ONTARIO COURT OF JUSTICE

CITATION: R. v. Amuzu, 2021 ONCJ 610

DATE: 2021 04 23

COURT FILE No.: Brampton 18-15112

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

— and —

JONATHAN AMUZU and MANOOP GREWAL

Applicants

Before Justice M.M. Rahman

Heard April 9, 2021

Reasons for ruling released on April 23, 2021

Michael Morris[^1].................................................................. counsel for the respondent

Hubert Gonzalez................................................... counsel for the applicant, Amuzu

Lakwinder Sandhu……………………………counsel for the applicant, Grewal

RAHMAN J.:

1. Introduction

[1] The applicants, Jonathan Amuzu and Manoop Grewal are jointly charged with robbery, kidnapping, and fraud. They apply for a stay of proceedings on the grounds that there has been unreasonable delay in bringing their charges to trial.

[2] Both accused were arrested and charged with these offences on December 19, 2018. Their first trial date was set for seven days starting on July 15, 2020 (ending July 23). Mr. Amuzu requested an adjournment of the trial the week before its scheduled start. The Crown did not oppose the adjournment application because it agreed “essential disclosure” was outstanding. Mr. Grewal did not join Mr. Amuzu’s adjournment request, and said that he was prepared to go ahead despite the missing disclosure. He also said that he would agree to proceed without Mr. Amuzu if the Crown would agree to separate trials. Since the Crown wanted a joint trial, the entire matter was adjourned. The evidentiary portion of the trial (now scheduled for four days) is expected to end on July 23, 2021. The total delay in this case is over 31 months, well above the 18-month Jordan[^2] ceiling.

[3] Despite the very long time it has taken to bring this case to trial, the Crown says that the net delay in this case does not exceed the Jordan ceiling. The Crown says that the accused have not behaved as if they wanted a timely trial. The Crown argues that the defence are responsible for a total of about 16 months of delay, principally because they were not interested in moving the matter along and were not diligent in pursuing the outstanding disclosure that has caused most of the delay.

[4] The applicants disagree that there was substantial defence delay. The applicants argue that the net delay far exceeds the 18-month ceiling. They argue that it was the Crown’s delay in making full disclosure that has caused their trial to be delayed and that they are, at most, responsible for only a few weeks of delay.

[5] These reasons explain why I find that the applicants’ s. 11(b) Charter rights have been violated and am ordering a stay of proceedings.

2. Background

2.1. Allegations and Investigation

[6] The Crown alleges that the applicants assaulted, kidnapped, and robbed the complainant, Jagdeep Ghumaan during the early morning hours of August 15, 2018. Mr. Ghumaan arrived at a parkette in Brampton at about 1:00 am expecting to meet someone he had met on a mobile app called Scout. Instead of meeting the person he expected, he was met by three or four assailants. The applicants are alleged to have been among this group. The assailants assaulted Mr. Ghumaan and eventually forced him to drive two of them to an ATM, while being followed by a black car. Mr. Ghumaan gave up his bank card and passwords. One of the assailants used an empty envelope to “deposit” $2,000 into Mr. Ghumaan’s account. Using Mr. Ghumaan’s cellphone, they transferred $2,197 into another person’s account.

[7] The Crown alleges that the applicants were identified as being involved in the crime through mobile phone records. After being arrested on December 19, 2018 (along with a now former co-accused), they were placed in cells at a Peel Police Division. Undercover police officers, posing as prisoners, were located throughout the cell area where the applicants were being held. The Crown alleges that, in the officers’ presence, the applicants discussed the allegations, their roles, what evidence might implicate them, and how the police had identified them. The Crown’s failure to disclose information surrounding this undercover operation is central to the delay in this matter.

2.2. Procedural History

[8] It is not necessary to lay out a detailed history of all the court appearances in this matter. I will review the key dates that are connected to the issues raised by the parties.

[9] The applicants were released on their own recognizance on December 21, 2018, two days after their arrest. They made their first appearance out of custody on January 10, 2019. Mr. Grewal had already retained his current lawyer, Mr. Sandhu. Mr. Amuzu was still not represented.

[10] The applicants appeared several times until their judicial pre-trial on June 13, 2019. Mr. Amuzu was still not represented. Mr. Gonzalez’s associate attended the judicial pre-trial, although he was not prepared to be counsel of record. At the judicial pre-trial, the defence learned that undercover officers had been eavesdropping on the applicants and made notes about the conversations that they overheard. A seven-day trial was set to begin on July 15, 2020.

[11] In the interim, Mr. Amuzu retained Mr. Gonzalez in March 2020, just before the COVID-19 pandemic affected the regular operation of this court. Mr. Gonzalez contacted the Crown’s office on May 20, 2020 to get a new, full copy of his client’s disclosure. He did not receive a response from the Crown’s office until June 16, which said that DVDs were being couriered to counsel that weekend. Mr. Gonzalez followed up on June 20, since he had not received the disclosure. On June 23, the Crown sent a letter explaining that a substantial amount of disclosure was being sent to counsel by courier. This package included the notes of the undercover officers involved in the cell placement. The package did not include the DVDs containing the cell videos and video statements, which the defence had requested in June 2019.

[12] About three weeks before the trial, on June 26, 2020, the Crown filed an application to admit the conversations that the undercover officers allegedly overheard. The Crown still had not disclosed several significant items of disclosure, including the video of the cell area where the officers allegedly heard these conversations and the applicants’ own video statements or those of former co-accused (they had summaries only).

[13] On July 6, 2020, Mr. Amuzu applied to adjourn the first trial dates because of the outstanding disclosure. Significantly, the Crown did not oppose Mr. Amuzu’s request, acknowledging that “essential disclosure” remained outstanding. Mr. Grewal did not join the adjournment application, nor did he oppose it. Mr. Grewal was prepared to proceed to trial despite the missing disclosure. Mr. Grewal had responded to the Crown’s application to admit evidence of the overheard conversations and opposed their admission. Mr. Grewal’s counsel also said that he would agree to having his trial proceed without Mr. Amuzu. The Crown’s position was that the whole matter should be adjourned. The Crown maintained that it wanted a joint trial and would not consent to severance. My colleague, Monahan J., granted the adjournment and vacated the July 2020 trial dates.

[14] For various reasons that are not significant to this application, the parties appeared a number of times before the new trial dates were set. The Crown and the court were ready to accommodate the applicants’ trial from February 4 to 7, 2021. The parties agree that the Jordan clock stops as of this date.

3. Calculation of Delay

[15] The total delay in this case is 31 months. There is no issue that the period between February 11, 2021 and July 23, 2021 should be subtracted as defence delay. That brings the net delay down to 25 months and 21 days. The main point of dispute is whether a further period of about 11 months should be subtracted as defence delay.

3.1. Alleged Defence Delay

[16] The respondent says that there are two main periods of defence delay that ought to be subtracted from the total delay:

(1) February 14, 2019 to June 13, 2019: the respondent says that the applicants are responsible for this four-month period because Mr. Grewal did not pick up his initial disclosure immediately and Mr. Amuzu had not yet hired a lawyer;

(2) July 15, 2020 to February 11, 2021[^3]: the respondent says that this period of just under 7 months from the first trial date and earliest dates offered by the Crown and court for the second trial dates should be deducted because neither applicant exercised due diligence in actively seeking and pursuing the disclosure that was outstanding and caused the adjournment of the first trial date.

[17] I cannot agree that the defence is responsible for any of the delay alleged above. I will address both periods of delay that the Crown relies on in turn.

3.1.1. First period of alleged delay (February 14 to June 13, 2019)

[18] The Supreme Court created the new Jordan framework, in part, to simplify the calculation of delay.[^4] Rather than characterizing the time between every appearance as involving neutral, institutional, or Crown or defence delay, the court created presumptive ceilings recognizing the time that various steps in a case will take. The presumptive ceilings now include the normal “intake” periods that were considered “neutral” time under the old Morin/Askov[^5] framework. Under the new framework, a court hearing a s. 11(b) application is not required to analyze whether every step falls into a given category, especially where those steps fall under what would have been considered the normal “intake” period.

[19] However, a court is required to characterize whether certain steps in the life of a case involve defence delay. There are two types of defence delay – waiver and delay caused solely by the actions of defence.[^6] It is the latter type of delay that the Crown alleges here. Defence delay in the category includes, “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.”[^7]

[20] The Crown argues that the defence is responsible for four months of delay because Mr. Grewal’s lawyer did not pick up his disclosure at the earliest opportunity and because Mr. Amuzu did not hire a lawyer until after the first trial date was set. The Crown argues that the defence was not interested in moving the matter forward and it was the Crown that insisted on moving the matter forward by setting a judicial pre-trial date at the April 18, 2019 appearance.

[21] I cannot accept the Crown’s argument. The defence is not responsible for any of the delay during this time period. I say that for the following reasons.

[22] First, assuming there was any delay by Mr. Grewal’s lawyer picking up disclosure (a point which he disputes), it did not delay any procedural steps in this case. This is not a case where Mr. Grewal’s lawyer used his failure to pick up disclosure to delay setting a judicial pre-trial or taking any other such step. It certainly did not cause a few months of delay.

[23] Second, the mere fact that it was the Crown that insisted on setting the judicial pre-trial in the face of the defence’s alleged reluctance to do so, does not mean that the entire period is defence delay. Again, the judicial pre-trial was set without any party taking successful steps to delay it. Any defence reluctance did not end up being an action that delayed the progress of the case or, ultimately, the setting of a trial date. I see no way to stretch the definition of defence delay to include conduct that shows reluctance but does not actually cause any delay. Defence delay refers to the actions of the defence, not the attitude of the defence. Therefore, the Crown’s reliance on alleged “defence inaction” in this case is misplaced. I also note that Mr. Grewal wanted to set a judicial pre-trial on April 19, and the potential for delay (which did not materialize) was only the result of Mr. Amuzu being unrepresented.

[24] Finally, as will become clear from my discussion (below), the reason for bulk of the delay in this case is that the Crown itself was hardly ready to move the case forward at that point. The Crown did not insist on moving the matter forward on February 14. It had only made initial disclosure by that date. Significant disclosure remained outstanding. The Crown can successfully blame the defence for delay when it is ready to move the matter forward but the defence does something to stall that progression. That is not what happened here. The case moved forward at a normal pace during the intake phase.

[25] The defence was not responsible for delay during the intake phase as the Crown alleges.[^8] That means that even if the trial had proceeded in July 2020, and finished within the allotted time, the net delay would have exceeded the presumptive ceiling because it would equal 18 months and 27 days (December 18, 2018 to July 23, 2020).

[26] Although it is not necessary for me to consider the second period of alleged defence delay, because it was argued, I will explain why it, too, is not properly characterized as defence delay.

3.1.2. Second period of alleged delay (July 15, 2020 to February 8, 2021)

[27] As mentioned above, the first trial dates in July 2020 were adjourned because significant disclosure remained outstanding. The Crown argues that the defence shares some responsibility in the untimely delivery of disclosure because it was not diligent in following up with the Crown, even though the defence was aware that there was a lot of outstanding disclosure. Although the Crown acknowledges that the defence was entitled to an adjournment without the outstanding disclosure, the Crown contends that the court can infer that the failure to make timely disclosure was an oversight and not deliberate. The Crown argues that because the assigned Crown counsel (not Mr. Morris) filed an application to admit evidence that had not yet been disclosed, the court can infer that the untimely disclosure was something that simply “fell through the cracks.” The Crown argues that, had the defence made Crown counsel aware that they had not received the outstanding disclosure earlier, the July 2020 trial dates could have been salvaged and the delay would not have been unreasonable.

[28] The Crown argues that the defence’s failure to alert the Crown about the outstanding disclosure amounted to a form of inaction that constitutes defence delay. In making this submission, the Crown relies on the following passage from Akhtar J.’s decision in R. v. Bilachi:[^9]

40 In my view, once the applicants knew of the potential extractions and certainly after the Crown had notified the defence of the summaries of the cell phone data, the defence were obliged to take steps to ensure that they received full disclosure of the data in a timely fashion before trial. They did not do so in this case.

[29] The Crown also relies on the following passages from R. v. Dixon about the requirement that the defence be diligent in pursuing disclosure:[^10]

As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial.

[30] I cannot accept the Crown’s argument that the defence’s alleged inaction here is responsible for the delay caused by the adjournment of the first trial dates.

[31] First, while it is true that the defence are required to be diligent in their pursuit of disclosure, that requirement does not require the defence to persistently hound the Crown to disclose significant elements of its case that it actually plans to rely on to prove its case. The missing disclosure here was not peripheral. It comprised material that the Crown planned to rely on as part of its own case. To be clear, it was not until September 2020, two months after the first scheduled trial date, that the Crown complied fully with its disclosure obligations.

[32] On this point, it is important to read the passages from Dixon that the Crown relies on in their proper context. Those passages were referring to the defence failing to follow up after becoming aware of the Crown’s failure to disclose further material based on material the defence already has. Dixon involved an appeal where the defence did not request certain statements despite being aware of their existence. That is not this case. As Mr. Gonzalez observed, the rationale behind the diligence requirement is to put the Crown on notice when disclosure is missing. The defence did that here. There is some irony in the Crown accusing the defence of not being diligent when it fell far short of complying with its constitutional disclosure obligation. The Crown was aware of the outstanding disclosure in June 2019. It did not fully comply with its disclosure obligation until over one year later.

[33] As far as the quotation from Bilachi that the Crown relies, those comments were made in the context of the court considering whether a stay should be granted for delay under the presumptive ceiling. Akhtar J. was considering whether the defence had met their onus to show that they had taken active steps. That was also a case where the Crown diligently updated the defence about delays it was facing having cell phone data extracted. Again, that is not this case.

[34] Second, the Crown offered no explanation for its failure to make timely disclosure, either when the trial was adjourned in July 2020, or at the hearing of this application. I cannot accept that I should infer the Crown’s failure to disclose the evidence was inadvertent simply because there is no evidence, or allegation, that it was deliberate. While I realize that the applicants have the onus of establishing the facts on a s. 11(b) application, it is unclear how they could establish the reasons behind the failure to make timely disclosure without turning this into a lengthy hearing requiring evidence from assigned Crown counsel, the officer in charge, or the office staff in charge of disclosure. It is wrong to look at the failure here as only involving the two possibilities of either deliberate non-disclosure or inadvertence. It may be that the Crown’s failure to make timely disclosure is due to negligence (institutional or individual), or due to a lack of resources. If it is due to negligence or poor allocation of resources, it would be improper to allow the Crown to rely on those reasons to justify the delay. Since Askov, delay analyses have been premised on the proper allocation of the state’s resources. The Crown can certainly be excused where something accidental caused a delay in it fulfilling its disclosure obligation. But without any explanation for the delay, I cannot simply give the Crown a pass and assume it must have been accidental.

[35] Finally, I note that Mr. Grewal was prepared to proceed with his trial in July, even though he was missing essential disclosure. He had filed a s. 11(b) application and would have proceeded with his trial had the Crown agreed to sever him from Mr. Amuzu. The Crown had this procedural solution at its disposal to try to mitigate the delay for him. It is no answer to say that Mr. Grewal ought to have applied to the trial judge for severance. The Crown’s position was that the whole trial ought to have been adjourned. Faced with a delay problem of its own making, the Crown chose the path of increased delay.

[36] I make one final observation before concluding. The Crown resisted this application by trying to characterize the defence’s conduct as showing a disinterest in a timely trial. I have already commented on the irony of this submission given the Crown’s own failure to fulfill its constitutional disclosure obligation. But I also note that the Crown set the first trial dates outside of the Jordan ceiling. There is no indication on the record that the Crown did anything to try and move this date up, either at the time the date was set, or any time after that. That the case was in s. 11(b) territory ought to have been clear to the Crown when it set the July 2020 trial dates. Where, as here, trial dates are set which may put a case in peril, the Crown should to try to fix the problem of delay early on. It should not effectively gamble with the Jordan clock and assume that chunks of time will be subtracted as defence delay. Nor should it take a wait and see attitude in hopes that an earlier trial date will become available when other matters collapse. In this jurisdiction, the Crown can seek judicial intervention to secure earlier trial dates where a case appears to be at risk of passing the Jordan ceiling. It is important to underscore that s. 11(b) does not just protect the accused’s right not to have a trial unreasonably delayed. It also protects an important societal interest in ensuring that trials are timely and that cases do not drag on. I recognize that Jordan instructs all parties to shoulder the responsibility of ensuring timely trials. However, the Crown’s role in protecting the public interest means it has a special obligation to ensure trials are not delayed. For reasons that remain unclear, it fell short of its obligation here.

4. Conclusion

[37] The delay in this case exceeds the presumptive ceiling by several months. The Crown has not attempted to justify the delay by relying on any exceptional circumstances. The delay was unreasonable and violates the applicants’ rights under s. 11(b).

[38] The applications are granted and all charges against the applicants are stayed.

Released: April 23, 2021

Justice M.M. Rahman

[^1]: As I will mention in these reasons, Mr. Morris was not Crown counsel who was assigned to this matter or dealt with the case earlier. Mr. Morris’ only involvement, that I am aware of, is having appeared to make oral submissions at the hearing of this application. [^2]: R. v. Jordan, 2016 SCC 27. [^3]: I have modified the dates somewhat from those that initially appeared in the Crown’s factum (not authored by Mr. Morris). The Crown’s factum incorrectly referred to the first trial date as being in June rather than July. The Crown’s factum also did not account for the Jordan clock stopping in February, but rather had the end of the actual trial dates. The applicants agree that they are responsible for the delay after February 11. I have modified the dates to reflect what was actually in dispute at the hearing. [^4]: Jordan paras. 35-36 [^5]: R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771; R. v. Askov 1990 45 (SCC), [1990] 2 S.C.R. 1199. [^6]: Jordan, supra, at paras. 61-63 [^7]: Ibid. at para. 63. [^8]: Although Mr. Amuzu did ask for some more time to retain a lawyer at his March 7, 2019 appearance, I cannot find that the ensuing 42 days to the next appearance on April 18, 2019 constitute defence delay. Mr. Amuzu’s request for extra time did not slow the progress of the case in any meaningful way, especially considering that the Crown had not yet come close to making complete disclosure, nor did the Crown insist that the matter move forward on March 7. I also note that Mr. Grewal had counsel who was moving the matter forward and so Mr. Amuzu’s request for more time did not stop the case from moving ahead. [^9]: R. v. Bilachi, [2019] O.J. No. 4581 (Sup. Ct.) at para. 40. [^10]: R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 at paras. 37-38.