Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 05 10 COURT FILE No.: Kitchener 4411 998 19-Y482-00, 19-Y494-00 and 20-Y129-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.S.L., a young person

Before: Justice A. T. McKay

Heard on: April 19, 2021 Reasons for Judgment released on: May 10, 2021

Counsel: Ms. A. Bain, counsel for the Crown Ms. A. Mamo, counsel for the defendant A.S.L.

McKAY J.:

Warning and Publication Restrictions

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1), 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

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 victim 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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(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.

Introduction

[1] A.S.L is a young person within the meaning of the Youth Criminal Justice Act. On September 30, 2019, he was arrested and charged with one count of sexual assault on 16-year-old MD. The allegations are extremely serious and involve non-consensual intercourse with an unconscious person. During the investigation of the charge, the police interviewed several witnesses who were present at a party that evening, including GR. During the interview GR made no allegations of being assaulted by A.S.L. However, GR attended the police station October 4, 2019 and reported that she had been sexually assaulted by A.S.L. on several occasions. Those allegations involve unwanted sexual touching of GR, who is a young person. On October 14, 2019 A.S.L. was further charged with two counts of sexual assaults on GR.

[2] On August 21, 2020, the Crown joined all counts against A.S.L. on one Information. Counsel estimated that five days were needed for trial. On November 20, 2020, the trial was set for June 14-18, 2021. The delay from the time A.S.L. was charged to the anticipated conclusion of his trial was 20 months and 20 days. Three pre-trial applications were scheduled for March 31, 2021. This application, requesting a stay of proceedings pursuant to section 11(b) of the Charter for undue delay, was set to be heard April 19, 2021.

[3] On March 31, the applications under sections 276 and 278 were abandoned. The application for severance was argued and was ultimately granted. The allegations involving GR are now set for a one-day trial on June 18, 2021. The allegations involving MD are now set for a four-day trial June 14-June 17, 2021. That essentially maintains the same timeline for completion of the matters.

Evidence

[4] It is clear from a review of the record that the vast majority of the delay in this case resulted from the failure of the Crown to disclose, in a timely fashion, significant elements of the evidence available to the Crown. That issue arose because the police essentially combined two investigations into one, and the Crown instructed the police to separate the two investigations. The police did not do that in a timely fashion, leading to significant delays in this case.

[5] A brief timeline of the steps in this case is as follows:

• At first appearance on all charges November 18, 2019, the Crown indicated that disclosure was not ready.
• At the December 2, 2019 appearance the Crown indicated that initial disclosure was not ready. Notes had to be returned to the investigating officer to be vetted because the assaults related to both complainants were investigated at the same time. The files were cross-pollinated. The Crown indicated “we are endeavouring to have it available soon”.
• At the January 13, 2020 appearance the Crown indicated that initial disclosure was now available.
• The defence reviewed the disclosure provided and found important elements were missing. The defence sent correspondence to the Crown confirming that there were missing items which included witness statements, including those of both complainants and the accused, medical reports, officer notes and copies of videos.
• At the February 3, 2020 appearance the defence raised the issue of disclosure and indicated that the defence was unable to assess the case or have a meaningful pre-trial without that material.
• At the February 28, 2020 appearance, the defence again raised the issue of disclosure.
• At the March 12, 2020 appearance the defence again raised the issue of disclosure. The Crown indicated that all video statements had to be reviewed for privacy concerns and that the statement should be provided to counsel early the next week.
• The pandemic began to impact court operations and presumptive adjournments were implemented. This matter was adjourned to June 12 and then August 21, 2020.
• The defence sent correspondence to the Crown regarding outstanding disclosure on April 14 and again on July 12. The defence indicated that it would be unable to get instructions or schedule a Crown pre-trial without the missing disclosure.
• The police apparently provided the Crown with the long-awaited disclosure package on July 20, 2020 and it was forwarded to the defence shortly after that.
• The defence scheduled a Crown pre-trial on August 12, 2020 at 3:30 p.m.
• On the morning of August 12, the Crown forwarded an email to defence counsel indicating that the defence did not have all the disclosure. The Crown indicated it would send the missing items the following day, and the Crown pre-trial should be rescheduled to August 18, 2020.
• On August 18, 2020, defence counsel missed the Crown pre-trial meeting. It was rescheduled to August 21 and completed on that day.
• Counsel then tried to schedule a judicial pre-trial. The Crown was unavailable the week of September 7 so the judicial pre-trial was conducted on September 15, 2020.
• Shortly after completion of the judicial pre-trial, the defence indicated to the Crown that it would be bringing two additional pre-trial applications which were not discussed at the judicial pre-trial. In order to obtain an estimate of the time required for the two additional pre-trial applications, a second judicial pre-trial was rescheduled for October 15, 2020.
• On October 14, 2020, the trial coordinator advised counsel that the judge who was to preside over the second judicial pre-trial was no longer sitting on October 15. The second judicial pre-trial was rescheduled to November 10, 2020 and was completed on that date.
• On November 18, 2020 counsel scheduled the current trial dates through the trial coordinator. The defence indicated its availability on dates that were offered as early as December 2020. The Crown indicated that it did not have any available dates until March 3, 2021. The trial dates were confirmed on the record on November 20, 2020.

Positions of the Parties

The Crown

[6] The Crown submits that a calculation of the net delay in this matter should result in a figure which falls below the 18-month ceiling. The Crown suggests that two factors impacted the timeframe for the completion of trial in this matter. Those factors are the Covid-19 pandemic and defence delay.

[7] The Crown suggests that the failure of the defence to raise all anticipated pre-trial motions at the first judicial pre-trial on September 15, 2020 led to the need for a second judicial pre-trial. As a result, the trial date was not set until November 20, 2020. The Crown suggests that a period of 57 days, the time elapsed between the first judicial pre-trial and the confirming of the trial dates on the record, should be attributed to defence delay. In addition, the Crown suggests that the scheduling of the pre-trial motions may have precluded earlier options for trial dates. While setting the dates in November, the Crown’s first available date was March 3, 2021. The fact that the defence abandoned the applications under sections 276 and 278 should result in the period from March 3-June 18, 2021 being attributed to defence delay.

[8] The Crown also submits that the court should take judicial notice of the impact of Covid-19 on the court system. That impact has included the vacating of existing trial dates, freezing of trial scheduling, and presumptive adjournments for all cases. The Crown submits that given the impact of the pandemic, the Crown could have done nothing to mitigate the delay that elapsed between April 3, 2020 and August 21, 2020. Accordingly, that time should be considered as delay due to exceptional circumstances.

The Defence

[9] The defence submits that it did not waive any delay throughout these proceedings. The missing disclosure was essential to the ability to make full answer and defence and to move the case forward. Repeated requests for disclosure were made.

Applicable Legal Principles

[10] The Supreme Court of Canada clarified the framework for dealing with issues related to undue delay in R. v. Jordan, 2016 SCC 27. That decision established ceilings for delay. In this court, the ceiling for completion of a trial is 18 months from the date the Information is sworn. If the total delay from the charge to the actual or anticipated end of the trial, minus defence delay, exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable, and proceedings will be stayed.

[11] If the total delay from the charge to the actual or anticipated end of trial, minus defence delay or any period of delay attributable to exceptional circumstances falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. Cases with delays below the ceiling will rarely result in a stay of proceedings.

[12] Defence delay has two components. The first component is delay waived by the defence, either explicitly or implicitly. The waiver must be clear and unequivocal. The second component is delay caused solely by the conduct of the defence. Deliberate and calculated defence tactics aimed at causing delay including frivolous applications and requests are straightforward examples of defence delay. In situations where both the court and the Crown are ready to proceed but the defence is unavailable, that period of delay will be attributed to the defence. Legitimate defence action taken to respond to the charges do not fall within the ambit of defence delay. The defence must be allowed preparation time. Applications and requests which are not frivolous will generally not count against the defence.

[13] As a first step, the total delay must be calculated, and defence delay deducted from that figure. That provides the net delay. If the net delay exceeds the ceiling, it is presumptively unreasonable. The Crown may rebut that presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

[14] Exceptional circumstances lie outside of the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable and the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. The Crown must show that it took all reasonable steps to avoid and address the problem before the delay exceeded the ceiling. Generally speaking, exceptional circumstances fall under two categories: discrete events and particularly complex cases. Obvious examples of discrete events are medical or family emergencies involving participants in the trial. Delay caused by discrete events will be deducted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Analysis

[15] The total delay for anticipated completion of the trial involving the allegations of MD is 20 months and 19 days. The total delay for anticipated completion of the trial involving the allegations of GR is expected to be 20 months and 5 days.

[16] The parties differ as to whether any portion of the delay should be attributed to the defence. The failure to provide disclosure of important elements of the Crown’s evidence was the major cause of delay in this matter. The defence repeatedly raised the issue of the outstanding disclosure and repeatedly indicated that they were unable to move ahead with the case until it was provided. Ultimately, it took almost ten months for critical items of disclosure to be provided, including the statements of both complainants and the statement of the accused. The defence position that they were unable to move ahead with the case until that material was provided was legitimate. The defence did not waive any delay during these proceedings.

[17] The disclosure was received in late July 2020. The defence promptly scheduled a Crown pre-trial on August 12. That was delayed for approximately a week when the Crown realized that additional disclosure had to be made. I find that there is no defence delay up to the point of the first judicial pre-trial on September 15, 2020.

[18] The failure of the defence to raise all issues at the judicial pre-trial, including the two additional pre-trial applications, did create the necessity for a second judicial pre-trial. The need for the second judicial pre-trial directly caused the delay in the proceedings. The issue is the calculation of the length of that delay.

[19] The initial pre-trial was held September 15, 2020. After the completion of that pre-trial, the parties could have immediately contacted the trial coordinators’ office in order to arrange trial dates. Those dates would have simply been confirmed on the record at the next court appearance. The second judicial pre-trial was arranged for October 15, 2020, a delay of 30 days. It did not proceed on October 15, not because of any actions by the defence, but because of a change in the schedule of the presiding judge. That led to a further delay of 26 days. I find that the 30-day delay from September 15 to October 15 should be attributed to defence delay. However, the remaining time period of 26 days until the trial date was confirmed on the record is not attributable to the defence.

[20] The Crown also submits that the period from March 31 to June 14, 2021 should be attributed to defence delay. The basis for that submission is that consideration of the scheduling of the pre-trial applications may have resulted in later trial dates being set. The Crown submits that the abandonment of the ultimately unnecessary applications under sections 276 and 278 of the Code therefore caused delay. I find no merit in that suggestion.

[21] The Crown joined all the counts into a single Information in August of 2020. The required trial time was estimated at five days. Discussions took place with the trial coordinator, and the first five-day block of trial time when the parties were available was June 14-18. Those trial dates were set. That completed the assignment of a trial judge who would hear the pre-trial applications. At that point, discussions would be had with the trial coordinator as to potential dates for the pre-trial applications. The trial coordinators would make whatever adjustments were necessary to that judge’s schedule to facilitate hearing the pre-trial applications. On March 31, the application for severance was heard. It was ultimately successful. The applications under sections 276 and 278 were abandoned. Recent amendments to the law with respect to those issues have led to those types of applications being commonly brought. It is not unusual for the defence to reassess their position as the application date approaches. Neither the initial filing of those applications or their subsequent abandonment led to any delay in this case.

[22] Given the 30 days of delay attributed to the defence, the net delay with respect to the allegations of MD is 19 months and 11 days. The net delay with respect to the allegations of GR is 19 months and five days. In both cases, the delay exceeds the ceiling and is presumptively unreasonable.

[23] The Crown submits that the Covid-19 pandemic was an exceptional circumstance that caused delay in this matter. I am mindful of recent decisions dealing with the impact of the pandemic on delay issues. There are cases in which courts have deducted the entire time from the start of the impact of the pandemic on court operations to the date of completion of the trial, as opposed to only considering the time period in which trials were suspended (see decisions such as R. v. Simmons, 2020 ONSC 7209; R. v. Pinkowski, 2021 ONCJ 35; and R. v. Smith, 2021 ONSC 3322).

[24] It is difficult to see the impact of the pandemic on scheduling this matter. This court resumed setting trial dates on July 6, 2020. The presumptive adjournments had no impact given that the Crown did not meet its disclosure obligations until late July. After receipt of the disclosure, the defence had to review the disclosure with its client and then arrange for a counsel pre-trial, a judicial pre-trial and then arrange trial dates. The defence did so promptly. I disagree with the submission that the Crown could have done nothing to mitigate the delay between April 3 and August 21, 2020. The Crown could have provided disclosure in a timely fashion.

[25] In November 2020, trial dates were set for mid-June 2021, approximately seven months after the matter was ready to be set for trial. Initially, upon resuming setting dates for trials, this court gave priority to in-custody matters. However, there is nothing in the record before me which suggests that the ongoing pandemic delayed the trial date set for these charges. Both the court and the defence were available for dates as early as December, 2020. The Crown was not available until March, 2021. While the charges are serious, there is nothing complex about these allegations. I find that the Crown has not shown the presence of exceptional circumstances.

Conclusions

[26] Society has an interest in having charges determined on their merits. That is particularly the case with charges alleging something as serious as a sexual assault on minors. However, I am bound by principles which recognize the cost of systemic delay in our court system. Those costs include aggravating victims’ suffering, unfairness to an accused, and in the long-term effects of undermining of public confidence in the system.

[27] The remedy for unreasonable delay is a stay of proceedings, and I am required to grant one in this case.

Released: May 10, 2021 Signed: Justice A. T. McKay