Ontario Court of Justice

Date: July 20, 2021

Between: HER MAJESTY THE QUEEN — AND — ANDREW LAWSON

Before: Justice S. Chapman

Heard on: July 14, 2021

Reasons for Decision on Section 11(b) Application

Counsel: S. MacDonald, counsel for the Crown D. Perry, counsel for the accused Lawson

Chapman, J.:

[1] Mr. Lawson stands charged with the Criminal Code offences commonly known as impaired driving/over 80, as well as the Highway Traffic Act (HTA) offence of failing to remain at the scene of an accident. Trial dates are currently set for August 3 and 4, 2021. If the trial completes on August 4 the total delay from charge until the completion of trial is 19 months and 23 days, that is 1 month and 23 days above the presumptive 18-month Jordan ceiling.

[2] It is agreed between the parties that delayed trial dates in this case were the product of delayed disclosure and not due to the automatic adjournments of the case pursuant to covid protocol. It is agreed that if disclosure had been made sooner, there would have been an earlier trial date. Though initial disclosure was made at the first appearance, the bulk of the disclosure, notably the police In car camera (ICC), sally port and booking videos were not provided to the defence until November of 2020 and at least one of the police videos was only made available on the day of the hearing of this application (July 2021). There is no suggestion by the Respondent in this case that the Applicant should have been prepared to set trial dates in the absence of this core disclosure received in November of 2020 and I agree.

[3] Therefore, the central issue in this application is whether the delay attributable to the late disclosure was the product of a discrete event, namely the pandemics impact on Crown disclosure processes, or for some other reason such as neglect. For the reasons elaborated upon below, the Crown bears the onus of demonstrating that the excessive delay in this case, that is the delay that exceeds the presumptive Jordan ceiling, was the product of exceptional circumstances that lie outside of the Crown’s control as reasonably unforeseen, reasonably unavoidable or not reasonably remedied. Though the Crown’s handling of this case has been less than ideal, I find that the late disclosure in this case is at least in part attributable to the impact the Covid 19 pandemic had on the ordinary disclosure procedures at the Scarborough Crown’s office in the Spring of 2020 and the need for the system to adapt.

[4] I find that there was no breach of the Applicant’s s. 11(b) Charter rights and these are my reasons.

The History

[5] On December 12, 2019 the Applicant was charged with impaired driving, “over 80”. An ordinary case. On January 11, 2020 Mr. Lawson retained his current counsel. At the first court appearance, on February 5, 2020 the Crown elected to proceed summarily and made initial disclosure. The matter was then adjourned to March 6.

[6] On February 20, defence counsel wrote a letter to the Crown seeking the customary disclosure of a number of items including: witness contact information, audio and video recordings from 41 division including cells, booking area, interview room, etc. and the in-car camera (ICC) video. This was the first of several requests for this same disclosure

[7] At the March 6, 2020 in person court appearance some additional disclosure was provided by the Crown and defence counsel put on the record what additional disclosure remained outstanding including the various police videos. On March 6, 2020 the case was adjourned to March 27.

[8] On March 16, 2020 regular court operations were suspended. Mr. Lawson’s case was automatically adjourned on March 27 for ten weeks to June 5. It was then adjourned on June 5 to August 14, and on August 14 to October 23, 2020 pursuant to a covid protocol. Case management appearances between March 16 and November 27, 2020 for out of custody accused were adjourned, in the accused person’s absence, to another date.

[9] On April 4, 2020, the defence wrote a letter to the Crown reiterating its request for the outstanding disclosure, querying who the assigned crown was and seeking to set a Crown Pre-trial (CPT).

[10] On April 16 the Crown’s office wrote back to Mr. Perry and informed him that the videos had been ordered.

[11] On April 20 the then assigned Crown (not Ms. MacDonald) contacted Mr. Perry to arrange a CPT for April 28.

[12] According to the Affidavit of Mr. Cherie Scott, filed by the Crown Respondent, on April 21, 2020 the Scarborough Crown Attorney’s office received a hard copy of a DVD of the in-car camera and breath and booking videos in this case. Receipt of the disclosure was recorded in the SCOPE platform. Further, Ms. Cherie attests that a Disclosure Package Notification for booking, breath and in-car-camera videos, dated April 21, 2002 was prepared but not faxed to the defence.

[13] On April 28 there was a “partial” CPT between Mr. Perry and the then assigned Crown. Recorded notes of the pre-trial in the SCOPE platform and are set out at Tab 2 to the Respondents Record. Apparently at this CPT the topic of disclosure came up and, for whatever reason, Mr. Perry was not informed that it was in the Crown’s office and ready for pick up. It is not clear from the record before me whether the assigned Crown was aware of the availability of the outstanding disclosure at the April 28 CPT but its availability was already recorded in the SCOPE platform and not made known to Counsel at that time. It was because of the incompleteness of disclosure at that time that there needed to be a second CPT.

[14] As already noted, the next court appearance was June 5 when no one could attend court in person or virtually at that time due to covid protocol. The matter was automatically adjourned to August 14, 2020. On August 5, 2020 the defence once again wrote to the assigned Crown seeking outstanding disclosure. He received no reply.

[15] At the 5th appearance on August 14 the case was once again automatically adjourned to October 23. At the October 23 appearance, Counsel informed the court that its requests for disclosure were still unanswered and that as a result only a partial CPT had been conducted. The Crown in court suggested that Mr. Perry contact the assigned Crown.

[16] The court questioned whether the assigned Crown was on a leave and was advised that she would be away until early November. The matter was adjourned to November 20 so as to permit Mr. Perry to reach out to the assigned Crown concerning disclosure. On that same day, October 23, 2020 Mr. Perry emailed the assigned Crown and got back an automatic reply directing him to communicate with the virtual Crown and a Deputy Crown Attorney. Counsel emailed the virtual Crown and the Deputy Crown Attorney (DCA) and included a copy of the August 5 correspondence. By reply email that same day the DCA directed counsel to the newly assigned Crown, Ms. MacDonald.

[17] On October 27 and 28 Mr. Perry sent Ms. MacDonald the August 5, 2020 correspondence regarding outstanding disclosure, including the various police videos, expressed his concern about delay and informed the Crown that he would like to have a CPT once the balance of disclosure was made.

[18] By email received October 29, 2020 counsel was invited to create an account for the Crown’s Digital Disclosure Hub to access disclosure. Also, on October 29, 2020 Ms. MacDonald emailed counsel to inform them that certain video disclosure had been available for pickup since April of 2020 and that a notice to that effect had been sent to counsel’s office. Mr. Perry emailed Ms. MacDonald back immediately to inform her that in fact he had received no such notice. It is an agreed fact that, unbeknownst to Ms. MacDonald, such a notice had been prepared but not sent to counsel.

[19] On November 3 Mr. Perry accessed the disclosure HUB that has been up and running for Scarborough since October 7, 2020 and there was no new disclosure there.

On November 15 the Crown emailed Mr. Perry and advised that the breath-room and in-car videos were now available electronically and that a CPT was scheduled for November 18, 2020. A CPT was held on November 18, 2020.

[20] By email on November 20, 2020 Counsel was informed that further video disclosure was available on the Crown’s digital hub. At the 7th court appearance on November 20, 2020, the case was adjourned one week to allow counsel to file an enhanced designation and to set a date for a JPT. At the 8th court appearance, on November 27, the JPT had not yet been scheduled and the matter was adjourned 12 weeks to February 19, 2021 pursuant to the covid protocol and an enhanced designation.

[21] On December 4 the Crown emailed the defence and informed them that a JPT had been scheduled for December 30. The JPT did not proceed on that date as it was not properly scheduled by the Crown. On December 30 the Crown informed Mr. Perry that the new date set for the JPT was January 26, 2021. The JPT took place on that day. Time estimates were done for a 2-day trial and for two interim motions: a Stinchcombe application concerning witness contact information and this s.11(b) Charter motion.

[22] On February 11, 2021 the Crown’s office provided counsel with some additional disclosure. On February 17 both counsels met with the trial coordinator for the purpose of setting trial and application dates. Trial dates in December of 2021 were originally offered but when Counsel expressed concern about excessive delay, the matter was given the priority trial dates of August 3 and 4, 2021.

[23] On July 14, 2021, after this Charter application was argued, Mr. Perry received notice of new disclosure on the Crown’s Digital Disclosure Hub. It is clear from the screen shot of the digital notice that one of the items included in that new disclosure is a cell video that the defence have been seeking since February 20, 2020. Further, the time stamp on the video would suggest it was uploaded on November 23, 2020 and yet Mr. Perry was only receiving notice of its availability some eight (8) months later and nearly 19 months after it was first requested by the defence.

[24] Counsel had notice, by a Notice to the Profession and the Public from the Ministry of the Attorney General, and published on the Ontariocourts.ca website, that trials and preliminary inquiries were to resume at some courthouses in Ontario, including the Ontario Court of Justice, Scarborough, as of July 6, 2020.

[25] Assuming the trial completes on August 4 it will be a period of 19 months and 23 days from the date of the charges.

Covid 19 and Disclosure Protocols

[26] The case management coordinator’s affidavit, filed by the Crown on this application, explains how the pandemic impacted on disclosure procedures in the Scarborough Crown’s office. Normally counsel would be notified by the Crown at a set date appearance that disclosure was available at the Crown’s office, by way of a note added to the SCOPE virtual platform. However, court appearances (whether in person or virtual) did not take place between March 16 and August of 2020.

[27] Further, by about March 20, 2020 efforts made to prevent the spread of COVID-19 resulted in a limited number of staff that were physically present in the Crown’s office. As such, normal disclosure procedures were interrupted, including the faxing of disclosure notifications and in-person collection of disclosure from the Crown Attorney’s Office.

[28] In response to the disruption to normal disclosure procedures, the Scarborough Crown Attorney’s Office developed and implemented a new disclosure system. This system was not up and running until October 5, 2020. In Ms. Cherie’s affidavit she states that during the intervening period, the Office was reliant on requests from Defence Counsel to provide disclosure.

The Legal Principles that Govern

[29] The legal principles that govern this Charter application are not particularly controversial. The Supreme Court of Canada’s landmark decision in R v. Jordan, 2016 SCC 27, released in July of 2016, fundamentally changed the s.11(b) landscape. The highest court identified a presumptive ceiling of 18 months for trials proceeding in the Ontario Court of Justice. In Jordan the Court condemned a culture of complacency concerning excessive delays in bringing accused persons to trial. The use of a ceiling placed on criminal proceedings represented a departure from the “confusing, hard to prove, and highly subjective” jurisprudence and replaced it with a more efficient and objective standard. In furtherance of this objective the Supreme Court made clear that the presumptive ceiling is not merely an aspirational target but the point at which delay becomes presumptively unreasonable. Once the presumptive ceiling is exceeded the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside of the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable and cannot be reasonably remedied.

[30] Subsequently, the Ontario Court of Appeal in R v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 provided a framework on how to apply Jordan :

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
2. Subtract defence delay from the total delay, which results in the “net delay”;
3. Compare the net delay to the presumptive ceiling
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5. Subtract delay caused by discrete events from the net delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached.
6. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. In order to do so they must show: a. Meaningful steps demonstrating a sustained effort to expedite the proceedings; and b. That the case has taken markedly longer to proceed to trial that it reasonably should have.

Analysis

Calculating the Total Delay

[31] The total delay in this case, as calculated from December 12, 2019 until the anticipated end of trial on August 4, 2021 is 19 months and 23 days.

Calculating Net Delay

[32] The calculation of net delay involves deducting from the total delay any period during which the defence has either a) waived delay or b) solely caused delay (emphasis added). There is no suggestion of waiver in this case.

[33] So then was the delay, or any part of it, caused by the be defence conduct? In Cody, 2017 SCC 31, [2017] 1 S.CR. 659 at para 28 (SCC) the Court explained that this component of the test as applying to any situation where the defence conduct has “solely or directly” caused the delay and is intended to prevent the defence from benefitting from its own delay-causing action or inaction.

[34] The Applicant concedes that two brief periods of delay occurred that are attributable to the defence: that being Nov. 20 to 27 2020, for counsel to file an enhanced designation, and; March 18 to April 7, 2021, when the Stinchcombe hearing was rescheduled. However, neither of these periods of delay has any nexus to the setting of trial dates in this case. Notably, the Stinchcombe application was perfected and decided after the trial dates were already set. Further, that application was at least in part successful.

[35] I find that none of the delay in this case flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. There is no question but that the outstanding disclosure was central to Mr. Lawson’s case. It was required so that he could make informed decisions, such as whether to resolve the charges prior to trial or go to trial, what Charter applications if any to bring, etc. The Crown does not suggest otherwise.

[36] Further, the Crown agrees that the defence was very diligent for the first 4 months of this matter including in their efforts to obtain disclosure. However, the Crown submits that Counsel was not sufficiently diligent subsequently, having regard to the circumstances of the pandemic, and that therefore at least some of the time associated with delayed disclosure in this case is attributable to it. In particular, it is submitted that it was unreasonable for the defence to write a disclosure letter on April 4 2020, not hear back from the Crown, realize that there is an upheaval with the pandemic, and not follow up for 4 months, that is until August 4, 2020.

[37] I disagree. I find that no delay is attributable to the defence. The Applicant has been diligent in seeking to move the matter to trial and has not solely or directly caused any delay. Even having regard to any special allowance to be made for the disruption of ordinary Crown disclosure procedures during a time of Covid 19, and counsel’s awareness of same, the defence acted diligently in this case. Counsel sent comprehensive correspondence to the Crown seeking disclosure of specified items, including the police videos and witness contact information, on five occasions. They were the ones continually following up with the Crown’s office to find out who was assigned to the case and what the status of the outstanding disclosure was. No defence conduct has solely or directly caused the delay in this case.

[38] Accordingly, the net delay remains at 19 months and 23 days.

Presumptively Unreasonable

[39] The net delay is this case exceeds the 18-month ceiling set out in Jordan and is therefore presumptively unreasonable. This is not a complex case. Therefore, to rebut the presumption, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances lie outside of the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable, and they cannot be reasonably remedied. Therefore, the Crown must demonstrate that the delay was due to a discrete event. If the Crown is able to establish that a part of the delay is occasioned by a discrete event, then that period of delay will be subtracted from the net delay. If the net delay falls below the presumptive ceiling, then the onus shifts to the defence to show that the delay is nonetheless unreasonable.

Discrete Event

Positions of the Parties

[40] Both parties agree that had disclosure been sooner, the trial dates would have been set earlier then August of 2021, despite the covid protocol adjournments that took place throughout much of 2020.

[41] Therefore, the central issue in this Charter application is whether or not the approximately 6 months, between April 28 and October 23, 2020 are attributable to an exceptional event, namely the impact of the covid 19 pandemic on Crown disclosure processes, or for some other reason such as crown neglect.

[42] The Applicant suggests that the correspondence record between the Crown and Counsel reveals that sometime between the CPT held on April 28, 2020 and the CPT held November 18, 2020, the Crown simply forgot about, or failed to reassign his case, with the consequence that nothing was done in furtherance of the prosecution for more than sixth months. The Applicant submits that since he was charged on December 12 of 2019 the course of the prosecution has shown a general disregard for his right to timely disclosure and to be tried within a reasonable time. In short, the Applicant submits that the Crown forgot about, or otherwise neglected the Applicant’s file, both before and after the assigned Crown went on leave, with nothing done in furtherance of the prosecution for more than six months.

[43] The Crown Respondent submits that the delay between April 21 and October 23, 2020 is the result of exceptional circumstances brought on by the COVD-19 pandemic. Under normal circumstances, Counsel would be notified in court that disclosure is ready for pick-up. Interruption of normal disclosure and court processes prevented effective communication between Crown and Defence, resulting in exceptional delay of nearly 6 months (183 days). Additionally, the Ontario Court of Justice ordered all criminal matters to be auto adjourned. In response to the COVID-19 pandemic, however, normal disclosure procedures were disrupted. Disclosure was in the Crown’s office and ready for pick up but, due to disruption, the notice of that fact did not go to Counsel. According to the Crown, earlier disclosure of the DVDs received on April 21, 2020 would have furnished the defence with sufficient disclosure to conduct a judicial pre-trial and set a trial date.

Analysis

[44] If ever there was a discrete event capable of justifying delay in the courts, it would be a global pandemic such as the one that we are currently experiencing. The covid 19 pandemic has significantly interrupted the ordinary court processes in Scarborough since March of 2020 and it continues to do so to this day. However, the fact of the pandemic does not provide carte blanche immunity from the state’s obligations to meet the constitutional needs of its participants, including the s. 11(b) right to a trial within a reasonable time. It is incumbent upon the court to examine the specific circumstances of the Charter applicant’s case to assess whether the delay was in fact occasioned by a discrete event.

[45] There is no doubt that due to the pandemic, ordinary disclosure protocols were seriously disrupted as of approximately March 20, 2020. Whereas counsel was routinely notified during a court appearance of the availability for disclosure to be picked up at the Crowns office, these court appearances were no longer taking place. Virtual appearances through the ZOOM platform didn’t happen until August of 2020. Further, the Scarborough Crown’s office was down to a skeleton crew.

[46] Counsel’s first and second and third disclosure requests were largely unanswered in substance, prompting a fourth disclosure request sent on August 5, 2020. There was no response at all to the fourth disclosure request, not even an out-of-office reply, even though the assigned Crown was not on leave until one month later. It is this fact that has given me the greatest pause in assessing the delay in this case.

[47] It was not until the sixth court appearance on October 23, 2020 that it was revealed to the defence that the assigned Crown was on leave and would continue to be on leave for several more weeks. It was Counsel’s requests to the Crown’s general email that apparently prompted the Crowns office to reassign the file and they did so immediately.

[48] Thereafter, Counsel was given access to the Crown’s Digital Disclosure Hub on October 29 and some video disclosure became available on the Hub on or before November 15, 2020 and more was disclosed between then and November 20, 2020.

[49] Ideally disclosure should have been complete before the March 16, 2020 courts closures or shortly thereafter. The primary police videos sought by the defence were available for pick up as of April 21, 2020 and yet the defence were not notified of that fact until the end of October.

[50] On this record I find that the reason for the excessive delay was the fact that the April 21 disclosure notice was prepared but not sent to Counsel due to the impact that the pandemic was having on the Crown’s office. Had it been sent; the Applicant could have picked up the disclosure from the Crown’s office and the case would have moved forward and earlier trial dates set. This discrete event explains approximately four (4) months of delay in the setting of trial dates and therefore takes the net delay down under the Jordan ceiling of 18 months.

[51] In so finding, I contrast the facts of this case with those considered by Justice L. Pringle in R. v. Kisoth Ravikumaran a decision dated June 29, 2021. In that case, the Crown failed to make adequate disclosure for 9 months prior to the impact of the pandemic being felt on Crown disclosure practices, and then a further ten months thereafter, leading to a net delay of 25 months. In contrast, in the case at bar, the failure to make timely disclosure occurred during the time frame that the pandemic was most acutely impacting on Crown and court processes, that is from mid-March to August of 2020. It was during that time frame that the Crown’s office had to re-invent its disclosure processes.

[52] Accordingly, though the Crown’s handling of this case was not ideal, I find that the Crown has met its burden of demonstrating that a significant period of delay in this case was likely caused by a discrete event. Subtracting the time associated with that discrete event from the total delay takes the net delay down to approximately 14 months, below the Jordan ceiling.

[53] Finally, though Counsel were very diligent in this case, I do not find that they have rebutted the presumption of reasonableness in all the circumstances.

Conclusion

[54] In conclusion, I find there was no breach of s.11(b) of the Charter and dismiss the application.

Released: July 20, 2021

Signed: Justice S. Chapman