Court Information

Date: December 9, 2016

Ontario Court of Justice

Between: Her Majesty the Queen — and — Alex Dos Santos

Before: Justice Mara Greene

Reasons for Judgement Released: December 9, 2016

Counsel:

• D. Carbonneau for the Respondent
• D. Patterson for the Applicant

Judgment

M.B. Greene J.:

[1] On January 25, 2015, Mr. Dos Santos was charged with assault police, cause disturbance and obstruct police in relation to an alleged altercation with the police in the lobby and the front entrance of a hotel. Mr. Dos Santos is co-accused with Mr. Williams who did not bring an 11(b) application (Mr. Williams only recently retained counsel). The trial started on September 7, 2016. The matter is set to complete on November 7, 2016 some 21 ½ months after the information was laid. This time frame is outside the 18 month ceiling created by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. As a result counsel for Mr. Dos Santos argued that his rights as guaranteed by section 11(b) of the Charter have been violated.

[2] Mr. Dos Santos was arrested on January 25, 2015 and held for a bail hearing. He was released on bail the same day. His first appearance after the bail hearing was February 24, 2015. By this date, counsel was retained and letters requesting disclosure had been sent to the Crown's office.

[3] The first wave of disclosure was not provided until March 10, 2015. The second wave of disclosure, which included two video tapes were provided on March 31, 2015. The matter was adjourned to late April so counsel could review the file. On May 13, 2015 an in court judicial pre-trial was conducted as the co-accused did not have counsel. A trial date of January 27, 2016 was set.

[4] At the judicial pre-trial, counsel referenced that a video would be played. No mention was made of any missing disclosure. Crown counsel and the trial judge both suggested that an interim confirmation date would be useful. Counsel for Mr. Dos Santos stated "we don't need an interim date. We're ready to go". As a result, Mr. Dos Santos was remanded directly to the trial date.

[5] On the trial date, counsel for Mr. Dos Santos advised the court that in the week or two preceding the trial date, he discovered through his own investigation that there were at least five video cameras where the alleged assault took place. Counsel for Mr. Dos Santos had requested a copy of all surveillance videos but had only received two from the inside of the hotel, neither of which captured the altercation. One week prior to the trial, counsel wrote to the Crown outlining his concern that some disclosure was missing.

[6] On the January 27, 2016 trial date, counsel for Mr. Dos Santos asked for an adjournment based on missing disclosure. The Court at the time, commented on the late request for disclosure. Counsel advised the court that he had only recently started to investigate this matter, but that the missing disclosure was important and he was prepared to waive his client's 11(b) Charter rights if that was necessary in order to secure the adjournment. Counsel stated at page 7 of the transcript "If my friend is concerned about a section 11(b) issue, then I'm prepared to waive it, but in my submission, respectfully, this is extremely important evidence that potentially may assist Mr. Dos-Santos in the defence of this charge, and on that basis I'm seeking an adjournment".

[7] Crown counsel, at pages 14 and 15 of the transcript advised the court that all the relevant videos were disclosed, including one from outside the hotel where the altercation took place. Crown counsel denied that there were five active cameras and that defense counsel was missing disclosure. Crown counsel called as a witness, Mr. Opoka, a security person at the hotel, to describe the layout and the video surveillance.

[8] Mr. Opoka testified that while a number of surveillance cameras do exist around the hotel lobby, only three cameras are located in the relevant area, of which only two actually captured any of the exchange. According to Mr. Opoka one camera is located inside the lobby, another is located inside the vestibule area and the final camera is located outside the Widmer entrance to the hotel. Mr. Opoka testified that he provided to the police the videos from the outside camera and the video from the lobby. The video from the vestibule was a second or two long and captured nothing of relevance. The Crown did offer to play both videos in court, but she was not permitted to do so.

[9] Later in the transcript, it became clear that counsel for Mr. Dos Santos received two copies of the lobby video as opposed to one from the lobby and one from outside the hotel. The Crown, on the other hand, had two separate videos, one from inside and one from outside of the hotel.

Issue Raised in the Case at Bar

[10] The time to trial in the case at bar is clearly over the 18 month ceiling created in R. v. Jordan, supra. Therefore, the burden lies with the Crown to justify the further delay. The total delay as of the first day of trial is 19 months and 14 days. The trial did not complete in the time allotted and as a result, this trial was delayed a further two months to accommodate the new trial date. The total delay is 21 ½ months, 3 ½ months over the cap created in Jordan.

[11] This matter proceeded relatively expeditiously through the disclosure phase and the setting of the first trial date. The real source of the delay in this case arises from the adjournment of the first trial date and the fact that counsel underestimated the time required for trial.

The Relevant Legal Principles

[12] This summer, the Supreme Court of Canada provided a new framework to 11(b) analysis in the case of R. v. Jordan, supra. This new framework was meant to address the culture of complacency and delay that exists in the Canadian Criminal Justice System. The heart of the new framework is that any delay in matters proceeding in the Ontario Court of Justice that is above 18 months is presumptively unreasonable and the burden lies with the Crown to justify the additional delay. The additional delay will only be justified in exceptional circumstances.

[13] The 18 month ceiling takes into account the time from when information is laid until the end of the trial minus defence delay. Defence delay can come in two forms. Firstly, through a voluntary waiver and secondly when the delay is caused solely by the actions of the defendant.

[14] Exceptional circumstances requires the Crown to prove that it took reasonable steps to avoid or address possible sources of delay early on in the proceedings. The Supreme Court of Canada noted that unforeseeable or unavoidable developments can cause delay and these delays should not put a trial on the merits in jeopardy. For example, if case takes longer than planned when counsel have made good faith efforts to properly estimate the length of the trial, this sort of delay is likely unavoidable and may amount to exceptional circumstances. Where delay is caused by a discrete circumstance that is justifiable, the time associated with this discrete circumstance is to be subtracted from the overall delay.

[15] The Supreme Court of Canada acknowledged that many cases will fall into timeline where the delay occurred prior to the decision in Jordan. The Supreme Court of Canada allowed for a flexible approach when dealing with cases that fall into this transitional time.

Application to the Case at Bar

[16] The overall delay in the case at bar is just over 21 months. This is well in excess of the 18 month ceiling. Thereby placing the burden on the Crown to rebut the presumption.

[17] The Crown points to two areas of delay which should be subtracted from the time line, one as exceptional circumstance and the other as defense delay. Once this time is subtracted, the Crown argued that the delay falls well below the 18 month ceiling and is therefore not unreasonable. Defence counsel argued that the delay is not solely the result of defence action nor is it a justifiable exceptional circumstance and as a result the Crown has not rebutted the presumption.

[18] In addressing the arguments, I am mindful that this matter long pre-dates the Supreme Court of Canada's decision in Jordan, as such, a flexible approach to the new regime is required.

A. The Adjournment of the Trial Date

[19] Defence counsel argued that the trial date was adjourned because Crown failed to meet its disclosure obligation. Crown counsel argued that trial date adjourned because defence counsel was negligent in his preparation.

[20] In my view, the cause of this delay is not an all or none proposition. Both parties bear some responsibility for this delay. In the case at bar, two videos of the alleged altercation were copied by the hotel and provided to the Crown. The Crown made real efforts to disclose these videos to the defence. They did so early on in the process and with sufficient time for the defence to review the videos in detail before the judicial pre-trial. Unfortunately, there was an error in copying the material and defence counsel received two of the same video instead of two separate videos. For reasons that remain unclear defence counsel did not realize this until part way through the adjournment application on the first trial date. Counsel indicated that he assumed that the videos were different, being from slightly different angles, however, since they were identical copies of the same event, one would have expected that if carefully reviewed prior to the first pre-trial, the error would have been identified. Moreover, had Crown and defence counsel properly discussed the potential trial evidence, the error would also have come to light.

[21] The Crown does have to bear some responsibility for the copying error. The expectation must be that care is taken when copying disclosure. No explanation was provided by the Crown as to how this copying error took place. In fact, despite the fact that it was obvious to me early on what the source of the problem was, the trial Crown refused to accept this reality until all videos in the hands of the defence were played for her. Such intransigent positions hardly assist in moving matters forward expeditiously. Greater civility and trust between the parties is necessary to combat the culture of delay and complacency.

[22] While the error in copying is clearly the fault of the Crown, mistakes do happen and this is why defence counsel should review the disclosure early on so that if something is missing, it can be requested. I appreciate that counsel advised the court he watched both videos prior to the judicial pre-trial, it was equally clear that his real steps to prepare for trial and investigate this case took place in the weeks just preceding the first trial date. Had the videos been viewed more carefully early on, or had counsel engaged in the investigations that took place the 2 weeks before trial earlier on, this error would have been discovered and corrected long before the first trial date.

[23] In my view, mistakes are going to happen because producing disclosure is a human process. This is why it is necessary for all parties to review their material early on in the process. The Crown had no way of knowing that the copying mistake took place once the videos were provided to counsel for Mr. Dos Santos. I note that even at the judicial pre-trial, which took place on the record, very little was said about how the trial would proceed. Nothing was said about missing disclosure and when asked if he wanted to come back to confirm the trial date, counsel for Mr. Dos Santos refused. It is this attitude of complacency from all parties, including the defence that the Supreme Court of Canada meant to address in the case in R. v. Jordan.

[24] In my view the delay arising from the copying error cannot be characterized as defence delay as defined in R. v. Jordan because the delay was not caused solely by the defence. The problem originated in the Crown's office. It was not resolved because of a lack of communication between the parties and because counsel for Mr. Dos Santos did not really begin his more detailed trial preparation and investigation until late in the day.

[25] Under the old process, I would have had no difficulty in referring to the delay caused by the adjournment as neutral time as the mistake really lands at the feet of both parties. There is, however, no category of neutral time under the new system. Instead, I have to ask myself whether this is an exceptional circumstance. Perhaps in a few months time, when everyone has adapted to the new process, courts may not view this kind of error as equating with exceptional circumstances, but in my view, as it relates to this case and the actions of both parties, I am satisfied that it amounts to an exceptional circumstance that justifies exceeding the 18 month ceiling.

[26] Before moving to the second source of delay in the case at bar, I make one further observation. It is troubling that the second trial date was set 7 ½ months after the first trial date. Had the court been able to accommodate this case even 1 ½ months earlier, there is a strong likelihood this motion would not have been brought. The long delay between the first and second trial date is yet another example of the culture of delay and complacency referenced in Jordan. Once the transition time has passed, I am confident that the courts will not tolerate this long of delay between trial dates where an adjournment is granted. In the case at bar, however, even if the new trial date was accommodated earlier, given that two days of trial time were required a delay of four months to obtain a new date would not be unreasonable. This would bring the total delay in the case at bar to 17 ½ months which is slightly below the ceiling created in R. v. Jordan.

B. September 2016 – November 2016

[27] The trial was set to proceed for two days in September, 2016. Approximately half a day was lost to hearing this 11(b) motion and to counsel effectively arguing over a fact that, in my view, was obvious and should have been conceded by the Crown. However, even if time had not been spent on the 11(b) motion, it is clear that counsel underestimated how long the trial would take. The Supreme Court of Canada in Jordan held that delay caused by good faith, yet wrong trial estimates may fall into the category of exceptional circumstances. In my view, given the good faith estimates made by counsel, I am satisfied that this falls under exceptional circumstances and should be deducted from the overall time to trial thereby further reducing the delay to being well below the 18 month ceiling.

Conclusion

[28] When I deduct the delay associated with the exceptional circumstances while I am troubled by the delay, I cannot find that the applicant has met his burden. Deducting four months for the adjournment of the trial date and two months for the delay occasioned because the trial was not completed on time, the overall delay is approximately 15 months. In light of this, I find that the Crown has rebutted the presumption of the 18 month ceiling due to exceptional circumstances and there is no violation of section 11(b) of the Charter.

Released: December 9, 2016

Justice M.B. Greene