REASONS FOR JUDGMENT

ONTARIO COURT OF JUSTICE DATE: 2023.03.24 COURT FILE No.: Toronto # 20-55002386

BETWEEN:

HIS MAJESTY THE KING

— AND —

WENDELL BRERETON

Section 11(b) of the Charter of Rights and Freedoms

Heard on: March 10, 2023 Released on: March 24, 2023

Counsel: Mr. J. Frost, counsel for the Crown Mr. A. Karapancev, counsel for Mr. Brereton

BAND J.:

I. Introduction

[1] On August 20, 2020, Wendell Brereton was charged with sexual assault and careless storage of a firearm. His trial is set to take place from May 1st to 4th, 2023. That is over 32 months after he was charged. Put another way, it is almost twice as long as the 18-month ceiling set by the Supreme Court of Canada for matters such as this: see R. v. Jordan 2016 SCC 27. As a result, Mr. Brereton asks for a stay of his charges, pursuant to s. 11(b) of the Charter.

[2] When an accused person’s right to trial within a reasonable time has been violated, the only remedy, albeit drastic, is a stay of proceedings. I have found that Mr. Brereton is entitled to a stay of proceedings. The following reasons explain why.

II. Brief Summary of the Facts

[3] Because of the parties’ concessions and focused advocacy, the big picture can be presented very briefly.

[4] Mr. Brereton has been represented by two lawyers since he was charged. His first lawyer was involved from late March 2020 to early November 2021. His current counsel, Mr. Karapancev, took over in early December 2021.

[5] Mr. Brereton’s first lawyer did little to move the matter forward. By the end of his seven-and-a-half-month involvement, a Crown pre-trial had not been held, despite the Crown’s repeated requests for a Crown or Judicial Pre-Trial conference. Based on the transcripts, it appears that retainer issues were the main problem.

[6] In contrast, once Mr. Karapancev was retained, he moved quickly. Before his first attendance on the record, he had requested key disclosure that had not been obtained by the previous lawyer, including a copy of the complainant’s video statement. He then did his part to get the case ready to be set down for trial. The Crown acknowledges that delays involving the disclosure of the complainant’s statement slowed things down. In June 2022, trial dates were offered. Mr. Karapancev was not available for two separate dates in March 2023, and the trial was set for the first four days of May 2023. The delay between June 2022 and the first dates offered was over nine months.

III. Positions of the Parties

[7] The parties agree that:

• The total delay is over 32 months.
• The complainant’s video statement is key disclosure in this “he said/she said” case.
• Mr. Brereton’s first lawyer did not receive that statement. There is no evidence that he requested it.
• Based on its disclosure tracking system, which was in a state of transition at the time, the Crown believed that the complainant’s video statement had been disclosed well before Mr. Karapancev was retained. This proved to be an error.

[8] The Crown does not argue that any exceptional circumstances were at play in this case.

[9] Mr. Karapancev was unavailable for 11 days between the first and second sets of trial dates offered in March 2023. He concedes that that period must be subtracted as defence delay. While he was unavailable for four consecutive days between March and the trial dates set for May 2023, he does not concede that that period of five to six weeks is subtractable. This is because there is no evidence that the Court and the Crown were available during that period. I agree with him about that, given what is stated in Jordan at para. 64.

[10] The Crown argues that this is a below-the-ceiling case and that the burden rests on Mr. Brereton to demonstrate that the delay is unreasonable. The basis for his position is that Mr. Brereton’s first lawyer did so little to move the case forward and, in not requesting the complainant’s video statement or advising the Crown that it had not been disclosed, he failed to demonstrate the due diligence required of him. The Crown submits that the entire 15-and-a-half month period from the date of the charge to the onset of Mr. Karapancev’s involvement must be subtracted from the total delay, along with the month and 19 days between the first offered trial dates and the actual trial dates. The net delay, then, would be just over 15 months.

[11] Mr. Karapancev’s argues that this is an above-the-ceiling case; therefore, the Crown bears the burden to demonstrate that the delay was not unreasonable. He does not concede that the entire period during which Mr. Brereton’s first lawyer was involved ought to be subtracted from the total delay. This is because that lawyer took some steps on Mr. Brereton’s behalf. He also points out that the date of Mr. Brereton’s first appearance in court, November 18, 2020, was 11 weeks after the charges were laid. What is more, on that date, no disclosure was provided. He also argues that Legal Aid Ontario was slow to act on Mr. Brereton’s legal aid application. That said, even if the entire period of Mr. Brereton’s first lawyer is subtracted from the total delay, the net delay is 18 months and 12 days. As Mr. Karapancev put it, this case cannot be saved.

IV. The Issues

[12] Because of the parties’ concessions, agreements and focused advocacy, the issue that I need to resolve boils down to the question of who bears the burden. This, in turn, depends on how much of the 15-and-a-half months before Mr. Karapancev became involved ought to be subtracted from the total delay. The 11-week period before Mr. Brereton’s first appearance is the keystone.

V. Analysis

[13] Contrary to the Crown’s position, I would not subtract the 11 weeks between the charge date and the first appearance. To do so would be inconsistent with the “Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time” (Jordan, at para. 112). It is also inconsistent with the fact that “defence delay is delay caused solely by the conduct of the defence” (Jordan, at para. 63 – my emphasis). The police chose November 18, 2020. Mr. Brereton had no say in the matter. Also, no disclosure was available on that date.

[14] As a result, I agree with Mr. Karapancev. Even if the entire tenure of Mr. Brereton’s first lawyer is subtracted, the net delay is over the 18-month ceiling by 12 days. The net delay is presumptively unreasonable. The Crown is unable to demonstrate that it is nonetheless reasonable.

[15] It is unnecessary for me to determine the portion of Mr. Brereton’s involvement that ought to be subtracted as defence delay, because it is immaterial to the outcome of this case. In a different case, where that question mattered, some of the delay would be attributed to his failure to move the matter forward within the scope of his retainer. Jordan and subsequent authorities require everyone to be proactive.

[16] The Crown submitted that the matter was “not straightforward” because it involved s. 276 and 278 pre-trial motions that had to be scheduled with the trial judge. He also submitted that a net delay of 18 months and 12 days does not represent what had happened in this case: namely that Mr. Brereton’s first lawyer had not been diligent, and that Mr. Karapancev had to start from scratch. While that may be true, it too is immaterial, given that the net delay exceeds the ceiling. The Crown’s concerns also gloss over the lengthy institutional delay prior to the trial dates that were eventually offered. Simply put, this case should have been tried in under 18 months.

VI. Conclusion

[17] Mr. Brereton’s right to a trial within a reasonable time has been violated. The charges against him will be stayed.

Addendum – Lessons Arising from this Case

[18] While this application was something of a “Hail Mary” for the Crown, there are lessons to be learned from it.

The first appearance date

[19] Absent something exceptional, an 11-week delay between charge and first appearance is unacceptable. If this is a common issue, Crown counsel should advise police forces accordingly.

Limited scope retainers

[20] Mr. Brereton’s first lawyer was acting pursuant to a limited scope retainer. On his first attendance, he described his mandate clearly: “I’m retained to basically look at disclosure and have my meetings and conduct a CPT at this stage” (Transcript of Proceedings, March 24, 2021, at p. 2). Of course, there is nothing wrong with limited scope retainers. However, when they extend no further than Crown Pre-Trial Conferences, that is a signal to the Crown to keep a keen eye on the progress of the case. By definition it is possible, if not likely, that counsel will eventually cease to act for the accused person. Crown counsel should be prepared for what that entails.

Lengthy delays from trial readiness to offered trial dates

[21] The delay between June 2022 and the first dates offered was over nine months. Given the prior history of this case, that delay was unacceptable. It should have prompted the Crown to at least look at its inventory to see if another matter could be displaced. This is what Jordan requires. At para. 112, the majority of the Court wrote that, by seeking “to enhance accountability by fostering proactive, preventative problem solving,” the new framework would motivate the Crown “to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise.”

One-month adjournments

[22] For as long as I can remember, one-month adjournments have been a quasi-customary feature of the preparatory stages of a case in the criminal courts. In this case, Mr. Brereton’s first lawyer attended court on 10 occasions. On five of them, adjournments of one month or longer were granted. No questions were asked as to why that length of time was proportionate to the reason for the request. This approach is a vestige of the culture of complacency that the Supreme Court of Canada sought to jettison in Jordan. As this application demonstrates, a period of less than two weeks can make or break a case. One month should not be seen as the fundamental block of time in set-date or case-management court.

Released: March 24, 2023 Justice Patrice F. Band