WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.
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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.
(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.
Court Information
Ontario Court of Justice
Date: 2018-12-07
Court File No.: Toronto 4817 998 17-75002729
Between:
Her Majesty the Queen Respondent
— AND —
Mattin Cyrus Elmpak-Mackie Applicant
Before: Justice William B. Horkins
Application for a Stay of Proceedings heard on: October 29, 2018
Ruling released on: December 7, 2018
Counsel:
- Mr. Sam Scratch — counsel for the Crown
- Ms. Danielle Robitaille and Ms. Karen Heath — counsel for the accused Mattin Cyrus Elmpak-Mackie
Decision
W. B. HORKINS, J.:
Introduction
[1] The accused is charged with sexual assault and related allegations. The charges were laid in June 2017, and the trial is set to proceed before me in March 2019; 21 months, plus, after the Information was sworn.
[2] In October 2018 the accused brought an application for a Stay of the prosecution invoking section 11(b) of the Canadian Charter of Rights and Freedoms: the right to be tried within a reasonable period of time.
[3] In 2016, the Supreme Court jettisoned the existing Morin analytical framework for s. 11(b) claims. A new direction was set out in Jordan which mandates that time to trial delay in the provincial court is presumptively unreasonable where the delay exceeds 18 months.
[4] In Coulter, elaborating on Jordan, the Ontario Court of Appeal articulated a very clear framework of analysis in 11(b) applications:
A. The New Framework Summarized
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
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 (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
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 (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).
B. Key Elements in the New Framework
(1) Defence Delay
Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence ("defence-caused delay") (Jordan, paras. 61 and 63).
Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).
Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).
(2) Exceptional Circumstances
If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.
Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).
Application of the Coulter Framework
[5] The total "gross" delay in this case is 21¼ months.
[6] There are two periods of deductible defence delay totaling 1½ months:
When the initial trial date was set defence counsel was not available on July 9th; the earliest date the Crown and the Court were available. The trial was set for August 13th. That month is deductible defence delay.
The unavailability of the defence also delayed the second trial date. March 5th was offered and March 18th was selected to accommodate the schedule of defence counsel. Those two weeks are also deductible defence delay.
[7] The accused resisted the deduction of the "defence delay" prior to the first trial date. The argument put forward is that, in hindsight, the fact is that the Crown wasn't actually ready to proceed on the July date, and so that time should not be characterized as defence delay at all. I disagree. At the time that the earlier date was offered the Crown legitimately thought they were ready to proceed. Also, in practical terms, if the earlier date had been set, it probably would have accelerated the resolution of the issues that ultimately caused the trial date later in August to be adjourned. The probable result would be a net wash of the difference in the time line.
[8] The net delay is therefore 19½ months; a delay exceeding the presumptive ceiling.
[9] "If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances." (Coulter para. 45).
The Facts
[10] A detailed history of the case is documented in the application record. This table only summarizes some of the highlights.
| T+ | Date | Event | Defence Delay |
|---|---|---|---|
| 1 | June 2017 | 12th – Information Sworn | |
| 2 | July | • 21 – 1st appearance and initial disclosure provided | 3 |
| 4 | October | • 10 – JPT – Trial date set for August 13 to 17, 2017 | 5 |
| 6 | 7 | ||
| 8 | January 2018 | 9 | |
| 10 | April | • 6 – OIC Trueman goes on sick leave – defence continues to request listed items of outstanding disclosure material. | 11 |
| 12 | May | • 7-8 – New OIC in place and advising Crown counsel – repeated further disclosure requests for audio evidence, Crown advises, inter alia, that A. O'Loughlin will not be a witness. Defence confirms no expert being called. Trial estimate of 5 days revised to 3 days. • May 24 – audio disclosed – other disclosure still outstanding. | |
| 13 | June | • 29 – Crown states on the record – no further disclosure forthcoming. | |
| 14 | July | • 9th – this was the earliest trail date offered and declined by defence • Case has been assigned to Crown counsel S. Scratch for trial. • 31st – further disclosure issues exist | |
| 15 | August | • 8th – Crown advises defence that O'Loughlin being interviewed • 13th - 1st Trial Date – adjourned – continuing disclosure | |
| 16 | September | • Further judicial case management meetings 12th – new Trial date set for March 18th, 2019 | |
| 17 | October | • 29th – 11(b) motion heard | |
| 18 | 19 | ||
| 20 | January 2019 | 21 | |
| 21½ | March 18, 2019 | Scheduled Trial date | Gross delay |
| 22 | Net 19½ months |
[11] The application record documents the diligent and frustrating efforts of the defence to obtain full disclosure in this case. Both of the Crown attorneys handling this matter made efforts throughout to facilitate disclosure in compliance with their obligations. Because of the professional cooperation of experienced counsel on both sides of this case, almost all of the disclosure problems were ultimately solved one way or another.
[12] As an illustration of the systemic dysfunction of the disclosure process, it took a year for the accused to finally get a video that the complainant had provided to the police, and referred to in her initial police interview. At one point the police told the Crown that this video did not even exist.
[13] The final roadblock to the August 13th trial date proceeding as scheduled was the 11th hour realization that a witness, A.O., who was mentioned by the complainant in her formal statement to the police, who the police had told the Crown had no relevant information, and who the Crown had previously said would not be called as a witness, would in fact be called as a witness. A.O. would have to be interviewed and his anticipated evidence disclosed to the accused.
[14] The complainant herself had told the police, both in her initial statement and then again in an October 2017 email, that A.O. had evidence to support her complaint; that he witnessed her demeanour after the fact of being assaulted, and had heard confirmatory inculpatory utterances from the accused.
[15] A.O. was interviewed on August 11th, a Saturday two days prior to the trial date. His statement was disclosed to counsel Monday, August the 13th: the morning of the trial date.
[16] The trial had to be rescheduled. The present trial date of March 18th, 2019 was the earliest mutually available date. The case would be 21½ months old.
EXCEPTIONAL CIRCUMSTANCES
[17] "In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71)." (Coulter, para. 37).
[18] The Crown concedes that this is not a "particularly complex case" and focuses on seeking to justify the delay in this case as flowing from an unavoidable "discrete event": the unexpected sick leave of the officer-in-charge, and the related disclosure lapses that precipitated the abandonment of the first trial date. This is the pivotal issue for determination.
[19] "Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69)."(Coulter para. 45).
[20] The evidence relating to the sick leave of the first officer-in-charge is vague. I suspect out of sensitivity to the officer's privacy. I am comfortable in simply assuming that she has a significant disability that arose rather suddenly. I assume this because of her sudden departure and the fact that the Crown was unable to even obtain a statement from her to assist in the disclosure issues that were ongoing both before and after she went on leave.
[21] A significant illness that arises suddenly will usually be "reasonably unforeseen" or "reasonably unavoidable", and therefore considered an exceptional circumstance.
[22] An exceptional circumstance need not be "rare or entirely uncommon". A change of the "officer in charge" during the intake phase of criminal cases in this jurisdiction, for whatever reason, is anything but unusual. In and of itself such a change should not disrupt an orderly pre-trial process. A new OIC was in place and advising the Crown by at least May 7, 2018.
[23] The applicant submits that the April 6th, 2018 sick leave of the "officer in charge" is a "red herring" in that the change in OIC wasn't the cause of the various disclosure issues but, rather, the disclosure failures here were ongoing and are systemic.
[24] I am not persuaded that the failure in the disclosure process in this case was due to an "exceptional" circumstance. The delinquency in the pre-trial process in this case was systemic. The entire chronology of events documented in the application record describes an ongoing struggle to collect and deliver complete disclose, and to identify what evidence would and would not be called at trial.
[25] In particular, the failure to investigate and disclose the evidence of O'Loughlin in a timely fashion is what pushed this case through the Jordan ceiling. I am not persuaded that that failure was caused by the sick leave of the OIC back in April or that it qualifies as an "exceptional circumstance."
[26] Counsel for the applicant provided the Court with a chart of recent cases interpreting what would or would not amount to "exceptional circumstances" in the 11(b) context. It is noteworthy that almost every case deals with delinquent disclosure, and almost every case rejects the idea that a systemic failure in the disclosure process is an "exceptional circumstance" that can justify delay beyond the presumptive ceiling.
[27] Recently, in a similar case, I wrote:
37 … Prior to Jordan, cases in the range of 13 to 15 months old were regularly Stayed in this courthouse. The usual cause of Charter-infringing delay in this jurisdiction has always been deficiencies and delays in the disclosure process. In this jurisdiction the Jordan presumptive ceiling of 18 months effectively gave the Crown a more generous licence in moving cases through to their conclusion. Stays granted for 11(b) violations in this courthouse have become remarkably scarce since Jordan.
38 In this case, the root cause of the delay was a failure to disclose obviously relevant material in a timely fashion. The steps taken by the Crown to try to remedy the situation once it became apparent are commendable. The steps taken by the defence in response to the material it had sought and the information disclosed at the 11th hour were all necessary, and pursued with due diligence.
CONCLUSION
[28] Terminating a prosecution without regard to the merits is always unpalatable, especially when the charges are serious. However, in the simplified Jordan analytical framework the seriousness of the charges has not maintained a meaningful place in the new 11(b) analysis.
[29] Applying the Jordan framework of analysis to the chronology of this case compels the conclusion that the delay in this case is unreasonable and constitutionally intolerable.
[30] The charges against the accused are therefore Stayed.
Released: December 7, 2018
Signed: "Justice W.B. Horkins"
Appendix: Chart of Exceptional Circumstances Cases
| # | Case | Charges | Alleged Exceptional Circumstances | EC Exist? | Analysis |
|---|---|---|---|---|---|
| 1 | R. v. Mcllquham, [2018] O.J. No. 4226 (C.J.) | Offences relating to possession of restricted firearm | Net delay fell below the presumptive ceiling; Crown argued CRA roadblocks caused delay in disclosure of ITO | No | Defence was diligent in requesting missing disclosure; failure of CRA to provide disclosure to Crown does not qualify as exceptional circumstance |
| 2 | R. v. Gnanasubramaniam, 2017 ONCJ 14 | P4P cocaine; P4P marijuana | Delay between October 21, 2015 and March 17, 2016 for police to tell Crown of cell phone search warrant | No | Transitional case; culture of complacency evinced by Crown and police; lack of meaningful communication about significant part of case for several months |
| 3 | R. v. Zamani, 2017 ONCJ 616 | Importing opium; P4P opium; Conspiracy to import and traffic opium | Crown argued disclosure request imposed new disclosure obligations | No | Transitional case; officer notes and ITO are first party disclosure and should have been disclosed spontaneously; disclosure tasks not unusually onerous or exceptional |
| 4 | R. v. Luoma, 2016 ONCJ 670 | Operating vehicle while impaired; Over 80 | Crown argued it may have been available on dates defence was not available | No | Transitional case; Crown adduced no evidence of its availability |
| 5 | R. v. Lyjak, 2018 ONCJ 687 | Driving over 80 | Crown did not point to exceptional circumstances | No | Lack of urgency to get critical disclosure to defence; lack of Crown resources |
| 6 | R. v. Villanti, 2018 ONSC 4259 | Fraud over; Conspiracy to commit indictable offence | Illness of two judges | No | Illness of judges is discrete event but reasonably foreseeable that judges will be unavailable; delay was avoidable with proper judicial complement |
| 7 | R. v. Robert, 2018 ONSC 545 | Inflicting pain + injury to dogs; Firearms offences; Weapons offences | Absence of Crown to attend family matter; disclosure delays | Yes/No | Transitional case; 1 week delay due to Crown's family matter agreed as exceptional circumstance; but disclosure not complete for almost one year from seizure; unreasonable delay in accessing material falls at feet of Crown |
| 8 | R. v. Stanley, 2016 ONCJ 730 | Drug offences | Crown's reliance on previous state of law; failure to allocate resources | No | Transitional case; delay primarily result of Crown's failure to fulfill disclosure obligations; failure to allocate resources to serious offences cannot justify unreasonable delay; exemplifies "culture of complacency" |
| 9 | R. v. Frail, 2017 ONSC 5886 | Impaired driving; Over 80 | Transitional exceptional circumstances | No | Transitional case; marked by complacency by all parties; Crown took significant time to decide whether to proceed and on what charges; Crown did not provide disclosure timely |
| 10 | R. v. Gauthier, [2017] O.J. No. 6131 (C.J.) | Trafficking cocaine; Crim org offences; Conspiracy offences; Possession proceeds | 34 months to complete in OCJ | No | Documents and ITOs not discovered or produced until January 2017; Crown should have been aware of disclosure obligations; Crown provided no explanation for delayed disclosure; defence re-election not exceptional circumstance |
| 11 | R. v. Nurse, 2017 ONCJ 648 | Trafficking cocaine x3 | 9 months delay between swearing of information and arrest | No | Transitional case; steps taken by police to locate accused were almost non-existent |
| 12 | R. v. Stephensons Rental Services, 2017 ONCJ 466 | Charge under Occupational Health and Safety Act | Disclosure issue at beginning of expert testimony; expert's surgery | No | Crown failed to turn mind to existence of expert work product despite expert retained for two years; foreseeable and avoidable through moderate planning; planned surgery not discrete event; failure of Crown to manage case |
| 13 | R. v. Mares, 2017 ONCJ 148 | Driving over 80 | Late disclosure of DVD; need to reformat disk | No | Despite repeated requests, disclosure not provided for months; reformatted DVD provided 10 days before trial; need to reschedule for defence expert not exceptional circumstance; Crown should have responded timely |
| 14 | R. v. McCready, 2017 ONCJ 15 | P4P cocaine; Possession cocaine; P4P cannabis; P4P cannabis resin; Possession cannabis; P4P fentanyl; Possession fentanyl; Proceeds of crime | Unavailability of police officer witness due to medical leave | No | Transitional case; fact alone that witness on medical leave did not provide sufficient proof of unforeseen problem; Crown took no steps to mitigate |
| 15 | R. v. Swanson, 2017 ONSC 710 | Communicating with person under age 14 for facilitating offence of CP | Technical difficulties to analyze computer data; lengthy resolution discussions; longer trial time than anticipated | No | Transitional case; none of three alleged circumstances were reasonably unforeseen or unavoidable; delay could have been remedied by Crown |
| 16 | R. v. M.(K.), 2017 ONCJ 8 | Sex offences | Adjournment of JPT because seized judge was ill | Yes | Youth matter and transitional case; adjournment due to judge's illness is discrete event; unavoidable and not easily remedied; but delay still unreasonable |
| 17 | R. v. Keyes, 2017 ONCJ 5 | Possessing and accessing CP | Highly material disclosure provided on July 15 when prelim starting July 18 | No | Aborted prelim because of substantial late disclosure not exceptional circumstance; Crown's position that non-disclosure was inadvertent mistake insufficient; risk of oversight foreseeable and avoidable; Crown took no reasonable steps to mitigate |
| 18 | R. v. M.(J.), 2017 ONCJ 4 | Sexual offences | Technical failures in courtroom; problems with state of readiness of prosecutor | No | Youth matter and transitional case; technical difficulties unforeseeable but Crown led no evidence delay was inevitable; Crown's tactical change to call more evidence not exceptional circumstance; better understanding of case would have required only 1 continuation day |
| 19 | R. v. Edan, 2016 ONCJ 493 | Driving over 80 | Late production of breath room video; additional disclosure on first day of trial; outstanding disclosure after trial dates | No | Court not satisfied this constituted exceptional circumstance; Crown did not attempt to remedy disclosure until two days before trial |
| 20 | R. v. Korzh, 2016 ONSC 4745 | Impaired driving; over 80 | Defence diligent in requesting videos; videos not provided before JPT | No | Delay caused by Crown's failure to provide disclosure not exceptional circumstance |
| 21 | R. v. Z.N., 2018 ONCJ 501 | Sexual interference; Sexual assault | Error by Crown's office in providing disclosure; s.278 application issue | No | Youth matter; most significant cause of delay resulted from Crown's error in disclosing text messages subject to s.278 application; mistake not discovered for 14 months; entire disclosure and s.278 issue within Crown's control; loss of control result of inattention and mismanagement |
| 22 | R. v. Bardsley, 2018 ONCJ 42 | Over 80 | Incident in hallway between defence counsel and officer during cross-examination | Yes | Transitional case; incident qualified as discrete event; unforeseeable and unavoidable; but Crown did not take steps in mitigation to avoid mistrial |
| 23 | R. v. Ramsunahi, 2017 ONCJ 749 | Over 80 | Non-appearance of central Crown witness at first trial | No | Crown argued exceptional circumstance; Court rejected; no satisfactory answer for non-appearance; circumstances not reasonably unavoidable when Crown provided no reason |
| 24 | R. v. R., 2017 ONSC 3716 | Sexual assault | Need for expert evidence on complainant's capacity; physician illness issues; delay in obtaining medical records | No | Appeal of OCJ decision to stay; Crown needed expert evidence; first two physicians lacked expertise; third physician had personal and family illness; officer-in-charge did not seek medical records for three months; delay in obtaining records and retaining expert not exceptional circumstances; capacity was central issue from beginning |
| 25 | R. v. Paauw, 2016 ONSC 7394 | Fraud related charges | Failure of interpreter to attend; witness bringing documentary evidence | No | Crown provided no explanation for absence of interpreter; need for French interpreter in jurisdiction with French speakers not reasonably unforeseen or unavoidable; witness showing up with scheduling records not previously provided not discrete event; no indication of steps taken by police to obtain documents |
Footnotes
[1] R. v. Morin, [1992] 1 SCR 771
[2] R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631
[3] R. v. Coulter, 2016 ONCA 207
[4] Attached as exhibit A.