ONTARIO COURT OF JUSTICE

CITATION: R. v. Kasak, 2019 ONCJ 82

DATE: 2019 02 14

COURT FILE No.: Lindsay 171287

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

THOMAS KASAK

Before Justice S. W. Konyer

Heard on January 30, 2019

Reasons for Judgment released on February 14, 2019

Ms. M. Tait ............................................................................................ counsel for the Crown

Ms. D. Mansour ................................................ counsel for the accused Thomas Kasak

KONYER J.:

DECISION ON s.11(b) CHARTER APPLICATION

[1] Thomas Kasak is charged with possessing and making available child pornography between February 8 and September 6, 2017, and with possession of marijuana, possession of child pornography and possession of marijuana for the purpose of trafficking on October 2, 2017. All charges were laid on October 3, 2017. The Crown is proceeding by indictment on these charges, all of which are contained on a single information. Mr. Kasak has elected to be tried in the Ontario Court of Justice, and I am assigned to hear his trial which is scheduled for three days – August 2, September 6 and September 27, 2019.

[2] On January 30, 2019, I heard an application brought by Mr. Kasak seeking a stay of proceedings pursuant to s.24(1) of the Canadian Charter of Rights and Freedoms as a result of an alleged infringement of his right to be tried within a reasonable time, as guaranteed by s.11(b) of the Charter. In determining this application, I must apply the framework established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, since Mr. Kasak claims that the presumptive ceiling for tolerable delay in his case has been exceeded.

[3] In brief, under Jordan I must first calculate the net delay, which is the total delay from the time the charge was laid until the anticipated end of the trial, less any defence delay. Defence delay is any period of delay that is waived by the defence, or any period of delay that is attributed to the conduct of the defence. In a case tried in provincial court, the net delay is presumptively unreasonable if it exceeds 18 months. In order to rebut this presumption, the Crown must prove that the delay is the result of “exceptional circumstances”. These generally fall into two categories – discrete events or particular complexity arising from the evidence or the issues. Where a discrete event occurs, the period of delay caused by that event is deducted from the net delay. Complexity, on the other hand, may be used to justify a delay that exceeds the presumptive ceiling. If the delay exceeds the presumptive ceiling and the Crown cannot justify the excessive delay, then Mr. Kasak’s s.11(b) right will have been infringed, and a stay of proceedings must follow as the only available remedy.

[4] In this case, the total delay between the laying of the charges and the anticipated end of the trial is 724 days, or approximately 24 months. The defence explicitly waived one period of 22 days [February 22 to March 15, 2018], and concedes that two further periods totalling 35 days [January 18 to February 1 and February 1 to 22, 2018] are defence delay. According to the defence, therefore, the net delay is 667 days, or just over 22 months. The defence further argues that there are no exceptional circumstances present in this case, and that the Crown therefore cannot justify the delay beyond the presumptive ceiling.

[5] The Crown argues that there are further periods of defence delay which, when deducted from the total delay, produce a net delay below the presumptive ceiling. In particular, the Crown argues that the defence caused delay in the period prior to the scheduling of the first Judicial Pre-Trial (JPT). The Crown also argues that there is further period of delay attributable to the defence because the defence was not available for earlier trial dates that were offered after the case was set down for trial. Once this period is properly characterized as defence delay, the net delay in this case falls below the presumptive ceiling. If I find the net delay to be below the 18 month Jordan ceiling, the defence is not seeking a stay of proceedings on the grounds that the case has taken markedly longer than it should despite meaningful and sustained efforts by the defence to move the case forward.

[6] In the alternative, if I do not accept the Crown’s argument about defence delay, the Crown argues that there are exceptional circumstances which apply in this case. First, the Crown says the unavailability of the JPT Judge for a period of roughly 1.5 months is a discrete event which should be deducted from the net delay. If the net delay still exceeds the presumptive ceiling at that point, the Crown says that this case was particularly complex due to the nature of the police investigation that was necessary following Mr. Kasak’s arrest in order to analyze the devices seized from him. This complexity justifies any period of delay beyond the Jordan ceiling, according to the Crown.

[7] Therefore, the issues I need to decide on this application are as follows:

• Beyond what the defence has conceded, is any of the delay prior to the first JPT defence delay?

• Is any of the delay between the earlier trial dates that were offered after the fact and the scheduled trial dates defence delay?

• If the net delay exceeds 18 months, was the unavailability of the JPT judge for medical reasons a discrete event?

• If the net delay still exceeds 18 months, is the additional delay justified owing to the particular complexity of this case?

[8] In order to decide these issues, it will be necessary to set out the history of the proceedings in some detail.

[9] Mr. Kasak was charged on October 3, 2017. He was released from custody following a bail hearing on the consent of the Crown that same day, and his case was adjourned to November 2, 2017. Mr. Kasak promptly retained counsel on October 19. His counsel of choice was unavailable on November 2, and corresponded with the Crown’s office who agreed to have the matter brought forward to October 26 so that counsel could appear on Mr. Kasak’s behalf.

[10] On October 26, 2017, counsel for Mr. Kasak appeared and informed the court that he had received the initial disclosure package the day before. He sought an adjournment to November 23 “in the hope we have an issue resolution meeting in the interim.”[^1] The presiding Justice of the Peace granted this adjournment request, noting that “[t]he reason for the adjournment is for counsel to review disclosure and to conduct a Crown pretrial.”[^2] Defence counsel explicity agreed with this characterization of the adjournment. Both counsel on this application agree that this was a legitimate action taken by the defence, and that this delay is not defence delay for the purpose of the s.11(b) analysis.

[11] On November 23, 2017, defence counsel appeared and informed the court that “[s]ome disclosure has been provided to us, and we’ve had some, I guess, early discussions with my friend’s office, and we’re just awaiting some additional disclosure.”[^3] The matter was adjourned to the following day for a consent variation, at which point the defence informed the court that pretrial discussions had commenced, but that further disclosure was needed. “We’re just awaiting some additional disclosure with respect to several of the charges. We received disclosure with respect to one of the charges.” The Crown raised no objection to the request to adjourn the matter a further month to December 21. The presiding Justice of the Peace, however, inquired “[w]hat’s happening between now and the 21st?” Defence counsel responded by stating “[w]e’re just awaiting some additional disclosure, and once it’s ready, we’ll be able to pick it up and continue discussions with my friend’s office.”

[12] It is noteworthy that neither party made it clear what disclosure remained outstanding, other than the cryptic comment made by defence counsel that disclosure had only been provided in relation to one of the four charges that Mr. Kasak is facing. Nevertheless, for the purposes of the s.11(b) application, both parties agree that this period of delay constituted a legitimate step in the proceedings, and therefore does not qualify as defence delay.

[13] On the next appearance of December 21, 2017, defence counsel informed the court that the additional disclosure they had been waiting for had still not been provided. Defence counsel also asserted that “[w]e have disclosure with respect to the drug charge, but we’re still waiting disclosure on the balance of the charges.”[^4] Crown counsel noted that no written request for additional disclosure had been received, but undertook to look into the issue of outstanding disclosure. Defence counsel stated that a written request for disclosure would be sent, and sought a one month adjournment. The matter was adjourned to January 18, 2018.

[14] On this application, the Crown filed an affidavit from Sheri Reesor, a Legal Administration Clerk with the Crown’s office who was responsible for reviewing, preparing and tracking disclosure in this case. She prepared an initial disclosure package on October 18, 2017, which included 21 separate items. These included an 18 page synopsis containing 1 page relating to the drug charges, and 17 pages that “outlined the investigation into the child pornography charges Mr. Kasak was facing, a description of the electronic albums located and the images contained.”[^5] The disclosure package also contained the notes of officers involved in the investigation prior to Mr. Kasak’s arrest, and those involved in executing the search warrant on his home on October 3, 2017. From what I understand, a laptop computer, a personal computer, and two thumb drives were seized during the execution of that search warrant. While the police suspected these items contained further child pornography, these items could not be searched or analyzed until they were seized by police.

[15] At the bail proceedings conducted on October 3, 2017, the Crown read portions of an 18 page synopsis into the record.[^6] I infer that this is the same 18 page synopsis that was provided in the initial disclosure package prepared by Ms. Reesor on October 18, 2017. This outlined that police began an investigation into child pornography through a Russian-based image hosting website called www.imgsrc.ru. Police determined that a user of the website with an account name of Dehunt had uploaded a number of photo albums onto the site, which were then accessible by any of the 931,000 registered users of the imgsrc site. The user Dehunt was identifiable as Canadian on the site. Police viewed the albums uploaded by this user and determined that five of the albums contained material the police believed clearly fell within the definition of child pornography.

[16] Police investigation of the Dehunt account revealed that the IP address associated to this account was registered to a Tom Kazak with an address in Burnt River, Ontario. An undercover officer using a covert imgsrc account containing photographs of children’s underwear made contact with the Dehunt account. The user of the Dehunt account responded, and engaged in conversations that revealed a sexual interest in female children. Police obtained a search warrant for the Burnt River address, which was executed on October 2, 2017. The accused was arrested, and a quantity of marijuana was seized along with a laptop computer, a desktop computer and two thumb drives. The police “previewed” the laptop computer and discovered information relating to the Dehunt account, the email address which had been in communication with the undercover officer, and a large number of images of young female children, 12 of which the police believed met the definition of child pornography.

[17] Following the December 21, 2017 court appearance, where defence counsel asserted that the defence had not received any disclosure relating to the child pornography allegations, counsel sent a request for disclosure to the Crown. This correspondence reads, in part, “To date we have received disclosure regarding the drug matters but have yet to receive disclosure pertaining to the balance of the charges, namely the child pornography. We are requesting disclosure of same so that we can conduct a continuing IRM [issue resolution meeting].”[^7] In oral argument on this application, defence counsel conceded that they had in fact been provided with the disclosure referred to in the affidavit of Ms. Reesor on October 25, 2017, but nevertheless asserted that both their representations to the court on December 21 and the written request to the Crown on the same date were simply poorly worded, and not meant to misrepresent the true state of the disclosure process. It was agreed between the Crown and defence that an issue resolution meeting had occurred on November 23, 2017, and it does appear that both counsel agree that there was significant disclosure outstanding as of December 21 that was essential in order for a meaningful IRM to be conducted. It is unfortunate that neither counsel saw the need to identify what this disclosure comprised with any specificity.

[18] The Crown claims on this application that the delay caused by the one month adjournment from December 21, 2017 was delay caused by the defence, which effectively misrepresented the true state of the disclosure which had been provided. According to the affidavit of Ms. Reesor, however, an additional disclosure package was prepared on January 11, 2018. This included a “Categorization Report”, a document “that provides a categorization of the 771 child pornography files located on the accused’s desktop computer, laptop computer and USBs seized identified as child pornography. For each device, the report categorizes the total number of child porn images, the total number of child porn videos, and the unique number of both child porn images and video (not duplicate) located on the various seized devices.”[^8] The Crown attempted unsuccessfully to send this report by fax, then sent it by email to defence counsel’s office.

[19] At the next court appearance of January 18, 2018, defence counsel informed the court that the staff member to whom the email had been sent was on vacation. The disclosure had therefore not yet been reviewed, and requested an adjournment to February 1, to “review that disclosure and we can conduct a continuing Crown pretrial with the new information”.[^9] The defence agrees that this period is defence delay.

[20] On February 1, the defence informed the court that “we have received that disclosure, and we have reviewed that disclosure. Now in light of that disclosure, we’re seeking to have a continuing issue resolution meeting.”[^10] Accordingly, the defence request for an adjournment to February 22, 2018 was granted. The defence concedes that this period is also defence delay.

[21] Both parties agree that a further IRM was conducted on February 13, 2018. The defence filed an affidavit from Heather Clarke, a legal assistant in their firm, stating that “[a]n issue resolution meeting was conducted on February 13, 2018 in which both counsel discussed a Crown resolution position, outstanding disclosure and a trial estimate.”[^11] There is no evidence before me as to what disclosure counsel believed was still outstanding at that point, nor was I provided with any disclosure request itemizing the outstanding disclosure.

[22] On the next court appearance of February 22, 2018, defence counsel confirmed that a further issue resolution meeting had occurred and that “[w]e’re still waiting to receive instructions from Mr. Kasak.”[^12] Defence sought and was granted an adjournment to March 15, 2018 for the purpose of obtaining instructions with an explicit 11(b) waiver. There was no indication placed on the record that additional disclosure was required in order for counsel to obtain proper instructions. In her affidavit, Ms. Clarke stated that “[o]ur office obtained instructions from the client and as a result, our office was required to schedule a Judicial Pre-Trial.”[^13] It is conceded that this period from February 22 to March 15, 2018 is defence delay.

[23] On the next court appearance of March 15, a Judicial Pre-Trial (JPT) was scheduled for May 7, 2018. It is agreed that this period was a legitimate step and does not constitute defence delay.

[24] At the May 7 JPT, the presiding Justice conducted a pretrial, and then stated on the record that “[t]he forensic audit of the laptop, desktop and thumb drives is not complete at this stage, and that information is needed for the matter to move forward.”[^14] He went on to adjourn the pretrial to June 18 and added “hopefully, there will be that audit done by then or, second best scenario, an update as to when it can be expected.”[^15] Both Crown and defence counsel were asked if they wished to add any comments to the record and each declined.

[25] During the course of argument on this application, counsel agreed that there is an OPP policy that expert forensic audits will not be prepared until cases are known to be going to trial. In this case, the OPP was not notified of the need for a forensic audit until a request was made by Crown counsel on May 8, 2018, the day after the first JPT. The request was received by the OPP, assigned to an expert on June 12, 2018, who completed the report on August 2, 2018. The report was then provided to the Crown who vetted it for disclosure purposes and prepared a further disclosure package to the defence on September 7, 2018. The package was picked up on September 11. It “contained a complete forensic report on all 771 child porn images and videos located on the accused’s desktop computer, laptop computer and USBs” and “a detailed analysis of the accused’s seized devices, and show an initial Griffeye processing of 291,180 files: 260,200 unknown, 27 child porn, 2,239 investigative interest, and 28,714 other. Ultimately, 771 files were determined to be child pornography.”[^16]

[26] In the meantime, JPT’s scheduled on June 18, July 30, and August 20, 2018 were all adjourned to await the disclosure of the forensic audit report. On August 20, the Crown informed the court that the report had been provided to the Crown, that it was over 200 pages, and that the Crown had not yet had an opportunity to review the report for disclosure purposes.[^17] The JPT was then adjourned to September 24, 2018 to allow the Crown to review the report and disclose it to the defence with sufficient time for the defence to be able to review it before the next pretrial date. It is agreed between counsel that none of the delay between the first JPT on May 7 and September 24 is defence delay.

[27] On September 24, 2018, the JPT did not proceed. The Crown informed the court that “due to the nature of the charge, you can expect that there would be an extraction report on a computer that was seized by [sic] Mr. Kasak. I’ve had a chance to have a – a look through the extraction report. It is fairly lengthy when you consider the number of appendices attached to it. They give a lot of detail. And I understand that counsel is going to need some time to go through it.”[^18] Defence counsel agreed with this characterization of the proceedings at this stage. No suggestion was made at the time that any delay caused by the adjournment of the scheduled September 24 JPT was caused by the conduct of the defence.

[28] In the course of argument on this application, however, the Crown argued that the delay in completing the JPT process was a discrete event that ought to be deducted from the net delay because the judge who had conducted the previous JPT’s was unavailable on September 24 due to illness. The JPT was adjourned to November 5, 2018, approximately 1.5 months later, which was the first date the initial JPT judge was expected to be back following medical leave. No suggestion was made at the time that the matter ought to be heard at an earlier date before another judge. The defence argues that this period is not a discrete event because the JPT could not have occurred on September 24 in any event due to the volume of disclosure that had only been provided a short time before the scheduled JPT. Further, the defence points out that there is no evidence that a JPT before another judge could have occurred before November 5.

[29] On November 5, 2018, the JPT was finally completed. The Crown elected to proceed by indictment, and Mr. Kasak elected to be tried in the Ontario Court of Justice. A three day estimate was arrived at for his trial, and trial dates were scheduled for August 2, September 6 and September 27, 2019. A further date was scheduled for a s.11(b) Charter application on January 30, 2019. Counsel agree that these were the first trial dates offered by the trial coordinator.

[30] On January 16, 2019, the Crown sent an email to defence counsel, informing him that “there are 3 days now available this spring to accommodate the Thomas Kasak trial. […] Can you please advise your availability for April 5, along with May 3 & 13, 2018?”[^19] Defence counsel responded by email the following day, stating that “I have checked our availability and unfortunately those dates are no longer available.”[^20] About two hours after receiving this email, the Crown responded and inquired “Are there other dates in the spring that would be available to you?”[^21] There followed from this a series of emails where the Crown sought to ascertain the defence availability in the spring of 2019, and the defence responded by declining to provide dates until firm dates were offered by the trial coordinator. Unfortunately, the Crown did not have the matter brought forward in court so that counsels’ respective availability could be placed on the record, and so that court availability could be canvassed in light of the Crown’s apparent willingness to give this matter priority over other previously scheduled cases.

[31] Since this application was argued, the trial coordinator has offered further earlier dates for Mr. Kasak’s trial. Specifically, dates were offered on February 25-27, 2019. Defence counsel is unavailable, but the Crown is available. Further dates were offered for the weeks of March 4 and March 11, 2019, all of which are available to the Crown. Defence informs me that while counsel is available, these dates are not acceptable because Mr. Kasak intends to retain an expert witness for his trial, presumably to counter the evidence of the expert the Crown intends to call. It was contemplated at the JPT that the Crown would be calling an expert, and that the defence may also be calling an expert. The report of the Crown expert has been disclosed, and this witness’ expertise is conceded. Defence counsel informs me that Mr. Kasak needs the period of time until his trial is scheduled to begin to financially retain the proposed defence expert. In other words, despite the fact that the defence accepted the first trial dates that were offered on November 5, 2018, the defence is unable to accept any earlier dates because Mr. Kasak needs that period in order to retain an expert witness for his defence.

[32] This completes my review of the history of these proceedings. I will now turn to an assessment of the periods of delay that are in dispute in order to determine whether any of these periods should be deducted as defence delay in the calculation of net delay. To recap, the periods of time that the parties dispute are defence delay are from December 21, 2017 to January 18, 2018, and between the earlier trial dates now being offered to September 27, 2019. I will consider each in turn.

The delay from December 21, 2017 to January 18, 2018

[33] The defence asserts that this delay occurred because disclosure was not yet sufficiently complete for a meaningful pre-trial to occur. The Crown disagrees, and points to the fact that the defence repeatedly misled the court about the fact that initial and substantial disclosure on the child pornography allegations had been provided prior to Mr. Kasak’s first appearance. I share the Crown’s concerns about the representations made by the defence to the presiding judicial officers on November 23 and December 21, 2017. It was misleading to assert that no disclosure had been provided in relation to the child pornography allegations. It is difficult to accept that this was simply an inadvertent error. The misleading statement was made on more than one occasion, and then repeated in written correspondence to the Crown.

[34] Nevertheless, it is apparent from the record before me that substantial disclosure relating the child pornography charges was not available in the initial disclosure package, and that Crown and defence counsel were in agreement that they needed to review this disclosure in order to have meaningful pretrial discussions. The parties agree that an initial pretrial occurred on November 23, 2017, and there appears to have been a consensus on the subsequent court appearances of November 24 and December 21 that additional disclosure was expected, and that this disclosure was essential in order to continue the pretrial.

[35] This is hardly surprising given what I do know about the case. Mr. Kasak was arrested on October 3, 2017 following a significant police investigation. He was arrested when the police executed a search warrant, based on their investigation to that point, that led them to form grounds that Mr. Kasak was in possession of child pornography on computers or electronic devices. An initial perusal of one of those devices at the time he was arrested confirmed this belief in the eyes of the police. In those circumstances, it is plain that further investigation to analyze and potentially extract evidence from the seized devices was contemplated. This is the information that was not contained in the initial disclosure package, and I infer that this is the information that both counsel considered essential to the ongoing pretrial discussions. On January 11, 2018, it appears that a preliminary analysis of the materials on these devices was disclosed – that being a categorization by the police of 771 different files alleged to constitute child pornography. I agree with the defence that a meaningful pre-trial could not possibly have been completed in the absence of this information. Accordingly, I find that that the one month adjournment from December 21, 2017 to January 18, 2018 was a legitimate step taken by the defence to respond to the charges Mr. Kasak was facing. Accordingly, this period is not defence delay.

The delay between the earlier trial dates and September 27, 2019

[36] Mr. Kasak’s case was in a state of crisis in terms of delay by the time the matter was scheduled for trial on November 5, 2018. By that time 13 months had elapsed since Mr. Kasak was first charged. Most of that delay occurred while awaiting disclosure of the analysis of items that the police obtained at the time of Mr. Kasak’s arrest. It bears repeating that Mr. Kasak was arrested during the course of the execution of a search warrant obtained by the police for items believed to be in his residence. The police clearly had information that led them to believe that Mr. Kasak was posting and / or accessing child pornography through a computer. They seized two computers and two thumb drives when they executed the warrant they had obtained to permit them to seize precisely these sorts of devices. It would have been plain to anyone looking at the case that post-arrest investigation would continue to determine whether these devices contained further evidence that was relevant to this prosecution. I am informed, however, that the police did not begin the forensic analysis of these devices until May 8, 2018, the day after the first scheduled JPT. This is due to an OPP policy not to spend the time and resources conducting these examinations unnecessarily. In other words, the forensic examination is only undertaken if they are informed that the case is going to trial. In Mr. Kasak’s case, the police apparently were not given this information until 7 months had passed following the seizure of the devices. Once they were informed of the need to conduct a forensic examination, this process took a further 3 months to complete. The Crown then required 1 further month to review and vet the results of the analysis for disclosure purposes. These steps all needed to be completed prior to the JPT, so that counsel could inform themselves of the evidence and issues in the case, in order to arrive at proper time estimates for the trial.

[37] I point out this history because it provides context for the state of crisis that existed when Mr. Kasak’s matter was finally ready to set down for trial. There is no dispute that both counsel accepted the first trial dates that were offered at the time by the trial coordinator. It is also clear that both counsel understood, at the time, that the total delay if the trial completed as scheduled exceeded the presumptive Jordan ceiling for provincial court trials. The fact that this s.11(b) application was scheduled at the same time the trial dates were set confirms the fact that all parties understood that Mr. Kasak’s right to be tried within a reasonable time was at risk, as was the community’s interest in seeing that timely justice was delivered in this matter.

[38] In Jordan, the Supreme Court called for a culture change in the Canadian criminal justice system with respect to delay. The court emphasized that all justice-system participants, including the Crown, defence counsel and the judiciary have important roles to play in ensuring that trials occur in a timely fashion. As the court stressed in the subsequent case of R. v. Cody, 2017 SCC 31, at para. 1, “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to be tried within a reasonable time.” This includes an obligation on defence counsel to “actively advance their clients’ right to a trial within a reasonable time [and] collaborate with Crown counsel when appropriate”: Jordan, supra, at para. 138.

[39] The defence now concedes that counsel are available for earlier trial dates which have become available since Mr. Kasak’s case was set for trial. Specifically, counsel would be available to conduct his trial during either the week of March 4 or the week of March 11, 2019. As this matter has been in the system since October 2017 and all of the disclosure was completed by September 2018, I can reasonably infer that counsel have had adequate time to prepare for Mr. Kasak’s trial. The only reason the trial cannot now proceed on those dates is that Mr. Kasak requires additional time to fully retain an expert witness that he wishes to call to testify at his trial. While this is undoubtedly a legitimate reason for his wish to have his trial occur in September rather than March, the responsibility for that period of delay now clearly lies at his feet. The system responded to the crisis presented by the delay in his matter by securing earlier trial dates. These were offered in sufficient time to allow for counsel to be fully prepared for trial. The Crown and court are able to proceed on the earlier dates, but Mr. Kasak is not. This is defence delay.

[40] Accordingly, I deduct the period March 15, 2019 – the date where his trial could easily be completed based on the dates now available to the court and counsel – and September 27, 2019 – the completion date which Mr. Kasak wishes to retain. This is a period of 195 days, or 6.5 months. This reduces the net delay in Mr. Kasak’s case to 472 days, or roughly 16 months.

[41] Given these findings, it is not strictly necessary for me to determine whether the delay in the JPT from September 24 to November 5, 2018 was a discrete event due to the unavailability of the presiding Judge, or whether this case was sufficiently complex to justify a delay in excess of the presumptive ceiling. Since these issues were fully argued, however, I will also decide them.

Was the delay from September 24 to November 5, 2018 a discrete event?

[42] In my view, the delay in completing the JPT was not a discrete event. Although it is true that the Judge who had presided over the several previous JPT’s was not available on September 24, it is also true that the JPT would not have proceeded on that date in any event due to the recent disclosure of the voluminous forensic audit. It is clear from the record that defence was not prepared to proceed with the JPT on this date because the report had been recently received. It is also clear that the Crown agreed that an adjournment of the JPT was reasonable in these circumstances. It is simply coincidental that the JPT Judge was not available on the same day for medical reasons. The delay occasioned by these circumstances amounted to a 6 week period, and there is no evidence before me that an earlier date was available. Certainly the Crown did not press to set an earlier date before a different Judge. In those circumstances, this period of delay was not caused by a discrete event.

Was this case sufficiently complex to justify delay above the ceiling?

[43] Although it is true that there is a level of complexity to this case that is absent from many other cases in that additional time was required to analyze the devices seized from Mr. Kasak on his arrest, in my view this fact does not in and of itself justify a delay beyond the presumptive ceiling. It is well known that the Supreme Court in Jordan held that a typical murder trial will not usually qualify as a complex case for 11(b) purposes. The court went on to state that “if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance”: Jordan, supra, at para. 78. It seems to me that in Mr. Kasak’s case, the amount of additional preparation time was not inordinate. Had the police initiated the forensic analysis promptly after Mr. Kasak’s arrest, it would have been completed by the time the case reached the JPT stage.

[44] As the Supreme Court held in Jordan, supra, at para. 79: “the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control.” In this case, the Crown failed to develop or follow any meaningful plan to ensure that the necessary post-arrest investigation was completed in a timely manner. Had the Crown done so, there would have been no need to delay the JPT process to await the results of the forensic audit. This could easily have been completed by the first JPT date had a plan to manage this case properly been implemented from the start of the proceedings.

Conclusion

[45] The total delay in Mr. Kasak’s case between the laying of the charges against him and the anticipated end of his trial is 724 days. The defence waived a period of 22 days, and conceded that a further 35 days of defence delay occurred. I have found a further period of 195 days to be defence delay. Accordingly, the net delay here is 472 days, or approximately 16 months.

[46] The Supreme Court in Jordan said that the 18 month presumptive ceiling that it established for provincial court trials was not an aspirational target. The court called for a culture change in the criminal justice system with respect to the treatment of delay. that call was not heeded in Mr. Kasak’s case. The net delay in his case falls below the presumptive ceiling only because the system was able to respond to a crisis created by the apparent indifference to the delay on the part of all participants.

[47] The defence has not argued in this case, nor could it do so credibly on the record before me, that it made sustained efforts to minimize the delay so as to warrant a stay of proceedings if the net delay fell below the presumptive ceiling. For all of these reasons, the application is dismissed.

Released: February 14, 2019

Signed: Justice S. W. Konyer

[^1]: Transcript of Proceedings, October 26, 2017, p.1, ll. 15-17 [^2]: Transcript of Proceedings, October 26, 2017, p.1, ll. 21-23 [^3]: Transcript of Proceedings, November 23, 2017, p.1, ll. 14-17 [^4]: Transcript of Proceedings, December 21, 2017, p.2, ll.3-5 [^5]: Affidavit of Sheri Reesor, Respondent’s Factum and Record, Tab 2, para. 3 [^6]: See Transcript of Proceedings, October 3, 2017, pp. 2-8 [^7]: Disclosure request dated December 21, 2017 – Exhibit “A” on this application [^8]: Affidavit of Sheri Reesor, supra, at para. 14 [^9]: Transcript of Proceedings, January 18, 2018, p.2, ll.2-5 [^10]: Transcript of Proceedings, February 1, 2018, p.1, ll.15-20 [^11]: Affidavit of Heather Clarke, Notice of Application, Appendix “A”, para. 7b [^12]: Transcript of Proceedings, February 22, 2018, p.1, ll.12-14 [^13]: Affidavit of Heather Clarke, supra, para. 7c [^14]: Transcript of Proceedings, May 7, 2018, p.1, ll.22-25 [^15]: Supra, p.1, ll.30-32 [^16]: Affidavit of Sheri Reesor, supra, para. 15 [^17]: Transcript of Proceedings, August 20, 2018, p.1, ll.8-24 [^18]: Transcript of Proceedings, September 24, 2018, p.1, ll.12-19 [^19]: Affidavit of Sheri Reesor, supra, Tab “H”, pp.3-4 [^20]: Affidavit of Sheri Reesor, supra, Tab “H”, p.3 [^21]: Affidavit of Sheri Reesor, supra, Tab “H”, p.3