Court File and Parties

Ontario Court of Justice

Date: 2019-12-24

Court File No.: Brampton 18-13285

Between:

Her Majesty the Queen (Respondent)

— AND —

David Ansah (Applicant)

Before: Justice P.T. O'Marra

Heard on: December 16, 2019

Oral Reasons for Judgment on the Application: December 19, 2019

Written Reasons Released: December 24, 2019

Counsel

Jelena Vlacic — counsel for the Crown

Heather Spence — counsel for the accused David Ansah

Judgment

P.T. O'Marra, J.:

Introduction

[1] These are my written reasons for judgment on the application to stay the proceedings against the Applicant, David Ansah, pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms as result of a violation of section 11(b) of the Charter.

[2] I heard submissions on the application on Monday December 16, 2019. I adjourned this matter to today, Thursday December 19, 2019 for my oral judgment.

[3] The total delay in this matter from the swearing of the information, August 28, 2018 to the scheduled end of the trial in May 15, 2020 is 20 months and 17 days. The respondent/Crown concedes that this length of time warrants an inquiry into the reasonableness of the delay.

[4] It was agreed between the parties that four (4) days of Applicant delay should be subtracted from the total time period.

[5] Therefore, the total delay to be considered under Jordan guidelines is 20 months and 13 days which is above the presumptive ceiling of 18 months.

[6] The Applicant has made 26 court appearances before setting his trial dates for five (5) days commencing May 11-15, 2020. There were also the following dates for JPT motions set in the interim: December 13, 2019 for the Jordan application, December 19, 2019 (today) for an application to determine standing to cross examine the affiant in the ITO, January 27, 2020 a "step 6" procedure if standing was granted, and February 4 and 5, 2020 for the Garofoli Application, if warranted.

[7] I do not propose to detail the purpose of each appearance. The parties agree that for purpose of the application scrutiny of each appearance is not necessary. However, all transcripts were provided, and a detailed chart was compiled by the Applicant that is found at tab 2 of the application record.

[8] The main issue for me to determine is how should I treat or characterize the 93-day delay between the second JPT on June 12, 2019 and the third JPT on September 13, 2019.

[9] The Crown argued that this period of delay is attributable to a discrete event. Specifically, due to a "technological issues stemming from a recent software up date with the Ministry of the Attorney General- Criminal Law Division" the assigned Crown did not attend the pre-trial on June 13, 2019 at 9:10 am. In other words, the technological update impacted the assigned Crown's ability to access his schedule and be alerted of the date and time for the JPT. Ms. Vlacic submitted in the Crown's factum at page four (4) paragraph 12 that the assigned Crown notified Applicant counsel two days following the scheduled JPT, that he was "immersed [in] the procedures around the refreshing of the computers to incorporate Office 365" and lost track of the matter. As such, the Crown argues that this discrete event should be subtracted from the total delay, which would leave a net delay of 17 months and 13 days, falling just below the presumptive ceiling in Jordan.

[10] The Applicant on the other hand, argued that this case was fraught with disclosure and Crown case management problems which caused a significant portion of the delay. For example, it took the Crown approximately 7 ½ months to provide to the Applicant a copy of the Information to Obtain the Search Warrant (ITO). Even following the disclosure of the ITO, there remained substantial outstanding disclosure of missing officers' notes which would have been prepared on the date of the execution of the search warrant. In fact, the Applicant received copies of constable Wegenshimmel's notes (this was the officer who first located the loaded handgun, ammunition and drugs) after the JPT on May 15, 2019 which was 9 ½ months after the Applicant's arrest. There were three (3) case management Crown Attorneys assigned to this matter in the 12 ½ months, prior to setting of the trial date. This exacerbated the issues with disclosure and with the setting of JPT dates. At the first JPT on May 15, 2019, the Crown and Applicant agreed that there remained substantial disclosure outstanding. A proper time estimate could not be made, therefore no meaningful JPT could occur without additional officers' notes. Eventually, a new JPT was scheduled for June 12, 2019 with the assigned Crown.

[11] But more to the main issue, the Applicant submitted that the assigned Crown's failure to attend the scheduled JPT on June 12, was not "unforeseen and unavoidable" and did not constitute an exceptional circumstance that was outside of the Crown's control. The failure of the assigned Crown to appear at the JPT was as a result of "other obligations". The only focused efforts to manage delay came at the third JPT where it was determined that a clear plan should be set out for the Charter motions to ensure that the motions were complete and did not disturb the trial dates of May 11-15. 2020. The trial date was set on the first date that was offered and then the parties worked backward to set the various motion dates. The matter was separated into discrete issues to minimize down time in the Section 8 Charter motion and the "step 6" Garofoli process to ensure the Charter issue was complete prior to the trial dates.

The Case against the Applicant

[12] As set out in the Applicant's materials, Mr. David Ansah is charged with several firearms-related possession offences and drug-related possession offences. He was arrested for the offences on August 28, 2018.

[13] During an unspecified date or period, members of the Peel Regional Police Street Level Organized Crime Unit received information from a confidential source that caused them to commence an investigation into a male in possession of firearm(s). Police queries and checks contained in the information to obtain are focused around one primary target: Joshua Ansah. Joshua Ansah is the brother of the Applicant. A search warrant for 12 Castlehill Road, Brampton – the residence of Joshua Ansah – was authorized on August 27, 2018. The Applicant also lived at this address at that time.

[14] On August 28, 2018, members of the Peel Regional Police Street Level Organized Crime Unit, along with the Tactical Unit, positioned around 12 Castlehill Road in order to execute the search warrant. They approached the door of the residence shortly after 9:30pm. The Applicant was purportedly seen to walk up to the door and then turn around and run towards the rear of the detached home, leading into the backyard. Officers pursued. It is alleged that the police positioned towards the rear of the home (from the Tactical Unit) could hear an individual jumping over the fence. The Applicant was ultimately located and arrested around the area of the residence (along a neighboring unit) at 9:50pm.

[15] Located wedged into the fence adjourning the Applicant's backyard to a neighboring backyard were what was later determined to be a Taurus brand 9mm semi-automatic handgun wrapped in a t-shirt and a bag containing 5 rounds of 9mm ammunition along with 6 rounds of .357 ammunition, along with a total of 28.1 grams of cocaine and 6 Xanax pills.

Jordan Framework and Calculus

[16] The Jordan decision, (2016) SCC 27, provided for presumptive time periods within which an accused must be brought to trial- in this case the relevant time period is 18 months. In the cases where the total delay, less delays either waived or exclusively caused by the Applicant, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the Applicant must demonstrate that the period to the end of trial was nevertheless unreasonable. Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases.

[17] It is worth noting that if in this case, I determine that the net delay exceeds the presumptive ceiling and there are no discrete events that were beyond the Crown's control, Ms. Vlacic on behalf of the Crown conceded that the Crown's case, although it had some complexities, did not fit into the other exceptional circumstance category of being defined as a complex case.

[18] R. v. Coulter, 2016 ONCA 704 at paras 34-41, summarized the analytical steps to be taken in applying the Jordan framework:

a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;

b) Subtract Applicant delay, including delay that is waived, from the total delay, which results in the "Net Delay";

c) Compare the Net Delay to the presumptive ceiling;

d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and complex cases;

e) Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay");

f) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was complex such that the time the case has taken is justified and the delay is reasonable;

g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the Applicant to show that the delay is unreasonable.

[19] The core issue of the application is really whether the period from June 12 to September 13 should be defined as an exceptional circumstance.

[20] Exceptional circumstances are circumstances which lie outside the Crown's control in that:

1. They are reasonably unforeseen or unavoidable and,

2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances. (See R. v. Jordan, para 69)

[21] Such circumstances need not be rare or entirely uncommon. There is no closed list of what constitutes an exceptional circumstance. The ultimate determination of whether circumstances are exceptional will depend on the trial judge's good sense and experience. (See R. v. Jordan, para. 71.)

[22] The Supreme Court lists some examples of discrete events as follows: medical or family emergencies involving the accused, important witnesses, counsel, or the trial judge; cases with an international dimension; unforeseen or unavoidable developments at trial such as a witness recanting while testifying, the trial going longer than reasonably expected despite the parties' good faith efforts to establish realistic time estimates. (See R. v. Jordan paras 72-74.)

[23] As the Crown pointed out in its factum, other examples of discrete events have been flushed out since Jordan that can detract from the overall delay. For example, unexpected disclosure from the police, unforeseen issues relating to confidential informants, delay from personal issues relating to Crown counsel and technological failings in the court's recording system. (See R. v. Cody, 2017 SCC 31, and R. v. Lee, [2017] O. J. No. 3862 (SCJ), R. v. McManus, 2017 ONCA 188, and R. v. Waboose, 2017 ONSC 3862 (SCJ))

Analysis

[24] Was the failure of the assigned Crown Attorney to attend the JPT scheduled on June 12, 2019 a discrete event that was beyond the Crown's control?

[25] Put in another way, did the technological issue that stemmed from the recent software update within the Ministry of the Attorney General Criminal Law Division impact the assigned Crown Attorney's ability to access his schedule and thereby caused the assign Crown Attorney to not show up at the JPT?

[26] The technological problem may have prevented the assigned Crown Attorney from accessing his calendar. Frankly, I am not certain what impact, if any, the problem had on the assigned Crown Attorney's schedule. However, I do not believe that it really matters. I am more than satisfied that the assigned Crown Attorney was aware of the date of the JPT and simply lost track of the time of the JPT and forgot about it that morning. In my view, the assigned Crown Attorney did not lose "track" of the case in the system due to a scheduling issue, as erroneously submitted by Ms. Vlasic.

[27] I find that the assigned Crown Attorney simply forgot to attend the JPT that morning. The assigned Crown Attorney's forgetfulness, in my view, does not constitute a discrete event that laid beyond the Crown's control in this case. I have come to this result based on my review of a series of emails that were exchanged between the Brampton Crown Attorney's office and counsel shortly before and after June 12 and applying common sense and experience.

[28] The day before the scheduled JPT, on June 11, 2019 at 2:29 pm, assistant Crown Attorney Ms. Stackhouse sent an email to the Applicant's counsel which indicated that the "assigned Crowns" were not available and as such an adjournment of the JPT may be necessary and "set in accordance with their schedules". Eight (8) minutes later, Ms. Stackhouse sent a follow up email to the Applicant's counsel which stated the following:

"Sorry- please ignore my last email. I just heard back from Rob Levan, and he is attending the JPT"

[29] This email is clear and convincing evidence that the assigned Crown Attorney was aware of the scheduled JPT and that he would be attending.

[30] After the assigned Crown Attorney failed to attend the scheduled JPT, counsel was proactive that day and attempted to re-schedule another JPT but unfortunately, according to the transcript dated June 12, the Crown Attorney's office did not have the assigned Crown Attorney's available dates as "the Crown's office dates aren't synched for some sort of computer updates" (see pages 1 and 2 lines 31, 1 and 2). At 11:56 that day, Ms. Spence emailed the following message to the assigned Crown Attorney:

Hello Rob,

After the JPT they did not go ahead today Richard and I tried to schedule a continuing JPT with his Honour. We used some time with him to give him an expanded synopsis so I think it should continue with him. Unfortunately we were told at the Crown's office that they did not have your dates because we're not synced in the computer system.

Can we try to coordinate a continued date. His Honour has 2 JPT presiding dates Aug 21 and Aug 28. His next dates are October. It was suggested we could request a chambers date with His Honour. If we could coordinate that it would make sense.

Let us know your thoughts and let's coordinate before the NCD next week so we can set the JPT on the record.

Regards,

Heather Spence

[31] Two days later at 1:41 on June 14, the assigned Crown Attorney sent an email to counsel to apologize for missing the JPT and then stated the following:

"First, let me apologize for missing out JPT, I was immersed [sic] the procedures around the refreshing of our computers to incorporate Office 365 and lost track of the time.

[32] In my view, the foregoing emails support the fact that the assigned Crown Attorney was aware of the scheduled JPT the previous day and would be in attendance, however, while he was involved in the Microsoft's Office 365 update that morning, he lost track of the time, not that he lost track of the "matter".

[33] The record reflected that, afterwards, there was a collaborative effort by all parties to set a third JPT, expeditiously. In my view, counsel was diligent in seeking outstanding disclosure at all stages of the proceedings and at the same time attempted to move the matter forward. As well, the clear plan to schedule the section 8 Charter motion dates before the trial dates and not disrupt the trial date was commendable, but unfortunately, those efforts were too little, too late.

[34] In my view, the 93-day delay between the second and third date was not a discrete event that should be characterized as an exceptional circumstance. Unfortunately, the assigned Crown Attorney may have experienced some difficulty accessing his calendar due to a glitch in the upgrade to Microsoft's Office 365, and while trying to remedy the problem he may have been distracted that morning which caused him to lose track of time. But his forgetfulness does not constitute a reasonably unforeseen or reasonably unavoidable circumstance. Venerable arrangements were made to reassign the matter to another Crown Attorney, schedule the earliest date for a third JPT with Justice Blacklock or another Justice, and set out a creative and clear plan to accommodate scheduling three (3) Charter dates and a five (5) day trial date. However, if I had characterized the 93-day delay as an exigent circumstance, those steps would have been undoubtably considered reasonably available steps to avoid and address the problem before the resulting delay exceeded the ceiling.

[35] Finally, this case may have had some intricacies (i.e., a confidential informant, firearm and fingerprint analysis, 13 police officers' notes) but it was not a complex case. The period of delay in providing basic disclosure which consisted of an ITO and the notes of officers that were involved in the preparation and the execution of a single search warrant, was unacceptable. This period of delay was a significant factor in the overall calculus. The delay was compounded after the case was re-assigned to a second Crown Attorney who was essentially unavailable and too preoccupied, to case manage or conduct a JPT as a result of other obligations.

Conclusion

[36] Therefore, I am satisfied that there were no exceptional circumstances that justified this delay. The Crown has not discharged its burden to demonstrate the existence of any exceptional circumstances in this case. The total delay not attributable to the Applicant in this case is 20 months and 13 days. This delay is presumptively unreasonable and cannot be justified and as such the delay violates the Applicant's right to be tried within a reasonable time under section 11(b) of the Charter. The only appropriate remedy is a stay of proceedings.

Released: December 24, 2019

Signed: Justice P.T. O'Marra