Court Information

Ontario Court of Justice

Date: August 28, 2019

Court File No.: Brampton 18-2147

Parties

Between:

Her Majesty the Queen Respondent

— and —

Elena Chowdhury Applicant

Judicial Officer and Counsel

Before: Justice M.M. Rahman

Section 11(b) application heard: August 12, 2019

Reasons for Ruling released: August 28, 2019

Counsel:

• Christina Lynch — counsel for the Crown, respondent
• Ritesh Patel — counsel for the defendant, applicant

Reasons for Ruling

RAHMAN J.:

1. Overview

[1] The applicant is charged with impaired driving and refusing to provide a breath sample. She applies for a stay of proceedings based on a breach of her right to be tried within a reasonable time.

[2] The main issue in this case is whether a five-month period (from May to October 2018) constitutes defence delay. The applicant argues there is no defence delay. She argues that the time it took the Crown to disclose some video footage in a playable form falls at the feet of the Crown and is not defence delay. In May 2018, the Crown initially disclosed video files containing surveillance footage from an LCBO store. Unfortunately, applicant's counsel could not open the files and watch the video. Applicant's counsel wrote to the Crown and conducted a Crown pre-trial in an attempt to get a playable version of the video. Applicant's counsel says there was nothing more he could do to secure the disclosure and that asking a judge for help would not have gotten him the disclosure any faster. Applicant's counsel also argues that it was reasonable for him to adjourn the matter for three weeks (from September 26 to October 17) after receiving the playable video file because he had to ensure it worked and discuss its contents with his client. This short adjournment, the applicant says, also does not constitute defence delay.

[3] The respondent says that the entire period that the applicant was waiting for the video was defence delay. The respondent argues that the defence ought to have moved the matter forward to the judicial pre-trial stage, since a judicial pre-trial was required in any event. The respondent says that, even though the Crown did not press to move the matter forward to the judicial pre-trial phase, the defence should have moved the matter forward and sought the intervention of a judge if delay caused by outstanding disclosure was a concern. Alternatively, the respondent says that, once the applicant received the disclosure in September, she should have set a judicial pre-trial rather than adjourning the matter for three weeks. If that three weeks of defence delay is subtracted, the delay falls under the presumptive ceiling. The respondent says, if the delay is under the ceiling, the applicant cannot succeed in showing that she took the required initiative to establish the delay is unreasonable.

[4] These reasons explain why I have found that the applicant's s. 11(b) rights were not violated and dismiss the application for a stay of proceedings.

2. The Jordan Analysis

2.1. Total Delay

[5] The total delay from the date that the applicant was charged (February 21, 2018) to the anticipated end of trial (August 30, 2019) is 18 months and 10 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 defence delay has two components: waiver and delay caused solely by the defence. Delay caused solely by the defence will not include "defence actions legitimately taken to respond to the charges." [1] Almost a year after the release of Jordan, the Supreme Court in R. v. Cody clarified that its description of defence delay in that case was not intended to be exhaustive. [2] The court repeated its comments in Jordan that it remained "open to trial judges to find that other defence actions or conduct have caused delay." The Supreme Court also observed that defence inaction may amount to conduct that is not legitimate.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently" (Jordan, at para. 138). [3]

[8] In making the foregoing comments, the court stressed that a finding that actions are not legitimate is not a finding of unprofessional or unethical conduct. [4]

[9] I am satisfied that the three-week period of delay from September 26 to October 17 is properly characterized as defence delay. Once the applicant received disclosure on September 26, she should have set a judicial pre-trial. I do not accept the applicant's submission that it was unclear that a judicial pre-trial was required because the trial estimate was "two to three days." Trials in Brampton's Ontario Court of Justice must be judicially pre-tried if they are longer than two days. An estimate of "two to three days" exceeds two days. I cannot accept the applicant's position that the three-week adjournment was necessary to allow counsel to see if the video played and to meet with his client to discuss it. There was nothing preventing him from setting a judicial pre-trial and taking those steps in the interim. I also note that counsel acknowledged on September 26 that, if the video still could not be played, the issue could be resolved through a judicial pre-trial. No matter what, if this matter was going to trial, a judicial pre-trial had to be set.

[10] Whether the period between May 16 and September 26 was defence delay is less clear. Given my ultimate conclusion, I need not decide whether that period of time was defence delay. Even assuming it was not, as I will explain further below, the applicant would still not be entitled to a stay.

2.3. Net Delay

[11] The net delay in this case is 17 months and 19 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?

[12] 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

[13] 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." [5]

[14] I am not satisfied that the applicant has demonstrated taking meaningful and sustained steps to have the matter tried quickly.

[15] There is no question that the Crown did not fix the video issue quickly. Applicant's counsel attended court several times and said that disclosure was outstanding. Applicant's counsel also conducted a further Crown pre-trial and wrote to the Crown's office requesting the disclosure.

[16] However, some context is required here. The video that the applicant was having problems with was not created by the Crown or the police. It was created by a third-party and provided to police. A more effective and meaningful way of resolving the issue that the applicant was facing was to have a judicial pre-trial. Where the defence has an issue with disclosure that is not being quickly resolved, it makes sense to seek the intervention of a judge. 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. [6]

[17] Here the problem was not that the Crown had failed to make basic disclosure. It was that the Crown had not provided the video file to the defence in a manner that could be played. The fastest way to solve that problem was not to write letters addressed to the Crown's office and put on the record that there was an issue. A meaningful step, as Code J. observed, would be to have a judicial pre-trial. As mentioned above, this was a matter that required a judicial pre-trial in any event. Mr. Patel fairly acknowledged in his submissions that his problem playing the video did not prevent him from having a meaningful judicial pre-trial. In the circumstances, I cannot find that the applicant took meaningful and sustained steps to expedite the trial, given that she did not set a judicial pre-trial earlier.

[18] Because the applicant has not demonstrated meaningful and sustained steps to expedite the matter, I do not have to decide whether the case took markedly longer than it reasonably should have.

3. Conclusion

[19] The net delay in this case falls under the presumptive ceiling. The applicant has failed to establish that the delay in this case was unreasonable.

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

Released: August 28, 2019

Justice M.M. Rahman

Footnotes

[1] R. v. Jordan, 2016 SCC 27 at paras. 64-65.

[2] R. v. Cody, 2017 SCC 31 at para. 30.

[3] Ibid. at para. 33.

[4] Ibid. at para. 35.

[5] Jordan, supra, at paras. 84-85.

[6] R. v. Gandhi, 2016 ONSC 5612 at para. 33.