asked that the matter return on February 16, 2021. Before the pandemic, in the normal course, the parties would have been able to set the preliminary hearing date the same day or the day after conducting the JPT. There was no need to pick a return date that was a few weeks after the JPT itself. Post pandemic, scheduling matters in the Ontario Court of Justice became more complicated. After the JPT, the defence was required to contact the trial co-ordinator’s office to set up a scheduling conference call. As in this case, such scheduling conferences were often not set quickly. Indeed, the trial co-ordinator’s response to the request for a scheduling meeting made clear that the office would “be in touch as soon as reasonably possible” and that they “just recently started setting out of custody new matters, which is the last category of our backlog.” As it happened, a conference call could not be scheduled until March 8, 2021. On that date the parties were able to schedule the preliminary hearing. Because the slower, more involved method of scheduling (including the trial co-ordinator’s delayed response) are attributable to the pandemic, it is appropriate to subtract a month and a half for these administrative delays.

Conclusion on Exceptional Circumstances and Remaining Delay

[52] The total amount of time that should be subtracted because of exceptional circumstances is seven and a half months. That total is comprised of the six-month period between April 14, 2020 and October 13, 2020, and the one and a half month period between January 21 and March 8, 2021.

[53] The remaining delay in this case is 26 months.

[54] Because the delay in this case is under the presumptive ceiling, the onus shifts to the applicant to demonstrate that the delay is unreasonable. Applicant’s counsel did not argue in either his written or oral submissions that delay falling below the 30-month presumptive ceiling would be unreasonable. Consequently, I do not need to consider whether the applicant can demonstrate unreasonable delay here.

Conclusion

[55] The application to stay proceedings is dismissed.

Rahman, J.

Released: May 9, 2023

Notes

[1] At the hearing of this application, the Crown filed a two-page disclosure log document and five pages of Constable Gair’s notes. The parties agreed that these documents could form part of the record for the application.

[2] The Crown had provided “tagged items” from the phone download on May 26, 2020.

[3] The foregoing email correspondence between applicant’s counsel and Crown counsel is not contained in the application record. I have taken this information from the applicant’s factum. I did not understand the Crown to take any issue with its accuracy.

[4] The applicant was also unavailable for dates offered February, March and April.

[5] Mr. Kaczmara did say in his oral submissions that he followed up on the disclosure by phone with Mr. Hendry at some point.

[11] To be clear, I should not be taken as accepting the Crown’s submission that the disclosure of an ITO is only relevant to a potential s. 8 challenge at trial. It may very well prove to be relevant to where an accused elects to have his trial. But in this case, it had no practical impact.