ONTARIO COURT OF JUSTICE
CITATION: R. v. Brown, 2021 ONCJ 663
DATE: 2021 12 17
COURT FILE No.: 20-75000824
Toronto
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
DAVEION BROWN Applicant
Before Justice BHABHA
Heard on November 19th, 2021
Reasons for s. 11(b) Ruling released on December 17th, 2021
Jackson, E. ......................................................................................... counsel for the Crown
Lacy, M. and Sengupta-Murray, M. ........................................ counsel for the defendant
Reasons for Decision
Bhabha, J.:
[1] On November 19th, 2021 the Court granted Daveion Brown’s application for a stay of the proceedings with Reasons to follow. These are my Reasons for finding that Mr. Brown’s right to trial within a reasonable delay was infringed.
[2] Mr. Brown was charged with carrying a concealed weapon (a knife); assault with a weapon, and aggravated assault all arising from a stabbing incident at the Rebel nightclub on February 15th, 2020.
[3] Mr. Brown was arrested at the nightclub on the day of the incident. During the course of his arrest, the police deployed a Taser. He was admitted to the hospital as a result of that use of force.
[4] The trial in this matter was scheduled to begin on January 31, 2022 and to conclude on February 8th, 2022.
[5] The total delay in this case is 23 months and 25 days. The presumptive 18 month ceiling for reasonable delay established by R. v. Jordan, 2016 SCC 27, was therefore exceeded by almost six months.
[6] The narrow issue in this application is whether the Crown is entitled to a presumptive deduction of six months on account of the Covid-19 pandemic either as a discrete event or an exceptional circumstance.
[7] The parties agree that the court can take judicial notice that trial and preliminary hearing dates, as well as case management were suspended for the period of March 16, 2020 until September 28, 2020.
[8] For the reasons explained in this Ruling, I am disinclined to find that there should be a presumptive or blanket Covid-19 deduction that should be applied in all cases that were in the system when trials and case management proceedings were halted between March and September of 2020.
[9] The main reason for the delay is that essential disclosure was provided to the defence a full year after the incident. The following is the relevant timeline of events and correspondence between the parties about the outstanding disclosure:
| Date – timeline | Event/Correspondence |
|---|---|
| February 15th 2020 | Defendant is arrested |
| April 22nd 2020 | Counsel for the defendant, A. Weisberg, corresponds with Crown to request outstanding disclosure, including CCTV footage and use of force reports relating to use of Taser on the defendant during his arrest |
| May 1st 2020 | Crown’s office responds to advise that the items have been requested with exception of item #3 – relating to use of force reports (Taser) and that a 3rd party records application will likely be necessary |
| May 7th 2020 | Mr. Weisberg responds and explains the reason for the request and provides caselaw to support his request as 1st party records |
| May 13th 2020 | Crown responds she is grateful for the explanation and will reach out to officers to request the reports be provided and will keep counsel advised of progress |
| June 8th 2020 | Counsel Weisberg renews his request for the outstanding disclosure and lists 18 items outstanding |
| July 23rd 2020 | Counsel Weisberg sends another request for the outstanding disclosure – lists the 18+ items that are either outstanding or that require further inquiry by the Crown |
| August 7th 2020 | Counsel Weisberg notes that the matter will automatically be adjourned on August 10th to October 19th on account of the pandemic. He renews the request for all outstanding disclosure advising “[w]e would like to take substantive steps on this matter between these dates, but cannot do so until we receive [the outstanding disclosure]” The letter provides an itemized list of 14 outstanding items. |
| September 2nd, 2020 | Counsel Weisberg renews his requests of Aug. 7th and July 23rd and provides same list of outstanding disclosure |
| September 16th, 2020 | Crown advises that some items have been disclosed (the in car camera videos) and that others have been requested and will be provided once received and reviewed. Counsel Weisberg responds noting the importance of the bulk of outstanding disclosure, which includes the CCTV footage: “We need this disclosure to assess the case and make determinations prior to being able to have a useful pre-trial.” |
| September 21st 2020 | Counsel Weisberg’s office renews request for receipt of the CCTV footage forthwith and requests other outstanding disclosure items, such as use of force reports noting that the outstanding disclosure has been outstanding for five months, since April 2020. He states: “we require the item to move forward with this matter.” |
| September 21st 2020 | Crown counsel replies that “the disclosure has been requested from the police and we are providing it to you as it becomes available. //…// I suggest a JPT date [be set] to discuss setting dates and the state of disclosure. If this is agreeable, let me know and I will arrange a JTP …” |
| September 21st 2020 | Counsel Weisberg responds that he does not think much can be accomplished without the CCTV footage and that it would be a waste of judicial resources and refers to a specific item of disclosure still outstanding Crown Counsel responds: “OK,. We were not clear on that pointed. The BOLDED point, I mean. I will take a look at it tomorrow.” |
| September 25th 2020 | Crown advises that an email has been sent to the OIC explaining that Crown is hoping to get these items as soon as possible and suggests a JPT Weisberg responds: “We can connect over a pre-trial if you think it will help get things moving, however, I think it would be a waste of judicial resources to have an actual JPT at this point. Up to you though.” |
| October 15th 2020 | Counsel Weisberg follows up with the Crown |
| January 28th 2020 | Crown counsel writes to counsel Weisberg to advise: “I would like to set a JPT on this matter if for no other reason than to sort through the disclosure issues. Can you please provide me with your available dates in February and I will confer with the trial coordinators.” (emphasis added) Mr. Weisberg responds within minutes offering dates in mid-February, but also offering to move dates around if necessary Crown requests JPT date from trial coordinator advising: “This matter requires a JPT. It has some issues re disclosure that really need to be addressed. Counsel and I have conducted a JPT and were wondering if you had a JPT available for us the week of February 15-19?” |
| February 17th 2021 | The first JPT takes place but because substantive elements of disclosure [CCTV footage] were still outstanding, Justice Borenstein directed that the officer in charge be directed to attend the next JPT on March 4th JPT to explain the delay in complying with disclosure requests |
| February 22nd 2021 | The footage of the CCTV is provided to the Crown who in turn provides it to the defence. The Taser materials and the Use of Force reports remained outstanding |
| March 4th 2021 | The 2nd JPT takes place with Justice Borenstein |
| March 2021 | Crown writes to Weisberg to advise that Metro Toronto Police Service legal has been provided with relevant caselaw regarding Taser reports |
| March 16th 2021 | Crown writes to trial coordinator inquiring about setting dates for a trial or preliminary hearing: “//…// Some disclosure issues are still outstanding and I continue to work on those, but I understand that we were to set dates best we can - understanding that more or less time may be necessary depending on results and content of disclosure. I believe we agreed that we would need 5 days for trial / prelim . Are we able to set those dates? “ |
| March 2021 | The trial dates are set for: January 31 to Feb. 8th, 2022 |
The position of the Crown – Respondent
[10] The Respondent submits that when the Covid-19 delay in this case is taken into account no breach occurred. The Respondent submits that the initial Covid period between March 16, 2020 and September 28, 2020 should be deducted from the total delay. If this period of 6 months and 12 days is subtracted, the total delay in this case is 17 months and 13 days.
[11] The Crown submits that once it became possible to set trial dates in September of 2020, the Respondent took reasonable steps to try to set a judicial pretrial (“JPT”) to address delay and the disclosure issues. The Crown further submits that the Applicant was either disinclined to conduct a JPT or was passive in the face of repeated requests from the Respondent to deal with the delay and disclosure issues in this case. This conduct by the Applicant, the Crown submits, contributed to the delay in setting a trial date in this matter.
[12] The Crown further submits that there was a backlog of cases due to the pandemic, and many cases needed trial dates starting in September 2020. As a result of the large volume of cases being set for trial, available dates disappeared quickly, and trials were set further and further in the future. This matter could have been heard earlier if the trial date had been set earlier.
[13] Finally, the Crown submits that if the pandemic delay is deduced from the over all delay, the delay falls under the 18-month presumptive ceiling. As well, the Applicant has not demonstrated that the delay was unreasonable, although there were certainly items of disclosure that took longer than usual to obtain. The Applicant has not shown that the proceeding took “markedly longer than it should have” to proceed to trial. The time period falls within the expected length for prosecution of this nature in this jurisdiction. The Applicant is therefore not entitled to a stay of proceedings and the application should be dismissed.
The position of the Applicant - Defence
[14] The Applicant submits that the Crown is not entitled to rely on the fact of the pandemic and the resulting impact on trial scheduling to explain the delayed disclosure in this case.
[15] The Applicant submits firstly that is unreasonable for the Crown to take the position that the Applicant ought to have engaged in the pre-trial process in the absence of essential disclosure. Secondly, that the disclosure could have and should have been made available to the defence in a much timelier fashion. Finally, the Applicant submits that there is nothing in the record to explain that the disclosure was delayed on account of the pandemic. As a result, this disentitles the Crown from relying on the fact of the pandemic to reduce the total delay to bring it under the Jordan threshold.
[16] I will address all three prongs of the Applicant’s submissions as well as the Crown’s contention that the defence conduct played a role in the overall delay which in any event falls below the threshold after the deduction on account of the pandemic.
Defence Counsel’s Conduct did not Contribute to the Delay
[17] An examination of the correspondence between the parties clearly demonstrates that Mr. Weisberg acted diligently and responsibly throughout. He made timely, and repeated requests for essential disclosure. The video footage purporting to capture the incident was a key piece missing from the outstanding disclosure. That footage was necessary for him to meaningfully instruct his client and to decide next steps. There was also footage from the exterior of the venue. It was anticipated that it would capture the arrest and deployment of the Taser during the Applicant’s arrest. These records were relevant to potential Charter applications being considered by the defence.
[18] The CCTV footage of the incident (February 14th, 2020) was only disclosed in late February of 2021 once the officer in charge was ordered by the pre-trial judge to attend at a second pre-trial to explain the delay. The officer did not in fact attend, but instead provided the disclosure once he was advised that he had been ordered to attend before the court to explain why the disclosure was still outstanding over a year after it was collected.
The Timing of the Disclosure Relative to the Pre-trial
[19] The only reasonable and logical inferences the court can make from the timing of the disclosure are these: a) that it took the court’s intervention for the officer in charge to finally take notice of the Crown’s repeated requests for the outstanding disclosure items and the CCTV footage, in particular; and b) that, absent any explanation, the disclosure appears to have been available and ready to disclose and could have been provided much earlier than it was.
[20] I will now address the Crown’s submission that the defence had a role to play in agreeing to a pre-trial to address the fact that the police were not responding to the Crown’s repeated but unheeded requests for disclosure.
[21] Firstly, the Crown bears ultimate responsibility for complying with their disclosure obligations. The burden cannot be shifted to the defence.
[22] Judicial pre-trials can unquestionably be beneficial to the parties especially where there are differences of opinion as to what may constitute essential disclosure before trial dates can be set. That was not the case here. When the pre-trial was held, the CCTV footage of the incident was still outstanding. That was essential, not peripheral, disclosure.
[23] The record reflects that the Crown’s numerous requests of the officer in charge to provide the outstanding disclosure items appear to have been ignored for months on end.
[24] It is a very sorry state of affairs where the Court must be called upon to ensure that the police respond to the Crown’s requests for essential disclosure. While it may benefit the Crown to resort to the Court’s authority to prod the police to do their duty in providing disclosure, the Court, in my view, should not be the first option the Crown turns to. It should be the last resort.
[25] The Crown has other more appropriate avenues it can and should deploy to ensure that its disclosure obligations are carried out and that the police act diligently in concert with the Crown to ensure that this happens. For example, prosecutors could take the matter up with their deputies or superiors who could in turn take the matter up with the superior officer of the officer in charge.
[26] There is no indication on the record that the Crown took any steps to address the disclosure problems directly with the Toronto Police Service or within the Crown system.
[27] As for defence counsel’s role in the matter, the record shows that the defence did not actively resist setting a JPT. He expressed his view on the utility of having one absent the essential disclosure. Also significant is the unexplained delay in setting the JPT. Once the Crown suggested a JPT and defence left it to the Crown to arrange it, it still took from September 2020 to January 2021 for the JPT to be scheduled. That is an inordinately long delay, even during the pandemic.
[28] The record in this case does not support the Crown’s submission that the defence contributed to the delay by unreasonably refusing to engage in the JPT process. The correspondence confirms that he did not think it would be productive but left it up to the Crown to arrange one.
[29] The Court also rejects the notion that the defence had a role to play in ensuring the police comply with their disclosure obligations to the Crown. That submission is fundamentally flawed.
The Causal Link between the Pandemic and the Delayed Disclosure in this Case
[30] The impact of the pandemic as a factor in the s. 11(b) calculus has been considered by many trial courts in recent months.
[31] In R. v. Greenidge 2021 ONCJ 57, the Court held that “it is not sufficient for the Crown … to point to the pandemic as an exceptional event and they say it sought to provide an earlier date in the SCJ. This misses a critical point in the analysis. //…// the Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic.” (emphasis added)
[32] In R. v. Schartdt 2021 ONSC 3143, the Court recognized that the pandemic may have an impact on matters such as scheduling that may not always be apparent and that there may be circumstances in which it is appropriate to recognize this in the analysis but only if the delay was caused by a discreet event. Relying on the guidance in Jordan the court emphasized there must be a cause and effect relationship between the discrete event and the delay.
[33] The decisions in R. v. Delaney 2021 467 and R. v. Ravikumaran (June 29th, 2021 unreported) bear close resemblance to the case at bar. In both cases the Crown did not meet its disclosure obligation in a timely fashion. The delay related to untimely disclosure ran concurrent with the pandemic, but the delayed disclosure was not found to be on account of the pandemic.
[34] The developing jurisprudence makes it clear that each section 11(b) application must be assessed based on an examination of the record. The record will shed light on the specific reasons for the delay and whether they related to the pandemic. It is not sufficient for the Crown to simply point to and rely on the fact of the pandemic to explain any portion of the delay.
[35] In this case, the stabbing incident is alleged to have taken place inside a nightclub where there was video surveillance. The notes of one of the investigating officers reveals that CCTV footage purporting to capture the incident was already being complied on the night of the incident.[^1] The incident happened on February 15th, 2020 approximately a month prior to the government shutting courts and ceasing trials.
[36] There is nothing in the record to indicate that the police ever notified the Crown that the disclosure was delayed on account of the pandemic. In fact, the Crown in response to a question from the Court during this hearing confirmed that the police have never provided the Crown with any explanation whatsoever as to why the disclosure of the surveillance video was delayed.
[37] In the absence of any evidence to explain the cause or reason for the delay it would be an error for the court to simply infer that the delay must have been due to the pandemic.
[38] It is incumbent on the Crown to establish a causal link between the pandemic and the delay. This is not an onerous task. An explanation by the investigators in an affidavit would suffice, provided the explanation is a reasonable one that withstands cross-examination and the Court’s scrutiny.
[39] In the result, I find that there should not be any allowance in this case on account of the pandemic. The inordinate delay in providing essential disclosure that appears to have in preparation on the night of the incident is very concerning. The allegations are serious, but it does not appear that the officers responsible for attending to the Crowns’ disclosure obligations took their responsibilities seriously.
[40] This was not a close case. The total delay in this case exceeds the 18-month threshold set out in Jordan by almost six months. The Crown has failed to demonstrate that any of the delay is explained by the fact of the pandemic.
[41] In the result, the application for a stay is warranted.
Released: December 17th, 2021
Signed: Justice Bhabha
[^1]: See exhibit “A” to the Applicant’s Application Record: Notes of Officer Montague