COURT FILE No.: 21-45000455 DATE: 2022·11·22
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JOEL GOMES and STACEY DOWNEY
Before Justice David Porter
Reasons for Judgment on s.11(b) Application to Stay the Charges for Unreasonable Delay
Released on November 22, 2022
Counsel: K. Nedelkopoulos........................................................................................................ for the Crown C. Murphy............................................................................................ for the Accused, Joel Gomes R. Chu............................................................................................. for the Accused, Stacey Downey
D. Porter J.:
[1] The Applicant Joel Gomes (Mr. Gomes) and Stacey Downey (Ms. Downey) bring this application to have the charges against them, scheduled to be tried on eight days between January 3, 2023 and January 26, 2023, stayed as a result of an alleged violation of their right under section 11(b) of the Charter to be tried within a reasonable time.
[2] Mr. Gomes is charged with numerous offences in relation to six masked convenience store robberies that occurred between January 22, 2019 and November 11, 2020, including: 5 counts of robbery, 1 count of armed robbery, 6 counts of wearing a disguise with intent, 5 counts of weapons dangerous, 5 counts of carrying a concealed weapon and 1 count of possession of stolen property over $5,000. Ms. Downey is Mr. Gomes’ co-accused in respect of the alleged robbery of November 11, 2020 and is charged with armed robbery and possession of stolen property over $5,000.
[3] Both accused were arrested on February 9, 2021, and the information charging the above offences was sworn on February 10, 2021. The dates for the trial were not set until an appearance on March 1, 2022, and the eight trial dates from January 3, 2023 to January 26, 2023 were scheduled at that time. The total delay from the date the information was sworn until the anticipated conclusion of the trial is 23 months and 16 days, five months and 16 days over the presumptive ceiling of 18 months for trials in the Ontario Court of Justice established by the decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, at para.46.
[4] The record filed on this application establishes that the delay in setting the trial date was the result of the absence of significant disclosure, in particular disclosure of alleged utterances by Mr. Gomes and Ms. Downey in relation to the November 11, 2020 offence, and the results of a warrant to obtain DNA from Mr. Gomes which the police did not obtain until March 3, 2022, although the record is clear that as early as February 10, 2021 the Crown was aware that DNA had been obtained by the police in their investigation. As will be seen in the chronology below, the Crown has had police notes of the alleged “confession” of Mr. Gomes since July 6, 2021 and, as of the date of this application on October 24, 2022, they had not been disclosed. Similarly, the audio of the videotaped statements of Mr. Gomes and Ms. Downey has never been disclosed as of the date of the hearing of this application.
[5] Counsel for Mr. Gomes took the position that he could not provide his client with meaningful legal advice regarding his election of his mode of trial until he had the results of the DNA sample ultimately obtained from his client pursuant to the warrant, and disclosure of the alleged “confession” referred to by the Crown at Gomes’ bail hearing on February 10, 2021.
[6] The main issue on this application is whether the delay by Mr. Gomes in agreeing to set a date for trial until March 1, 2022 amounted to delay attributable to the defence, or whether all of the delay prior to the setting of the trial date was attributable to the failure of the Crown to provide essential disclosure in a timely way.
[7] The second issue is whether, if the net delay in this case exceeds the 18 month presumptive ceiling, established by R. v. Jordan, it is justified by exceptional circumstances related to the complexity of the case, as a result of the importance of the DNA analysis in the Crown’s case, or as the Crown submits, the general effect of the Covid-19 pandemic.
[8] Counsel for Ms. Downey adopts, and relies upon, the arguments advanced by counsel for Mr. Gomes in support of his application and did not seek to have the court engage in a separate analysis of the delay as it applied to Ms. Downey pursuant to R. v. Gopie 2017 ONCA 728. Counsel for Ms. Downey was content to have Ms. Downey’s s.11(b) claim determined on the basis of the arguments advanced by Mr. Gomes, and essentially presented a united front with Mr. Gomes on the application, so that their s.11 (b) claims will be considered together: R. v. Albinowski 2018 ONCA 1084, at para. 38.
A Summary of Key Events in the Timeline
[9] The accused were charged in an information sworn on February 10, 2021. Initial disclosure was provided on the disclosure hub on May 31, 2021, consisting of two tranches of 545 pages and 260 pages respectively.
[10] On June 3, 2021, Mr. Gomes’ counsel had a Crown pre-trial.
[11] On July 6, 2021, Crown counsel assigned to this prosecution received officers’ notes of the alleged “confession” of Gomes and of an exculpatory statement of Downey in interviews, which I infer were conducted after their arrest on February 9,2021. The existence of these statements, referred to as “inculpatory statements” in a Crown email to the defence on February 10,2021, was known by the Crown on February 10, 2021, prior to Mr. Gomes’ bail hearing.
[12] While the officers’ notes of these statements were received by the assigned Crown on July 6, 2021 the Court was informed by the assigned Crown during the hearing of this application on October 24, 2022, that they were not reviewed by the Crown, when they were received, and they were never disclosed to the Applicants. The defence learned of their existence for the first time during the hearing of this application.
[13] On July 27, 2021, disclosure including officers’ notes, a 911 recording, and images was provided on the disclosure hub.
[14] On August 26, 2021, a judicial pre-trial was held with Justice Breen. In an email dated August 26, 2021, counsel for Mr. Gomes stated:
“Results of DNA warrant (Note at today’s JPT, the OIC confirmed that a DNA warrant has not been sought yet. As you and I discussed in our June CPT, Mr. Gomes is not prepared to provide a consent sample of his DNA, so I would expect the TPS would obtain this warrant asap”...
“As discussed at today’s JPT (and confirmed by Breen, J.) I am unable to provide my client with meaningful advice regarding his mode of election of trial before I have the DNA results and the “confession” allegedly made by my client. (I’m assuming that the Crown intends to rely on DNA/confession at either a prelim or a trial. If I’m not correct please advise). I would be able to do a further JPT with Breen J. almost immediately after receiving the DNA results and the “confession”.
[15] In her response of August 26, 2021, Crown counsel stated: “Thank you for the accurate summary. I will let you know when we receive the materials. My apologies that we do not yet have them.”
[16] As subsequently revealed at a later pre-trial on February 24, 2022, the officer-in- charge provided the DNA warrant for Crown review in the month of September 2021.
[17] The Crown provided disclosure of a witness video statement on August 27, 2021, and booking hall and surveillance videos on September 9,2021.
[18] At an appearance on September 8,2021 the matter was dealt with by the Crown in court as a routine adjournment, on consent, as counsel for Mr. Gomes needed additional disclosure before the accused could elect. The Crown in court stated:
“Counsel is Chris Murphy. Waiting on additional disclosure before the accused can elect and set trial dates. Counsel has been in contact with the assigned Crown asking for October 13,301 at 9 a.m. with a discretionary bench warrant, please.”
The return date was set for October 13, 2021 on consent.
[19] On September 24, 2021, the case management coordinator in the North York Crown Attorney’s office emailed the officer-in-charge in this case indicating that the Crown had received “both of the accused video statements, however they do not have any audio. Would it [be] possible to arrange for these to be sent to us in a different format? The versions we have received are in a zip folder; the videos open and run properly, but we do not have any sound.” This defect in the disclosure was never resolved.
[20] Nothing was done by the Crown to solve this problem in disclosure. Crown counsel acknowledged during submissions on the s.11(b) application that the Crown did not follow up with the police to solve this problem. The Crown acknowledged that engaging a judicial pre-trial judge after the initial problem was identified in September 2021, perhaps requiring the officer in charge to attend a judicial pre-trial to get this issue solved, would have been prudent, but was not done.
[21] As of the hearing of this application, the issue remained without a solution. In an email of March 1, 2022, Crown counsel advised that she had received an email from the officer-in-charge containing the video statements of Mr. Gomes and Ms. Downey, but she could not open them. As of the date of this application on October 24, 2022, the defence had still not received disclosure of their clients’ statements to the police at the time of their arrest over 20 months ago, or the police notes of the statements, which had been in the Crown’s possession since July 6,2021, over 15 months ago.
[22] At a court appearance on October 13, 2021 Ms. Krueger, the articling student of Mr. Murphy, counsel for Mr. Gomes, stated on the record:
“I can advise that we’ve been waiting on a DNA report from the Crown and counsel has instructed me to ask the Crown when that report will be ready.”
The assigned Crown was present in court on that occasion and stated:
“I don’t know specifically, but I know that further disclosure has been received. I have to vet it, and I did not get notified that it was here, so I only realized it in preparation for today. The co-accused, Ms. Downey’s matter, was adjourned three weeks. I hope that that’s a date available to my friend and Mr. Murphy.”
The matter was adjourned to November 3, 2021.
[23] On November 2, 2021, counsel for Mr. Gomes emailed the Crown noting that he had not received “the results of the DNA warrant” and reiterating his position that he could not provide his client with meaningful legal advice regarding his election of his mode of trial “without the DNA results”. It is clear that, at this time, no DNA warrant had been finalized to obtain his client’s DNA to compare with the samples seized by the police in their investigation, although Crown counsel had had a draft to review since September.
[24] On November 3, 2021, Crown counsel advised in an email to counsel for Mr. Gomes and Ms. Downey: “Please be advised that further disclosure, including a DNA warrant has been received and I will have to review it. Feel free to adjourn the matter to any date of your choosing …. Once you are sent further disclosure and have an opportunity to review it we can schedule a Crown or a continuing Judicial Pre-trial.”
[25] On December 1, 2021, Ms. Krueger, appearing for counsel for Mr. Gomes, attended court on an appearance in this matter, and stated:
“I can advise that we’ve been awaiting a DNA report, some additional disclosure that’s very important and we cannot make an election to a mode of trial until we receive that. I was advised by the Crown on the, on the last court appearance that there had been some additional disclosure received that needed to be vetted. I have not yet received any of that disclosure so s.11(b) still remains an issue and I’m wondering whether Ms. Schwartz, the Crown, can advise when the Crown anticipates disclosure to be ready and what date we should put this matter to.”
[26] The Crown in court on December 1, who was not the assigned Crown, stated:
“Okay, all I can see is a note from Ms. Nedelkopoulos, who is assigned and on November 3 she noted that there is further disclosure, she has to review it, it includes a DNA warrant. So I would suggest that you follow up with her…”.
The matter was adjourned to January 5, 2022.
[27] On January 4, 2022, counsel for Mr. Gomes emailed the Crown stating, “Further to your email of November 3, I just wanted to confirm that – as far as we know – we have not received the DNA results yet. If you know when we can expect the results, we can adjourn tomorrow’s matter to that date.”
[28] In her response of January 5, 2022, Crown counsel stated:
“I have yet to review the DNA warrant so that will be the first thing to do. Thereafter, it will take a while for the Centre of Forensic Sciences to conduct their analysis. I understand that it is your client’s position to await those results before making an election, however it is the Crown’s position that there is more than enough Disclosure already received to be able to make that determination, and that any delay incurred is Mr. Gomes’. As you will recall, Ms. Downey has already indicated the desire to have a Trial in the Ontario Court of Justice. Ms. Downey’s matter has already been adjourned to February 3, 2022 in 301 court at 9 a.m. May I suggest that Mr. Gomes’ matter be adjourned to the same date to keep them together. In the interim, I will continue my review of further Disclosure and suggest we schedule a continuing Judicial Pre-Trial soon thereafter.”
[29] Counsel for Mr. Gomes responded to the Crown position in a further email of January 5, 2022 referring to the fact that at the August 26, 2021 judicial pre-trial Justice Breen acknowledged that Mr. Gomes needed the DNA results before being able to make an election. Counsel for Mr. Gomes stated in his email:
“If the Crown undertakes not to lead any DNA evidence against Mr. Gomes at his trial, he too would make an OCJ election and set an OCJ trial. Please advise if the Crown is willing to make such an undertaking. Either myself or Ms. Krueger will participate in a further JPT with Justice Breen at any time. (Please feel free to schedule a JPT without checking with me first regarding our schedule. We will make it work)”.
[30] In correspondence of February 3, 2022, counsel for Mr. Gomes stated in part:
“… As far as I’m aware we still have not received the DNA results or a copy of the DNA warrant. (Indeed, I don’t believe we have received any disclosure in this case since September 2021.) As I have made clear since the initial JPT, I cannot provide my client with meaningful legal advice regarding his mode of election.
I’m content to set another JPT, but I fear that if we do not have the DNA results/DNA warrant in advance of the JPT, the result of the JPT will be the same as last time, namely, the JPT Justice will agree with my position that we need the DNA results before making an election.
I would suggest that we adjourn the matter today for two weeks, and hopefully in the interim the Crown can advise what the status of the DNA tests/disclosure of the warrant are.”
[31] On February 3, 2022, Crown counsel responded as follows: “I am not certain that the Justice will agree that you need the DNA results before providing advice to your client. The one element you have that the Crown doesn’t have is input from your client as to what his involvement was in each incident. I agree with adjourning the matter for two weeks. In the interim, I will follow-up with Disclosure and dates for a continuing Judicial Pre-trial.”
[32] In his response of February 3, 2022, counsel for Mr. Gomes repeated his position that he was unable to provide meaningful advice regarding his mode of election of trial “before I have the DNA results and the “confession” allegedly made by my client (I’m assuming the Crown intends to rely on DNA/confession at either a prelim or a trial. If I’m not correct please advise”).
[33] In a response of February 3, 2022, Crown counsel stated “I agree, it is likely that the Crown would rely on DNA/confession evidence though that is subject to Disclosure.”
[34] It is clear that the results of the DNA analysis depended upon the execution of the warrant on Mr. Gomes by the police to obtain a sample of his DNA as there was no DNA sample in the DNA databank.
[35] At the subsequent court appearance on February 17, 2022 Ms. Krueger, appearing for counsel for Mr. Gomes, repeated the defence position that counsel was unable to provide meaningful legal advice on the election of trial until the defence received the outstanding disclosure and that section 11 (b) remains an issue. The Crown in court, who was not the assigned Crown stated:
“Ms. Nedelkopoulos is aware of this issue and I believe it’s the Crown’s position that there is more than enough disclosure ready to be able to decide the election. We can certainly set trial dates as they wait for the outstanding disclosure. And I understand that my colleague does suggest that there should be a continuing judicial pre-trial be set. So I’m content to adjourning for that purpose given the comments that have been made so far”.
The case was adjourned to March 9, 2022
[36] A second judicial pre-trial was held on February 24, 2022 before Justice Kozloff, at which time, according to an email from counsel for Mr. Gomes to the Crown on February 24, the officer-in-charge indicated that the TPS had “shipped” the “confession” of Mr. Gomes on October 13, 2021, and the Crown had been provided with a copy of the DNA warrant to review in September 2021.
[37] Ultimately, the warrant to obtain the DNA sample for Mr. Gomes was not issued until March 3, 2022, and Mr. Gomes attended at the Toronto Police Service on March 10, 2022 and March 14, 2022 to provide his DNA sample. The results of the DNA warrant were not disclosed to defence counsel until October 18, 2022.
[38] In an Agreed Statement of Facts filed on the day of the s.11(b) application, Crown and defence agreed that three DNA reports were prepared and were received by the Crown on June 3, 2022, and July 13, 2022. These reports were not disclosed to the defence until October 18, 2022 when they were first seen by the Crown in Crown counsel’s emails in response to the s.11(b) application.
[39] At the judicial pre-trial on February 24, 2022, the officer-in-charge indicated that the “confession” of the accused was shipped by the Toronto Police Service on October 13, 2021. In correspondence of March 1, 2022, the assigned Crown counsel stated to defence counsel “I was hoping I would be able to open them and then cross them off our list of outstanding disclosure on the trial date assignment sheet, but unfortunately I was not able to, so they remain outstanding.”
[40] In correspondence to the Crown following the February 24, 2022 judicial pre-trial, counsel for Mr. Gomes stated:
“Regarding election of mode of trial, the Crown is undertaking to consent to any re-election that Mr. Gomes wishes to make once we receive the DNA/confession. If the Crown does not have an admissible confession, and if the DNA comes back not belonging to Mr. Gomes, the Crown would have to reassess whether the Crown is proceeding with the charges against Mr. Gomes. We will be meeting on March 1 with the trial coordinator to set an eight day trial at the OCJ. As I indicated, once I receive all of the disclosure, there may be Charter applications (in relation to, inter alia, the DNA and “confession”). As such, additional time may be required for the trial”
[41] On March 9, 2022, the eight days of trial between January 3, 2023 and January 26, 2023 were set on the record, and the section 11(b) Charter application set for August 31, 2022. The s.11 (b) Charter application was re-scheduled to October 24, 2022 as I was assigned to be the trial judge, and was not available on the August 31, 2022 date.
[42] As of the hearing of this application, the defence still did not have any disclosure of the alleged utterances of their clients made at the time of their arrest on February 9, 2021.
The Crown and Defence Positions
[43] On behalf of Mr. Gomes, counsel submits in the circumstances of this case, in which the key issue is identification, in relation to an allegation of masked robberies, timely disclosure of his client’s alleged confession, and diligent action on behalf of the police and Crown in obtaining, and disclosing, the results of the DNA analysis, were essential for him to provide legal advice to his client on his mode of election, and for his client to make an election with respect to his mode of trial.
[44] The Applicant submits that the defence position was clear that this was essential information before an election could be made, and indeed was endorsed by Justice Breen at the August 26, 2021 judicial pre-trial. The Applicant submits that the Crown took no exception to this position, and subsequently agreed to the routine adjournment of the case at successive court appearances to allow the defence to obtain this information before making an election. The Applicant submits that this reflected the Crown’s acceptance of the result of the August 26 pre-trial that, before an election could be made, issues identified, and reasonable time estimates made, it was essential for the defence to have disclosure of the DNA results, and of the alleged “confession”.
[45] The Applicant submits that the Crown, for the first time, on January 5, 2022, took the position that the delay in making the election was defence delay, having failed to take any objection to the defence’s repeated position that it could not elect a mode of trial without the requested disclosure.
[46] The Applicant submits that, as disclosed by the above chronology, the Crown’s approach to disclosure in this case, and in particular the complete failure of the Crown to disclose either the police notes of the accuseds’ recorded statements to the police shortly after their arrest, or the recorded statements themselves, makes any delay in the setting of the trial date the responsibility of the Crown and not of the defence. In the circumstances of this case, he submits that the absence of this core disclosure, and the Crown’s lethargic approach to obtaining and disclosing the DNA results, left Mr. Gomes incapable of making an informed election, until March 1, 2022 when the Crown first agreed to consent to any re-election once full disclosure of these outstanding matters was made.
[47] The Crown submits that, while its record of disclosure is not perfect, the standard for Crown disclosure is not one of perfection. The Crown submits that, as first articulated in its email of January 5, 2022, the defence had adequate material to make an election and set trial dates as of the initial disclosure it had received by September 9, 2021, and that any delay in making its election thereafter was defence delay.
[48] The Crown submits that, from September 9, 2021 to March 1, 2022, when the Trial Date Assignment Sheet was completed, is 173 days of defence delay, which leaves the net delay in this case of 542 days or 17 months and 25 days. Accordingly, Crown counsel submits that the net delay in this case was under the presumptive ceiling of 18 months established by the Supreme Court of Canada in R. v. Jordan, and therefore the application should be dismissed.
Analysis
[49] To determine the relevant period of delay in a section 11 (b) Charter application, the total delay, which is the period from the swearing of the information to the actual or anticipated end of trial, must be first calculated. From the total delay defence delay must be subtracted which results in the net delay: R. v. Coulter, 2016 ONCA 704, at paras.34 -35.
[50] Apart from delay which is waived, of which it is agreed there is none in this case, defence delay is “delay caused solely by the conduct of the defence”: R. v. Jordan, supra, at para. 63. As the court makes clear in R. v. Jordan, at para. 65:
“… defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.”
[51] The Supreme Court summarized the requirements of deductible defence delay as follows in R. v. Cody, 2017 SCC 31 at para.30:
“The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.”
[52] The Supreme Court of Canada made it clear in Jordan that “all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts”: R. v. Jordan, supra, at para.116. In particular, the Supreme Court emphasized the duty on Crown counsel, particularly where the presumptive ceiling established in Jordan is breached, to have acted proactively to bring the accused to trial in a reasonable time. As the Court stated at paragraph 112 in Jordan:
“In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive, preventative problem solving. From the Crown’s perspective, the framework clarifies the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise.”
[53] On the facts of this case, I am unable to conclude that the period of delay from September 9, 2021 to March 1, 2022, a total of 173 days, is deductible defence delay. In my view, it was not solely caused by the conduct of the defence, and did not flow from defence action that was illegitimate in as much as it was not taken to respond to the charges.
[54] In this case, in which identification was the prominent issue, I accept the submission of counsel for Mr. Gomes that his client was not in a position to make an informed election as to mode of trial without, in particular, disclosure of the alleged “confession”, and timely disclosure of the results of DNA analysis which the Crown intended to rely upon at trial. Whatever delay may be associated with this position cannot be attributed solely to the defence, in circumstances where the position was advanced at a judicial pre-trial of August 26, 2021, and apparently was endorsed by the pre-trial judge Justice Breen, in circumstances where the Crown had been in possession since July 6, 2021 of at least police notes of the alleged confession and had failed to disclose them.
[55] In my opinion, if the Crown was of the view that the defence was taking an unduly technical position, which could result in the delay of the trial to a time outside of the presumptive ceiling established in Jordan, it had an obligation to say so promptly in response to the defence position, and take reasonable steps to ensure that the trial date could be set in a reasonable time. After all, it was the Crown that was aware that it had received a draft DNA warrant from the police in September 2021, but had not reviewed it for several months, thus ensuring that DNA results would not be forthcoming for many months.
[56] I accept the defence submission that, after the August 26, 2021 pre-trial, both counsel were operating on the basis that the pre-trial judge accepted that the defence needed further disclosure in order to make a meaningful election as to the mode of trial. Had the Crown at least disclosed the police notes of the alleged confession, which it received on July 6, 2021, prior to the August 26, 2021 judicial pre-trial, the defence’s problem may well have been resolved and the subsequent delay in setting trial dates avoided.
[57] Even without disclosure of the notes of the alleged “confession”, if disclosure of the DNA results was to be delayed for many months, the Crown could have taken reasonable steps to move the matter expeditiously towards trial. Firstly, it could have reconvened a judicial pre-trial before Justice Breen if it was clear that the DNA results could not soon be forthcoming. Case management could then have been used by the pre-trial judge to address the defence concerns about electing mode of trial in the absence of DNA results, while ensuring the matter remained on track for a trial or preliminary inquiry within the Jordan presumptive ceiling.
[58] Secondly, in light of the defence position, the Crown could have exercised reasonable diligence in ensuring that the DNA warrant was obtained in a timely way, and DNA results therefore available to the defence in a timely way, rather than delaying 5 months to finalize the warrant.
[59] Thirdly, it could have insisted in court appearances shortly after the August 21,2021 judicial pre-trial, that at the very least, a target date be set for a trial or preliminary inquiry if it became apparent to the Crown that the DNA disclosure was to be significantly delayed.
[60] What occurred in the circumstances of this case was that the Crown did none of the above to attempt to bring the accused to trial within the presumptive ceiling established by Jordan.
[61] Of crucial significance, in my view, was the failure of the Crown to appreciate that it had in its file, police notes of the accuseds’ statements to the police on July 6, 2021, and to disclose them to the defence before the August 26,2021 pre-trial. As a result, the defence was not in a position to make an informed decision about how to proceed as a result of this failure by the Crown, for which no explanation was provided on the hearing of this application As of October 24, 2022, neither these notes or an audio record of these utterances of the accused had been disclosed.
[62] In a pre-Jordan decision in R. v. Kovacs-Tatar, 2004 CarswellOnt 4805, the accused chiropractor was charged with the sexual assault of a patient. The accused refused three opportunities to set a trial date before it was set on March 13, 2002. By January 15, 2002, disclosure was available but some had not yet been picked up. All that was outstanding was the expert report. Rather than setting a trial date counsel sought an adjournment of almost 6 weeks to February 26, 2002 because he had not yet reviewed part of the disclosure on videotape. On February 6, 2002, the Crown asked that the trial date be set but counsel for the accused refused because a copy of the expert report was not available.
[63] It is important to note that, in that case, the Crown was proceeding summarily, so there was no right to elect the mode of trial. The Court of Appeal stated at para. 47 concerning counsel’s refusal to set a trial date because the expert report was not available:
“The Crown is obliged to make initial disclosure before the accused is called upon to plead or to elect the mode of his trial. See the comments of Sopinka J. in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.), at pp.13-14. In this case, since the Crown had elected to proceed summarily, election of the mode of trial was not an issue. Having regard to the length of time before trial, the appellant’s counsel knew the expert’s report would be completed many months before the appellant had to plead and the appellant would have had ample time to obtain his own expert’s report had he wished to do so. Also, because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its “Stinchcombe rights” by agreeing to set a trial date. Counsel for the appellant did not act reasonably in insisting that he receive the expert report before setting a trial date.”
[64] In R. v. Lahiry, 2011 ONSC 6780, Code J. considered two months of delay in an impaired driving case in which defence counsel refused to set a date for trial in a summary conviction matter until he received a revised toxicology report from the Crown. The main reason for asking that the toxicologist revise the report was to remove irrelevant references in the report to marijuana as the Crown could not prove any drugs in the accused’s system: R. v. Lahiry, supra, at paras,106,112. In these circumstances, Code J. was not satisfied that the revisions to the report were of real significance given that the main reason for the revisions was to remove inflammatory and irrelevant references to intoxication by marijuana, which was not part of the offence charged. It was in this context that Code J. stated at paragraph 114:
“In any event, as I read the above line of binding authority, outstanding disclosure can often be significant and it still cannot be used to hold up the setting of dates for trial or preliminary inquiry. Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to “crucial steps” in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense. Lawyers can generally adapt and adjust their trial strategy to ongoing disclosure, received from the Crown while awaiting trial. If the Crown is not being diligent in providing disclosure sufficiently in advance of the trial date, then setting confirmation dates and target dates for trial will solve the problem. By bringing the case back to court, a month or two before the target trial date, defence counsel can create a check to prevent dilatory Crown disclosure practices. If the Crown has not completed all important disclosure by the confirmation date, the defence can then adjourn the target trial date and the Crown’s actions will have caused the delay.”
[65] I accept the wisdom of Justice Code’s analysis, but note that he accepts that when missing disclosure is truly material to “crucial steps in the process, like election and plea” it can justify delay in setting trial dates. It is hard to imagine disclosure more crucial to decisions on election and plea, in a case where the key issue is identification, than an alleged “confession” and DNA analysis.
[66] I do not doubt that in many circumstances of outstanding significant disclosure, trial dates should be set, where reasonable trial estimates can be made, and follow-up case management used to ensure that the case is properly on track for trial by ensuring that all outstanding disclosure is made in a timely way.
[67] In the circumstances of this case, in light of the Crown’s failure to respond to the defence position by acting diligently to review the DNA warrant in its possession since September 2021, to ensure the expeditious securing of the DNA evidence, or initiating further case management to keep the matter on track for trial within the Jordan presumptive ceiling if it was clear that the DNA results would be significantly delayed, and in light of the Crown failure to make core disclosure of at least the police notes of the accuseds’ statements, which it has had since July 6,2021, and to take reasonable steps to obtain the audio of the videotaped statements, I cannot conclude that the 173 days of delay between September 9, 2021 and March 1, 2022 is solely attributable to the defence.
[68] The Crown failed to disclose even the notes of the alleged confessions which it had available as of July 6, 2021. The Crown was in possession of these notes prior to the pre-trial before Justice Breen, and yet the pre-trial proceeded as if there was no disclosable record of the statements.
[69] Furthermore, on the record before me, the Crown took no meaningful steps to obtain the videos of the statements which had been received by the Crown without audio in September 2021. It was open to the Crown to use the pre-trial case management process, to ask that the officer in charge of the investigation be ordered by a pre-trial judge to be present, to obtain judicial assistance in getting full disclosure to the defence of the missing audio and video recording of the confessions, (or have a transcript of the statements prepared if the video statements could not be successfully transmitted for disclosure) and to use case management to diligently commit to a schedule for the finalization of the DNA warrant, to ensure that the defence obtained the DNA results in a timely manner while securing a trial date within the Jordan presumptive ceiling.
[70] Instead, the Crown consented to the routine adjournments in court on the basis that the defence needed the results of the DNA analysis to make an election, from September 2021 until January, 2022, when it first advised the defence of its position that the defence was causing delay by insisting on the DNA results before setting a trial date. This acquiescence by the Crown occurred notwithstanding the fact that it knew it had not even reviewed the DNA warrant received in September from the police, and therefore that the DNA warrant had not issued, some 5 months after the pre-trial with Justice Breen where waiting to obtain DNA results before setting a trial date was discussed. Furthermore, the Crown knew that it had not succeeded in receiving and disclosing useable copies of the accuseds’ statements to the police.
[71] Accordingly, I find that none of the delay in this case is solely or directly caused by the accused or flows from defence action that is illegitimate insofar as it is not taken to respond to the charges. The net delay therefore is 23 months and 16 days.
Exceptional Circumstances
[72] Accordingly, the delay in this case is presumptively unreasonable. As stated by the Supreme Court of Canada in R. v. Jordan at paras. 68-70:
“Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful-rather, just that it took reasonable steps in an attempt to avoid the delay.”
[73] As the Supreme Court noted in R. v. Jordan, the second category of exceptional circumstances that may justify net delay in excess of the presumptive ceiling are cases that are particularly complex. As the Supreme Court stated in R. v. Jordan, supra, at paragraphs 77–78:
“Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications: novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interests of justice to do so, may also impact the complexity of the case.
A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.”
[74] However, where a case has aspects of complexity, such as DNA evidence requiring expert analysis, the Crown has an obligation to develop and follow a concrete plan to minimize the delay occasioned by such complexity: R. v. Jordan, supra, at para.79. As the Court notes in Jordan at para.79:
“Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control.”
[75] The Crown submits that the fact that this case involves six different robberies that involve DNA evidence and video surveillance makes it a sufficiently complex case to justify delay over the presumptive ceiling.
[76] I note that the trial has been set for eight days with 12 to 15 Crown witnesses, some of whom require an interpreter. The Crown submits in its factum that the disclosure made amounts to slightly over 800 pages, and now includes expert DNA reports from three forensic experts. The Crown submits that the involvement of DNA evidence, along with the volume of disclosure, makes this a complex case.
[77] As each of the six robberies involves an allegation of robbery by a masked robber, it was clear from the date of the arrests, when DNA samples had been obtained, and an alleged “confession” obtained from Mr. Gomes, that the essential evidence in this case on the central issue of identification, would be the DNA analysis obtained, and the alleged utterances of Mr. Gomes.
[78] In these circumstances, the Crown’s obligation, pursuant to R. v. Jordan, should the case appear to be one of unusual complexity, was to follow a concrete plan to minimize the delay occasioned by such complexity. In the context of this case, that would have involved the timely review and disclosure of the officers’ notes of the utterances of both accused, and addressing the disclosure issues surrounding the video-taped statements of both accused, to ensure that this important evidence was available to the defence, and the pre-trial judge, before the August 26, 2021 judicial pre-trial.
[79] Given the importance of the DNA analysis, it was incumbent on the Crown to demonstrate diligence in reviewing the draft DNA warrant obtained from the police in September 2021, to obtain the sample of the DNA from Mr. Gomes in a timely way, so that the expert DNA opinions were received in a timely way. As the facts above demonstrate, none of these steps were taken by the Crown to minimize the delay which occurred as a result of these aspects of this prosecution.
[80] In summary, I am not persuaded that this can be reasonably categorized as a particularly complex case but, even if it is considered to be complex, the Crown failed to take the necessary steps to minimize the delay associated with the features of the case which contributed to any complexity.
[81] In its factum, the Crown also submits that the increased administrative functions imposed on Crown counsel during the Covid-19 pandemic resulted in an increase in the time required to review and provide disclosure to counsel. However, no evidence was lead in support of this submission. On the record before me, I cannot conclude that the significant failures in disclosure, which existed up to the hearing of this application on October 24, 2022, were attributable to the exceptional circumstance of the COVID-19 pandemic.
Conclusion
[82] Accordingly, in my opinion the net delay in this case is equivalent to the total delay of 23 months and 16 days which is over the presumptive ceiling of 18 months established in R. v. Jordan. In my opinion, the Crown has not rebutted the presumption that the delay in this case is unreasonable by showing exceptional circumstances, or particular complexity which it took reasonable steps to minimize. Indeed, the delay in this case was substantially the result of the failure of the Crown to make timely disclosure of the statements of the accused taken by the police upon their arrest on February 9, 2021, and the failure of the Crown to diligently review and finalize the draft warrant to obtain DNA samples received from the police in September 2021, and not finalized until March 3, 2022.
[83] As the presumptive ceiling established in R. v. Jordan was exceeded, and exceptional circumstances have not been demonstrated by the Crown, the application is granted and a stay is entered pursuant to section 24 (1) of the Charter of the charges against both Mr. Gomes and Ms. Downey in the information scheduled for trial commencing January 3, 2023.
Dated: November 22, 2022
Justice David M. Porter