Court File and Parties

Ontario Court of Justice

Date: 2019-05-28

Court File No.: Brampton 18-1666

Between:

Her Majesty the Queen Respondent

— and —

Samantha Stevenson Applicant

Before: Justice M.M. Rahman

Section 11(b) application heard: April 2, 2019

Reasons for Ruling released: May 28, 2019

Counsel:

• Vickramjeet Aujla, counsel for the Crown, respondent
• Philip Patterson, counsel for the defendant, applicant

RAHMAN J.:

1. Overview

[1] The applicant is charged with public mischief. She applies for a stay of proceedings based on a breach of her right to be tried within a reasonable time.

[2] The applicant argues that her trial has been unreasonably delayed because of the Crown's lengthy delay in meeting its basic disclosure obligation. In particular, the Crown did not disclose the video statement that is the subject of the charge until nine months after the charge had been laid.

[3] The respondent says that the applicant has not demonstrated that the net delay in this case, which is under the presumptive Jordan ceiling, is unreasonable. The respondent says that the applicant did not take the required initiative and that her actions display the very complacency that Jordan is intended to stop. The respondent also argues that this case did not take markedly longer than reasonable to get to trial.

[4] These reasons explain why I have found that the applicant's s. 11(b) rights were not violated.

2. The Jordan Analysis

2.1. Total Delay

[5] The total delay from the date the applicant was charged (February 7, 2018) to the anticipated end of trial (June 28, 2019) is 16 months and 21 days.

2.2. Defence Delay

[6] Defence delay must be subtracted from the total delay to determine the net delay. If the net delay exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.

[7] In Jordan, the Supreme Court held that "the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not." This means that the so-called "Jordan clock" stops on the day the Crown and the court are available. In this case, that means that the period after March 19, 2018 is defence delay.

[8] The applicant accepts the Crown's calculation of defence delay as 3 months and 19 days.

2.3. Net Delay

[9] The applicant agrees that the net delay is 13 months and 2 days. Because that delay is under the 18-month ceiling, the applicant must demonstrate that the delay is unreasonable.

2.4. Has the applicant demonstrated that the case should be stayed?

[10] Where the remaining delay is below the presumptive ceiling, the defence can succeed in showing unreasonable delay if it can establish both of the following two conditions:

(1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative).

(2) The case markedly exceeded its reasonable time requirements.

2.4.1. Defence Initiative

[11] To show defence initiative, the defence must show that it took meaningful and sustained steps to be tried quickly. The defence must show that it attempted to set the earliest possible hearing dates and that it was "cooperative with and responsive to the Crown and the court." The defence must also have "put the Crown on timely notice when delay was becoming a problem."

[12] I am not satisfied that the applicant has demonstrated taking meaningful and sustained steps to have the matter tried quickly. Although the applicant did take some initial steps to resolve the delay in getting disclosure, I cannot find that she took meaningful and sustained steps.

[13] There is no question that the Crown did not make timely disclosure. Applicant's counsel attended court several times and said that disclosure was outstanding. He expressed frustration at the delays in getting disclosure, including frustration with the way disclosure is given out in Brampton (at the "disclosure hub"). He did not get disclosure of the video statement until November 2018. And more disclosure followed after he received the video statement.

[14] However, what applicant's counsel did not do is seek the intervention of a judge earlier. If the defence is concerned about the slow pace with which the Crown is making disclosure, Jordan requires that the defence do something more than attend court and say that disclosure is unavailable. As Code J. explained in R. v. Gandhi:

33 The judicial pre-trial, or JPT, is arguably the most important tool of modern case-management. When faced with a case like this with disclosure problems, an experienced and capable judge can do at least three things to move it forward: first, give the officer in charge fixed deadlines for producing missing disclosure and keep bringing the officer back to ongoing JPT appearances until the deadlines are met; second, advise and mediate between the parties as to which requests for further disclosure are reasonable (and are likely to be ordered by a court) and which requests are unreasonable (and are likely to be denied by a court); and finally, order the parties to set a date for trial or preliminary inquiry, even though some further disclosure may still be outstanding, once a certain point in the process has been reached.

[15] In fact, that is ultimately what happened in the fall of 2018. Once the judicial pre-trial judge got involved, disclosure followed relatively quickly. Had the applicant taken this step earlier, and been unsuccessful in obtaining disclosure, it may be that a court could find she had taken meaningful and sustained steps.

[16] I also agree with Crown counsel that other aspects of the applicant's conduct undermine a finding that there were meaningful and sustained efforts to expedite the proceedings. For example, applicant's counsel resisted Crown counsel's suggestion to check for disclosure at the disclosure hub. Counsel also did not follow up with written requests to the Crown's office setting out specifically what disclosure was outstanding. More significantly, on July 10, when Crown counsel suggested that applicant's counsel meet with the duty Crown, applicant's counsel said he had already done so on two previous occasions and did not see any point in doing so again. At that same appearance, he expressed his frustration that he had done everything within his power and he could not compel the police to turn over disclosure to the Crown. As mentioned above, one option that he could have pursued was to seek intervention of a judge. That did not happen until October 2018.

[17] I do not mean to be critical of defence counsel's conduct in this case. I am not suggesting counsel acted improperly or that he did not act diligently. I also cannot go as far as Crown counsel to suggest that his conduct shows complacency. However, defence initiative under Jordan requires more than the defence passively protecting the defendant's rights by registering complaints about disclosure on the record. Instead, to demonstrate that delay is unreasonable, Jordan requires meaningful and sustained steps. It requires the defence to be cooperative with the Crown and the court. And it requires the defence to put the Crown on notice when delay is becoming a problem. None of those conditions has been met here.

[18] Further, nothing I have said in these reasons should be seen as condoning the dilatory approach that the Crown took in making what was basic disclosure. This is not a case where tangential disclosure was outstanding. The late disclosure was the very statement that supported the Crown's case. Although I have found that applicant's counsel did not take sufficient initiative to meet the onus under Jordan, it is easy to understand his frustration. It was the Crown's obligation to disclose the outstanding material. The delay in making disclosure here was unacceptable. There is no explanation for it. However, under Jordan, if Crown can make up for its delay on the back end of a case, a defendant will usually not be able to succeed on a s. 11(b) application. That is the case here.

[19] Because the applicant has not demonstrated meaningful and sustained steps to expedite the matter, I need not decide whether the case took markedly longer than it reasonably should have. I would note that, on its face, 13 months from charge to trial does not seem markedly longer for the completion of a four-day trial in this court in Brampton.

3. Conclusion

[20] The applicant has failed to establish that the delay in this case was unreasonable.

[21] The application for a stay of proceedings is dismissed.

Released: May 28, 2019

Justice M.M. Rahman