Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 02 25 COURT FILE No.: 20-75002452 Toronto

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

— AND —

I.H. Applicant

Before: Justice BHABHA Heard on: February 4th, 2022 Reasons for s. 11(b) Ruling released on: February 25th, 2022

Counsel: M. Walia, for the Crown R. Frank and S. Foda, for the Applicant

Bhabha, J.:

Reasons for Ruling

[1] The applicant, I.H., seeks a stay of the proceedings under s. 24(1) of the Charter of Rights and Freedoms (“the Charter”) on the basis that his right to be tried within a reasonable time was infringed.

[2] Mr. I.H. is charged with a single count of sexual assault on K.K. arising from an incident on June 2nd, 2020.

[3] He was arrested on the day of the incident and released on bail the following day. His trial is scheduled to conclude on April 1st, 2022.

[4] The total delay in this case is 22 months. The delay is therefore 4 months over the presumptive 18 month ceiling for reasonable delay established by R. v. Jordan, 2016 SCC 27. The onus is therefore on the Crown to satisfy the court that the overall delay is not unreasonable.

[5] The narrow issue on this application is whether the entire period of delay is attributable to the Crown because the Crown was not able to perfect disclosure before the trial dates were set or whether some of the delay is attributable to the defence who insisted on near-complete disclosure before setting the matter down for trial.

[6] If the court concludes that the defence bears some responsibility for the delay, the next issue is whether or not any period or periods of delay attributable to the defence brings the net delay under the presumptive ceiling.

[7] If the net delay falls below the Jordan threshold, the onus shifts to the defence to satisfy this court that although the delay falls under the threshold it was nevertheless unreasonable in the circumstances of this case.

[8] For the reasons explained in this Ruling, I find that 5.5 months of the delay can be attributed to a combination of passive inaction by the defence before agreeing to have a Crown pre-trial (“CPT”) or schedule the judicial pre-trial (“JPT”), followed by active resistance to setting trial dates after the JPT by continuing to insist on near-complete disclosure.

[9] When the delay attributable to the defence conduct is deducted from the total delay, the net delay falls below the 18-month Jordan threshold. The defence has not persuaded the court that delay below the presumptive ceiling is nevertheless unreasonable.

[10] Before turning to the relevant timeline and the exchange of correspondence between the parties I will briefly set out the allegations underlying the charge the Applicant faces. I do this at the insistence of the Applicant who submits that is necessary for the Court to understand the circumstances surrounding the allegations and the defence theory to better contextualize the significance of the outstanding disclosure and to justify why that disclosure was essential before a pre-trial could take place.

[11] The defence described this case as a simple one. The Applicant and the complainant are not strangers to one another. The Court will hear evidence that they were legally married to each other at the relevant time.

[12] On the day of the alleged assault, the parties met at a hotel where the Applicant had rented a room. The assault is alleged to have taken place in the hotel room. The alleged sexual assault involves a complaint that there was unwanted touching of the complainant’s vagina.

[13] Shortly after the alleged assault, the complainant sent several text messages to her former spouse, “Khaled”, from the bathroom within the hotel room. He called 911. In fact, the evidence will show that he made six calls to 911.

[14] The theory of the defence is that the complainant and her former spouse, Khaled, jointly engaged in public mischief in falsely reporting that a sexual assault had taken place. ^1 Although text messages the complainant exchanged with Khaled from the night of the alleged assault have been disclosed, it is the theory of the defence that the Crown has been duped as to the number of text messages they exchanged and that other relevant text messages exist that have been withheld from the prosecution to conceal the alleged collusion.

Timeline

[15] The following is the timeline of relevant events and correspondence between the parties about the outstanding disclosure and the scheduling of pre-trials, etcetera. The Court takes judicial notice that at the time the Information was laid in June of 2020 until September 28, 2020, trial dates, as well as case management were suspended due to the pandemic. Matters were routinely going over for set periods of time, sometimes longer than the parties might otherwise have requested. In the context of this case, that would have encompassed much of the initial intake period: early June to Mid-September 2020.

Date - timeline	Event/Correspondence	Time Lapse
June 2nd 2020	Applicant is arrested
June 3rd 2020	Information is sworn and the Applicant released on bail
Aug. 11th 2020	Counsel is retained and disclosure requested	2 mos. 9 days
Aug. 14th 2020	First appearance since show cause. Counsel sends message for adjournment of 3 to 4 weeks. Crown notes: counsel needs to request a CPT with Crown	2 mos. 12 days
Sep. 8th 2020	Counsel does not appear. Crown advises matter has been screened; initial disclosure provided, and Crown is ready for a Crown pr- trial Applicant writes to Crown advising text messages are outstanding	3 mos. 1 week
Sept.15th 2020	Initial disclosure package included, it would appear, text messages sent by complainant to 911 caller, “Khaled”. Still outstanding were the 911 calls, surveillance footage from the hotel and a typed copy of officer notes re the footage	3.5 mos.
Sept. 16th 2020	Applicant writes to Crown to request outstanding disclosure and is advised all text messages were disclosed in initial package	3.5 mos.
Nov. 13th 2020	Crown advises Court that Counsel has not called into 505 and Crown has been making efforts to move the matter along. Discretionary Bench Warrant extended to Jan. 8/21	5.5 mos.
Jan. 8th 2021 Tab 4	First appearance by representative on behalf of counsel of record. To avoid discretionary bench warrant representative asks if Crown can formally elect. Crown elects to proceed summarily in keeping with pre-screening form. Mr. Frank then appears as agent for the Applicant Mr. Frank advises court that there is a lot of outstanding disclosure: “some security footage //…// “some text messages”. No mention of 911 calls on the record.	7 mos. – 6 days
Feb. 5th 2021	Mr. Frank appears as agent. States that there is outstanding disclosure including text messages and video footage. No mention of 911 calls. Crown indicates text messages were disclosed in initial package, but Mr. Frank references other texts beyond that provided in disclosure. Justice of the Peace Roffey suggests a CPT may help “sort … out… exactly what is going on”	8 mos. – 2 days
Feb. 18th 2021	Crown provides 2nd Disclosure package including typed officer notes: 911 calls and surveillance footage still outstanding	8.5 mos.
March 5th 2021	Mr. Frank appears as agent and renews request for disclosure mentioning above disclosure and 911 calls. Mentions s. 11(b) concerns. Crown advises the request is same as before and has been responded to.	9 mos. 3 days
March 22 2021	Crown requests Crown pre-trial	9 mos. 3 weeks
March 25 2021	Crown pre-trial takes place
March 26 2021	Court advised JPT scheduled, but 911 calls and surveillance footage still outstanding	9 mos. 24 days
April 15 2021	The first JPT takes place with Justice Chisvin. Trial estimates are made in absence of the 911 tapes. Chisvin, J suggests trial dates be set to speed up the disclosure of the 911 tapes but invites counsel to return for a second JPT if the time estimates need to be expanded once the 911 tapes have been reviewed.	10.5 mos.
April 16th 2021	Mr. Frank appears as agent for the Applicant. Advises that JPT took place, a 3 day trial was estimated, but trial dates not yet secured. Requests 2 weeks adjournment to secure dates Counsel for Applicant writes to Crown to request Crown policy regarding disclosure of 911 tapes.	10.5 months
April 30th 2021	Mr. Frank appears again. No trial dates secured. Advises court defence is waiting for 911 calls and Crown policy on 911 calls. Advises: “we can’t estimate how much time it will take to bring our motions without the 911 calls”	10 mos. 29 days
May 21st 2021	Mr. Frank appears as does assigned Crown, Ms. Walia. Mr. Frank advises defence is still waiting on the 911 calls etc. Crown advises that JPT judge ordered that trial dates be set following JPT in April and that outstanding disclosure should not prevent defence from setting trial dates. Defence is asked to file form to schedule trial dates.	11 mos. 19 days
May 31st 2021	Trial Coordinator offers counsel trial dates for 3 day trial starting March 30th 2022	11 mos. 28 days
June 4th 2021	Crown discloses the surveillance footage as well as the statements of 2 hotel security guards. Trial dates as well as s. 11(b) application date put on record. Also 2nd Event date in Jan. 2022 confirmed. Crown’s position regarding significance of 911 tapes noted.	12 mos.
July 23rd 2021	The 911 tapes are disclosed. Following this there are 3 more court appearances, last one being October 15th 2021 where trial dates confirmed	13 mos. 3 weeks
Feb. 4th 2022	S. 11(b) application heard
April 1st 2022	Anticipated end of trial	22 mos.

The position of the Crown - Respondent

[16] The Crown does not submit that the defence expressly waived any period of delay, nor is the Crown relying on the Covid-19 pandemic as an “exceptional circumstance” to justify any period of delay.

[17] In essence, the Crown submits that, they took reasonable steps to try to reach out to the Applicant to set a Crown pre-trial. After that the Crown scheduled a judicial pre-trial to address any outstanding issues, to estimate and set trial dates.

[18] The Crown submits that the outstanding disclosure was not essential to moving the matter along and that it was the defence conduct in insisting on near-complete disclosure that resulted in the delay in setting a trial date in this matter.

[19] Specifically, the Crown submits that the defence could have set a Crown pre-trial and Judicial pre-trial in the absence of the 911 calls, and other peripheral disclosure much earlier than it did, and it was the defence insistence on receiving non-essential disclosure that resulted in delay beyond the Jordan threshold.

[20] The Crown therefore submits that defence conduct is responsible for over 7.5 months of the total delay in this case and if that period of delay is subtracted from the total delay, the net delay is approximately 14.5 months which falls well under the Jordan threshold. The Crown calculates the 7.5 months by including the delay after initial disclosure was made in September 2020 until March 24th, 2021, when the CPT was conducted and in addition the 6-week period from April 16th which after the JPT and when the trial date could have been set to May 31st when the date was actually secured.

The position of the Applicant

[21] The Applicant does not accept that any defence conduct contributed in any way to the delay in getting the matter to trial. The defence submits that they were diligent throughout the history of the matter and that it was the Crown who was negligent in fulfilling its disclosure obligations in a timely manner. Therefore, the Crown is responsible for all the delay.

[22] Firstly, the Applicant submits that all the disclosure could have and should have been made available to the defence in a much timelier fashion. Secondly, that it 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 what the defence submits was “essential and necessary” disclosure.

[23] The Applicant takes the position that because much hinged on the outstanding disclosure that it was not unreasonable to defer scheduling a Crown or Judicial pre-trial.

[24] The Applicant also complains that although the Crown screening form noted that the matter would proceed summarily, it was not clear to the defence how the Crown would proceed until the Crown formally elected many months after the charge was laid. The Applicant points to the delay in making the formal election as a further example of the Crown’s dilatory conduct.

[25] The Applicant submits that because the delay is all attributable to the Crown, the Crown cannot justify the total delay of 22 months which substantially exceeds the Jordan threshold.

[26] I propose to first address the Applicant’s complaints regarding: 1) the significance of the outstanding disclosure to the defence as it related to taking meaningful steps to move the matter along, and 2) the issue of the delayed Crown election. I will then address the Crown’s contention that the defence conduct played a significant role in that it added 7.5 months to the overall delay.

Was the Outstanding Disclosure “Essential” to Scheduling Pre-trial Discussions or a JPT?

[27] The Applicant characterizes the outstanding disclosure as “substantial” and “essential” without which he was unable to have a meaningful Crown pre-trial or schedule a JPT. What was outstanding was the following:

1. the 911 calls made by a third party (Khaled),
2. the CCTV footage from the hotel lobby showing the parties meeting in the lobby, before the incident in the hotel room, and
3. hotel-generated reports from security personnel on duty at the hotel.

[28] Essential disclosure has been described as any disclosure that is truly material to "crucial steps" in the process, like election and plea, such that it will justify delay ^2. Video footage purporting to capture the alleged incident is one such example. That was the case in R. v. Brown ^3 where this Court granted a delay application.

[29] With respect to the 911 calls, there are two factors that are significant. Firstly, the Crown disclosed the ICAD reports that summarized the content of the calls. Secondly, the calls were not made by the complainant, but by a third party who was not present at the hotel at the time of the alleged assault.

[30] The Applicant submits that the audio recordings of the calls are far more detailed than the ICAD reports. That may be. The Court acknowledges that the summaries in the reports are not a perfect substitute for the recordings. However, it is difficult to conclude that any additional detail provided in the actual recordings were crucial to assess the strength of the Crown’s case or that the absence of that detail prevented counsel from providing legal advice to the Applicant as to his plea.

[31] Based on the record before me, I am unable to conclude that the actual recordings of the 911 calls can be characterized as “necessary” or “essential” disclosure without which the defence was unable to take steps to move the matter along, steps such as scheduling pre-trial discussions or setting trial dates. ^4

[32] As for the CCTV footage, based on the record and submissions of counsel, it can best be described as peripheral disclosure. There was some confusion initially as to whether the officers had collected the footage, but I find that this outstanding disclosure should not have prevented the parties from moving the matter along.

[33] This is not a case where identity is the main issue, and it was therefore essential to know what the footage revealed about whose image was captured in the lobby. The parties are known to one another. Based on the Applicant’s submissions, there will be no dispute that the Applicant and the complainant met at the hotel. In fact, it is expected that the court will hear that the Applicant rented the room where the alleged assault took place. The central issue at trial will be whether any sexual assault took place as alleged.

[34] Regarding the outstanding security officers’ notes, these were not reports generated by the police. They appear to have been generated by a third party; the hotel. In any event, there does not appear to have been any reason to believe that either of the hotel security guards witnessed anything of significance. It does not appear that the police even took statements from them. In these circumstances, it is difficult to imagine that the defence genuinely perceived these outstanding statements as “essential” and “necessary” before they could conduct either a CPT or a JPT. These statements, like the hotel lobby video, appear to be peripheral to the central issue in the case.

[35] Finally, my assessment of the significance of the outstanding disclosure is supported by the record. The record shows that the parties did ultimately have a CPT in March of 2021 which was followed up by a JPT in April. They were able to complete trial estimates, even though the defence did not set the trial dates until May of 2021. All those steps were in fact accomplished without the benefit of the actual 911 recordings which were finally disclosed in June of 2021, after the trial dates were set.

Did the Timing of the Crown’s Formal Election Play a Role in the Delay?

[36] I find this complaint to be wholly without merit. Firstly, the defence was made aware very early in the proceedings through the Crown Screening Form that the Crown intended to proceed summarily. ^5 If there was any genuine concern about whether the Crown would choose instead to proceed by Indictment in a case involving an allegation of unwanted touching, the defence concern could easily have been addressed in correspondence with the Crown between June 2020 and January 2021. The defence made multiple requests for outstanding disclosure, but never once addressed this apparent concern. Secondly, the January 8th, 2021, appearance was the first time that any representative for the Applicant appeared (remotely) to address the matter on the record.

[37] I find that the reason that there were no efforts to clarify or confirm the Crown’s election was because there was no concern that the Crown would proceed other than summarily.

[38] Based on the transcript of January 8th, 2021, it would be a fair inference that the defence fully expected the Crown would formally elect to proceed summarily. When the issue of a bench warrant with discretion arose, it was Mr. Frank, appearing for counsel of record, who asked if the Crown was able to formally make the election. ^6 The formal election simply made it convenient for an agent to appear on behalf of the Applicant.

Did the Defence Conduct Contribute to the Delay?

[39] Jordan ^7 has underscored that a proactive approach is required to prevent delay and that the participants in the criminal justice system share this responsibility.

[40] The Crown bears ultimate responsibility for complying with their disclosure obligations in a timely fashion. That burden cannot be shifted to the defence. In this case, the pace of disclosure following the initial disclosure package was not ideal, but much of the essential disclosure was made available to the defence in the first few months after the charge was laid.

[41] Jordan has not changed the long-standing s. 11(b) case law that emphasizes that not every item of disclosure needs to be disclosed before the parties take the necessary steps to move the matter along expeditiously. That point was emphasized in R. v. Gandhi, 2016 ONSC 5612 ^8, where the court noted that “the Ontario Court of Appeal has stressed the point that disclosure need not be complete before dates are set for trial…”. See also: R. v. Lahiry et al. ^9, R. v. Kovacs-Tatar ^10, R. v. M. (N.N.) ^11 R. v. Schertzer ^12 et al.

[42] In cases where there are differences of opinion as to what constitutes essential disclosure before trial dates can be set, judicial pre-trials can unquestionably be beneficial to the parties in resolving such differences.

[43] Following the disclosure of the initial package, the defence made repeated requests for outstanding disclosure. However, there was an absence of meaningful communication between the defence and the Crown for many months. It was open to the defence to seek judicial guidance as to the significance of the outstanding disclosure before next steps could be taken. Instead, the CPT and JPT were only scheduled after the Crown suggested it.

[44] When the JPT was eventually held, the 911 calls were still outstanding. The judge who pre-tried the matter made a very practical suggestion. He directed that the trial dates be set without the 911 calls, and once the disclosure was reviewed, the parties could revisit the initial trial estimates if necessary. Based on the record, it does not appear that the defence ever sought to revise the initial estimates after the disclosure was completed to their satisfaction.

[45] As noted, following the JPT, the presiding judge expected that the trial dates would be set right away. This would have achieved two functions: first it would have secured the earliest available dates, and second, with a trial date set, the outstanding disclosure would receive priority over other cases where trial dates had not yet been set.

[46] Instead, the defence did not set the dates and continued to pursue the remaining disclosure. In ignoring the JPT judge’s direction, and insisting on near-perfect disclosure, I find that the defence actively resisted setting the earliest available trial dates and therefore contributed to the delay.

[47] An examination of the correspondence between the parties demonstrates that the defence did act diligently in renewing requests for outstanding disclosure. However, diligence in the post Jordan context requires more. It requires that both parties take proactive steps to move the matter along. Apart from repeated requests for disclosure, the record shows that the Applicant failed to take proactive steps in the earlier stages of the process, for example to schedule a CPT. It was not until January that anyone from defence counsel’s office spoke to the matter on the record. Even after a jurist recommended a CPT in February of 2021 to sort out what was going on with disclosure, the defence took no steps to schedule it. ^13 Instead, the defence passively waited until March when the Crown took steps to schedule the CPT and the JPT.

[48] Then, after the JPT on April 16th, 2021, the defence actively resisted setting trial dates for over 6 weeks even though trial estimates had been completed and Justice Chisvin directed the parties to set the trial dates. Instead, during this time the defence pursued a new request for a Crown policy that appears does not exist and renewed requests for the outstanding disclosure. It was not until May 31st that the trial dates were set.

[49] The assigned Crown made reference at the JPT about a Crown policy regarding the timing of disclosure of 911 tapes. It appears that the reference was wrong and that such a policy does not in fact exist. In any event, the so-called policy stood in contradiction to correspondence the Crown had previously sent to the defence advising that the tapes had been requested and would be disclosed as soon as they were received. While it was not inappropriate to request a copy of the so-called Crown policy, it should never have delayed setting the trial dates.

[50] I find that there were steps the defence could have and should have taken to ensure that earlier trial dates were set, and the inaction contributed to the delay. However, I do not agree with the Crown’s attribution of a total period of 7.5 months of the delay to defence conduct.

[51] I find that there are two periods of delay attributable to the defence. The first period is the 4-month period from mid-November 2020 to mid-March 2020, which I characterize as passive delay. In calculating this period of delay, I allowed 2 months for the defence to review the disclosure. This is more than ample for what the defence described as a “simple” case. After receiving initial disclosure in mid-September, the defence took no meaningful steps to move the matter along aside from making repeated requests for the same outstanding disclosure that I have found not to be essential or necessary to scheduling a CPT and a JPT.

[52] The second period of delay attributable to the defence is the 6-week period from April 16th when the JPT was held, and trial estimates completed to May 31st when the trial dates were finally secured. I characterize this delay as conduct that actively contributed to the delay. Insisting on full disclosure after the JPT directly contravened Justice Chisvin’s directive to set and secure the earliest dates available. It is also runs counter to long-established jurisprudence that disclosure need not be perfected before trial dates are set.

[53] Justice Juriansz in R. v. M. (N.N.) ^14, supra, emphasized that:

Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial.

[54] These two periods of defence-attributed delay add up to 5.5 months of the total delay. When the defence delay is deduced from the total delay, the net delay is 16.5 months. This falls under the presumptive Jordan ceiling of 18 months.

[55] The Applicant has not persuaded me that this delay is nevertheless unreasonable in all of the circumstances. Although this was described as a simple case, given that the alleged assault took place in a hotel, it involved disclosure of video footage, several 911 calls, as well as third party generated statements of security guards in addition to witness statements other than the complainant as well as text messages between the complainant and the 911 caller. In addition, for a brief part of the intake period there were automatic month-long “Covid-remands” due to the pandemic, unless counsel appeared and requested shorter remands.

[56] In the result, the application for a stay is not warranted. The matter is remanded directly to the trial date of March 30th, 2022, in courtroom 506 at 10:00 AM.

Released: February 25th, 2022 Signed: Justice Bhabha

^1 See Application Record, Tab 4 – Transcript of May 21st 2021, p. 3 ll. 3-14 ^2 R. v Lahiry, (2022), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at para. 114 ^3 [2021] O.J. No. 7192 ^4 Neither the ICAD reports, nor the 911 calls were part of the record on this application. ^5 See Exhibit 4 on the Hearing of the Application: Charge Screening Form ^6 See Application Record, Tab 4, Transcript of the Proceedings of January 8th, 2021, at p. 2, ll 6-14 ^7 Supra, at paras. 21, 47, 49 and 60 ^8 2016 ONSC 5612, [2016] O.J. No 4638 at paras. 33, 35 ^9 Supra, at paras 106-115 ^10 , [2004] O.J., No. 4756 at para. 47 ^11 (2006), , 209 C.C.C.(3d) 436 at para. 37 ^12 (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 93 and 94 ^13 See Applications Record, Tab 4, Transcript of February 5th, 2021, and in particular the comments of Justice of the Peace Roffey, at p.2, ll. 7-10 ^14 At para. 37