Ontario Court of Justice

Between:

Her Majesty the Queen

T. Edwards, for the Crown

— And —

Godofredo Acevedo Moran

E. Mazinani, for the accused

Heard: December 16, 20, 22, 2016

FELDMAN J.:

Introduction

[1] On February 11, 2015, Mr. Acevedo-Moran was charged with Possession, Accessing and Distribution of Child Pornography. On December 7, 2016, I dismissed a Charter application by the defence to stay the proceedings on account of unreasonable delay.

[2] The case began in Brampton. It took almost one year for all of the police notes to be disclosed. Despite this delay, the Brampton Crown did not proceed with any sense of urgency. Then, on February 15, 2016, defence counsel removed himself from the record because of a perceived conflict. It was both premature and unnecessary. It resulted in significant defence delay. Subsequently, an unexpected decision by a Brampton judge to move the case to Scarborough, the locus of the allegations, caused a further postponement.

[3] New counsel, Vinoathh Pathanssaly moved responsibly to obtain an early judicial pre-trial for August 30, 2016, and to agree to an expedited trial date on the mistaken basis that disclosure was complete. The trial was set for December 21-22, over 22 months after process was issued.

[4] On December 16, counsel for the accused brought an adjournment application on the basis that her client's right to make full answer and defence was jeopardized by late disclosure of an expert technical crime report. This report was of a material nature. It included a description and analysis of the child pornography content found on the accused's computer hard drive.

[5] This 25-page report was complete as of September 16, but inexplicably not provided to the Crown until October 24. It was made available to the defence the next day. The Crown agrees there were 28 relevant new file names contained in the report.

[6] The Crown conceded this report was provided late in the proceedings. I granted the adjournment because I was persuaded that disclosure of this important evidence so close to trial did not leave sufficient time for defence counsel to retain his own expert and prepare for trial. Target trial dates were set for June 12, 13 and 15, 2017.

A Renewed s. 11(b) Application

[7] Ms. Mazinani, for the accused, submits that the adjournment was made necessary by the late disclosure and that the prosecution must bear responsibility for the additional delay, one she says takes this case beyond the Jordan guideline, requiring a stay of proceedings.

[8] In his usual fair manner, Mr. Edwards, for the Crown, concedes that if I find fault for the adjournment and delay falls to the prosecution, then the proceedings should be stayed under s. 11(b).

The Evidence

[9] On this application, I was tasked with the difficult burden of weighing the conflicting evidence of two counsel on a material fact in issue. These are individuals whom I know to be persons of integrity.

[10] Vinoathh Pathanssaly represented the defendant. He testified that he took away from the discussions at the judicial pre-trial that, but for technical evidence on how child pornography is tracked and how the Moran computer was flagged, disclosure was complete. He thought it possible that this evidence might come from a Rogers company technician. He was wrong. He said that on the basis of this mistaken belief, which I find on the evidence to be one honestly held, he agreed to an expedited trial date.

[11] Mr. Pathanssaly could have done more to better prepare himself. Had he more thoroughly reviewed the disclosure, he would have discovered more illicit files. He did not take the opportunity to view the contents of the hard drive at the police division, as left open to him at the judicial pre-trial. His impression that the officer-in-charge would testify about the contents of the hard drive was mistaken.

[12] Mr. Pathanssaly began his search for an expert within days of receiving the report to determine whether that evidence might be capable of raising a reasonable doubt regarding who created the subject account and who may have downloaded the prohibited material. Of three firms consulted, only one was prepared to act, but not within the timeline made necessary by the late disclosure.

[13] Patrick Woods is an experienced prosecutor. He told the court he was clear at the judicial pre-trial that there was a possibility an expert technical crime report would be produced before trial. He knew this to be essential evidence. His notes indicate that he so informed the pre-trial judge. He said he agreed to an expedited date because he hoped the report would be ready in sufficient time to permit the defence to make full answer and defence. That was not to be the case.

[14] It is unclear why in these circumstances the Crown permitted new counsel to agree to an early trial date without clarifying his reasons, including misapprehension of the material nature of the anticipated report, and being transparent with his own. In the event of additional delay it left the Crown's case in jeopardy.

[15] In this case, the Crown has failed to meet its continuing obligation to provide full material disclosure in a timely manner. The defence was entitled to know the entirety of the case it had to meet in order to make full answer and defence. The expert report was provided 20 months after the accused was arrested and less than 2 months before trial. I accept on this evidence that the late disclosure left insufficient time for the defence to retain an expert and prepare for trial.

[16] I hold the Crown substantially responsible for the adjournment and additional delay. Given the Crown's concession, I am satisfied that on the Jordan standard, there has been unreasonable delay. The charges will be stayed.

Released: February 14, 2017

Signed: "Justice L. Feldman"