WARNING

THIS IS AN APPEAL RELATING TO CHARGES UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 110(1): Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(2): Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3): A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(1): Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

Section 486.4(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 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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

Section 486.4(2): 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.

Section 486.4(2.1): Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Section 486.4(2.2): In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

Section 486.4(3): In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

Section 486.4(4): An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

Section 486.6(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.

Section 486.6(2): For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: February 1, 2018

Docket: C62799

Judges: Doherty, LaForme and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

D.A. Appellant

Counsel

Mark Sandler and Amanda Ross, for the appellant

Andrew Hotke, for the respondent

Heard

January 17, 2018

Appeal

On appeal from the convictions entered by Justice Peter N. Bourque of the Ontario Court of Justice on August 4, 2016.

Decision

Paciocco J.A.:

[1]

This is an appeal by D.A. from his August 4, 2016 convictions of three historical sexual offence charges. His appeal is based exclusively on the judge's denial of two s. 11(b) unreasonable delay applications D.A. brought. If either of D.A.'s s. 11(b) applications should have been granted by the trial judge, D.A.'s conviction appeal must be allowed since a successful s. 11(b) application would have required the charges to be stayed.

[2]

D.A.'s first s. 11(b) application was brought prior to the decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Its outcome therefore depended on the law developed in R. v. Morin, [1992] 1 S.C.R. 771. I refer to this first application as the Morin application.

[3]

The second application was brought after Jordan was decided. Although the factual foundation for the second application remained the same as the first application, D.A.'s second application – his Jordan application – was based on retroactive changes Jordan made to the law.

[4]

It is not controversial that the delay in D.A.'s case is presumptively unreasonable applying the Jordan test. In spite of this, D.A. is correct to concede before us that the outcome of his appeal turns on whether the trial judge erred in deciding the Morin application. This is because there is nothing in this case that would prevent the Crown from invoking its reasonable reliance on the Morin regime to defeat D.A.'s transitional Jordan application.

[5]

In my view, the trial judge did err in deciding the Morin application. He was wrong in finding the Morin delay to be approximately 14 months. Properly analysed, the total Morin delay was upwards of 17 months, a period of delay that was not reasonable in the circumstances of this case.

[6]

The trial judge arrived at 14 months of Morin delay by holding D.A. responsible for the delay between February 26, 2015 and August 10, 2015, the day the trial date was set, because D.A. should have been ready to set a trial date on February 26, 2015 or shortly thereafter. There are several reasons why this finding was in error.

[7]

First, at the February 26, 2015 judicial pretrial the Crown gave an extensive disclosure package to D.A. That disclosure package included a video statement given by D.A., electronic discs, and more than 120 pages of printed material, including multiple police notes. The pretrial judge recognized that the pretrial could not go ahead because of the substantial, late disclosure that had just been made. Defence counsel needed time to review the disclosure before proceeding. In the face of this last minute, material disclosure, the trial judge's conclusion that "the Crown had substantially filled the essential disclosure requests by February 25, 2015, to an extent which allowed the matter to proceed further, to judicial pre-trial and then setting a trial date" was unreasonable.

[8]

Second, on February 26, 2015 D.A. stood charged only with youth offences. The adult charges that are the subject of this appeal had not yet even been laid. The delay in laying the adult charges arose because of a miscalculation by the investigator of D.A.'s age during the period D.A. was alleged to have been carrying on a sexually exploitive relationship with the complainant, a neighbouring child. By February 26, 2015, that error had been discovered. D.A. was aware that the Crown was contemplating additional adult charges. The pretrial judge was also aware of this. Appropriately, the pretrial judge recognized that D.A. was in no position to move the case forward until the nature of the charges he would face was settled.

[9]

The Crown concedes this latter point but urges that since the adult charges were laid on March 17, 2015, D.A. should have been ready to set a trial date, at the latest, when the matter next returned to court on April 2, 2015. The Crown contends that this additional 5 weeks of delay should not change the outcome. There are several difficulties with the Crown's position.

[10]

First, April 2, 2015 was the first appearance on the adult charges. The judicial pretrial set for that date was scheduled in youth court, relating to the youth matters. It is not reasonable to expect D.A. to have set a trial date on his first appearance on the adult charges, without the benefit of a pretrial on those charges.

[11]

To underscore the unfairness in placing responsibility on D.A. to set a trial date on the adult charges on April 2, 2015, it is instructive that even on May 14, 2015, the date that was set to accommodate a joint pretrial on the youth and adult matters, the Crown did not have the adult file in court. This led to yet a further adjournment.

[12]

The second reason why the Crown's contention that D.A. should have set the trial date on April 2, 2015 is unfair is that, once again, just before the April 2, 2015 pretrial began the Crown gave yet another substantial disclosure package to D.A., consisting of both electronic and paper disclosure exceeding 80 pages. Since D.A.'s counsel could not possibly review this material before the scheduled pretrial, the Crown agreed to adjourn the pretrial to May 14, 2015.

[13]

The Crown suggested before us that its consent to adjourn the April 2, 2015 pretrial because of its own last minute disclosure is unimportant in assessing unreasonable delay unless, by its nature, the information disclosed is shown to have been essential to the case. I do not agree. The accused is entitled to review disclosure they have received to determine its importance, before moving a case forward. Where, as here, that disclosure is made so late that it cannot be reviewed before a scheduled appearance, the Crown cannot fairly assert that the accused should go ahead and set a date at that scheduled appearance.

[14]

The final and most important reason why it was not fair to expect D.A. to set a trial date on April 2, 2015 is that essential disclosure was still outstanding on that date.

[15]

In particular, disclosure had not yet been made of the occurrence report and police officers' notes relating to the initial complaint. That complaint was made in April of 2012 when the police attended the complainant's home on an unrelated matter. The Crown, incorrectly, was insisting that disclosure of this April 2012 information required a third party records application, hence the delay.

[16]

The importance of the records relating to the initial police complaint in a sexual assault allegation is obvious, but those records took on added significance in this case. Disclosure that had been made suggested that the complainant's mother initiated the complaint, and there were issues relating to the mother's credibility arising from an unsubstantiated allegation she made that D.A. had breached his bail conditions. The history of the complaint in this case mattered, as, of course, did any statements made by the complainant about what happened.

[17]

Police notes about this April 2012 meeting were not disclosed until April 29, 2015. The third party records application was not heard until May 13, 2016, at which time the occurrence report itself was disclosed.

[18]

This material proved to include statements from the complainant and her mother about the alleged assaults. It also included an allegation by the complainant that D.A. had attempted to persuade her not to go ahead with the complaint so that his life would not be ruined. The Crown ultimately relied upon this information at trial as post-offence conduct indicative of guilt.

[19]

On August 11, 2015, two further pages of handwritten notes from the complainant were disclosed.

[20]

Moreover, disclosure relating to statements made by D.A. to the police was still outstanding on April 2, 2015. While most of the information about D.A.'s statements had already been disclosed, on March 17, 2015 defence counsel advised the Crown that an officer appeared to have interviewed D.A. twice. That officer's notes were not disclosed until June 3, 2015. Despite a number of pretrial requests, audiotape evidence of D.A.'s arrest relating to the implementation of his Charter rights was not disclosed until the third day of the trial. This information was important to the voluntariness of D.A.'s statements.

[21]

Significantly, when the trial judge rejected D.A.'s Morin application he misapprehended the nature of the disclosure being sought relating to D.A.'s statements. He discounted claims by D.A. that non-disclosure relating to statements D.A. had made was material, on the mistaken basis that "there are no confessions or admissions." In fact, at the subsequent trial the Crown led a statement from D.A. as containing relevant admissions that supported the complainant's account.

[22]

On this record, it was not reasonable for the trial judge to find that D.A. was responsible for the delay after February 26, 2015 because of an unreasonable insistence on receiving nonessential disclosure before moving the case forward. Given the role played by the Crown in delaying the progress of the case and the outstanding material disclosure, it is not fair to blame D.A. for not moving the case forward on that date, on April 2, 2015, or arguably even on May 14, 2015.

[23]

Even applying the trial judge's underestimated period of Morin delay, a delay of almost 14 months appreciably exceeds the Morin guideline for provincial trials of 8-10 months. The trial judge nonetheless denied the application because he found the case to be complex, the charges serious, and the prejudice modest.

[24]

I take no issue with the proposition that a trial judge may be entitled to refuse to stay a proceeding under the Morin regime after a 14 month delay in a complex case involving a serious charge where the delay had "a modest level of repercussions" for the accused. That, however, is not this case. When defence delay is properly quantified, the total Morin delay is upwards of 17 months.

[25]

Moreover, I cannot accept the trial judge's conclusion that this prosecution was complex. This was a standard credibility case made only marginally more difficult because the prosecution involved both youth and adult charges.

[26]

The trial judge may also have underestimated the prejudice to D.A. caused by the delay. The trial judge noted in his decision that a defendant who insists upon all elements of disclosure before setting dates "runs the risk of 'being content with the pace of proceedings'". Given that the trial judge mistakenly believed that D.A. was insisting on all elements of disclosure before setting dates, his sense of the prejudice the delay was causing D.A. may have been unfairly minimized.

[27]

In my view, notwithstanding that the charges against D.A. were extremely serious, the trial judge erred in denying D.A.'s Morin application. Properly calculated, the total Morin delay came close to doubling the Morin guidelines in a non-complex case where there was some prejudice. Much of that delay was attributable to the Crown's errors or last-minute disclosure practices. The Morin application should have been allowed. The charges against D.A. should have been stayed.

[28]

I would therefore allow D.A.'s conviction appeal, set aside the convictions, and stay the proceedings on the charges that are before us.

Released: February 1, 2018

"David M. Paciocco J.A."

"I agree. Doherty J.A."

"I agree. H.S. LaForme J.A."