WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3) , read as follows:
486.4 (3) Child pornography. — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: July 21, 2022
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Robert McCann
Before: Justice W. B. Horkins
Heard on: June 24, 2022
Reasons for Judgment released on: July 21, 2022
Counsel: Andrew T.G. Sadler, counsel for the Crown Neil J. McCartney, counsel for the accused Robert McCann
W.B. Horkins J.:
[1] This is my ruling on an application brought by the accused for a stay of proceedings as a remedy for the violation of his right to a trial within a reasonable time as guaranteed by s.11(b) of the Canadian Charter of Rights and Freedoms.
[2] The accused is charged with possession of child pornography contrary to s.163.1(4) of the Criminal Code. The Information in this matter was sworn on August 28, 2020. The trial is scheduled to conclude on August 19, 2022. The application proceeds on the basis that the case will be just about two years old when it concludes.
[3] The pivotal issue in this application is whether the “particular complexity” of the case justifies an excessive delay in the matter coming to trial.
[4] The primary and critical source of delay in the chronology of this case was an eleven-month delay from the date of arrest and seizure of the accused’s computers until the police were able to commence the forensic analysis of those devices. This delay resulted in the core disclosure of the forensic reports not being available to the accused until November 4, 2021, 14 months after being charged.
[5] For the following reasons I find that the accused’s right, under s.11(b) of the Canadian Charter of Rights and Freedoms, to be tried within a reasonable time has been violated, and that therefore this prosecution must be stayed.
THE 11(B) FRAMEWORK OF ANALYSIS
[6] S. 11(b) of the Charter of Rights and Freedoms guarantees every person charged with a criminal offence the right “to be tried within a reasonable time.”
[7] On first reading this section it would appear to be a straightforward and non-controversial guarantee of a simple right to timely justice and yet, s.11 (b) has probably generated more Charter litigation than any other constitutional provision.
[8] After the Charter came into force in 1982 s.11(b) had a significant impact on the criminal justice system. There was initially no uniform approach to the issues raised and a concerning volume of cases were being stayed for unreasonable delay. Eventually a uniform analytical framework of analysis for s.11 (b) applications was developed by the Supreme Court, initially in R. v. Askov in 1990 and subsequently as modified in R. v. Morin in 1992. Then in 2016, in R. v. Jordan, the Supreme court jettisoned the Morin framework, finding it to be “unpredictable, confusing and complex”. The Court rejected the “micro-counting” and dissection of minutiae in the timelines of case chronologies that had come to characterize rulings that applied the Morin framework. The Court articulated a new and different approach, the Jordan framework.
[9] The Jordan framework of analysis attempts a more straight forward, and some would say more arbitrary, analysis by creating two presumptive ceilings within which criminal cases must to be brought to trial or be stayed. In the provincial courts the ceiling is 18 months. In the superior courts the ceiling is 30 months. The presumptive unreasonableness of a case history that exceeds the ceiling may only be rescued by exceptional circumstances.
[10] In assessing the application before me I have the benefit of a recent decision of our Court of Appeal, R. v. Zahor, 2022 ONCA 449. Zahor not only concerns delay in the context of a child pornography case but also contains a very complete and current summary of the Jordan framework of analysis.
[11] For ease of reference, I set out here the 11(b) framework of analysis articulated by Justice Coroza in the Zahor case at paragraphs 60 through 75:
[60] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps.
[61] Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial: Jordan, at para. 47.
[62] Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan, at para. 60. Defence delay is subtracted because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.
[63] Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan, at para. 61.
[64] Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras. 63-64.
[65] Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan, at paras. 64-65. This court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303. at paras. 20-22.
[66] Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court and 30 months for cases tried in the superior court: Jordan, at para. 46. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances: Jordan, at para. 105.
[67] Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown: Jordan, at para. 69.
[68] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.
[69] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases: Jordan, at para. 71. The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden; not the seriousness of the offence, nor the absence of prejudice, nor institutional delay: Jordan, at para. 81. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan, at para. 47.
[70] Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan, at para. 73. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling: Jordan, at para. 75.
[71] Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72-73; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.
[72] Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case: Jordan, at paras. 75-77.
[73] Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”: Jordan, at para. 77. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: R. v. Cody, [2017] 1 S.C.R. 659, at para. 63, referring to Jordan, at paras. 42, 53.
[74] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody, at para. 64. That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case: Cody, at para. 64.
[75] For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered: Jordan, at para. 47. However, for charges that were laid before the release of Jordan, the court must go on to determine whether the delay has been justified by the Crown as a result of transitional considerations, which is a third type of exceptional circumstance: Jordan, at para. 96; Cody, at paras. 46, 67.
The Jordan Framework Applied
Step 1: Total delay.
[12] The Information was sworn on August 28, 2020. The trial is scheduled to conclude on August 19, 2022. The total delay is 2 years.
Step 2: Subtraction of Defence delay.
[13] The Crown submits that following the disclosure of the forensic analysis in November 2021, an accumulation of discrete periods of delay in the intake phase of this case are all delays attributable to defence conduct.
[14] “Defence delay” includes periods of time during which the court and the Crown are prepared to proceed but the defence is not. However, defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests. Also, defence delay does not include defence actions required to be taken in response to questionable Crown conduct, such as late disclosure, even where such conduct is not deliberate.
[15] Following the disclosure of the forensic analysis report the crown suggested dates from January 10 to 20, 2021 for a “CPT”, a counsel pre-trial meeting, to discuss the case. The accused asked for and was accommodated with a later meeting date of January 25. At the January 25 CPT a witness list and trial time estimate was settled. The next step in the intake process requires a JPT, a judicial pre-trial meeting. The Court was prepared to schedule a JPT immediately after the January 25 CPT however counsel for the accused requested and was granted a later date of February 18.
[16] The February 18 JPT never happened. It was rescheduled on agreement by both parties because of an administrative oversight. The Crown screening form had not been sent to counsel. The Crowns office erroneously thought one did not exist and so agreed that a JPT was premature. The parties agreed that the JPT would not be fruitful and so rescheduled it to April 19. In fact, the screening form had been prepared and should have been available to counsel but by mistake it had not been delivered. This administrative error and shared misunderstanding precipitated an unnecessary delay of two months in completing the JPT and moving on to the selection of a trial date.
[17] Following the April 19 JPT, the court offered the week of August 8 for trial. Counsel for the accused asked for the following week and so August 16 through 19 is now reserved for this trial to proceed.
[18] If each and every difference between the earliest date offered and the dates actually accepted was strictly counted against the accused as defence delay the total would be close to four months.
[19] In my view, but for the fact that this case was already 14 months old when the core disclosure was produced, the pre-trial process in this matter would be considered to have unfolded in a fairly reasonable fashion and at a fairly reasonable pace. In the usual course of events, a few days here or there to accommodate the participants prior commitments and other obligations of counsel is reasonable.
[20] Having said that, reasonable or not, there is clearly some “defence delay” that needs to be netted out of the total delay.
[21] Admittedly somewhat imprecisely, I attribute about two months of this portion of the intake phase to defence delay. This reduces the total net delay to something in the range of 22 as opposed to 24 months, a number still well beyond the Jordan ceiling of 18 months.
Step 3: Compare the net delay to the applicable presumptive ceiling.
[22] As indicated, I am not persuaded that any accumulated defence delay brings the net delay below the presumptive 18-month ceiling. The net delay being above the Jordan ceiling it is therefore presumptively unreasonable. The Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances.
Step 4: Consider exceptional circumstances.
[23] Unlike the Morin framework, under Jordan the Crown cannot rely on anything beyond exceptional circumstances to discharge its burden, not the seriousness of the offence, nor the absence of prejudice, nor institutional delay.
Step 4(a): Consider discrete exceptional circumstances.
[24] Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling.
[25] The misunderstanding about the existence or unavailability of the Crown screening form in this case precipitated a rescheduling of the first JPT and what turned out to be a delay of about two months. As already observed, the JPT was adjourned on consent and based on an inadvertent mistake. The screening form apparently did exist but had been inadvertently not sent to counsel. The Crown agreed to the adjournment in the mistaken belief that the matter was yet to be screened by the ICE unit, the specialised crown team handling such prosecutions.
[26] In R. v. Cody the Court stated that “In principle, an inadvertent oversight may well qualify as a discrete event” and acknowledged that “Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11 (b)”.
[27] The Court then provided a two-pronged test at paragraph [58] – [60]; “The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown.” “… the second prong of the test is whether the Crown took reasonable steps to remediate the error and minimize the delay.” The Court then commented “for progress to be realized, parties and courts must be vigilant to prevent proceedings from being derailed by discrete and relatively minor diversions of this nature, which will inevitable continue to arise. “
[28] The screening form misunderstanding in this case clearly passes the first test. It was an administrative error that the form was not sent with the initial disclosure package early in the proceeding. The error was inadvertently compounded by the Crown not appreciating that the form did exist but had merely gone astray.
[29] The situation however fails the second prong of the Cody test. This simple mistake should not have precipitated a two-month delay. It could have and should have been remedied in short order and the JPT rescheduled more quickly. Instead, the JPT was left rescheduled for two months further down the timeline.
[30] This delay should not be deducted from the overall delay. Even if this delay was netted out as a discrete exceptional circumstance it would not bring the net delay below the 18-month ceiling.
Step 4(b): Consider complexity.
[31] Having determined that the net delay exceeds the 18-month ceiling, Jordan dictates that a stay of the prosecution will be entered unless the Crown can demonstrate that the remaining delay is justified considering the “particular complexity” of the case. Unlike the consideration of discrete events, an assessment of “particular complexity” engages a qualitative, as opposed to quantitative, analysis.
[32] Particularly complex cases are those that, because of the nature of the evidence, may require greater than usual time for preparation and trial. This aspect of some cases will justify additional time beyond the Jordan ceiling.
[33] The Crown’s burden with respect to this issue is a heavy one because the Jordan ceiling was not intended to be “an aspirational target” and has already factored in the understanding that prosecutions have become increasingly complex.
[34] The pivotal issue on this application is whether the net delay in this case, while not ideal, should still be considered as “not unreasonable”. In undertaking this qualitative assessment, I am again guided by Zahor together with a review of the following cases which preceded Zahor.
[35] In R. v. E (W.A.), 2009 CarswellNfld 212, it took 16 ½ months for the Crown to provide disclosure in a pornography case. The evidence established that this was an unusually complex case for the police to investigate fully. The Court noted that "societal resources are not unlimited. Consequently, there will of necessity be limits to which funding, facilities and personnel can be devoted to the prompt and proper administration of criminal justice" (see R. v. Mills (1986), [1986] 2 S.C.R. 481, at page 555). The delay which occurred in completing disclosure was because of the complexity of the investigation rather than because of any laxness on behalf of the police.
[36] The 11 (b) stay application was dismissed. The result may well have been different using the Jordan framework of analysis. At paragraph 41 Justice Gorman makes it clear that “...If this were a minor offence, then a stay might be appropriate, but this is an extremely serious matter.” The seriousness of the charge is no longer part of the framework of analysis mandated by Jordan.
[37] In R. v. Stillwell, 2014 ONCA 563, the overall delay was 26 months. The investigation took place in Kingston Ontario where there was only one investigator qualified to undertake the necessary forensic analysis. There were 244,000 images involved of which 9,000 were categorized as child pornography. The actual investigative work on the seized devices took about 25 hours, however, it took 15 months to produce the forensic reports on the images in question. The stay ordered at trial was set aside on appeal.
[38] The Court commented on the “unique” nature of pornography investigations; “child pornography investigations are unique in that the storage capabilities of electronic devices may result in huge universes of information that can only be analyzed after charges have been laid. I also recognize that officers categorizing these types of images need frequent breaks due to the emotional toll associated with the work. …”. (para.39).
[39] The Court concluded that …” the Crown delay in disclosing the final report was clearly disproportionate to the time spent preparing it. In my view, however, this fact should not overwhelm the analysis. … the delay was beyond the Morin guideline, but not egregiously so. When this delay is balanced against the minimal prejudice the respondent experienced and the grave seriousness of the charges against him, the delay, while not ideal, was not unreasonable.” (para. 65)
[40] This case must be read carefully bearing in mind that the delay was analyzed using the Morin framework. The now irrelevant considerations of seriousness of the charge and lack of prejudice were the Court’s key considerations in overturning the stay granted at trial.
[41] In R. v. Crant, 2014 ONSC 6233, Justice Goldstein assessed the delay in a case where the Toronto police took 11 months to disclose the analysis of the contents of seized computers. In the circumstances of the case the delay was considered reasonable. Again, a caveat, this finding was in the context of the now discarded Morin framework of analysis.
[42] Amongst the key considerations in concluding that the delay in Crant was reasonable was that on the 11(b) application the Crown provided a very detailed explanation for the delay and evidence of the plan that was implemented to address and limit the delay. At paragraph 33;
“I note that while this case was outstanding the police actually recognized the need for further resources. Significantly, the police made a submission to the Police Services Board for more resources. The Board granted the police the extra funds. It must count for something that the police recognized that there was a problem, took action, and obtained more resources. That is what they are supposed to do. I recognize that this does not save them in any particular case if an individual's delay rights are violated, but it is, nonetheless, something to be taken into account when determining the reasonableness of the overall period of delay.”
[43] I also do note Justice Goldstein’s reference to Justice Doherty’s oft quoted observation in Allen, 2008 ONCA 848 that “ No case is an island to be treated as if it were the only case with a legitimate demand on court resources.” The system cannot revolve around any one case but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. Justice Goldstein concluded that this consideration must apply equally to the investigative stage of a case but added, on the other hand, a “… lack of resources cannot be permitted to overcome a person's right to a speedy trial. A court has to balance all of these factors in determining what is reasonable in the circumstances.” (para. 31).
[44] In R. v. Issacs, 2015 CarswellNfld 3, two computers containing child pornography were seized for investigation. The accused received disclosure of the forensic examination nine months after being charged. As in the case before me, the real concern was that the computers sat unexamined for several months, 6 months in that case, before the forensic examination was even begun. The actual examination and preparation of the forensic report only took 60 days.
[45] Again, of significance, on the application to stay the prosecution the Crown presented evidence not only to explain that the delay was due to limited resources; there was only one computer forensics examiner available, but also presented evidence that a plan was implemented to minimize the delay by transferring one device to another examiner, in another police department, for examination.
[46] The 11 (b) application was dismissed. The Court concluded that although the delay due to a shortage of police resources was a serious matter, applying the Morin framework of analysis, the Court determined that the delay was tolerable. Again, the caveat that this case was decided under the now discarded Morin framework.
[47] In R. v. Lee, 2017 ONSC 4862, The total delay to trial was over 39 months and the prosecution was stayed by Justice Forestell. The Crown argued that any excessive delay in the case coming to trial was justified given the complexity of the case. The complexity claimed was the need to forensically analyze two computers. The forensic examinations took three and one-half years to complete and yet the actual examinations were conducted over the course of a total of 8 days.
[48] On the 11(b) application there was no sufficient explanation given for the excessive delay in examining the computer or for only producing an expert’s report to the defence just 10 days before trial. (para. 31).
[49] In R. v. J.C.P., 2018 ONCA 986, the Ontario Court of Appeal made it clear that child pornography cases, although often complex, are not presumptively complex. There must be an evidentiary basis for such a conclusion. The Court found that:
“… the application judge erred by simply accepting that child pornography cases are necessarily complex and therefore require a long intake period. As a general proposition, not all cases involving voluminous disclosure are complex. The question to be determined in each case is "whether the case is sufficiently complex such that the delay is justified": Jordan, at para. 77; Cody, at para. 65.
[50] Which brings me back to R. v. Zahor, 2022 ONCA 449, the Ontario Court of Appeal’s recent consideration of the “particular complexity” issue in the context of Jordan and child pornography cases with delayed disclosure.
[51] Even in Zahor the Morin framework was still in play because it was a transitional case; its history straddled the currency of the Morin framework of analysis and its replacement, the Jordan framework. The analysis of the delay therefore required a mix of both Morin and Jordan considerations.
[52] Although the Court of Appeal upheld the trial judge’s dismissal of the s.11 (b) application, it was found that the trial judge erred on the “particular complexity” aspect of Jordan in holding that, what he termed, the “acquired complexity” of the case, justified the 26 months of net delay under the “complexity” branch of the Jordan framework.
[53] Zahor was a child pornography case based on a forensic analysis of the accused’s computers. Although originally planned and set down as a four-day trial, it became a four-year trial. Incomplete or delayed disclosure issues precipitated adjournments and trial management accommodations, and, in Justice Coroza’s words, this “became a runaway proceeding.” (Para. 5).
[54] The accused’s application to stay the matter for unreasonable delay was dismissed by the trial judge. In the course of his reasons, he found that the delay that arose throughout the proceedings was realistically explained by the complexity of the case. The Court of Appeal disagreed with this portion of the trial judge’s analysis.
[55] Dealing this issue, Justice Coroza summarized the correct understanding of the “case complexity” factor in the Jordan framework of analysis;
[105] A case may be particularly complex where it requires a great deal of trial time or preparation time “because of the nature of the evidence or the nature of the issues”: Jordan, at para. 77 (emphasis in original). Voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co-accused tried together, and an international dimension to the case are all examples of particular complexity: Jordan, at para. 77; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 423 (Bulhosen), and [2019] S.C.C.A. No. 370 (Kompon).
[106] The case complexity branch of the Jordan framework, as elucidated by the decision in Cody, was aptly summarized by Dambrot J. in R. v. Huang, 2021 ONSC 8372, at para. 196:
First, [the decision in Cody] emphasized that the presumptive ceilings set in Jordan already reflect the increased complexity of criminal cases since Morin, including the emergence of new procedures, new obligations on the Crown and police, and new legal tests. Second, unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Third, complexity cannot be used to deduct specific periods of delay. The delay caused by a single isolated step that has features of complexity should not be deducted. Instead, a case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable. As a result, when determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity.
[56] It is therefore crucial to appreciate that the complexity in Zahor arose not from any inherent complexity of the case itself, but from the trial management difficulties that developed in the course of what should have been a relatively straight forward four-day judge alone prosecution. The case did not start out as particularly complex but became so because of discrete events occurring as the trial judge’s attempts to expedite the proceedings were frustrated. Those events that delayed the case should have been characterized as defence delay or discrete exceptional circumstances. (Para. 112). As such, in the Jordan framework of analysis those delays would be netted out of the overall delay.
The Particular Complexity of the Case
[57] My understanding, from a consideration of the above, is that the “case complexity” factor in the Jordan framework of analysis requires the court to step back from the individual markers in the timeline of the case and make a qualitative assessment as to whether the particular complexity of the case itself justifies the net delay beyond the Jordan ceiling so as to render that delay constitutionally tolerable and the time to trial constitutionally reasonable.
[58] The requirement for sufficient time to conduct forensic computer examinations in child pornography cases has been recognized by our Court of Appeal as inherent in cases prior to Jordan (R. v. J.C.P., 2018 ONCA 986, at paras. 28-29) and remains a valid consideration in the Jordan framework of analysis. However, as the Court expressly pointed out in Zahor, 2022 ONCA 449, [2022] O.J. 2628 at para.127; although child pornography cases have been recognized as “frequently complex”, they are not complex “by definition.” Each case must be assessed considering its own unique set of circumstances.
[59] There are three questions that must be answered in the affirmative to justify delay under this exception (A Practical Guide to the Charter: Section 11(b), Gold, Lacey and Metcalfe, LexisNexis Canada 2019, p. 70. Also see R. v. Rice, 2018 QCCA 198 Que. C.A.).
- Is the case particularly complex?
- Did the crown develop and follow a plan to minimize the delay expected from such complexity?
- Is the delay that exceeds the Jordan ceiling necessary to manage the particular complexity that caused it?
[60] This case has some inherent complexity, however, other than the forensic analysis and ensuing forensic report, the case is not particularly complex. The case is a judge alone trial set for four days. It is anticipated that there will only be four witnesses: three police officers and one civilian. There is no indication of any other Charter issues or of any complicated evidentiary questions. The expected legal issues are neither novel nor complex.
[61] The prosecution will depend largely on the forensic analysis of the accused’s electronic devices alleged to contain child pornography. The forensic analysis of those devices required time and sophisticated techniques to extract images and other related data from the devices, to categorize the findings and to produce an expert report. This is unquestionably complex and time-consuming investigative work.
[62] The Crown provided evidence on this application that the police cyber crime unit with responsibility for this analysis was significantly over-loaded with work. There were, for most of the time, only two qualified full-time analysts handling all the cyber crime investigative work in the area. A third part-time analyst was available at some points in time. This acknowledged heavy workload and the limited resources available, was put forward as the reason why the forensic analysis of the devices in this case had to be deferred for 11 months following their seizure.
[63] Once the analyst was able to begin work on this case it took three months to deliver the resulting forensic analysis report to the Crown. The progress of the case towards trial was on hold pending disclosure of that material.
[64] In considering the time requirement to produce the forensic report it should be noted that not all of those three months could be devoted exclusively to work on this case alone. Other emergency calls for investigative assistance had to be addressed, the analyst had to attend a two-day training session and the analyst also had a necessary and well earned two-week scheduled vacation.
[65] Based on the evidence, I would estimate that the actual time requirement for producing the forensic analysis and report in this case, if taken in isolation from other demands, was at most, a two-month task.
[66] The Crown must have known from the outset that this investigation required the sort of forensic analysis described above. The Crown must also be taken to be aware of the limited available resources in the jurisdiction. Having initiated a prosecution such as this the state is under an obligation to develop and execute a plan to minimize the anticipated delay arising from the nature of the prosecution. The failure to develop and follow a concrete plan may prevent the prosecution from being able to justify delay exceeding the Jordan ceiling (Jordan para. 79. Also see Gold et.al. ibid at p.72 for additional authorities.).
[67] There was no evidence put forward of a focused plan to address the obviously looming delay in this case. It was clear from the evidence that both the officer, and the special unit of the Crown’s office assigned to cyber cases, were fully aware of the fact that without a specific plan to address their limited resources many months would pass by before an analyst would be able to get to work on the seized devices. The evidence was that the assigned officer was overwhelmed with work and yet did everything he could do with the limited resources available to him. For instance, once he was able to begin his work on the seized devices, he focused his analysis on those he deemed most likely to provide the evidence he was looking for.
[68] The Court plays no supervisory role in how the state choses to allocate its limited resources in law enforcement. However, when a lack of resources is allowed to override an accused’s constitutionally guaranteed right to a trial within a reasonable time, there are consequences for the prosecution and there must be a remedy for the accused.
[69] The Jordan ceiling is very generous. To quote from the concurring reasons of Justice Cromwell in Jordan, at paragraph [276]; “For the vast majority of cases, the ceilings are so high that they risk being meaningless. They are unlikely to address the culture of delay that is said to exist. If anything, such high ceilings are more likely to feed such a culture rather than eliminate it.”
[70] As already noted, this would not be a lengthy trial. There are no anticipated novel or complex legal issues. There is no notice of further Charter issues. The forensic analysis evidence does not appear to be complicated or time consuming to tender.
[71] On any reasonable analysis of the chronology of this case, the net delay in this case exceeds the Jordan 18 month ceiling and I am not persuaded by the evidence presented that any particular complexity in the case necessitated exceeding the Jordan ceiling. Apart from the failure of the state to complete its disclosure obligations in a timely fashion there is no reason that this case could not have been completed well under the 18-month Jordan ceiling.
[72] For these reasons I find that the accused’s right to a trial within a reasonable period of time as guaranteed by s. 11 (b) of the Canadian Charter of Rights and Freedoms has been violated and I therefore order the prosecution stayed.
Released: July 21, 2022 Signed: “Justice W.B. Horkins”