Court File and Parties

Court File No.: Kenora 193020 Date: 2021-09-07 Ontario Court of Justice

Between: Her Majesty The Queen — And — Ashton Delaney

Before: Justice P. Joubert

Heard: July 12, 2021 Reasons for Judgment released: August 30/September 7, 2021

Counsel: N. Nolan, for the Crown J. Bilton, for the defendant

JOUBERT J.:

Overview

[1] The applicant/defendant Ashton Delaney is charged with one count of aggravated assault contrary to section 268 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“Criminal Code”).

[2] The offence is alleged to have occurred on August 15, 2019. The applicant/defendant was arrested on September 5, 2019 and released later that day. The Information was sworn on September 16, 2019.

[3] A judicial pre-trial conference was convened on January 23, 2020, at which time medical disclosure and witness statements were identified as outstanding. A four-hour trial was scheduled for May 11, 2020 but was vacated because of the COVID-19 pandemic.

[4] The case was adjourned in accordance with the pandemic protocols and a second judicial pretrial conference was convened on August 14, 2020, by which time no progress had been made on the disclosure. A four-hour trial was re-scheduled for March 8, 2021, but the trial could not proceed because the medical disclosure remained outstanding.

[5] At a subsequent judicial pre-trial conference on April 13, 2021, the trial estimate was revised to one and a half days. Disclosure continued until April 19, 2021 and June 4, 2021 and included among the disclosure were police notes involving an interaction between an officer and the applicant defendant on the alleged offence date. The case was ultimately re-scheduled for trial on September 23 and 24, 2021.

[6] The applicant/defendant has brought an application to stay the proceedings on the ground that the delay of slightly over 24 months breaches her right to a trial within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”). The application was heard on July 12, 2021.

[7] The parties agree that the analytic framework in R. v. Jordan, 2016 SCC 27 (S.C.C.) applies. They agree that the total delay exceeds the presumptive ceiling of 18 months and that no period of delay should be attributed to the defence. They also agree that the case is not overly complex.

[8] The central issue is whether the Crown can rely upon the COVID-19 pandemic as an exceptional circumstance within the meaning of Jordan to reduce the resulting delay calculation in this case. The Crown submits that it can. It asks that the period of delay between the original trial date of May 11, 2020, and the newly scheduled trial date of March 8, 2021, be subtracted on the basis that it constitutes a discrete exceptional event.

[9] In Court on Monday, August 29, 2021, I delivered brief oral reasons with written reasons to follow. I expressed my agreement with the decisions in R. v. Silva (OCJ Newmarket, unreported May 19, 2021) and R. v. Ravikumaran (OCJ Toronto, unreported June 29, 2021), that to the extent that the delay is caused not by COVID-19 but rather outstanding disclosure the period of delay should not be subtracted. I expressed that I have applied those decisions to the present case and have found that the Crown has not discharged its onus of establishing that the delay was caused by COVID-19. Rather, the evidence amply demonstrates that the delay was caused by important missing disclosure. On that basis, I have stayed the proceedings. What follows are my written reasons.

Evidence

[10] The evidence filed establishes that the initial disclosure request was made by defence on September 16, 2019. Initial disclosure was received on September 17, 2019. Supplemental disclosure was received on October 9, 2019. It is not disputed that the disclosure was at that time incomplete. Most notably, police had not yet obtained all witness statements; had not obtained medical evidence that relates to the nature of the injury or the authorizations and directions needed to obtain such evidence; and had not yet disclosed all relevant police notes including notes that relate to an interaction between an officer and the applicant on the offence date.

[11] A judicial pre-trial conference was convened on January 23, 2020, wherein the medical disclosure and witness statements were identified by the Crown to be outstanding. It was determined that the case could be scheduled for a four-hour trial. On February 14, 2020, a four-hour trial was scheduled to proceed on May 11, 2020.

[12] Due to the COVID-19 pandemic the trial did not proceed. The case was adjourned in accordance with the pandemic protocol. According to the evidence and submissions, the state of disclosure on May 11, 2020, was the same as it was on January 23, 2020.

[13] In accordance with the pandemic protocol, a judicial pre-trial conference was scheduled. The conference proceeded on August 14, 2020, before the judge who had presided at the earlier conference. According to the evidence and submissions, the state of disclosure had still not changed. The trial time estimate remained four hours.

[14] Between the second judicial pre-trial conference and the next return date, September 28, 2020, the courts re-opened. The case was variously adjourned until November 12, 2020, on which date a four-hour trial was scheduled to proceed on March 8, 2021. According to the evidence and submissions, the state of disclosure had still not changed.

[15] On March 3, 2021, a third judicial pre-trial conference was convened before the judge who had presided at the two earlier conferences. In the discussion, Crown counsel informed defence counsel that additional disclosure was available for pick up. Immediately following the conference, defence counsel attended at the Crown Attorney’s Office and picked up the additional disclosure. Among the items disclosed were reports, notes, and other documents relating to various investigative steps taken by police in the case including steps taken in September 2020, January 2021, and February 2021, to obtain the medical records that relate to the incident. The disclosure indicated that some of the medical documents had been disclosed by the complainant to police on February 10, 2021.

[16] As a result, defence counsel caused letters to be sent to the Crown on March 4 and on March 5, 2020, requesting further disclosure. An application was filed returnable March 8, 2021, seeking Charter relief to prevent the Crown from seeking to tender medical evidence or otherwise to be granted an adjournment on the basis of the late disclosure and the outstanding disclosure. According to the evidence and submissions, the Crown had to that point expressed no intention to call any medical witnesses. The position of the defence was that it was entitled to know the case to be met and that the case to be met was no longer known. In the words of defence counsel, it was “flying blind.”

[17] On March 8, 2021, before the appearance in court the Crown provided some additional medical disclosure to defence counsel. In court, submissions were heard on the defence application. The Crown informed the trial judge that it had received the disclosure from the complainant and that it was going to have the complainant meet with the investigating officer after court. The Crown also agreed with the defence that some of the recently disclosed documents were hard to read.

[18] The following exchange then occurred:

Crown: So, it is my understanding there is additional materials that will have to be provided. And in terms of the remedy, I believe it was indicated in the case whether there is prejudice. The trial has not started, it is not an in-custody matter, so from the Crown’s perspective the remedy would be an adjournment.

Court: Alright, and is it agreed that the disclosure you are anticipating may well address the substantive issue as well as the request for a testimonial aid?

Crown: Yes.

The proceedings were adjourned.

[19] On March 19 and 24, 2021, supplemental disclosure was received by the defence. Among the disclosure were four authorizations for release of medical information signed by the complainant on March 8, 2021.

[20] On April 13, 2021, a further judicial pre-trial conference was convened before the same judge who presided over the previous conferences. The trial estimate was revised to one and a half days. On April 15, 2021, the case was scheduled for trial on August 23 and 24, 2021.

[21] On April 19, 2021, and on June 4, 2021, further disclosure was received. Among the disclosure were police notes involving an interaction between a police officer and the applicant on the alleged offence date. Subsequently, the defence brought the present application. The trial dates were revised to September 23 and 24, 2021, with an application hearing date of July 12, 2021.

Positions Taken

[22] The Crown and defence agree that the Court must apply the framework established Jordan. They agree that the presumptive ceiling is 18 months and that total delay is slightly more than 24 months. They agree there is no defence delay. The Crown had initially submitted otherwise but revised its position at the hearing. The parties thus agree that the net delay is the same as the total delay. They agree that the case is not particularly complex.

[23] In light of the foregoing, the parties agree that the onus is upon the Crown to rebut the presumption that the delay is unreasonable, by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan at paras. 68-69. If the Crown is able to do so and the remaining delay falls below the 18 month ceiling then the presumption is rebutted. In such a case, the defence may still demonstrate, in clear cases, that the delay is unreasonable. If the Crown is not able to do so then the presumption is not rebutted, and a stay of proceedings is entered: Jordan at para. 76.

[24] The Crown submits that it can rely upon the COVID-19 pandemic as an exceptional event to reduce the resulting delay calculation. It submits that in Ontario several courts have held that the COVID-19 pandemic amounts to an exceptional circumstance. The cases referenced are R. v. Drummond, 2020 ONSC 5495, [2020] O.J. No. 3908 (S.C.), R. v. Stack, [2020] O.J. No. 5151 (C.J.), R. v. Walker, [2020] O.J. No. 5777 (S.C.), R. v. G.R., [2020] O.J. No. 5413 (C.J.), R. v. Pinkowski, [2021] O.J. No. 258 (C.J.), R. v. Koustov, [2021] O.J. No. 191 (C.J.), and R. v. Khattra, [2020] O.J. No. 5996 (S.C.).

[25] The Crown submits that this case is like all criminal cases caught up in the pandemic. It submits that the Court should subtract the period between the first trial of May 11, 2020, and the second trial of March 8, 2021, from the net delay. Such period is a discrete exceptional circumstance during which the trial could not proceed. It submits that the remaining delay falls below the presumptive ceiling, and that the defence has not demonstrated that this is a clear case which justifies a stay of proceedings. The defence application should therefore be dismissed. With respect to the decisions relied on by the defence, the Crown submits that Silva and Ravikumaran may be distinguished on the facts and that the decision in Silva is not particularly on point.

[26] The defence position is that the Crown ignores an obvious fact: the COVID-19 pandemic is not the cause of the delay in the case. Rather, the cause of the delay is the failure of the state to comply with the obligation to provide complete and timely disclosure.

[27] The defence relies upon the decisions in Silva and Ravikumaran in submitting that when the delay in the case is caused not by COVID-19 but a failure to disclose then the COVID-19 adjournments are not subtracted. The defence submits that as a result the Crown has not rebutted the presumption that the delay is unreasonable, and a stay of proceedings should accordingly be entered. Alternatively, the defence submits that this is a clear case in which the delay is unreasonable because the trial had to be adjourned because of the outstanding disclosure.

Discussion

[28] Given that I have found the decisions in Silva and Ravikumaran to be on point the discussion begins with a consideration of those two cases.

The Decision in Silva

[29] In Silva, the defence applied to stay charges of impaired operation, over 80, and failing to stop. The Information was sworn May 16, 2019. Disclosure was requested on June 19, 2019. The core disclosure was received by the defence by October 4, 2019, leaving one significant outstanding item, an accident report. As such, “the matter was ready to set a trial date and judicial case management should have been engaged to deal with the remaining disclosure item”: Silva at para. 7.

[30] The Court found that this did not happen. Rather, a series of 11 adjournments occurred. This was followed by the COVID-19 adjournments. The Court held that “[d]uring that period there was ample time for the Crown to obtain the outstanding departmental report from the police. It had been requested many times, even with tags such as ‘rush’ indicating the urgency”: Silva at para. 10. There was no evidence of any police response until January 27, 2021, when police responded to the Crown by asking about the relevance of the report.

[31] The Court found that the Crown advised the defence the same day, January 27, 2021, about the police response. The report was disclosed to the defence on January 28, 2021, and the following day the defence asked to set a date for a judicial pre-trial conference. The conference was held on February 26, 2021. On March 24, 2021, a three-day trial was set with a scheduled completion date of June 11, 2021.

[32] The total delay was almost 25 months. The Court found that there was no defence occasioned delay, and that the case was not particularly complex. The Court accepted that COVID-19 was a discrete event, but it declined to subtract the delay as the Crown had requested. The Court reasoned as follows:

[17] It is not contested that COVID-19 is a “discrete event” as that term is used in the Jordan framework. The period of delay caused by a discrete event must be subtracted from the total of delay when determining whether the ceiling has been exceeded – Jordan at para. 75. The issue on point is whether COVID caused any delay in this case.

[18] Many trials were adjourned due to COVID and there was no ability to set a trial date during the period of presumptive adjournments. In many cases that time must be subtracted from the delay analysis. However, in this case the one thing that appeared to have been causing delay could have been remedied during the COVID period. The Crown had ample time while trials were not being held to contact the officer-in-charge as they later did months after the COVID shutdown. After the COVID shutdown period ended in October of 2020 the parties were still not ready to set a trial date. There were four more adjournments to January of 2021 before a judicial pre-trial meeting was set. The COVID discrete event does not appeared to have caused any delay in this case. It was simply another missed opportunity to obtain a copy of the remaining document.

(Emphasis mine.)

[33] Given the reference by the Court to para. 75 in Jordan, I produce that paragraph in full:

[75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

[34] The Crown seeks to distinguish Silva because of the emphasis by the Court upon the failure by the parties and Court to engage in active judicial case management. The Crown points to para. 9, in which the Court describes the many adjournments that occurred before the case was set down for trial notwithstanding that the core disclosure had been provided. But Silva is not about judicial case management. It is about the various failures that prevented timely disclosure, and which resulted in preventable unreasonable delay. The failures in Silva included the failure of police to respond to repeated disclosure requests; the failure of all parties to implement the directive in Jordan and take active steps to prevent unnecessary delay; the failure of all parties to set a trial date once core disclosure was made; and the failure of the administration of justice to hold the trial within a reasonable time: Silva at para. 2.

[35] I view the decision in Silva to reflect what the majority in Jordan observed at para. 70:

70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay.

(Emphasis mine.)

[36] I have determined that the central issue in Silva of whether material disclosure and not COVID-19 is the cause for the delay is very much engaged in the present case. Its central holding is on point and many of the factual issues raised by the Court are similar to the ones that are raised in the present case.

The Decision in Ravikumaran

[37] In Ravikumaran the defence applied to stay charges of impaired driving and operation over 80. The Information was sworn May 17, 2019. The outstanding disclosure was a video of the interaction between police and the accused at the detachment during the early morning hours following his arrest.

[38] At the hearing, the Crown agreed that the nature of the outstanding disclosure was essential. According to the defence, “the video animated the single strongest Charter defence available to the Applicant”: Ravikumaran at para. 8.

[39] The Court found that as a result the defence did not delay setting a date for trial based on the outstanding but instead agreed to set a date and to continue to follow up with the Crown and the Court to obtain the video. The case was scheduled to be heard over two days on May 14 and 15, 2020. The parties agreed that, in the absence of the video, the May 14, 2020, trial could not proceed.

[40] The Court found that disclosure of the video footage was requested by the defence and Crown early on. The defence made the request to the Crown on June 24, 2019, and the Crown made the request to the police on June 25, 2019, specifying that disclosure was required by July 16, 2019. There was no response received from police by that date, although the Court observed that the officer in charge of the case advised the Crown at the hearing that police had forwarded the video to the Crown later, on September 17, 2019.

[41] The Court found that through misadventure, the video was never noted received by the Crown Attorney’s Office. The Crown was thus unaware of its existence. It did not follow up on its request for almost nine months. When it did so on March 12, 2020, a day before the case was in court to confirm the trial dates, the police did not respond and to the request and did not clarify that the video had already been sent.

[42] The Court found that on March 23, defence counsel was informed by the Crown that the case would need to be adjourned in accordance with the COVID-19 protocol. On November 17, 2020, the trial was rescheduled for June 28 and 29, 2021. On January 18, 2021, after defence counsel reminded the Crown once again that the video was outstanding, the Crown followed up with the officer in charge. The video was provided by the police to the Crown and it was disclosed to the Applicant on January 19, 2021.

[43] The defence brought an application pursuant to section 11(b) arguing that the delay was not reasonable. An overview of the positions taken by the parties and by the Court is found at paras. 3-5. Justice Pringle held as follows:

[3] The Applicant submits the case could not go ahead due to the outstanding disclosure. The Applicant relies on Justice Kenkel’s decision in R. v. Silva (OCJ Newmarket, unreported May 19, 2021), where His Honour noted at para. 18: The COVID discrete event does not appear to have caused any delay in this case. It was simply another missed opportunity to obtain a copy of the remaining [disclosure].

[4] The Respondent Crown says the outstanding disclosure would have been provided and the trial would have proceeded but for the pandemic. Accordingly, the Crown submits that it was not the missing disclosure that caused the delay, but rather the pandemic. The Respondent Crown submits that entire period of the pandemic should be deducted from the delay calculation, bringing the case under the presumptive ceiling of reasonable delay of 18 months set out in R. v. Jordan, 2016 SCC 27.

[5] I have determined that the outstanding disclosure was the primary reason for delay in this case. I am not satisfied that the Crown can rely on the pandemic as an exceptional event while this essential disclosure was outstanding. As I will explain below, the resulting delay is beyond the presumptive 18 month ceiling. The Crown does not seek to argue that the case was particularly complex, and in the circumstances, the charges will be stayed.

[44] The Crown seeks to distinguish Ravikumaran on the basis that the disclosure was described as “essential”: para. 8. It submits that the word, “essential,” is not the same as the word, “substantial,” which was the word used by the Court on March 8, 2021. It submits that on March 8, 2021, the prosecution was ready to proceed. It submits that the outstanding witness statements had been disclosed and the only outstanding disclosure was medical disclosure that went to the issue of the aggravated nature of the offence. It submits that it intends to call the same case on September 23 and 24, 2021, that it would have called on March 8, 2021.

[45] As the defence fairly points out, the Crown’s submissions do not align with the evidential record. The transcript of proceedings of March 8, 2021, does not record an expression by the Crown that the prosecution was ready to proceed. Faced with the defence application, the Crown identified the disclosure received that day. It acknowledged that the disclosure went to a substantive issue, namely, proof of an essential element of the offence. It submitted that the appropriate recourse was to adjourn.

[46] I do not agree that in an aggravated assault trial the medical disclosure ought not to be considered “essential” disclosure. Such evidence goes to a core issue. I also do not agree it is helpful to attempt to distinguish between “essential” disclosure and disclosure which may go to the “substantive issue.” In Silva the item of concern was determined by the Court not to be part of core or disclosure. It was identified as significant and what is meant by this is that the trial could not fairly proceed without the item. Clearly, that is the case here. I note that medical disclosure was not the only disclosure that was outstanding.

[47] As a result, I have determined that Ravikumaran is also on point. Like Silva, the central issue in that case is engaged here and the essential factual issue is not unlike the one before Justice Pringle.

Application

[48] This case like any other must be decided upon the evidence filed, the findings that are made by the Court, and law that applies in the circumstances.

[49] In the present case, I have determined that on the second trial date, March 8, 2021, neither party was in a position to proceed.

[50] I have found that the defence was in no position to do so. The applicant/defendant is protected by the Charter and this includes the right to make full answer and defence. I accept the position of the defence that the case to be met had changed in a fundamental way and agree that the applicant/defendant could not be expected to simply “fly blind.”

[51] I have also found that the Crown was in no position to proceed. The trial Crown quite correctly responded to the defence application by acknowledging the issue and submitting that an adjournment would be appropriate. The Crown was obligated to review the medical disclosure that had been received that day, to discharge its continuing obligation to proactively seek outstanding disclosure including the missing medical disclosure, and in consideration of that evidence decide whether the substantive issue was affected. It was also obligated to disclose those materials to the defence and to participate proactively in further discussions with the defence and with the Court.

[52] In reaching this conclusion, I have rejected the submission that an intention to call the same case on September 23 and 24, 2021, is relevant. The Crown decides how to call its case and it may well be that, despite the three-fold increase in the time now set aside for trial, the Crown intends, perhaps reasonably, to call precisely the same case. I will not speculate. A decision to call the same case, made after having now had an opportunity to review the disclosure, is immaterial to the question of whether the trial had to be adjourned on March 8, 2021. It does not change the fact that on the date in question, March 8, 2021, important disclosure that remained outstanding had not been disclosed. The contents were not yet known and as the trial Crown, quite accurately, acknowledged the disclosure went to a substantive issue.

[53] I have determined that that the reason neither party could proceed on March 8, 2021, is due to the failure by the state to provide timely disclosure. The outstanding disclosure was important disclosure. It included witness statements, police notes including interactions with the applicant/defendant, and medical disclosure. It ought to have been obtained in the ordinary course of the investigative process. It was identified by police and by the Crown and it was identified in the pretrial process. It ought to have been provided to the defence well ahead of the first trial date of May 11, 2020.

[54] I have also considered the legal authorities tendered by the parties. I have determined that I agree with the holdings in Silva and Ravikumaran, and I have applied those decisions and Jordan to the present case.

[55] In so doing, I have found that the Crown, who bears the onus, has failed to establish that the delay in the case was caused by COVID-19.

[56] I have determined that the evidential record establishes that the one thing that appeared to have caused the delay in this case was the missing disclosure. It was important disclosure and as late as March 8, 2021, it was missing. I have determined that the need to adjourn the trial on March 8, 2021, had nothing to do with COVID-19. The only reason that the trial could not proceed was the missing disclosure.

[57] I have determined that the evidential record establishes that there were several months before the COVID-19 pandemic began in which the police had every opportunity to do what the evidence establishes they began in September 2020. The Crown likewise had ample opportunity to proactively seek to obtain the disclosure. Despite these opportunities, a judicial pre-trial conference, and the scheduling of the first trial, the outstanding disclosure was not prioritized.

[58] I have determined that the Crown has not established that the COVID-19 discrete event should be subtracted in the manner described in Jordan at paras, 69, 70, and 75. I have followed the decision in Silva at paras. 17-18 and the decision in Ravikumaran at paras. 30-31, and have considered closely the requirement that the Crown must establish that it was unable to mitigate the delay, that it was prepared to do so, and that it took reasonable available steps to address the problem before the delay exceeded the ceiling.

[59] I have determined that the Crown has not established in the evidence that it could not mitigate the one thing that has prevented the trial from proceeding during the period of COVID-19 adjournments. It has not established that it took reasonable steps to do so or that it was prepared to do so. I find the following statement in Silva applicable here: “[t]he COVID discrete event does not appear to have caused any delay in this case. It was simply another missed opportunity….”

[60] I have also considered following Ravikumaran whether a portion of the period of delay should be subtracted. I have done so notwithstanding the position by the Crown that the entire period should be considered as a discrete event.

[61] I have determined, in this case, that the evidential record does not establish that the period from September 2020, when police resumed the task of obtaining the missing disclosure, to the trial date of March 8, 2021, amounts to reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. The evidential record establishes that there was a disconnect between the Crown and police, that the opportunity to utilize judicial case management was not utilized, and that the defence was not alerted as early as September 2020 to the efforts that were being made. Accordingly, I have determined that it would not be appropriate to find that between September 20, 2020, and March 8, 2021, the pandemic operated as a discrete exceptional event.

[62] In the result, I have determined that none of the period referenced by the Crown should be subtracted and that the remaining delay should be calculated as twenty-four months and nine days. I have applied Jordan at para. 76 and determined that a stay of proceedings must be entered. Alternatively, I express my agreement with the position of the defence that the adjournment of trial on March 8, 2021, and the delay occasioned as a result, was not reasonable and that this is a clear case for a stay of proceedings. The 18-month period is not aspirational and there is simply no reason why efforts were not made sooner.

Conclusion

[63] As Justice Kenkel acknowledged in Silva at para. 2, Jordan asks that the Court take a birds-eye view of the case in a delay application. In taking such a view, I have determined that the delay in this case could have been avoidable had the direction in Jordan that active steps be taken to prevent unnecessary delay been approached differently. It is hoped that these reasons for decision will underscore the importance that proactive engagement plays in ensuring that the right to a trial within a reasonable time is not frustrated. All concerned including accused persons, the police and Crown, the Court, and the community have a strong interest in timely trials: Silva at para. 20. It is crucial that they occur.

[64] The charge has been stayed

Released: September 7, 2021 Signed: Justice P. Joubert